Coronation Club vs The State Of Kerala
2021 Latest Caselaw 1197 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

   WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942

                       WP(C).No.19030 OF 2020(C)


PETITIONER/S:

                CORONATION CLUB,
                MOULANA AZAD ROAD, MATTANCHARRY, KOCHI-682 002
                REP. BY ITS HON.SECRETARY, VISWANATH AGARWAL, HOUSE
                NO.8/1699, MULLAKKAL BHAGAVATI TEMPLE LANE, KOCHI-2.

                BY ADV. SRI.A.K.HARIDAS

RESPONDENT/S:

      1         THE STATE OF KERALA,
                REP. BY SECRETARY TO THE GOVERNMENT, DEPARTMENT OF
                LAND REVENUE, THIRUVANANTHAPURAM, PIN - 695 001.

      2         THE COMMISSIONER,
                DEPARTMENT OF LAND REVENUE, VIKHAS BHAVAN P.O.,
                THIRUVANANTHAPURAM, KERALA-695 033.

      3         THE DISTRICT COLLECTOR,
                CIVIL STATION, KAKKANAD, ERNAKULAM-682030.

      4         THE TAHASILDAR,
                KOCHI TALUK OFFICE, KOCHI-682 507.



                SRI.JAFAR.Y.KHAN FOR ADDL.AG


     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
13.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.19030 OF 2020              2



                                JUDGMENT

Under challenge in this Writ petition filed under Article 226 of the

Constitution of India is the order dated 19.05.2020 issued by the

Government whereby the petitioner was ordered to pay an amount of Rs

1,37,45,865/ towards lease arrears. By the very same order, property having

an extent of 26 cents has been ordered to be resumed. The petitioner also

challenges the consequential notice issued by the Tahsildar calling upon the

petitioner to pay a sum of Rs 2,56,33,270/ being the lease arrears for the

period from 2007 to 2020.

2. According to the petitioner, the Coronation Club was established

in the year 1912 at Mattanchery in property having an extent of 45 cents in

Sy No 460/3 granted by the then Diwan Peshkar by Exhibit P1 deed. What

was then payable was nominal rent of 4 Annas. The club was established

and later it was registered under the Travancore Cochin Literary Scientific

and Charitable Societies Act, 1955. Later the State Government refixed the

rent as Rs 50/- in the year 1959. The petitioner asserts that Exhibit P1

would reveal that the lease granted was a permanent lease and this fact is

acknowledged in Exhibit P2 communication issued by the Tahsildar to the

District Collector. It is contended that without any prior notice, Exhibit P3

notice was served on them demanding a sum of about 2.5 Crores towards

arrears of lease. On further enquiry, the petitioner realised that it was on the

basis of Exhibit P4 order issued by the Government, that Exhibit P3 notice

was issued. It is contended that Exhibit P4 order cannot be sustained as the

same has been issued in blatant violation of the provisions of the law. No

prior notice was issued to the petitioner nor they were afforded an

opportunity of being heard.

3. It is in the afore circumstances that this Writ Petition is filed

seeking to quash Exhibits P3 and P4.

4. The 4th respondent has filed a counter affidavit stating that the

Government invoking the provisions of Section 7 of the Kerala Land

Assignment Act, 1966 has framed Rules for Assignment of Land within the

Municipal and Corporation Areas Rules, 1995. As per the provisions of the

Rules the lease holder has to file an application for renewal of the lease

obtained under any Rules or order. It is further stated that the petitioner has

remitted the lease amount only up to the year 2000 and they have not

submitted any application in accordance with Rule 12 of the 1995 Rules.

According to the 4th respondent, after the commencement of the 1995

Rules there cannot be any permanent lease in the Municipal or Corporation

areas.

5. I have considered the submissions advanced.

6. From the counter affidavit filed by the 4th respondent, it is

apparent that it was in exercise of powers under the Assignment of Land

within Municipal and Corporation Area Rules, 1995 that the lease was

refixed and the land was ordered to be resumed.

Rule 17 of the Rules of 1995 reads as follows:

"17. Contravention of terms and conditions and resumption of land.- Any assignment on registry or lease shall be liable to cancellation for contravention of any of the conditions enumerated in the Pattah and in such case of land shall be resumed. The Pattah or lease shall also be cancelled if it is found that it was grossly inequitable or was made under a mistake of facts or owing of misrepresentation of facts or in excess of the powers delegated to the Assigning Authority or that there was an irregularity in the procedure:

Provided that the person affected by such cancellation of pattah or lease and resumption of land shall be given an opportunity of being heard in person before passing such orders."

7. The rules mandate that before cancellation of patta or lease and

resumption of land, an opportunity needs to be given to the party and he

shall be heard in person. In the case on hand, there is no case for the

respondent that the notice as per the Rules was issued to the petitioner or

that they were heard under Rule 17 before the rent was refixed. As held by

the Apex Court in Union of India v. Tulsiram Patel 1, the right to be

heard has two facets, intrinsic and instrumental. The intrinsic value of that 1 [(1985) 3 SCC 582]

right consists in the opportunity which it gives to individuals or groups

against whom decisions taken by public authorities operate, to participate in

the processes by which those decisions are made, an opportunity that

expresses their dignity as persons. The instrumental facet of the right of

hearing consists in the means which it affords of assuring that the public

rules of conduct, which results in benefits and prejudices alike, are in fact

accurately and consistently followed. The records clearly show that the

petitioner was not granted a pre-decisional hearing before ordering

resumption and refixation of rent as mandated under the Rules. In that

view of the matter, I am unable to sustain Exts.P3 and P4.

Having considered all the relevant facts, I quash Exts.P3 and P4.

Notice shall be issued to the petitioner as required under Rules 1995 and

fresh orders shall be passed as per procedure and in consonance with law.

This writ petition is disposed of.

SD/-

RAJA VIJAYARAGHAVAN V

JUDGE DSV

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE ORIGINAL DEED DATED 18TH MEENAM 1089 ME(05-03-1914 AD) OF MALAYALAM ERA ALONG WITH A TYPEWRITTEN COPY.

 EXHIBIT P2          A TRUE COPY OF THE LETTER DATED
                     23.07.2011 SHOWING PERMANENT LEASE.

 EXHIBIT P3          TRUE COPY OF THE NOTICE ISSUED BY THE 4TH
                     RESPONDENT DATED 07.09.2020.

 EXHIBIT P4          THE TRUE COPY OF THE G.O.(K).
                     NO.135/2020/REVENUE DATED 19.05.2020.

 EXHIBIT P5          THE TRUE COPY OF THE ENDORSEMENT DATED
                     07.07.2020 BY THE DISTRICT COLLECTOR

 EXHIBIT P6          THE TRUE COPY OF THE BALANCE SHEET ON 31-
                     03-2020 DATED 01.06.2020.

 EXHIBIT P7          THE PHOTOGRAPH SHOWING THE FOOTBALL TURF

 RESPONDENT'S/S EXHIBITS:

 EXHIBIT R4(A)       TRUE COPY OF THE NOTICE DATED 07.09.2020.

 EXHIBIT R4(B)       TRUE COPY OF MAHAZAR DATED 11.09.2020.

 EXHIBIT R4(C)       TRUE COPY OF GO(MS) NO.74/10/RD DATED
                     22.02.2010.


                                       //TRUE COPY//   P.A.TO JUDGE