USHA BRECO LIMITED Vs. COMMISSIONER OF LAND REVENUE

JUDGEMENT

(1.) THIS writ petition is filed seeking for a direction to quash Exts.P4, P5, P15, P16 and P17 and also for a declaration that respondents 1 and 2 have no power to cancel the lease deed in terms of Rule 21 of the Kerala Land Assignment Rules, 1964 (hereinafter referred to as 'the KLA Rules') and for other consequential benefits.

(2.) THE facts involved in the writ petition would disclose that as per Ext.P1 Government order G.O.(MS) No.503/88/GAD dated 24/12/1988, the Government agreed to provide 1600 Sq.Meters of Government land on lease to the petitioner for a period of 33 years for execution, running and maintenance of Passenger Ropeway System. The petitioner was also permitted to mortgage the said land for obtaining institutional finance. The petitioner was granted advance possession of the land as per G.O.(MS) No.592/89/FD dated 25/7/1989. After considering the proposal in detail, the Government sanctioned lease of an extent of 660 Sq.Meters in Sy.No.698/2 of Malampuzha -I village and a further extent of 1000 Sq.Meters in Sy.No.67A/7C1 in Malampuzha -II village for a period of 33 years at a lease rent of 18% of the market value of the land per annum at the rate of Rs.800/ - per cent in Malampuzha I village and Rs.500/ - per cent in Malampuzha II village. The terms and conditions were stipulated in G.O.(MS) No.705/89/RD dated 03/10/1989. It was provided that the lease rent will be revised by mutual consent every five years. Further, it is stated that the lease also will be subject to the usual conditions under the KLA Rules, in addition to certain special conditions mentioned therein. Pursuant to the said Government Orders, necessary agreement was also executed between the parties stipulating the various terms and conditions.

(3.) ACCORDING to the petitioner, they were running a rope way at Malampuzha Gardens from 1991 onwards. Though specific provision was made as per the Government Orders and as per the terms of the agreement that lease rent can be revised by mutual consent, the 4th respondent Tahsildar has unilaterally enhanced the rent as per Ext.P4 proceedings dated 17/04/1999. Rent was fixed at Rs.26,400/ - and Rs.40,000/ - in respect of two items of property, based on 20% of the market value of land. Challenging Ext.P4, the petitioner preferred an appeal under Rule 21 of the KLA Rules. The appeal was allowed remitting the matter back to the Tahsildar for fresh consideration observing that as per the agreement, the rate fixed was 18% of the market value. Petitioner preferred a revision before the Government. But, in the meantime, steps were taken for recovery of the amount. Petitioner filed O.P.No.31549 of 1999 before this Court. By judgment dated 28/10/2005, this Court directed the Land Revenue Commissioner to pass final orders in the revision filed by the petitioner. The 1st respondent passed Ext.P12 order directing the District Collector to convene a meeting and to arrive at an amicable solution in the matter. Meetings were convened by the District Collector on several occasions, but no orders were passed. Thereafter the petitioner was faced with orders at Ext.P15 dated 03/10/2013 from the Government cancelling the lease on account of failure on the part of the petitioner to pay the lease rent on the basis of the market value of the land. Pursuant to Ext.P15, Ext.P16 stop memo has been issued. According to the petitioner, Tahsildar has passed an order at Ext.P17 on 30/10/1999, which the petitioner was totally unaware of, fixing the rent at Rs.23,760/ - with effect from 16/11/1994 and Rs.38,610/ - with effect from 16/11/1999 in respect of property coming under Malampuzha I vilage and Rs.36,000/ - with effect from 16/11/1994 and Rs.58,500/ - with effect from 16/11/1999 with respect to property coming under Malampuzha II village. According to the petitioner, the terms of the contract do not enable the Government to revise the rent unilaterally as the contract specifically provided that the enhancement of rent shall be revised by mutual consent every five years. Specific reference is made to Clause 4(a) of the agreement which reads as under: