CHOVVA EDUCATIONAL SOCIETY Vs. STATE OF KERALA

JUDGEMENT

(1.) Whereas the appellant, petitioner in the original lis, is a tenant, Arakkal Aadiraja Sajida Beebi, the 5th respondent herein, is the land owner. The land and buildings were leased out to the appellant for building up and conducting a high school. It was initially let out by the predecessor of the 5th respondent, Mariyumma Beevi, the former president of the appellant society on an yearly rent of Rs. 400/- on 29th October, 1947, Admittedly the property is still used for conducting the high school. There was no renewal of rent and therefore the 5th respondent claiming the property to be commercial filed an application under Section 106 of the Kerala Land Reforms Act read with Rule 142 of the Rules framed thereunder for fixation of fair rent. It has been the case of the 5lh respondent that marupattom was executed for a meagre amount only due to the fact that the tharwad belonged to one Muslim Kingdom and benevolence of her predecessor. After coming into effect of the Kerala Land Reforms Act the 5th respondent and her family disposed of the properties and there was an agreement for replacing the bungalow for new building and an amount of Rs. 2500/- was to be reduced in the amount of structures in case of vacating the property subject matter of lease. The appellant was collecting fees from the students in spite of enjoying benefits from the Government and the land leased out to them. The 5th respondent claimed that the amount offered for removal of bungalow for new building will not be given to her. The property was situated in a very important locality in Chovva and on the side of a National Highway. It is broadly on the pleadings as mentioned above, that the 5th respondent claimed refixation of fair rent. The Special Deputy Collector exercising the powers of Land Tribunal under the provisions of the Kerala Land Reforms Act vide orders dated 23.7.1999 held that 5th respondent is entitled to refixation of rent at the rate of Rs. 2000/- per month from 20.5.1979 to 19.5.1991 and rent at the rate of Rs. 5000/- per month from 20.5.1991 onwards. The appellant was to pay the arrears of rent with 10% interest to the 5th respondent from the date of the order. The Land Tribunal on the basis of the order dated 23.7.1999, Ext. P2, on an application filed by the 5lh respondent for realisation of the arrears of rent, by observing that the appellant had not complied with the order of the Tribunal issued a requisition to the District Collector, Kannur for recovery of the amount as arrears of land revenue. The orders Exts. P2 and P4 were challenged by the appellant by way of an Original Petition bearing No. 19769 of 2000 which has been dismissed by a learned Single Judge of this Court vide judgment dated 15th July, 2004. It is against this order of the learned Single Judge that the present writ appeal has been filed.

(2.) Before we might proceed any further in this case we would like to mention that by a detailed order dated 24th August, 2004 a learned Division Bench then seized of the appeal dealing with all the contentions of the learned Counsel for the parties granted stay pending disposal of the Writ Appeal. The learned Division Bench while granting stay to the appellant made a reference to Sections 3(1)(iii), 73(8) and 106 of the Kerala Land Reforms Act. The Court also took into consideration a Division Bench judgment of this Court in Joseph v. Gulam Gasool 2002 (1) KLT 328 relied on behalf of the appellant and a judgment of this Court in Aliyar v. Pathu 1988 (2) KLT 446 relied on by the 5th respondent. The Court also took into consideration the contentions raised on behalf of the 5th respondent that every Tribunal had inherent powers to resort to the provisions of the Kerala Revenue Recovery Act, but, as mentioned above, by a detailed order granted stay which is continuing till date.

(3.) It has been the common case of parties that lease in favour of the appellant was for commercial purposes. The law laid down by this Court in Joseph v. Gulam Gasool (supra) that the Land Tribunal has no jurisdiction to entertain the application with regard to matters exempted from the operation of entire provision of Section 26 in the case of industrial or commercial putposes falling within the ambit of Clause (iii) of Sub-section (1) of Section 3 of the Land Reforms Act, 1963 is not in dispute either. It is relevant to mention here that the learned Single Judge in the impugned judgment referred to the Division Bench judgment of this Court in Joseph v. Gulam Gasool, (supra), but dismissed the Original Petition by observing that in the absence of any express statutory provision the Land Tribunal must be conceded necessary power to implement its order effectively. As otherwise, the power conferred under Section 106 for variation of the enhancement of rent will be rendered futile. In support of this view, the learned Single Judge placed reliance upon the decision of this Court in Aliyar v. Pathu 1988 (2) KLT 446 and M.G. University v. Millu Dandapani 2000 (1) KLT 351 : 2000 (1) KLJ 1. Without disputing the correctness of the decision rendered by the Division Bench of this Court in Joseph v. Gulam Gazool (supra) the impugned judgment is sought to be defended on the very ground taken by the learned Single Judge as mentioned above.