Anoop Babu v. State of Kerala and The Revenue Divisional Officer, Fort Kochi

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN`** ``` TUESDAY, THE 13[TH] DAY OF JUNE 2023 / 23RD JYAISHTA, 1945 WP(C) NO. 19240 OF 2021 ``` ## **`PETITIONER:`** ``` ANOOP BABU AGED 58 YEARS MALAYIL HOUSE, PONNETH TEMPLE ROAD, CHILAVANNOOR, KADAVANTHARA, ERNAKULAM - 682020, REPRESENTED BY POWER OF ATTORNEY HOLDER, JOSEPH FRANCIS STERNAL RODRIGUES, AGED 58 YEARS, S/O. ANTONY RODRIGUES, OLGA VILLA, PRASANTHI NAGAR, EDAPALLY, KOCHI - 682024. BY ADVS. K.T.THOMAS MATHEW BOB KURIAN NIKHIL BERNY ASHWIN JOSEPH PAUL ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM - 695001.`** - **`2 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, FORT KOCHI, KOCHI - 682001. SRI.S.RANJITH, SPL.GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 19240 OF 2021 ``` ``` 2 ``` ## **`JUDGMENT`** ## **Dated this the 13[th] day of June, 2023** This writ petition is filed seeking the following prayers: _“(a) To issue a writ of certiorari or other appropriate writ, order or direction quashing Ext-P8 order passed by the 2[nd] respondent._ _(b) To issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to refund the sum of Rs.16,24,896/- remitted by petitioner pursuant to Ext-P8 order without delay._ _(c) To issue a writ of mandamus or other appropriate writ, order or direction directing the 2[nd] respondent to consider and pass orders on Ext-P9 representation expeditiously, after hearing the petitioner._ _(d) To grant such other and further reliefs as this Hon’ble court may deem fit to grant in the facts and circumstances of the case._ _(e) To issue a writ of certiorari or other appropriate writ, order or direction quashing Ext-P10 order passed by the 2[nd] respondent._ ” 2. Heard the learned counsel for the petitioner and the learned Special Government Pleader appearing for the respondents 3. It is submitted by the learned counsel for the petitioner that the petitioner, who is the owner of 2.17 Ares of property in Survey No.378/2-2 of Elamkulam Village, Kanayannur Taluk in Ernakulam District, had submitted an application in Form 6 under Section 27A of ``` WP(C) NO. 19240 OF 2021 ``` ``` 3 ``` the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred as ‘the Act’) seeking permission to use the land for construction purposes. It is submitted that by Ext.P8 order dated 26.02.2021, the 2[nd] respondent granted permission for use of the land for other purposes. However, it is submitted that the petitioner was required to pay an amount of Rs.16,24,896/- as fees for the conversion at 30% of the fair value of the property. 4. The learned counsel for the petitioner submits that the issue stands covered by the judgment of a Division Bench of this Court in **Baby M.K. and others v. District Collector, Ekm and others** [2021 (6) KLT 316] as also in **Jaganadhan v. State of Kerala** [2023 (2) KHC 401]. It is submitted that this Court in **Baby M.K. and others v. District Collector, Ekm and others** (cited supra) had considered the validity of a circular dated 23.07.2021 limiting the benefit of free conversion for property having an extent of less than 25 cents to applications under Section 27A of the Act submitted before 25.02.2021. After considering the contentions advanced, the Division Bench of this Court held that the circular issued by the State ``` WP(C) NO. 19240 OF 2021 ``` ``` 4 ``` Government dated 23.07.2021 fixing the cut off date of 25.02.2021 for considering Section 27A applications without fee in respect of properties having an extent of less than 25 cents was bad in law. It was on the ground that the persons who have less than 25 cents of land as on 30.12.2017 and who are entitled to file applications under Section 27A of the Act for conversion of such land without paying any fees form a homogeneous class and that there is no basis for a further micro-classification on the basis of the date of issuance of the amendment, that is, 25.02.2021. 5. In **Jaganadhan v. State of Kerala** (cited supra), a learned Single Judge of this Court considered the claim for refund of amounts paid without considering the exemption as granted by the amendment dated 25.02.2021. Relying on the judgment of the Division Bench in **Baby M.K. and others v. District Collector, Ekm and others** (cited supra), this Court held that persons who were holding up to 25 cents of unnotified land are entitled to exemption in the matter of payment of fees for permissions under Section 27A of the Act. It was therefore held that where amounts are collected without any constitutional or ``` WP(C) NO. 19240 OF 2021 ``` ``` 5 ``` statutory basis, the persons who have paid such amounts would be entitled to refund whether the claim is made in a suit or in an application under Article 226 of the Constitution of India. It is submitted by the learned counsel for the petitioner that the judgment has been taken up in appeal unsuccessfully by the State. 6. The learned Special Government Pleader appearing for the respondents submits that, in the instant case, the petitioner had initially submitted an application under the Kerala Land Utilization Order on 21.10.2017. Thereafter, it is contended in the writ petition that a Form 6 application had been submitted by him after the introduction of Section 27A in the Act by amendment dated 30.12.2017. This fact is borne out by the pleadings and the materials on record in the writ petition. It is contended by the learned Special Government Pleader that the fee had actually been paid by the petitioner on 20.01.2021, that is, before the amendment dated 25.02.2021 came into effect. It is contended that since the fee was paid on the basis of the law as it stood at the relevant point in time, the petitioner would not be entitled to claim any refund of the same. ``` WP(C) NO. 19240 OF 2021 ``` ``` 6 ``` 7. Having considered the contentions advanced, I notice that the issue with regard to payment of fees for property having an extent of less than 25 cents has been pointedly considered by the Division Bench of this Court in **Baby M.K. and others v. District Collector, Ekm and others** (cited supra). This Court had held that when the State Government intended to classify and exclude farmers holding up to 25 cents of unnotified paddy land from the payment of fee/charge for reclamation and utilization of the same for other purposes other than paddy cultivation, such farmers constitute a class by themselves thus precluding the State from further re-classifying the homogeneous class of the same nature merely because the applications are submitted on different dates. On this reasoning, the circular dated 23.07.2021 was quashed. 8. The same reasoning would apply in the case of the date of payment of fees also. Since the circular dated 23.07.2021 was found to be illegal and had been set aside by this Court, the respondents cannot raise contentions based on the same. The incidence of payment of fee as provided in the Schedule to the Kerala Conservation of Paddy Land ``` WP(C) NO. 19240 OF 2021 ``` ``` 7 ``` ## and Wetland Rules is specifically as follows: “ _The fee provided for conversion of property having an extent of less than 25 cents is nil or in other words no fee is provided for conversion of property having an extent of 25 cents as on 30.12.2017.”_ A reading of the said provision would make it clear that what was intended was that all applications under Section 27A of the Act made in respect of properties having an extent of 25 cents or less as on 30.12.2017 would be eligible for exemption with regard to payment of fees. In the instant case, Ext.P8 order which is the order passed under Section 27A of the Act is one rendered on 26.02.2021, that is, after the amendment has came into force. 9. In the above view of the matter, I am of the opinion that the contention raised that the petitioner would not be entitled to refund of the fee paid since he had made the payment on 20.01.2021 cannot be accepted. In the result, this writ petition is allowed as sought for. Exts.P8 and P10 to the extent they require payment of fees for conversion under Section 27A of the Act shall stand set aside. There will be a direction to the 1[st] respondent to take appropriate steps to ``` WP(C) NO. 19240 OF 2021 ``` ``` 8 ``` refund the amounts paid by the petitioner for the conversion as provided in Ext.P8 order within a period of three months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. ``` Sd/- ``` ## **`ANU SIVARAMAN`** ``` JUDGE ``` ``` NP ``` ``` WP(C) NO. 19240 OF 2021 ``` ``` 9 ``` ## **`APPENDIX OF WP(C) 19240/2021`** |**`PETITIONER’S EXHIBITS`**|| |---|---| |**`Exhibit P1`**|**`TRUE COPY OF SETTLEMENT DEED NO. 1240/2017`**| ||**`DATED 29.03.2017 OF ERNAKULAM SRO.`**| |**`Exhibit P2`**|**`TRUE COPY OF RELEASE DEED NO.82/2018 DATED`**| ||**`20.12.2017 OF ERNAKULAM SRO.`**| |**`Exhibit P3`**|**`TRUE COPY OF SALE DEED NO. 3872/1992 OF`**| ||**`ERNAKULAM SRO.`**| |**`Exhibit P4`**|**`TRUE COPY OF THE BASIC TAX RECEIPT DATED`**| ||**`13.05.2019 ISSUED BY ELAMKULAM VILLAGE`**| ||**`OFFICE.`**| |**`Exhibit P5`**|**`TRUE COPY OF THE RELEVANT EXTRACT OF DATA`**| ||**`BANK.`**| |**`Exhibit P6`**|**`TRUE COPY OF THE APPLICATION DATED 21.10.2017`**| ||**`SUBMITTED BY PETITIONER ALONGWITH`**| ||**`ACKNOWLEDGMENT OF 2ND RESPONDENT.`**| |**`Exhibit P7`**|**`TRUE COPY OF THE REPORT DATED 16.09.2020 OF`**| ||**`THE VILLAGE OFFICER.`**| |**`Exhibit P8`**|**`TRUE COPY OF THE ORDER DATED 26.02.2021 OF`**| ||**`THE 2ND RESPONDENT.`**| |**`Exhibit P9`**|**`TRUE COPY OF THE REPRESENTATION DATED`**| ||**`20.03.2021 SUBMITTED BEFORE THE 2ND`**| ||**`RESPONDENT.`**| |**`Exhibit P10`**|**`TRUE COPY OF THE ORDER DATED 02.08.2021`**| ||**`PASSED BY THE 2ND RESPONDENT.`**| |**`RESPONDENTS’ EXHIBITS: NIL`**||