Dr. A.V. Sajeev v. Revenue Divisional Officer / Sub Collector, Kochi and Others

W.P.(C)No.20265 of 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 26[TH] DAY OF JULY 2022 / 4TH SRAVANA, 1944** ## **WP(C) NO. 20265 OF 2021** ## **PETITIONER:** DR. A.V. SAJEEV,AGED 51 YEARS S/O. A.K.VALASAN, ASAKANTHARA HOUSE, PAZHAVOOR P.O, THAYOOR VILLAGE, THRISSUR,PIN-680 584,REPRESENTED BY HIS FATHER AND POWER OF ATTORNEY HOLDER A.K. VALSALAN, AGED 83 YEARS, S/O. LATE KESAVAN, ASAKANTHARA HOUSE, PAZHAVOOR P.O., THAYOOR VILLAGE, THRISSUR, PIN-680 584 BY ADVS.SRI BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI P.U.VINOD KUMAR MS.ARYA RAGHUNATH MS.VAISAKHI V. SRI T.M.MUHAMMED MUSTHAQ SRI MOHAMED HISHAM P ## **RESPONDENT/S:** 1 THE REVENUE DIVISIONAL OFFICER/ SUB COLLECTOR,, REVENUE DIVISIONAL OFFICE, FIRST FLOOR, KN JACOB ROAD, FORT KOCHI, KERALA-682 001 2 THE VILLAGE OFFICER, POONITHURA VILLAGE OFFICE, POONITHURA P.O., ERNAKULAM DISTRICT,PIN-682 038 3 THE TAHSILDAR, KANAYANNUR TALUK, PARK AVENUE, NEAR SUBHASH PARK, MARINE DRIVE, KOCHI,KERALA-682 011 4 SENIOR SUPERINTENDENT, OFFICE OF THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR, REVENUE DIVISIONAL OFFICE, FIRST FLOOR, KB JACOB RD, FORT KOCHI, KOCHI, KERALA-682 001 BY GOVT.PLEADER SRI RAJEEV JYOTHISH GEORGE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1.4.2022, THE COURT ON 26.07.2022 DELIVERED THE FOLLOWING: W.P.(C)No.20265 of 2021 2 ## **T.R. RAVI, J.** **--------------------------------------------** W.P.(C)No.20265 of 2021 -------------------------------------------Dated this the 26[th] day of July, 2022 ## **JUDGMENT** Heard Smt.M.A.Vaheeda Babu on behalf of the petitioners and Sri Rajeev Jyothish George, Government Pleader on behalf of the respondents. 2. The petitioner is the owner of 7.59 Ares of land in Sy.No.226/1 and 3.23 Ares of land in Sy.No.226/2 of Poonithura Village, Kanayannur Taluk. The properties were purchased as per Exts.P1 and P2 sale deeds dated 10.2.2011 and 30.4.2011. The properties are lying adjacent and in Ext.P3 data bank, the properties in Sy.No.226/1 have been included as converted before 2008. The petitioner submits that the properties originally belonged to Vylopilly Tharavadu even before 1950 and there were Kudikidappukars on the property, who were residing in the residential houses constructed therein. Exts.P1 and P2 evidence the above facts. It is further submitted by the petitioner that in the year 2015, a major portion of the buildings was demolished for the purpose of undertaking construction on the properties. Since in the basic tax register the properties covered by two documents Exts.P1 and P2, except 0.35 Ares, are shown as nilam, the W.P.(C)No.20265 of 2021 3 petitioner submitted Ext.P7 application in Form 9 before the 1[st] respondent for permission to change the nature of the lands. When there was a delay in passing orders, the petitioner approached this Court by filing W.P.(C)No.8356 of 2021 which was disposed of by Ext.P9 judgment directing the 1[st] respondent to consider the application and pass appropriate orders. According to the petitioner, the 1[st] respondent insisted that applications in Form 6 should be filed separately for the lands covered by Exts.P1 and P2. In the said circumstances, the petitioner has preferred Exts.P10 and P11 Form 6 applications on 26.4.2021. Ext.P12 is the report of the Village Officer, wherein it is stated that the fair value for the property in Sy.No.226/1 will be Rs.7,20,000/- per Are. 3. The Government had issued Ext.P8 Circular on 25.2.2021, whereby it was decided that for applications under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (2008 Act for short), for extents less than 25 cents, no fee need be imposed. Clause (2) of the Circular says that in cases where properties were lying together and extents of 25 cents or less were separated from such properties after 30.12.2017, the benefit of fee exemption will not apply. Later, by Ext.P14, the Government decided that fee exemption need be granted only in W.P.(C)No.20265 of 2021 4 applications submitted on 25.2.2021 or later. However, Ext.P14 Circular has already been held to be unconstitutional in the decision of the Division Bench of this Court in **Baby M.K. & Ors. v. District Collector, Ernakulam & Ors. [2021 (6) KLT 316]** . The 1[st] respondent issued Ext.P15 directing the petitioner to remit a sum of Rs.45,25,000/- as fee at the rate of 30% of the fair value. The petitioner has challenged Ext.P15 in the writ petition. At the time of admission, this Court had taken note of the fact that the area sought to be converted in the two applications would together come to 25.871 cents and hence directed the respondents to provisionally accept the proportionate amount of fair value for 0.871 cents of land by which the property exceeds 25 cents and to take further action in accordance with law on the application submitted by the petitioner. 4. A statement has been filed by the 1[st] respondent. It is contended that the writ petition is not maintainable without making the State of Kerala a respondent, since they are the rulemaking authority. It is contended that as per Exts.P8 and P14, the petitioners must pay fee at the rate of 10% for the total extent of land, if the applied land exceeds 25 cents. During the hearing, this Court had asked the Government Pleader to submit whether the stand of the Government is that the extent of 25 cents is to be W.P.(C)No.20265 of 2021 5 reckoned by adding up the extent of properties involved in different applications, relating to properties acquired as per different sale deeds and that too at different points of time. The contention of the respondents is that the entire extent involved in different applications must be added up while reckoning whether the area is within the exempted limit. 5. Section 27A of the 2008 Act provides that if any owner of an unnotified land desires to utilise such land for residential or commercial or other purposes, he shall apply to the Revenue Divisional Officer for permission in such a manner as may be prescribed. The Section does not lay any restriction regarding the total extent of land which is sought to be utilised for the purposes aforesaid. The proviso to sub-section (2) says that if the area of such parcel of land where the application is allowed is more than 20.2 Ares, 10% of such land shall be set apart for water conservancy measures. Sub-section (3) says that if the application is allowed, the applicant shall be liable to pay a fee at such rate as may be prescribed. In Sl.No.1 of the Schedule, a note has been added that the exemption upto 25 cents apply as on 30.12.2017. The procedure for granting permission under Section 27A is laid down in Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (the Rules for short). For areas less W.P.(C)No.20265 of 2021 6 than 20.23 Ares, the application is to be submitted in Form 6. As per Rule 12(9), the fee payable is as shown in the Schedule to the Rules. As per the Schedule, no fee is payable upto an extent of 25 cents, and for an extent above 25 cents and less than 1 Acres, 10% of the fair value is to be paid. In Ext.P8 Government Order issued on 25.2.2021, it is ordered that in cases where properties were lying together as on 30.12.2017 and 25 cents or extents less than that from the said property is separated after 30.12.2017, such lands will not be entitled to the exemption. The date “30.12.2017” is the date on which Section 27A was inserted by Act 29 of 2018. 6. The respondents do not have any contention that the petitioners are not entitled to claim the benefit of Section 27A. The dispute is only regarding the application of the schedule regarding the fee payable for conversion under Section 27A. Section 27A does not lay any restriction regarding the extent of property which can be subject matter of conversion. The schedule only provides for different rates of fee depending on the extent sought to be converted. The only provision that says that benefit will not be available is contained in Ext.P8 order which specifically says that in cases where lands that are sought to be converted were part of a larger extent of land, from which extents of 25 cents or less are W.P.(C)No.20265 of 2021 7 separated and conversion is sought for the extent thus separated, the exemption will not be available. The intention is only to disallow applications which seek exemption from fee on the basis of a division effected after the date of coming into force of Section 27A. There is no provision pointed out which says that exemption cannot be claimed by the same applicant in respect of different lands, acquired by separate sale deeds, on different dates, and pertaining to extents less than 25 cents. There is also no provision pointed out which permits the combining of all applications submitted by one person and adding the extents involved in each of the applications for the purpose of applying the schedule relating to fee. In the absence of any provision, there is no justification for the contention of the respondents that an applicant is liable to pay the fee fixed for the areas exceeding 25 cents, by adding up the extents involved in different applications. In the case of the petitioner, the properties included in Ext.P10 were purchased as per the sale deed dated 10.02.2011, and properties included in Ext.P11 were purchased as per the sale deed dated 30.4.2011. It can thus be seen that it is not a case where after 2017, certain extents were separated from the total extent, to take advantage of the exemption regarding 25 cents of land. The petitioner further submits that the properties were converted prior W.P.(C)No.20265 of 2021 8 to 1967 and hence no fee can be claimed under Section 27A applying the proviso to sub-section (3) of Section 27A. The above contention is raised on the basis of the documents of title which show that there were 'kudikidappus' existing in the properties where families were residing and the subject matter of the transfer was the lands remaining after providing for the kudikidappukars. In view of absence of any provision that justifies addition of the properties involved in separate applications, it is not necessary to go into the question whether the property was converted prior to 1967. 7. In the result, the writ petition is allowed. Ext.P15 is quashed. It is declared that the petitioner is entitled to change of nature of lands having an extent of 7.59 Ares in Sy.No.226/1 and 3.23 Ares of land in Sy.No.226/2 of Poonithura Village, Kanayannur Taluk, purchased as per Exts.P1 and P2 sale deeds dated 10.2.2011 and 30.4.2011, with respect of which Exts.P10 and P11 applications were submitted, without charging any fee based on Exts.P8 and P14. The respondents are directed to refund the amount remitted by the petitioner for the purpose of conversion, based on interim orders issued by this Court, within 3 months from the date of receipt of this judgment. The respondents shall also carry out necessary corrections in the revenue records and receive W.P.(C)No.20265 of 2021 9 basic tax from the petitioner, treating the property as purayidom. Necessary orders in this regard shall be issued within 6 weeks from the date of receipt of a copy of this judgment. **T.R. RAVI JUDGE** dsn W.P.(C)No.20265 of 2021 10 ## **APPENDIX OF WP(C) 20265/2021** ## PETITIONER EXHIBITS |Exhibit P1|A TRUE COPY OF THE SALE DEED NO.408 DATED| |---|---| ||10.02.2011 BY WHICH THE PETITIONER PURCHASED| ||7.59 ARES OF GARDEN LAND SITUATED IN SURVEY| ||226/1 OF POONITHURA VILLAGE OF KANAYANNUR| ||TALUK| |Exhibit P2|A TRUE COPY OF THE SALE DEED NO.1121 DATED| ||30.04.2011 BY WHICH THE PETITIONER| ||PURCHASED3.23 ARES OF GARDEN LAND SITUATED| ||IN SURVEY 226/1 AND 226/2 OF POONITHURA| ||VILLAGE OF KANAYANNUR TALUK| |Exhibit P3|A TRUE COPY OF THE RELEVANT PORTION OF THE| ||DATA BANK PUBLISHED, INCLUDING THE| ||PROPERTIES IN SURVEY NO.226/1 OF POONITHURA| ||VILLAGE AS CONVERTED BEFORE 2008| |Exhibit P4|A TRUE COPY OF THE CERTIFICATE DATED| ||30.09.2015 ISSUED BY CORPORATION OF COCHIN| ||CERTIFYING THAT THE BUILDING HAVING NUMBER| ||5/1624 BELONGS TO SMT SARALA, THE VENDOR IN| ||EXHIBIT P2 AND THAT THE SAME HAS BEEN| ||ASSESSED BEFORE 1994| |Exhibit P5|A TRUE COPY OF THE SKETCH OF THE PROPERTIES| ||ISSUED FORM THE 2ND RESPONDENT| |Exhibit P6|A TRUE COPY OF THE TAX RECEIPT DATED| ||05.10.2019 WITH RESPECT TO THE PROPERTIES| ||COVERED BY EXHIBIT P1 AND P2| |Exhibit P7|A TRUE COPY OF THE APPLICATION DATED| ||28.01.2021 SUBMITTED BY THE PETITIONER IN| ||FORM 9 UNDER RULE 12(13) OF THE KERALA| ||CONSERVATION OF PADDY LAND & WET LAND RULES,| ||2008 AS AMENDED (WITHOUT ANNEXURES)| |Exhibit P8|A TRUE COPY OF THE GOVERNMENT ORDER DATED| ||25.02.2021| |Exhibit P9|A TRUE COPY OF THE JUDGMENT DATED 30.03.2021| ||OF THIS HON'BLE COURT IN WPC NO.8356/2021| |Exhibit P10|A TRUE COPY OF THE APPLICATION DATED| ||26.04.2021 SUBMITTED BY THE PETITIONER IN| ||FORM 6 UNDER RULE 12(1) OF THE KERALA| ||CONSERVATION OF PADDY LAND & WET LAND RULES,| ||2008 AS AMENDED (WITHOUT ANNEXURES) WITH| ||RESPECT TO THE LAND OF THE PETITIONER| ||COVERED BY EXHIBIT P1, ALONG WITH ITS| W.P.(C)No.20265 of 2021 11 ||CHALLAN RECEIPT SHOWING THE PAYMENT OF THE| |---|---| ||EQUIRED FEE| |Exhibit P11|A TRUE COPY OF THE APPLICATION DATED| ||26.04.2021 SUBMITTED BY THE PETITIONER IN| ||FORM 6 UNDER RULE 12(1) OF THE KERALA| ||CONSERVATION OF PADDY LAND & WET LAND RULES,| ||2008 AS AMENDED (WITHOUT ANNEXURES), WITH| ||RESPECT TO THE LAND OF THE PETITIONER| ||COVERED BY EXHIBIT P2, ALONG WITH ITS| ||CHALLAN RECEIPT SHOWING PAYMENT OF THE| ||REQUIRED FEE| |Exhibit P12|A TRUE COPY OF THE REPORT DATED 21.06.2021| ||OF THE VILLAGE OFFICER WITH RESPECT TO THE| ||PROPERTY OF THE PETITIONER COVERED BY| ||EXHIBIT P1 ALONG WITH ITS ANNEXURES| |Exhibit P13|A TRUE COPY OF THE REPORT DATED 21.06.2021| ||OF THE VILLAGE OFFICER WITH RESPECT TO THE| ||PROPERTY OF THE PETITIONER COVERED BY| ||EXHIBIT P2 ALONG WITH ITS ANNEXURES| |Exhibit P14|A TRUE COPY OF THE GOVERNMENT CIRCULAR DATED| ||23.07.2021 ISSUED IN CLARIFICATION OF| ||EXHIBIT P8| |Exhibit P15|A TRUE COPY OF THE PRE-DATED NOTICE DATED| ||21.07.2020 ISSUED BY THE 4TH RESPONDENT ON| ||BEHALF OF THE 1ST RESPONDENT, DIRECTING THE| ||PETITIONER TO REMIT AN AMOUNT OF RS 45,040/0| ||FOR ALLOWING CHANGE OF NATURE OF THE LAND,| ||WHICH WAS RECEIVED BY THE PETITIONER ON| ||15.09.2021| |Exhibit P16|A TRUE COPY OF THE NOTICE DATED 11/06/2021| ||ISSUED UNDER SECTION 6 OF THE SURVEY AND| ||BOUNDARIES ACT.| |ANNEXURE R1(A):|TRUE COPY OF NOTICE DT.13.1.2022| |EXHIBIT R1(A):|TRUE COPY OF GOVT.ORDER GO| ||(RT)No.1166/2021/RD DT.25.2.2021| |EXHIBIT R1(B):|TRUE COPY OF GAZETTE NOTIFICATION SRO| ||369/2021 DT.21.4.2021| |EXHIBIT R1(C):|TRUE COPY OF CIRCULAR NO.REV-P1/117/2021-REV| ||DATED 23.07.2021| |EXHIBIT R1(D):|TRUE COPY OF CIRCULAR NO.REV-P1/313/2021-REV| ||CIRCULAR DATED 10.12.2021|