Jacob P. John v. Revenue Divisional Officer/Sub Collector, Chengannoor and Village Officer, Chengannoor

W.P.(C).No.17491/21 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 3[RD] DAY OF DECEMBER 2021 / 12TH AGRAHAYANA, 1943** ## **WP(C) NO. 17491 OF 2021** ## **PETITIONER:** JACOB P. JOHN AGED 42 YEARS S/O.BABU JOHN, PALATHUMPATT HOUSE, THITTAMEL, CHENGANNOOR P.O., ALLEPPEY DISTRICT, PIN-689121, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER BABU JOHN, AGED 71, S/O.JOHN, PALATHUMPATT HOUSE, THITTAMEL, CHENGANNOOR P.O., ALLEPPEY DISTRICT, PIN689121. BY ADVS. P.K.SOYUZ E.V.BABYCHAN ## **RESPONDENTS:** 1 REVENUE DIVISIONAL OFFICER/SUB COLLECTOR REVENUE DIVISIONAL OFFICE, CHENGANNOOR, KOZHANCHERI ROAD, CHENGANNOOR P.O., ALLEPPEY DISTRICT, PIN689121. 2 THE VILLAGE OFFICER CHENGANNOOR VILLAGE, CHENGANNOOR P.O., PIN-689121. BY ADV GOVERNMENT PLEADER ## **OTHER PRESENT:** APPU.P.S-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.11.2021, THE COURT ON 3.12.2021 DELIVERED THE FOLLOWING: W.P.(C).No.17491/21 2 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(c).No.17491 of 2021 = = = = = = = = = = = = = = = = Dated this the 3[rd] day of December, 2021** ## **JUDGMENT** - 1.This writ petition is filed challenging Note (1) appended to Ext.P13 Fee Schedule under Rule 12(9) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (hereinafter referred to as the “2008 Rules”) on the ground that it _ultra vires_ the provisions of the enabling Act. A further prayer is sought for to the 1[st] respondent to calculate the fees on the basis of the fair value of the land owned by the petitioner and accept the same and pass final orders on the application submitted under Section 27A(2) of the Act. The extent of the property is 16.86 Ares (41.66 cents) of land in Re-Survery No.178/9 in Block No.8 of Chengannoor village, Chegannur Taluk, Alleppey District. 2. The learned counsel for the petitioner places reliance on the decisions of this Court in **Vimal Vincent (DR) v. Revenue Division Officer/Sub Collector, Irinjalakuda** [2020(1) KHC 3 ## W.P.(C).No.17491/21 123], **Ajith Kumar Shenoy and Another v. R.D.O.** [2020 (5) KLT 683, and of a Division Bench of this Court in **Cheranelloor Grama Panchayath, Ernakulam and Another v. Joe Thattil** [2020 (5) KHC 669]. It is submitted that this Court has specifically held that the fee prescribed as per Section 27A(3) read with Rule 12(9) of the 2008 Rules can only be the fair value of subject property covered by the application and it cannot be the notified fair value in respect of any other property. 3. It is submitted that Exhibit P3 application submitted by the petitioner in Form No.6 was one submitted on 27.7.2019, that is before the amendment effected to Section 2(viA) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short the “2008 Act”). It is, therefore, contended that the unamended definition of fair value has to be considered and only the fair value of the subject property can be considered. It is submitted that though this Court had directed the consideration of the application, taking note of the judgment of a Division Bench of this Court referred to above, the W.P.(C).No.17491/21 4 impugned notice has now been issued directing the payment of fees calculated on the fair value of the neighbouring dry land without considering the fair value of the petitioner's property. 4.The learned counsel for the petitioner submits that the fair value of the property has been fixed and Ext.P7 is the print out from the official website showing the fair value of the land in Re-Survey No.178/9 of Block No.8 of Chengannoor Village. It is the specific contention of the petitioner that the impugned order is rendered taking the fair value of the land lying on the side of the M.C.Road, which is classified as 'purayidam' for the calculation of the fees to be paid by the petitioner. According to the learned counsel for the petitioner, this is completely untenable in view of the judgments rendered by this Court on the point. It is submitted that this is more so in view of the fact that the definition of fair value stands amended by Act 8 of 2020 to mean the fair value of garden land adjacent to the unnotified land for which the fair value has been fixed. W.P.(C).No.17491/21 5 5.A statement has been placed on record by the 1[st] respondent. It is stated that the State of Kerala was not made a party to the writ petition. It is further submitted that amendment has been effected to Section 2(viA) of the 2008 Act and the demand for fees made on 18.11.2020 is in accordance with the amended provision. It is further stated in paragraphs 6,7 and ## 9 of the statement as follows:- 6. As per the Schedule appended to the Rules before the amendment dated 25.02.2021 came into existence, the petitioner is bound to pay 20% of the fair value of the land towards the fee for conversion of his land u/S. 27 (A) of the Act. Such fee has been demanded for the reason that, once the property is converted by regularising through Section 27 (A) of the Act, the fair value of the property will be increased and in such circumstance, the fair value of the neighbouring land can be adopted for refixing the fair value of the Petitioner's property. The neighbouring land in Sy.No.178/1 of Chengannur Village is valued at Rs.4,00,000/- (Rupees Four Lakhs Only) and fixing the 20% of the fair value of the entire 16.86 Ares, the Petitioner has to pay an amount of Rs.13,48,000/- (Rupees Thirteen Lakh Forty Eight Thousand Only). 7. Further, the building constructed therein is a new building having 461.61 Sq.mtr which is equal to 4969 sq.ft and therefore, he has to pay an amount of Rs. 1,96,900/- (Rupees One Lakh Ninety Six Thousand Nine Hundred Only) for the area of 1969 Square Feet in excess of 3000 Sq.Ft. Altogether, the Petitioner has to pay an amount of Rs.15,45,700/- (Rupees Fifteen Lakh Forty Five Thousand W.P.(C).No.17491/21 6 and Seven Hundred Only). Such demand has been made vide Exhibit P5 on the basis of report submitted by the Village Officer and there is no illegality or impropriety in issuing the same. It is to be seen that the Schedule of the Rule 12 (9) has been amended and an exemption has been granted to the land up to 25 Cents from payment of fee. 9. The contentions of the petitioner that the fair value of his land would come to Rs.56,000/-only, (Rupees Fifty Six Thousand Only) per Are and the fair value of such land in Re.Sy.No.178/1, which is relied on is far from the Petitioner's land and which is lying on the side of M.C Road are not correct. The fair value of the land has been fixed after visiting the Petitioner's property and it is found that the Petitioner’s property has access to Municipality Road and there is nothing wrong in fixing the fair value at an amount of Rs.80,000/ (Rupees Eighty Thousand Only) per Are. 6.I have considered the contentions advanced. It is evident that the application submitted by the petitioner in Form 6, which is produced as Exhibit P3 is dated 27.7.2019. As on the said date, the definition of fair value in the 2008 Act read as follows:- Section 2 (viA): Fair value means the Fair value of the land fixed under Section 28A of the Kerala Stamp Act (1959 (17 of 1959) or where the fair value of the land has not been fixed, the fair value of the land land fixed for similar and similarly situated land.” W.P.(C).No.17491/21 7 7. This Court in **Ajith Kumar Shenoy and Another v. R.D.O.** [2020 (5) KLT 683] has specifically held that the fair value is to be computed as per the rate as on the date of submission of the application. This Court in **Vimal Vincent (DR) v. Revenue Division Officer/Sub Collector, Irinjalakuda** [2020(1) KHC 123] has also held that the fee under Secton 27A can be quantified only on the basis of fair value of the specific property where such fair value is fixed. 8. Having considered the contentions advanced on either side, I find that the issue of fixation of fair value and consequent demand of fee now stands covered by the decisions of this Court. Since the petitioner's application was filed before the amendment of the definition of fair value, it could have been considered only on the basis of the definition of fair value in the parent Act, as it existed as on the date of the submission of such application. The contention that the definition stands amended and therefore the impugned order is justified cannot be accepted. I am, therefore, of the opinion that the demand raised is completely unsustainable. The writ petition is therefore liable to succeed. W.P.(C).No.17491/21 8 9. In the result, the impugned demand is set aside. There will be a direction to the respondents to consider Exhibit P3 application and to re-compute the fees in the light of the fair value of the property as it stood on the date of the receipt of Exhibit P3 application submitted by the petitioner. In view of the fact that the petitioner has a contention that he had constructed residential buildings in the property on the strength of building permits issued in 2011, the claim of the petitioner that no fee is chargeable on the constructions already effected shall also be considered by the respondents while issuing fresh notice, as directed above. Writ petition is ordered accordingly. Sd/- ## **Anu Sivaraman, Judge** sj W.P.(C).No.17491/21 9 ## **APPENDIX OF WP(C) 17491/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LAND TAX RECEIPT DATED 22.07.2019. - Exhibit P2 TRUE COPY OF THE JUDGMENT IN - WP(C)NO.2949 OF 2021 DATED 30.03.2021. - Exhibit P3 TRUE COPY OF THE APPLICATION IN FORM NO.6 DATED 27.07.2019. - Exhibit P4 TRUE COPY OF THE LETTER DATED 18.08.2021 SHOWING THE RECEIPT OF EXT.P3, ON 01.08.2019. - Exhibit P5 TRUE COPY OF THE NOTICE NO.B 3286/19 DATED 18.11.2020 ISSUED BY THE 1ST RESPONDENT. - Exhibit P6 TRUE COPY OF THE INTERIM ORDER IN W.P(C)NO.2012 OF 2021 DATED 11.08.2021. - Exhibit P7 TRUE PRINT OUT FROM THE OFFICIAL WEBSITE SHOWING THE FAIR VALUE OF THE LAND IN RE-SURVEY NO.178/9 IN BLOCK NO.8 OF CHENGANNOOR VILLAGE. - Exhibit P8 TRUE PRINT OUT FROM THE OFFICIAL WEBSITE SHOWING THE FAIR VALUE OF THE LAND IN RE SURVEY NO.178/10 IN BLOCK NO.8 OF CHENGANNOOR VILLAGE. Exhibit P9 TRUE PRINT OUT FROM THE OFFICIAL WEBSITE SHOWING THE FAIR VALUE OF THE LAND IN RE SURVEY NO.178/1 IN BLOCK NO.8 OF CHENGANNOOR VILLAGE. - Exhibit P10 A TRUE COPY OF THE REPORT OF THE 2ND RESPONDENT DATED 12.01.2021. W.P.(C).No.17491/21 10 Exhibit P11 TRUE COPY OF THE JUDGMENT IN WRIT PETITION (C) NO.26509 OF 2020 DATED 18.12.2020. Exhibit P12 TRUE COPY OF THE CIRCULAR NO.REVP1/117/2021 REVENUE(P) DATED 23.07.2021. Exhibit P13 TRUE COPY OF THE FEES SCHEDULE PRESCRIBED AS PER RULE 12(9) OF THE KERALA CONSERVATION OF PADDY LAND AND WET LAND RULES. True copy PS to Judge