Jessy v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 22ND DAY OF JUNE 2020 / 1ST ASHADHA, 1942** ## **WP(C).No.12189 OF 2020(W)** ## **PETITIONER:** **JESSY AGED 53 YEARS W/O BABU SIMON, VANDANATHIL HOUSE, ARAKKAPADY VILLAGE, KUNNATHUNADU TALUK, WEST VENGOLA P.O-683 556.** **BY ADV. SRI.P.THOMAS GEEVERGHESE** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS PRINCIPAL SECRETARY TO REVENUE**| ||**DEPARTMENT, THIRUVANANTHAPURAM - 695001**| ||**0**| |**2**|**DISTRICT COLLECTOR,**| ||**COLLECTORATE, KAKKANAD, ERNAKULAM - 682 030**| |**3**|**REVENUE DIVISIONAL OFFICER,**| ||**MINI CIVIL STATION, MUVATTUPUZHA - 686673**| |**4**|**VILLAGE OFFICER, VENGOLA VILLAGE,**| ||**ERNAKULAM - 683 556**| ## **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.12189 of 2020 2 ## **ALEXANDER THOMAS, J.** ## **===========================** ## **W.P(C) No.12189 of 2020** **===========================** Dated this the 22[nd] day of June, 2020 ## **JUDGMENT** The prayers in this Writ Petition (Civil) are as follows: - _“i. Issue a writ of certiorari or other appropriate writ or order calling for records leading to Ext.P6 and P8 orders, and correct the same incorporating the ratio laid down in Vimal Vincent v. Revenue Divisional Officer, Irinjalakuda, 2020 (1) KHC 123;_ - _ii. Declare that a sum of Rs.1,68,526/- (One Lakh Sixty Eight Thousand Five Hundred and Twenty Six) was illegally collected from the petitioner for issuing Ext.P8 land conversion order, by applying wrong fair-value in Ext.P6 demand order._ - _iii._ _**Issue a writ of mandamus or other appropriate writ or order directing the respondents to refund a sum of Rs.1,68,526/- (One Lakhs Sixty Eight Thousand Five Hundred and Twenty Six) to the petitioner, with interest, which was illegally collected in excess by the respondents for issuing Ext.P8 land conversion order** ;_ - _iv. Issue such other orders and directions as this Honourable Court may deem fit and proper.”_ 2. Heard Sri.P.Thomas Geeverghese, learned counsel appearing for the petitioner and Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents. 3. The case of the petitioner is that the 3[rd] respondent-Revenue Divisional Officer as per the impugned Ext.P-6 order dated 06.03.2019 has ordered that the petitioner should pay as fee, the notified fair value not in W.P(C) No.12189 of 2020 3 respect of the subject property which is the subject matter of the application filed by the petitioner under Sec.27A(1) of the Kerala Conservation of Paddy Land and Wetland Act, 2008. But in respect of some other property, which is having much higher fair value compared to that of the subject property. The petitioner had submitted Ext.P-1 application dated 22.01.2019 before the 3[rd] respondent-Revenue Divisional Officer for statutory permission for change of user of the land in terms of Sec.27A(1) of the 2008 Act. According to the petitioner he is fully prepared to pay the prescribed fee for getting such statutory permission under Sec.27A(1) of the 2008 Act. Going by the statutory prescriptions in Sec.27A(3) of the Act read with Rule.12(9) of the Kerala Conservation of Paddy Land and Wetland Act, the applicant concerned will have to pay the prescribed fee at the rate of the notified value of the subject property, as notified in terms of Sec.28A of the Kerala Stamp Act. 4. According to the petitioner, the 4[th] respondent-Village Officer has initially submitted Ext.P-2 report dated 31.01.2019 before the 3[rd] respondent-RDO informing the correct factual aspect that about the notified fair value covered by Ext.P-1 application and that the survey number of the subject property is Survey No.214/18, for which the notified fair value is Rs.11,250/- per Are. Thereafter, the 3[rd] respondent-RDO has taken a very obvious stand as per Ext.P-4 letter dated 16.02.2019, whereby W.P(C) No.12189 of 2020 4 he has directed the 4[th] respondent-Village Officer that the value shown in Ext.P-2 is not acceptable and that the notified fair value in respect of another property, viz., is to be furnished. That it is on this basis that Ext.P-5 letter dated 20.02.2019 has been submitted by the 4[th] respondentVillage Officer informing the 3[rd] respondent-RDO that the notified fair value in respect of the property in Survey No.171/3 is Rs.65,000/- per Are. That on this factually erroneous premise that 3[rd] respondent-RDO has now ordered as per Ext.P-6 dated 06.03.2019 that the petitioner should pay the prescribed fee at the rate of notified fair value in respect of another property, that is the one in Survey No.171/3, which is at the higher rate of Rs.65,000/- per Are. That the petitioner was not aware about the illegality and that he was forced to pay the said amount. That Ext.P-8 is the final order dated 19.03.2019 passed by the 3[rd] respondent-RDO granting statutory permission under Sec.27A(3) and making it clear that the fee payable is the one based on Exts.P-5 & P-6, etc. It is in the light of these aspects, the petitioner has filed the instant Writ Petition seeking for interference from this Court and for directions in the matter of refund. 5. After hearing both sides, it is seen that prima facie, the petitioner has made out a strong case based on Exts.P-1 & P-2 that the subject property is the one covered by Survey No.214/18 and that the notified fair value in respect of the said property is Rs.11,250/- per Are. W.P(C) No.12189 of 2020 5 From a reading of Exts.P-4 & P-5, it is seen that the fair value has been now demanded, whereas Exts.P-4 & P-5 would show that the prescribed fee demanded on the basis of fair value of another property, viz., the one in Survey No.171/3 for which the notified fair value appears to be at the rate of Rs.65,000/- per Are. 6. It is by now well settled by a series of rulings of this Court as the one in the case in _**Vimal Vincent v. Revenue Divisional Officer/Sub Collector, Irinjalakuda**_ [2020 (1) KHC 123 = 2020 (1) KLT 145] that the prescribed fee payable in terms of Sec.27A(3) read with Rule 12(9) is the notified fair value of the property in terms of Sec.28A of the Kerala Stamp Act, which should be pertaining to the subject property covered by the application for which permission is sought for under Sec.27A(1). It has also been held by this Court that the said prescribed fee should not only be the fair value of the subject property covered by Sec.27A(1) application. But should also be such fair value in existence as on the date of submission of the Sec.27A(1) application and not a subsequently revised fair value even if, it pertains to the very same subject property. 7. The petitioner has given a tabular column in paragraph No.12 of the W.P(C) regarding the impugned assessed fees and the fees which is actually payable according to his version and the said tabular column reads as follows : W.P(C) No.12189 of 2020 6 |“Sl.no:|Item||AssessedFees|Actual Fees| |---|---|---|---|---| |a|Fair value for 1Are||65,000/-|11,250.00| |b|50%increase||32,500/-|5,625.00| |c|10% of a&b||9750/-|10687.5| |d|Total fairvalue||1,07,250/-|18,562.50| |e|10% of fair value||10,725/-|1,856.25| |F|Extent of land||19Ares|| |g|Fee Payable||2,03,795/-|35,268.75| |||||| ||Difference||**Rs.1,68,526/- “**|| 8. Taking note of the abovesaid facts and circumstances of the case, this Court is of the considered view that the matter requires serious re-consideration at the hands of the 3[rd] respondent-Revenue Divisional Officer and would warrant a remit. 9. Accordingly, it is ordered and declared that – Ext.P-8 order dated 19.03.2019 issued by the 3[rd] respondent-RDO to the extent it grants statutory permission under Sec.27A(1) of the 2008 Act. For change of user of the land is not in any manner disturbed and the same will stand confirmed. However, Exts.P-6 & P-8 to the extent it orders that the petitioner has to pay the prescribed fee at the rate of the notified value for the property shown therein will stand quashed and set aside and to that extent, the matters in relation to determination of the correct prescribed fee will stand remitted to the 3[rd] respondent-RDO for consideration and decision afresh. W.P(C) No.12189 of 2020 7 10. In that regard, it is ordered that the 3[rd] respondent-Revenue Divisional Officer will immediately pass fresh revised orders in pursuance of Ext.P-8, so as to correctly determine and decide the prescribed fee that is payable by the petitioner, which should be the notified fair value of the subject property covered by Sec.27A(1) application and such notified fair value of the said property should be the one which is in currency as on the date of submission of Sec.27A(1) application. The abovesaid submissions of the petitioner as well as the abovesaid materials raised from Ext.P-2 as well as the details shown in the abovesaid tabular column should all be examined in detail and after affording a reasonable opportunity of being heard to the petitioner through his authorized representative/counsel, if any and such correct fee should be properly and judiciously determined and orders should be passed in that regard by the 3[rd] respondent-Revenue Divisional Officer, within one month from the date of production of a certified copy of this judgment. 11. If it is found that the petitioner has already paid in excess of the said prescribed fee, then the 3[rd] respondent-RDO will take immediate steps to ensure that the such differential amounts is duly refunded to the petitioner with all expedition, at any rate, within six weeks from the passing of such revised order. It is made clear that Ext.P-8 order to the extent it grants statutory permission to the petitioner under Sec.27A(1) is W.P(C) No.12189 of 2020 8 not in any manner disturbed and what is now remitted is only the correct re-determination of the prescribed fee payable by the petitioner in terms of Sec.27A(3) read with the Rules. 12. In this regard, it has been borne by the respondents, more particularly, the 3[rd] respondent that statutory officers exercising their powers under Rule 6(2) of the Kerala Land Utilization Order and under Sec.27A(1) of the 2008 Act are concerned mainly with issues regarding grant of statutory permission for change of user of the land. No fee in that regard is prescribed as per the provisions of the Kerala Land Utilization Order. Whereas, in terms of Sec.27A(1), what is prescribed is only a fee and it cannot be a tax and in that regard, it has to be borne in mind by the statutory revenue officials like the 3[rd] respondent that while exercising their duties and functions in terms of Sec.27A of the Act, they cannot act as “collector of taxes” and as there is no element of tax being collected by the statutory officer and the issue is only as to whether exercise of discretion to decide as to whether or not statutory permission should be granted and if decision is so taken, then as to what exactly is a prescribed fee payable in terms of Sec.27A(3) read with Rule 12(9) of the Rules. It appears that many a time the competent Revenue Officials concerned are under the illusion that they are involved in the process of discharging duties and functions as “Collector of Taxes” and such illusion will have to be totally W.P(C) No.12189 of 2020 9 effaced from the minds and decision making process of the statutory officers. This Court is making these observations as many a time it is to be seen that even in cases where Rule 6(2) Kerala Land Utilization Order is filed before the cut-off date of 30.12.2017, still the revenue officials like the District Collector, Revenue Divisional Officer, etc. are demanding amounts to be paid in terms of Sec.27A(i) and this Court has considerably held that in a case where Rule 6(2) KLU application has been filed before the cut-off date of 30.12.2017 (date of coming into force of the amended provisions of the 2008 Act which has introduced Sec.27A thereof), then the party’s case has to be considered strictly in terms of the provisions contained in Rule 6(2) in which case the higher amounts payable in terms of the amended provisions of the 2008 Act and the amended Rules framed thereunder cannot be compelled to be paid by such a party. So also, many cases involving patently wrong demand for fee payable under Sec.27A(3) in respect of some other property and not the fair value of the subject property involved in Sec.27A (1) application. It appears that such illegalities are occurring mainly on account of the line of thinking of the revenue officials as if what is involved is collection of taxes, etc., which aspect is a totally irrelevant aspect in the matter. 13. The petitioner will produce a certified copy of this judgment along with copy of the Memorandum of this W.P(C) with all the exhibits to W.P(C) No.12189 of 2020 10 the 3[rd] respondent-Revenue Divisional Officer, for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS JUDGE** vgd W.P(C) No.12189 of 2020 11 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF THE APPLICATION SUBMITTED TO THE 3RD RESPONDENT DATED 22/01/2019.** **EXHIBIT P2** **THE REPORT OF THE VILLAGE OFFICER TO THE RDO DATED 31/1/2019.** **EXHIBIT P3** **THE TRUE COPY OF THE NOTIFIED FAIR-VALUE OF THE LAND DOWNLOADED FROM GOVERNMENT WEBSITE** **EXHIBIT P4** **THE TRUE COPY OF LETTER ISSUED BY THE RDO TO THE VILLAGE OFFICER DATED 16/2/2019** **EXHIBIT P5 THE TRUE COPY OF THE LETTER ISSUED BY VILLAGE OFFICER TO RDO DATED 20/02/2019** **EXHIBIT P6 THE TRUE COPY OF THE LETTER ISSUED BY VILLAGE OFFICER TO RDO DATED 20/02/2019** **EXHIBIT P7 THE TRUE COPY OF THE TREASURY RECEIPT DATED 8/2/2019** **EXHIBIT P8 THE TRUE COPY OF 3RD RESPONDENT ORDER DATED 19/03/2019**