Jolly Joseph v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 29TH DAY OF JUNE 2020 / 8TH ASHADHA, 1942** ## **WP(C).No.5321 OF 2020(M)** ## **PETITIONER:** **JOLLY JOSEPH AGED 53 YEARS** **W/O. SEBASTIAN, EDAPPULAVAN HOUSE, RAYONPURAM, VALLOM KARA, CHELAMATTOM VILLAGE, KUNNATHUNADU TALUK, RAYONPURAM P.O., -683 543** **BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR)** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA-686 661** - **3 VILLAGE OFFICER, CHELAMATTOM VILLAGE OFFICE, PERUMBAVOOR-683 542** **BY ADVS. SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.5321 of 2020 2 ALEXANDER THOMAS, J. -----------------------------------W.P(C) No. 5321 of 2020 -----------------------------------Dated this the 29[th] day June, 2020 ## **JUDGMENT** The case set up in this Writ petition (C) is as follows: _The petitioner has submitted an application before the 2[nd] respondent to change the nature of her land in revenue records under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act. The petition was allowed by the 2[nd] respondent and quantified the fees to be remitted by the petitioner under Section 27A of the Act based on fair value fixed under the Kerala Stamp Act. But in adopting the fair value the 2[nd] respondent adopted the fair value of a different property other than the property sought to be converted. Fair value register shows the fair value of the property of the petitioner. But for no reasons the fair value of the property of the petitioner was not accepted and the fair value of a property which is having no similarity to the property of the petitioner is accepted. Even though the petitioner filed an objection to this mode of quantification of the amount the 2[nd] respondent did not take any action in it._ It is in the light of these averments and contentions that the W.P(C) No.5321 of 2020 3 petitioner has filed the instant Writ Petition (C) seeking the following reliefs: - _“(i) To call for the records leading to Exhibit P3 order of the 2[nd] respondent and quash the order to the extent it fixed the fee payable by the petitioner based on the fair value of a different property in Sy.No.408/13 having no similarity with the property of the petitioner._ - _(ii) To issue a writ of mandamus or any other appropriate writ order or direction, directing the 2[nd] respondent to refix the fee payable by the petitioner for conversion of her land based on Exhibit P4 fair value register and on the basis of the fair value prevailed as on the date of Exhibit P3 order (25.9.19)._ - _(iii) To grant such other reliefs which this Hon’ble Court deems fit and proper in the circumstances of the case.”_ 2. Heard Sri.V.Rajendran, learned counsel appearing for the petitioner, and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. The case of the petitioner is that, the subject property though continues to be described as ‘nilam/paddy land’ as per the Basic Tax Register (BTR) has been converted as ‘garden land or purayidam’ much prior to 12-08-2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and that the subject property has also been duly excluded from the land data bank prepared as per the provisions of the 2008 Act, as can be seen from Ext.P2 report of the Local Level Monitoring Committee. W.P(C) No.5321 of 2020 4 4. The petitioner has thereafter submitted application dated 09-05-2019 in Form No.6 before the 2[nd] respondent RDO seeking for statutory permission for change of use of the land in terms of Sec.27A(1) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and the rules framed thereunder. By Ext.P3 order dated 25-09-2019, the 2[nd] respondent RDO has decided that the plea of the petitioner for such permission could be granted. The further view of the 2[nd] respondent in Ext.P3 that the petitioner should pay the fee at the rate of fair value mentioned therein is not legally correct for the simple reason that the said fair value insisted by the 2[nd] respondent in Ext.P3 is not the fair value of the subject property covered by Sec.27A (1) application, but the fair value of a neighbouring property, it is urged. It is pointed out that as can be seen from Ext.P3 that the subject property is having an extent of 18.73 Ares and lying within Re-sy.Nos.434/10-2, 434/11-2, 434/9-2, 434/16 and 434/17. That the fair value of these properties are shown in Ext.P4 fair value notification and wherein it is shown that the fair value of the properties lying in 434/11 & 434/9, comes to Rs.18,000/- per Are, subject to permissible increments thereafter. Further it is urged that the W.P(C) No.5321 of 2020 5 434/10-2, 434/11-2, 434/9-2, 434/16 and 434/17 are actually further sub divisions of the properties covered by 434/10, 434/11 and 434/9. A reading of Ext.P3 would show that the fair value insisted by the 2[nd] respondent RDO is at the rate of Rs.1,50,000/-, subject to increments. 5. After hearing both sides it is seen that, the said stand taken by the 2[nd] respondent RDO in Ext.P3 regarding the fixation of the fair value for charging the fee payable by the petitioner, is not legally correct inasmuch as it is against the dictum laid down by this Court in decisions as in _**Dr.Vimal Vincent v. Revenue Divisional Officer/Sub Collector [2020 (1) KLT 145]=[2020 (1) KHC 123]**_ (Judgment dated 27-11-2019 rendered by this Court in W.P(C) No.30555 of 2019, copy of which has been produced as Ext.P5 herein). In the said judgment this Court has categorically held that fee payable by a party, in terms of Sec.27A(3) read with Rule 12 (9) of the rules, should be at the rate of the fair value of the subject property covered by Sec.27A(1) application and not the fair value of any other property including a neighbouring property. Further this Court has also held and declared that in such cases the fee payable is not only in W.P(C) No.5321 of 2020 6 terms of the fair value of the subject property covered by Sec.27A(1) application, but also the fair value of such property as on the date of submission of Sec.27A(1) application and not a subsequently revised fair value. 6. In that view of the matter, it is ordered that impugned Ext.P3 order will stand set aside and quashed and to the limited extend it orders that, payment of fee based on the fair value as ordered therein. However, it is made clear that the substantive decision taken by the 2[nd] respondent in Ext.P3 to the effect that petitioner could be given statutory permission for change of use of the land is not in any manner interfered with or interdicted. This Court has remitted the matter to the 3[rd] respondent only in respect of fixation of the proper fee chargeable from the petitioner in terms of Sec.27A(3) read with Rule 12 (9) of the rules and in the light of the abovesiad legal principles laid down by this Court in the aforementioned judgments. The 3[rd] respondent will immediately afford reasonable opportunity of being heard to the petitioner and then should specifically advert to the case of the petitioner that the fair value of the subject properties are clearly mentioned in Ext.P4 W.P(C) No.5321 of 2020 7 and it is at the rate of Rs.18,000/- per Are, subject to permissible increments. However it has also been borne in mind by the 2[nd] respondent that the said fair value should be as on the date of submission of Sec.27A(1) application, which in the instant case appears to be 09-05-2019 as can be seen from reference No.1 of Ext.P3. 7. After taking the said decision, the petitioner may be given reasonable time to make the said payments and then formal orders should be passed by the 3[rd] respondent, final disposing of the said application dated 09-05-2019 submitted by the petitioner under Sec.27A(1), without any further delay. The decision regarding the fixation of the correct fee to be paid by the petitioner shall be rendered by the 3[rd] respondent after hearing the petitioner within a period of three weeks from the date of production of a certified copy of this judgment. The final orders shall be passed on the application by the 3[rd] respondent within two weeks from the date of remitting of the prescribed fee. 8. The petitioner will produce a certified copy of the judgment along with a copy of the memorandum of the W.P(C) with all the W.P(C) No.5321 of 2020 8 Exhibits before respondent No.2[nd] respondent RDO for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** KAS W.P(C) No.5321 of 2020 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF JUDGMENT IN W.P(C) 16351/18 OF THIS HON'BLE COURT DATED 4.6.18 EXHIBIT P2 TRUE COPY OF A REPORT FILED BY LLMC BEARING NO OKL 14/19-20 BEFORE THE 2ND RESPONDENT on 26-02-2019** **EXHIBIT P3 TRUE COPY OF ORDER OF 2ND RESPONDENT BEARING NO.A9-4390/19 DATED 25.9.19** **EXHIBIT P4 TRUE COPY OF RELEVANT PORTION OF THE FAIR VALUE REGISTER OF THE LAND OF THE PETITIONER** **EXHIBIT P5 TRUE COPY OF JUDGMENT IN W.P(C) NO.30555/19 DATED 27.11.19 OF THIS HON'BLE COURT** **EXHIBIT P6 TRUE COPY OF PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 16.10.19** **EXHIBIT P7 TRUE COPY OF RECEIPT DATED 17.10.19 BEARING NO.6021/19 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT EVIDENCING RECEIPT OF EXHIBIT P6**