K.S. Joshy and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **THURSDAY, THE 4TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942** ## **WP(C).No.10918 OF 2020(L)** ## **PETITIONERS:** |**1**|**K.S.JOSHY, AGED 66 YEARS,**| |---|---| ||**S/O. LATE SANKUNNY, RESIDING AT FLAT NO. 2C,**| ||**LOTUS APARTMENT, DURBAR HALL ROAD, KARITHALA DESOM,**| ||**ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM**| ||**DISTRICT 682 016.**| |**2**|**GAYATHRI JOSHY, AGED 58 YEARS,**| ||**W/O. K.S. JOSHY,, RESIDING AT FLAT NO. 2C,**| ||**LOTUS APARTMENT, DURBAR HALL ROAD, KARITHALA DESOM,**| ||**ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM**| ||**DISTRICT 682 016.**| |**3**|**SANALKUMAR. K.J., AGED 32 YEARS,**| ||**S/O. K.S. JOSHY, RESIDING AT FLAT NO. 2C,**| ||**LOTUS APARTMENT, DURBAR HALL ROAD, KARITHALA DESOM,**| ||**ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM**| ||**DISTRICT 682 016.**| **BY ADV. SRI.PEEYUS A.KOTTAM** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY, REVENUE DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT, ANNEX,**| ||**THIRUVANANTHAPURAM 695 001.**| |**2**|**DISTRICT COLLECTOR,**| ||**ALAPPUZHA, CIVIL STATION, 688 564.**| |**3**|**REVENUE DIVISIONAL OFFICER,**| ||**ALAPPUZHA DISTRICT, 688 654.**| **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ALEXANDER THOMAS, J. --------------------------------------W.P. © No. 10918 of 2020 --------------------------------------- Dated this the 4[th] day of June, 2020 ## J U D G M E N T The case set up in this Writ Petition (Civil) is as follows: The 1[st] petitioner is the owner in possession of 93.34 ares of property in Sy.No. 199/16A, 199/16A1, 199/16A2, 199/12, 199/12-5, 199/12-6 and 2nd and 3rd petitioners owned 14.18 ares each in Sy.No. 199/16A of Kokothamangalam Village, Cherthala Taluk. Their properties are lying converted much before 2008 and lying without any manner of cultivation still this property is described as Nilam in the Basic Tax Register. The petitioners submitted Ext-P1 application under Clause 6 of KLU, 1967 and 3rd respondent was keep on rejecting the petitioners application raising one or other reasons. As per Exts- P5, P16 judgments, this Court set aside the orders passed by 3[rd] respondent. In pursuant to Ext-P16 judgment, 3rd respondent passed Ext-P17 and P18 orders. It is an undisputed fact that from 26.10.2016 onwards petitioners Ext- P1 application was pending consideration before the 3rd respondent and it was under adjudications in different W.P. © No. 10918 of 2020 ..3.. level. The 3[rd] respondent was rejecting the petitioners application raising untenable contentions and thereby petitioners have sustained huge loss. Ultimately as per Exts-P17 and P18 orders, the 3rd respondent insisted the petitioners to remit 20% of the fair value of petitioners adjacent residential plot having Sy.No. 199/17 for correcting the entry in the BTR of the petitioners property. 3rd respondent as per Ext-P19 order directed the 1st petitioner to kept aside 10% of this property for water conservancy measures is also illegal and unsustainable in law. Since the petitioners filed application much before 30.12.2017 i.e. date on which Section 27A inserted by Act 29 of 2018, the petitioners cannot insisted to pay the amount as per the provisions under Section 27A of Kerala Conservation of Paddy Land and Wet Land Act, 2008. It is in the light of the abovesaid facts and circumstances that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: “ > _i) Call for the entire records leading to Exts-P17 and P18 tothe extent of demanding 2nd and 3rd petitioners to remit an amount of Rs. 3,17,079/each for giving permission to use the petitioners property for other purposes and for correcting the description of the petitioners property as purayidam in the basic tax register._ W.P. © No. 10918 of 2020 ..4.. _ii) Call for the records leading to Ext-P19 and quash the same by issuing a writ of certiorari or other appropriate order or direction._ _iii) Declare that Ext-P9 application is a continuation of Ext-P1 application and since the application under Clause 6 of Kerala Land Utilisation is pending consideration much prior to 30.12.2017 his application is liable to be considered as per the provisions of Kerala Land Utilisation Order, 1967 and not as per the provisions of Kerala Conservation of Paddy Land and Wet Land Act, 2018._ _iv) Issue a writ of mandamus or any other writ, order or direction and thereby command the 3rd respondent not to insist the petitioners to remit any amount for permitting them to use their property for other purposes and for correcting the entry in the basic tax register, since 26.10.2016 onwards petitioner is persuading the authorities to give permission for using their properties for other purposes and as an alternative relief if this Hon’ble Court found that petitioners are liable to pay the amount as stipulated under Section 27A of Kerala Conservation of Paddy Land and Wet Land Act, 2018, they need to remit only 20% of the fair value of the petitioners property._ _v) Grant such other reliefs, which are just and necessary in the interest of justice and deem fit, just and proper.”_ 2. Heard Sri.Peeyus A. Kottam, learned counsel appearing for the petitioners and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for all the respondents. 3. Sri.Peeyus A. Kottam, learned counsel appearing for the petitioners would submit fairly on the basis of instructions of his parties that the petitioners would limit their prayer only as regards the challenge made in Exts.P-17 & P-18 orders passed in the case of 2[nd] & 3[rd] petitioners, and in that regard the impugned order passed by the 3[rd] respondent RDO as per Ext.P-18 dated 13.5.2020 to the extend it demands that the petitioners should W.P. © No. 10918 of 2020 ..5.. necessarily pay the amounts computed in terms of the fair value not that of the subject properties covered by their applications, but the fair value of the adjacent property is illegal and ultra vires, and is against the dictum laid down by this Court in various decisions as in _**Dr.Vimal Vincent v. RDO/Sub Collector, Irinjalakuda and others [2020 (1) KHC 123].**_ 4. This Court has held in _**Dr.Vimal Vincent's case supra**_ that, fair value of the property to be determined for the fee payable in terms of Section 27A(3) of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, can only be the fair value of property which is subject matter of the application submitted for permission for change of user of land in terms of Section 27A(1) of the 2008 Act, and not the fair value of the adjacent property, and such fair value of subject property is the one determined and notified in terms of Section 28A of the Kerala Stamp Act. It has also been held by this Court in quite a few judgments that the said fee amount should not only be the fair value of the subject property, but also such fair value of the subject property as on the date of submission of application under Section 27A(1) of the 2008 W.P. © No. 10918 of 2020 ..6.. Act, and not a fair value which may be subsequently revised. 5. According to the petitioners they had submitted the requisite application on 29.6.2019 (referred to in Ext.P-9) seeking the benefit of permission for change of user of land in terms of Section 27A(1) of the 2008 Act, and further that the fair value of the subject property covered by the application is the one notified as per Ext.P-20. Whereas, the 3[rd] respondent as per the impugned orders passed in Exts.P-18 & P-19 has taken the view that the fair value payable is that of the adjacent property which is much higher. 6. After hearing both sides it is only to be held that the sid stand taken by the 3[rd] respondent RDO in the impugned Exts.P-17 & P-18 orders are illegal and ultra vires, and is in flagrant violation of the dictum laid down by this Court in the case in the case in _**Dr.Vimal Vincent's case supra**_ , a copy of which has been produced as Ext.P-23 herein. In that view of the matter it is ordered that, the said decision of the 3[rd] respondent that the petitioner has to necessarily pay the fee in terms of the fair value of the adjacent property as reflected in the impugned Exts.P-17 & W.P. © No. 10918 of 2020 ..7.. P-18 proceedings will stand set aside and quashed, and the application of the petitioner under Section 27A(1) as referred to in Ext.P-9 will stand remitted to the 3[rd] respondent for passing orders afresh. 7. The 3[rd] respondent will immediately afford a reasonable opportunity of being heard to the petitioners through authorized representative or counsel if any, and then should pass orders on the said application filed under Section 27A(1) of the Act, and in that process the 3[rd] respondent will be at liberty to demand the petitioners to pay the prescribed fee reckoned on the basis of the fair value of the subject property covered by the abovesaid application and not the fair value of the adjacent property, and also with reference to the fair value of the subject property as on the date of submission of the application filed under Section 27A(1). Orders in this regard should be duly passed by the 3[rd] respondent without much delay preferably within a period of 6 weeks from the date of production of a certified copy of this judgment. 8. It is made clear that the abovesaid directions are only in respect of the cases of the 2[nd] & 3[rd] petitioners who are covered W.P. © No. 10918 of 2020 ..8.. by impugned Exts.P-17 & P-18 orders respectively. All other issues are left open. 9. The petitioners will produce certified copy of this judgment along with copy of memorandum of this WP(C) with all exhibits before the 3[rd] respondent RDO 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 MMG W.P. © No. 10918 of 2020 ..9.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPLICATION UNDER CLAUSE 6 OF KLU, 1967 FIELD BY THE PETITIONERS DATED 25.10.2016. EXHIBIT P2 THE TRUE COPY OF THE JUDGMENT IN WPC NO. 35837/2016 DATED 08.11.2016. EXHIBIT P3 THE TRUE COPY OF THE REPORT OBTAINED FROM THE KERALA STATE REMOTE SENSING AND ENVIRONMENTAL CENTER (KSREC), IN PURSUANT TO EXT. P1 JUDGMENT. EXHIBIT P4 THE TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 15.07.2017. EXHIBIT P5 THE TRUE COPY OF THE JUDGMENT IN WPC 31158/2017 DATED 28.09.2017. EXHIBIT P6 TRUE COPY OF THE CONTEMPT NOTICE DATED 10.10.2017 ISSUED BY THE 1ST PETITION TO 3RD RESPONDENT. EXHIBIT P7 THE TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 29.12.2017. EXHIBIT P8 THE TRUE COPY OF THE ORDER OF THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM DATED 05.03.2018. EXHIBIT P9 THE TRUE COPY OF THE REPORT SUBMITTED BY THE AGRICULTURAL OFFICER IN 1ST PETITIONERS FILE NO. 44/19 TO THE 3RD RESPONDENT. EXHIBIT P10 THE TRUE COPY OF THE REPORT SUBMITTED BY THE AGRICULTURAL OFFICER IN 2ND PETITIONERS FILE NO. 243/19 TO THE 3RD RESPONDENT. EXHIBIT P11 THE TRUE COPY OF THE REPORT SUBMITTED BY THE AGRICULTURAL OFFICER IN 3RD PETITIONERS FILE NO. 242/19 TO THE 3RD RESPONDENT. EXHIBIT P12 THE TRUE COPY OF THE REPORT SUBMITTED BY THE DISTRICT TECHNICAL EXPERT COMMITTEE AFTER INSPECTING THE PETITIONERS PROPERTY.** W.P. © No. 10918 of 2020 ..10.. |**EXHIBIT P13**|**TRUE COPY OF THE ORDER BEARING NO. 3872/2019 J**| |---|---| ||**DATED 28.09.2019 IN THE 1ST PETITIONERS**| ||**APPLICATION.**| |**EXHIBIT P14**|**TRUE COPY OF THE ORDER BEARING NO. 3873/2019 J**| ||**DATED 28.09.2019 IN THE 2ND PETITIONERS**| ||**APPLICATION.**| |**EXHIBIT P15**|**TRUE COPY OF THE BEARING NO. 3866/2019 J DATED**| ||**28.09.2019 IN THE 3RD PETITIONERS APPLICATION.**| |**EXHIBIT P16**|**THE TRUE COPY OF THE JUDGMENT OF THIS HONBLE**| ||**COURT IN WPC 30481/2019 DATED 10.12.2019.**| |**EXHIBIT P17**|**THE TRUE COPY OF THE ORDER BEARING NO.**| ||**J2659/2020 DATED 13.05.2020 ISSUED BY THE**| ||**REVENUE DIVISIONAL OFFICER TO THE 2ND**| ||**PETITIONER.**| |**EXHIBIT P18**|**THE TRUE COPY OF THE ORDER BEARING NO J**| ||**2660/2020 DATED 13.05.2020 ISSUED BY THE**| ||**REVENUE DIVISIONAL OFFICER TO THE 3RD**| ||**PETITIONER.**| |**EXHIBIT P19**|**TRUE COPY OF THE ORDER NO. J-7135/19 DATED**| ||**25.03.2020 PASSED BY REVENUE DIVISIONAL**| ||**OFFICER, ALAPPUZHA.**| |**EXHIBIT P20**|**THE TRUE COPY OF THE FAIR VALUE PERTAINING TO**| ||**PETITIONERS PROPERTY.**| |**EXHIBIT P21**|**THE TRUE COPY OF THE CIRCULAR NO. REV.P1**| ||**248/2019-REV DATED 17.02.2020.**| |**EXHIBIT P22**|**THE TRUE COPY OF THE CIRCULAR NO. REV-**| ||**P1/55/2020-REV DATED 30.04.2020.**| |**EXHIBIT P23**|**THE TRUE COPY OF THE JUDGMENT IN 2020 (1) KHC**| ||**123 (VIMAL VINCENT VS. REVENUE DIVISIONAL**| ||**OFFICER, IRINJALAKUDA AND OTHERS).**|