Najiya DT v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **FRIDAY, THE 22[ND] DAY OF DECEMBER 2023 / 1ST POUSHA, 1945** ## **WP(C) NO. 33397 OF 2023** ## **PETITIONER:** NAJIYA DT,AGED 25 YEARS W/O JAHFAR SDHIQUE E.M ELEMPILASSERY HOUSE, PATAHAR P.O, POOLAPPADAM,NIAMBUR MALAPURAM DISTRICT, PIN - 679334 BY ADVS. P.K.SOYUZ E.V.BABYCHAN 1 THE STATE OF KERALA THE STATE OF KERALA , REPRESENTED BY PRINCIPAL SECRETARY , REVENUE DEPARTMENT , GOVERNMENT SECRETARIAT, THIRUVANATHAPURAM AGS P.O. THIRUVANATHAPURAM, PIN - 695001 2 THE PRINCIPAL SECRETARY THE PRINCIPAL SECRETARY , FINANCE DEPARTMENT , GOVERNMENT SECRETARIAT, THIRUVANATHAPURAM AGS P.O. THIRUVANATHAPURAM, PIN - 695001 3 THE REVENUE DIVISIONAL OFFICER/ SUB COLLECTOR THE REVENUE DIVISIONAL OFFICER/ SUB COLLECTOR REVENUE DIVISIONAL OFFICE, PERINTHALMANNA, RDO OFFICE, PERINTHALMANNA P.O, MALAPURAM DISTRICT, PIN - 679322 ## **RESPONDENTS:** ## **OTHER PRESENT:** GP - RIYAL DEVASSY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.P.(C).No.33397 of 2023 2** ## **VIJU ABRAHAM,J** ## **-----------------------** ## **W.P.(C).No.33397 of 2023 ------------------------------------Dated this the 22[nd] day of December 2023** ## **JUDGMENT** The above writ petition is filed seeking a direction to the respondents 1 to 3 to refund an amount of Rs.1,96,238/- with interest at 12% per annum from 13.03.2023 till actual payment. 2. The petitioner is the owner and in possession of 3.18 Ares (7.86 Cents) of land comprised in Sy.No.284/14-4 in Block No.92 of Nilambur Village in Nilambur Taluk, which has been purchased as per Ext.P1 sale deed. The predecessor in interest of the petitioner purchased an extent of 3.44 Ares vide Ext.P2 sale deed and he purchased the said property having an extent of 3.84 Ares as per Ext.P3. Petitioner submits that the property has been classified as 'Nilam' in the BTR and it is an unnotified land. Thereupon, petitioner preferred application in Form-6 which was allowed, wherein the petitioner was directed ## **W.P.(C).No.33397 of 2023 3** to remit an amount of Rs.1,96,238/- as conversion fee. Petitioner submits that as per SRO No.369/21 dated 25.02.2021, the Kerala Conservation of Paddy Land and Wetland Rules was amended and there is no fee for the change of nature of land below 25 cents. Since the petitioner was in urgent need of getting an order under Section 27A, he was constraint to pay the said amount as is evident from Ext.P5. As per the Circular dated 23.07.2021 a direction was issued that only applications submitted after 25.02.2021 alone need be given the benefit of the amendment. But the division bench of this Court in **Baby.M.K v. District Collector,** **2021 (6) KHC 318)** has held that the circular dated 23.07.2021 is unconstitutional and the benefit of amendment should be given to all the applicants. Thereafter, petitioner had approached the Revenue Divisional Office, Perinthalmanna several times, but the petitioner was informed that the benefit of SRO No.369/21 dated 25.02.2021 cannot be extended to the petitioner since the land was purchased only after 30.12.2017 and the petitioner ## **W.P.(C).No.33397 of 2023 4** was informed that as per letter No.REV-P1/69/2022REV dated 07.05.2022 the Government have issued direction that if a land is purchased after 30.12.2017 the land owner will not get the benefit of SRO No.369/21 dated 25.02.2021, consequently will not get the benefit of fees exemption. Petitioner would contend that this Court subsequently in **Sumesh v. Revenue Divisional Officer, (2023 (2) KLT 817)** has observed that the directions in letter No.REV-P1/69/2022-REV dated 07.05.2022 is untenable and the court held that the contention that any property purchased after December 2017 (30.12.2017) would loss the exemption even when the said property was less than 25 cents in extent even prior to such transaction cannot be accepted in view of the specific language of the Act, the Rule and the schedule and the Court held that the communication, ie. REV-P1/69/2022-REV dated 07.05.2022 do not have the force of law. In view of the same, the petitioner submits that the demand of fee for permitting change of nature of ## **W.P.(C).No.33397 of 2023 5** land is absolutely illegal and that he is entitled for refund of the same. 3. A counter affidavit has been filed by the 3[rd] respondent wherein paragraph 5 reads as follows: _“5. Aggrieved by the letter issued to the petitioner for remitting fee and to consider refund an amount of Rs.1,96,238/- with interest, she approached this Court as per Order SRO No.369/2021 dated 25.02.2021, it is stated that the free conversion is only for the land which is not exceeding 25 cents as on 30.12.2017. As per to the Letter No.REV/P1/69/2022-REV dated 07.05.2022 the Government has made it explicitly clear that the exemption in paying fee would not be available to those who come into occupation of the applied land after 30.12.2017. The letter has been assigned to the petitioner is in accordance with the Act and Rules and no need of refund the amount”_ . A perusal of paragraph 5 of the counter affidavit would reveal that the Government is relying on the letter No.REV/P1/69/2022-REV dated 07.05.2022 to reject the claim of the petitioner. 4. This Court in **Baby.M.K'** s case cited supra, ## **W.P.(C).No.33397 of 2023 6** has held that the circular dated 23.07.2021 which restricted the benefit only to application submitted on 25.02.2021 was held to be unconstitutional and the benefit of amendment should be given to all the applicants. Later this Court in **Sumesh'** s case cited supra, as held in paragraph 5 reads as follows: _“5. A reading of the provisions of the Act, the Rules, the Schedule as well as Ext.R3(a) Government Order would make it amply clear that the exemption would be lost only in case there is a transaction after 30.12.2017 by which, a property having a larger extent is fragmented to make the individual parcels of land of an extent of less than 25 cents. The contention that any property purchased after December, 2017 would loss the exemption even when the said property was less then 25 cents in extent even prior to such transaction cannot be accepted in view of the specific language of the Act, the Rule and the Schedule. In the above view of the matter, I am of the opinion that the contentions raised in the statement are completely untenable. The communications issued, which do not have the force of law, cannot stand in the way of consideration of applications in_ ## **W.P.(C).No.33397 of 2023 7** _accordance with law.”_ In **Sumesh** 's case cited supra, exemption from payment of fee would be lost only in case there is a transaction after 30.12.2017 by which, a property having a larger extent is fragmented to make the individual parcels of land of an extent of less than 25 cents and the contention that any property purchased after December, 2017 would loss the exemption even when the said property was less than 25 cents in extent even prior to such transaction cannot be accepted in view of the specific language of the Act, the Rule and the Schedule and that any communication issued, which do not have the force of law, cannot stand in the way of consideration of applications in accordance with law. 5. Admittedly, the property was purchased by the petitioner as per Ext.P1 deed dated 03.03.2022 having an extent of 3.18 Ares the predecessor in interest of the property purchased as per Ext.P2 which is dated 15.11.2021 wherein the extent of land 3.44 Ares and he in turn purchased the ## **W.P.(C).No.33397 of 2023 8** property as per sale deed executed on 17.08.1992 an extent of property only 3.84 Ares. So admittedly, the property covered by Exts.P1 to P3 deeds are less 25 cents. Therefore, the issue raised in this writ petition is liable to be reconsidered in the light of the decisions laid down in **Sumesh** 's case cited supra. Therefore there will be a direction to the 3[rd] respondent to reconsider the issue in the light of **Sumesh** 's case cited supra within a period of one month from the date of receipt of a copy of this judgment and if it is found that the issue raised by the petitioner is covered by the said decision in **Sumesh** 's case cited supra, the respondent shall take steps to refund the conversion fee remitted by the petitioner as is evident from Ext.P5 receipt within a period of 4 months from the date of receipt of a copy of this judgment. sd/- ## **VIJU ABRAHAM, JUDGE** pm **W.P.(C).No.33397 of 2023 9** ## **APPENDIX OF WP(C) 33397/2023** PETITIONER'S EXHIBITS Exhibit P1 A TRUE COPY OF THE SALE DEED NO. 957 OF 2022 DATED 03.03.2022 OF NILAMBUR SRO Exhibit P2 A TRUE COPY OF THE SALE DEED NO. 4001 OF 2021 DATED 15.11.2021 OF NILAMBUR SRO Exhibit P3 A TRUE COPY OF THE SALE DEED NO.3074 OF 1992 DATED 17.08.1992 OF NILAMBUR SRO Exhibit P4 A TRUE COPY OF THE LAND TAX RECEIPT DATED 21.05.2022 Exhibit P5 A TRUE COPY OF THE RECEIPT FOR RS. 196238/ DATED 13.03.2023 Exhibit P6 A TRUE COPY OF THE ORDER NO. 227 /2023 DATED 14.03.2023 ISSUED BY THE 3 RD RESPONDENT Exhibit P7 A TRUE COPY OF THE APPLICATION DATED 10.06.2023 SENT BY THE PETITIONER TO RESPONDENTS 1 AND 3 Exhibit P8 A TRUE COPY OF THE POSTAL ACKNOWLEDGMENT DATED 19.06.2023 Exhibit P9 A TRUE COPY OF THE REPLY DATED 12.07.2023 SENT BY THE 3 RD RESPONDENT