Sibi Joseph v. Revenue Divisional Officer, Mini Civil Station, Puthenangady, Kottayam; Village Officer, Madappally Village, Madappally P.O, Kottayam; Agricultural Officer, Krishi Bhavan, Madappally, Kottayam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 24TH DAY OF JUNE 2020 / 3RD ASHADHA, 1942** ## **WP(C).No.12382 OF 2020(W)** ## **PETITIONER/S:** **SIBI JOSEPH, AGED 56 YEARS S/O.JOSEPH GREGORY, KOOTTAIKKARAYIL HOUSE, CHEKKIDIKKADU.P.O, EDATHUA, ALAPPUZHA-689573** **BY ADVS. SRI.SHABU SREEDHARAN SHRI.NITIN RAJAN NAIR SMT.JISMIN JOSE SHRI.UNAIS K.P. SMT.ANJANA G. SHRI.JOBIN JOSE P. SMT.RADHIKA U.** ## **RESPONDENT/S:** - **1 THE REVENUE DIVISIONAL OFFICER MINI CIVIL STATION, PUTHENANGADY, KOTTAYAM-686001** - **2 THE VILLAGE OFFICR, MADAPPALLY VILLAGE, MADAPPALLY.P.O, KOTTAYAM-686546** - **3 THE AGRICULTURAL OFFICER KRISHI BHAVAN, MADAPPALLY, KOTTAYAM-686546** ## **OTHER PRESENT:** ## **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::2:: **WP(C).No.12382 OF 2020(W)** ## **ALEXANDER THOMAS, J** . ----------------------------W.P(C).No.12382 Of 2020 --------------------------------Dated this the 24[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 petitioner submitted Ext.P-6 application before the 1[st] respondent seeking to get changed the nature of the property extending 20.13 Ares out of 20.23 ares covered by Exhibit P-1 in the joint name of himself and his wife. The 1[st] respondent invited reports in the matter from the respondents 2 & 3. Accordingly, respondents 2 & 3 submitted Exts.P-8 & P-9 reports. It is urged that the 1[st] respondent dragged the matter without passing any orders on Ext.P-6. In the meantime, Government passed orders enhancing the fair value @ 10% w.e.f 15.5.2020 ie., the original fair value got doubled. Thereby, the fair value of the abovesaid property has become 5 lakhs per Are. Now it is learnt that the 1[st] respondent is taking steps to change the revised rate of fair value upon the petitioner and his wife for getting changed nature of their abovesaid property. The petitioner and his wife are entitled to get changed the nature of their property by remitting the fair value prevailing at the time of submission of Ext.P-6 application. The 1[st] respondent cannot in any way be justified in dragging the matter unnecessarily without passing any order on Ext.P-6 application so far, it is stated. Moreover, the 1[st] respondent cannot in any way be_ ::3:: **WP(C).No.12382 OF 2020(W)** - _justified in charging the enhanced rate of fair value which came into effect only on 15.5.2020 ie., more than 8 ½ months after the submission of such application. The petitioner has preferred Ext.P-11 representation before the 1[st] respondent requesting to pass order on Ext.P-6 application allowing change of nature of the property from wet land to dry land by charging Rs.4,53,750/- per Are forthwith. But the 1[st] respondent has not taken any favourable step on such representation till this date. The actions/inactions on the part of the 1[st] respondent are highly arbitrary, unjust and illegal._ ## 2. The contentions of the petitioner are as follows: - _(i) Ext.P-6 application is dated 27.8.2019. The applicable fair value of the abovesaid property is Rs.4,53,750/- per Are at the relevant time. As such, the petitioner and his wife are entitled to get changed the nature of their property by remitting 10% of Rs.4,53,750/- per Are._ - _(ii) The 1[st] respondent cannot in any way be justified in dragging the matter unnecessarily without passing any orders on Ext.P-6 application so far. Moreover, the 1[st] respondent cannot in any way be justified in charging the enhanced rate of fair value which came into effect only on 15.5.2020 ie., more than 8½ months after the submission of such application._ ## It is in the light of these aspects, that the petitioner has filed the ## instant Writ Petition seeking the following reliefs: - _1) To issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1[st] respondent to pass order on Exhibit-P6_ ::4:: **WP(C).No.12382 OF 2020(W)** _application changing the nature of the property belonging to the petitioner and his wife from wet land to dry land by charging 10% of the fair value of Rs.4,53,750/- per Are within a time frame._ - _And to pass such other appropriate writs, order or direction which this Hon'ble Court deems fit and proper in the facts and circumstances of the case so as to secure the ends of justice.”_ 3. Heard Sri.Shabu Sreedharan, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 4. The case of the petitioner is that though the subject property has been described as paddy land/nilam in the Basic Tax Register (BTR), the same has been converted as garden land/purayidam much prior to 12.8.2008 (the date of coming into force of the Kerala Conversation of Paddy Land and Wet Land Act, 2008). Further that the total extent of the petitioner's property covered by Ext.P-1 title deed is 20.23 ares and that he intends to secure statutory permission for change of user of the land only in respect of 20.13 ares out of said 20.23 ares. The petitioner has now submitted Ext.P-6 application dated 27.8.2019 in Form No.5 before the 1[st] respondent-RDO seeking for statutory permission for change of user of the land as envisaged in Sec.27A(1) of the Kerala Conversation of Paddy Land and Wet Land Act, 2008 and the Rules framed thereunder. One of the complaints raised by the ::5:: **WP(C).No.12382 OF 2020(W)** petitioner is that though Ext.P-6 application was submitted in form No.5 as early as on 27.8.2019, for reasons not known to the petitioner, its consideration is delayed inordinately and now the attempt of the respondents is to demand that the petitioner should pay fee at the rate of the fair value which has been revised much subsequently after the submission of Ext.P-6 application. It is pointed out that the 1[st] respondent can legally demand only fee to be payable in terms of the fair value of the subject property covered by Sec.27A(1) application and such fair value should be the value so notified as on the date of submission of Sec.27A(1) application and not subsequently revised rate. 5. After hearing both sides, it has to be noted that this Court has already held in the judgment in _**Vimal Vincent v. Revenue Divisional Officer/Sub Collector**_ [2020(1) KLT 145] that the fee payable in terms of Sec.27A(3) r/w Rule 12(9) of the Rules should be the notified fair value of the subject property covered by Sec.27A(1) application and such fair value of the property should be the one notified in terms of Sec.28A of the Kerala Stamp Act. It has also been held by this Court in certain other judgments that such fee should not only be the fair value of ::6:: ## **WP(C).No.12382 OF 2020(W)** the subject property covered by Sec.27A(1) application but also it should necessarily be the fair value of the property as on the date of submission of application of Sec.27A(1) application and not any subsequently revised fair values. The reason for this is quite simple as the respondent authority cannot prolong the consideration of the application under Sec.27A(1) and even if it is prolonged, such delay on the part of the respondent authority cannot be the ground to make the applicant pay a revised fair value which may be in vogue as on the date of the decision to be taken later. No authority can take advantage of their own wrong and therefore the delay on the part of the respondent authority cannot be the basis 0f inflicting more adverse civil consequence on the applicant and therefore a reasonable and proper approach in the matter would be that the fair value should be the one which is in currency as on the date of submission of Sec.27A(1) application and not the subsequently revised fair value which may be in vogue at the time when a decision is ultimately taken. 6. Accordingly, it is ordered and declared that in a case like this, the petitioner need to pay only the fair value of the subject property covered by Sec.27A(1) application as on the date of ::7:: ## **WP(C).No.12382 OF 2020(W)** submission of the said application filed before the 1[st] respondent and not any subsequently revised fair value of the property. 7. After hearing both sides and after examination of the pleadings and materials on record, it is seen that there is no pleading or material to show as to how the subject property has been described in the draft data bank or final data bank or as to whether final data bank has already been published in the instant case, etc. Therefore the 1[st] respondent may examine and ascertain as to how the subject property has been described as in the draft data bank and final data bank and if the subject property has been described as nilam/paddy land in the draft data bank/final data bank, then the 1[st] respondent may direct the petitioner to separately file an application in Form No.5 under Sec.5(4)(1) of the 2008 Act for exclusion of the property from the land data bank. It appears that as per the procedural norms, the party will have to first get formal orders for exclusion of the subject property from the land data bank under Sec.5(4)(1), if the property has been described as nilam/paddy land in the draft data bank/final data bank. That aspect of the matter may be duly borne in mind by the petitioner as well as the 1[st] respondent before proceeding further ::8:: **WP(C).No.12382 OF 2020(W)** with the matter. Subject to the abovesaid aspect, it is ordered that the 1[st] respondent will immediately take up the matters raised in Ext.P-6 application dated 27.8.2019 filed in Form No.5 and after conducting requisite inspection with due prior notice to the petitioner and after affording reasonable opportunity of being heard to the petitioner, may take a considered decision on the matters raised by the petitioner in Ext.P-6 application on the plea of the petitioner for statutory permission for change of user of the land as envisaged in Sec.27A of the 2008 Act and the Rules framed thereunder without much delay, within a period of 3 months from the date of production of a certified copy of this judgment. However, it is made clear that in case the subject property has been included in the draft data bank/final data bank as nilam/paddy land, then in such a case, the abovesaid time limit for consideration and disposal of Ext.P-6 application by the 1[st] respondent would be 6 weeks from the date of issuance of orders under Sec.5(4)(1) for exclusion of the subject property from the land data bank. In this regard, it is also clarified and ordered that in case there is requirement for the petitioner to file such application in Form No.5 under Sec.5(4)(1) for deleting the entry ::9:: ## **WP(C).No.12382 OF 2020(W)** in the draft data bank/final data bank describing the property as nilam/paddy land then such application under Sec.5(4)(1) in form No.5 will have to be considered by the RDO and after conducting inspection and after ensuring that a copy of the inspection is given to the petitioner and after affording reasonable opportunity to the petitioner of being heard, will pass orders within 2 months from the date of filing of such application in Form No.5. The petitioner will produce a certified copy of this judgment along with a copy of the memorandum of Writ Petition with all exhibits before the 1[st] 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.** bkn/- ::10:: **WP(C).No.12382 OF 2020(W)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE SALE DEED N O.3369 OF SRO, THENGANA DATED 18.12.2003 EXHIBIT P2 THE TRUE COPY OF THE TAX RECEIPT DATED 11.6.2019 ISSUED BY THE 2ND RESPONDENT EXHIBIT P3 THE TRUE COPY OF THE RELEVANT PAGE OF THE BTR DATED NIL EXHIBIT P4 THE TRUE COPY OF THE SEARCH REPORT OF THE FAIR VALUE OF THE PROPERTY BELONGING TO THE PETITIONER AND HIS WIFE DATED NIL EXHIBIT P5 THE TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE 2ND RESPONDENT DATED 16.7.2019 EXHIBIT P6 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 1STR RESPONDENT DATED 27.08.2019 EXHIBIT P7 THE TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT DATED 30.08.2019 EXHIBIT P8 THE TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT DATED 20.08.2019** EXHIBIT-P9 THE TRUE COPY OF THE REPORT SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT DTD. 22.10.2019 EXHIBIT-P10: THE TRUE COPY OF THE REPORT SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT DTD. 30.10.2019 EXHIBIT-P11: THE TRUE COPY OF THE REPRESENTATION PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.