Tomy C Vadayil v. Revenue Divisional Officer, Kottayam & Ors.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` WEDNESDAY, THE 2[ND] DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944 ``` ## **`WP(C) NO. 12944 OF 2022`** ## **`PETITIONER`** ``` TOMY C VADAYIL AGED 55 YEARS VADAYIL HOUSE, ERUVICHIRA P.O., THOTTAKKAD, KOTTAYAM DISTRICT, PIN-686539. BY ADVS. T.P.PRADEEP P.K.SATHEES KUMAR R.K.PRASANTH MINIKUMARY M.V. ``` ## **`RESPONDENTS:`** - **`1 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, KOTTAYAM, PIN-686632.`** - **`2 THE TAHAZILDAR (LR), TALUK OFFICE, CHANGANASSERRY-686101.`** - **`3 LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENOR/AGRICULTURAL OFFICER, KRISHI BHAVAN, VAZHAPPALLY P.O., CHANGANASSERRY, KOTTAYAM DISTRICT, PIN-686101.`** ## **`SMT.DEEPA NARAYANAN SR.GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.12944 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 2[nd] day of November, 2022 The petitioner, who is owner of 29.45 Ares of land in ReSurvey Nos.497/9-2, 497/10-1, 497/11-1 and 497/12-1-1 of Chethipuzha Village, has approached this Court seeking to quash Ext.P7 and to command the 1[st] respondent to calculate the fee by taking the Fair Value of the subject property covered by Exts.P1 and P2 as on the respective dates of Exts.P3, P3(a), P3(b), P3(c) and P3(d) applications submitted before the 1[st] respondent. 2. The petitioner states that he submitted Exts.P3 to P3(d) applications invoking the provisions of Clause 6(2) of the Kerala Land Utilisation Order, 1967 seeking to use the land for non-agricultural purposes. As no orders were passed thereon, the petitioner approached this Court and this Court as per Exts.P4 to P4(d) judgments directed the respondents to pass orders on the applications submitted by the petitioner. ``` WP(C) NO.12944 OF 2022 ``` ``` 3 ``` Thereupon, Exts.P5 to P5(d) orders were passed allowing the petitioner to use the land for non-agricultural purposes. In Exts.P5 to P5(d), it was stated that the orders are passed under the Ordinance dated 30.12.2017 (Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance, 2017) also. 3. The petitioner states that he submitted Ext.P6 Form-7 application for changing the classification of land in question. On submission of Form-7 application, the petitioner was required to remit an amount of `86,60,520/- as the 20% of the Fair Value, calculating the amount taking the Fair Value of nearby dry land. 4. The petitioner states that in the light of the judgment of this Court in **Georgekutty Thomas v. Revenue Divisional Officer** [2021 (5) KLT 156], the 1[st] respondent ought to have taken the Fair Value of the land covered by Exts.P1 and P2 documents as on the dates of Exts.P3 to P3(d) applications under Clause 6 of the Kerala Land Utilisation Order, 1967. The ``` WP(C) NO.12944 OF 2022 ``` ``` 4 ``` petitioner further urged that the 1[st] respondent ought to have noticed that the petitioner has submitted Exts.P3 to P3(d) applications as early as in the year 2018 and the dates of such applications should be considered for fixing the Fair Value and calculating the fee for allowing the utilisation of the land under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008. In the circumstances, the respondents are compellable to calculate the fee for the personal property of the petitioner covered by Ext.P1 Tax Receipt and company property covered by Ext.P2 Tax Receipt separately. 5. Senior Government Pleader entered appearance and resisted the writ petition. The Senior Government Pleader pointed out that in Ext.P5 order under the Kerala Land Utilisation Order itself, it was stated that the permission to use the land for non-agricultural purposes is being granted under the Ordinance dated 30.12.2017 also. Therefore, the petitioner is bound to pay requisite fee as calculated by the respondents. ``` WP(C) NO.12944 OF 2022 ``` ``` 5 ``` 6. Senior Government Pleader further pointed out that the petitioner himself has submitted Form-7 application for changing the nature of the land invoking the provisions of the Kerala Conservation of Paddy Land and Wetland Rules, 2008. Therefore, the petitioner is bound to pay the fee as prescribed under the Kerala Conservation of Paddy Land and Wetland Act, 2008. 7. The Senior Government Pleader further urged that as per Section 2 of the Kerala Finance Act, 2020, the Fair Value after 01.04.2020 can be calculated based on the Fair Value of the dry land adjacent to the unnotified land as on the application date. Here, the application date is 03.01.2022. Therefore, the Fair Value of the property is determined as on that date. As on 03.01.2022, the Fair Value of the adjacent land is `2,37,600/-. Therefore, taking into account the 20% levy, the fee payable by the petitioner would come to `86,60,520/-. ## **`WP(C) NO.12944 OF 2022`** 8. Senior Government Pleader further submitted that even the application submitted by the petitioner under the Kerala Land Utilisation Order, 1967 was in the year 2018, i.e. subsequent to the introduction of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Therefore, in that view of the matter also, the petitioner is liable to pay fee calculated as per the Act, 2008 and the Rules made thereunder. 9. I have heard the learned counsel for the petitioner and the learned Senior Government Pleader representing the respondents. 10. The petitioner submitted application under the Kerala Land Utilisation Order, 1967 invoking Clause 6 thereof seeking to use the land for non-agricultural purposes. It is based on the petitioner’s application that Exts.P5 to P5(d) orders have been passed by the Revenue Divisional Officer, Kottayam. By Ext.P5(d), the Revenue Divisional Officer permitted the petitioner to use the land for non-agricultural ``` WP(C) NO.12944 OF 2022 ``` ``` 7 ``` purposes under Clause 6 of the Kerala Land Utilisation Order, 1967. However, in Exts.P5 to P5(d) orders, it was stated that such sanction is subject to the Ordinance, 2017 also. 11. This Court has considered the issue of levy of fee under the Kerala Conservation of Paddy Land and Wetland Act, 2008 on the lands in respect of the orders passed under the Kerala Land Utilisation Order, 1967. This Court in the judgment in **Georgekutty Thomas** (supra) held that fee to be paid by the applicants on the basis of Fair Value of properties shall be based on the Fair Value of the properties, which was in existence at the time of submission of application and not any revised Fair Value and not on the basis of further amendments made retrospective effect from 01.04.2020. 12. It is to be noted that the petitioner has submitted his application for utilising the land for non-agricultural purposes under the Kerala Land Utilisation Order, 1967. The Kerala Land Utilisation Order does not contemplate levy of any fee for permission. However, in Ext.P5 series orders, the Revenue ``` WP(C) NO.12944 OF 2022 ``` ``` 8 ``` Divisional Officer stated that the sanction will be subject to the provisions of the Ordinance, 2017. The levy of the fee has been done on the basis of Fair Value of the land after submission of Form-7 application by the petitioner. 13. It is to be noted in this regard that the petitioner after receiving the demand, submitted application requesting not to proceed with the Form-7 application submitted in December, 2021 by the petitioner, as the applications were filed by mistake under wrong advice and also requested to rectify the orders under the Kerala Land Utilisation Order, 1967 on 02.06.2018 and 26.03.2018. 14. In view of the fact that the petitioner’s original applications under the Kerala Land Utilisation Order, 1967 were submitted on 02.06.2018 and 26.03.2018, this Court is of the considered view that the levy of fee, if any, pursuant to Exts.P5 to P5(d) orders shall be calculated, taking into consideration the Fair Value of the land as existing on the dates of Exts.P3 to P3(d) applications. ``` WP(C) NO.12944 OF 2022 ``` ``` 9 ``` In view of the above, the writ petition is disposed of setting aside Ext.P7 and directing the 1[st] respondent to recompute the fee payable by the petitioner, taking into consideration Fair Value of the property of the petitioner as on the respective dates on which applications under the Kerala Land Utilisation Order, 1967 have been made. Computation of the fee will be as per Rules 12 and 13 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008. Fee should be calculated independently with respect to the different properties of the petitioner. sd/- **N.NAGARESH JUDGE** hmh ``` WP(C) NO.12944 OF 2022 ``` ``` 10 ``` ## **`APPENDIX OF WP(C) 12944/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF THE TAX RECEIPT HAVING THANDAPER NO.12086 ISSUED FROM THE VILLAGE OFFICE, CHETHIPPUZHA. Exhibit P2TRUE COPY OF THE TAX RECEIPT HAVING THANDAPER NO.21802 ISSUED FROM THE VILLAGE OFFICE, CHETHIPPUZHA. Exhibit P3TRUE COPY OF THE APPLICATION UNDER CLAUSE 6(2) OF KLU ORDER DATED 2.6.2018 FOR 29.45 ARES OF LAND. Exhibit P3(A)TRUE COPY OF THE APPLICATION UNDER CLAUSE 6(2) OF KLU ORDER DATED 2.6.2018 FOR 43.36 ARES OF LAND. Exhibit P3(B)TRUE COPY OF THE APPLICATION UNDER CLAUSE 6(2) OF KLU ORDER DATED 2.6.2018 FOR 3.66 ARES OF LAND. Exhibit P3(C)TRUE COPY OF THE APPLICATION UNDER CLAUSE 6(2) OF KLU ORDER DATED 26.3.2018 FOR 49.90 ARES OF LAND. Exhibit P3(D)TRUE COPY OF THE APPLICATION UNDER CLAUSE 6(2) OF KLU ORDER DATED 26.3.2018 FOR 77.17 ARES OF LAND. Exhibit P4TRUE COPY OF THE JUDGMENT DATED 5.6.2018 IN WP(C) NO.18275/2018. Exhibit P4(A)TRUE COPY OF THE JUDGMENT DATED 5.6.2018 IN WP(C) NO.18271/2018. Exhibit P4(B)TRUE COPY OF THE JUDGMENT DATED 5.6.2018 IN WP(C) NO.18272/2018. Exhibit P4(C)TRUE COPY OF THE JUDGMENT DATED 4.4.2018 IN WP(C) NO.11647/2018. Exhibit P4(D)TRUE COPY OF THE JUDGMENT DATED 4.4.2018 IN WP(C) NO.11646/2018. Exhibit P5TRUE COPY OF THE ORDER NO. B- 4375/2018/K.DIS. DATED 30.7.2018 ISSUED BY THE 1ST RESPONDENT. Exhibit P5(A)TRUE COPY OF THE ORDER NO. B- 4374/2018/K.DIS. DATED 30.7.2018 ISSUED BY THE 1ST RESPONDENT. ``` ``` WP(C) NO.12944 OF 2022 ``` ``` 11 ``` ``` Exhibit P5(B) ``` ``` Exhibit P5(C) ``` ``` Exhibit P5(D) ``` ``` TRUE COPY OF THE ORDER NO. B- 4376/2018/K.DIS. DATED 30.7.2018 ISSUED BY THE 1ST RESPONDENT. ``` ``` TRUE COPY OF THE ORDER NO. B- 2120/2018/K.DIS. DATED 26.7.2018 ISSUED BY THE 1ST RESPONDENT. ``` ``` TRUE COPY OF THE ORDER NO. B- 2165/2018/K.DIS. DATED 26.7.2018 ISSUED BY THE 1ST RESPONDENT. ``` ``` Exhibit P6TRUE COPY OF THE APPLICATION IN FORM 7 IN DECEMBER 2021. ``` ``` Exhibit P7 ``` ``` EXHIBIT P8 ``` ``` EXHIBIT P9 ``` ``` TRUE COPY OF THE ORDER DATED 3.3.2022 ISSUED BY THE 1ST RESPONDENT. ``` ``` TRUE COPY OF THE APPLICATION DATED 22.09.2022 SUBMITTED BEFORE THE 1ST RESPONDENT ``` ``` TRUE COPY OF THE RECEIPT DATED 24.09.2022 ISSUED BY THE 1ST RESPONDENT ```