High Court of KeralaSingle Judge2022-06-09Writ petitions allowed; refund directed; Ext.P5...

WP(C) Nos. 9362/2022, 9381/2022, 17318/2022 and 17322/2022 (connected petitions) – High Court of Kerala

Case / Petition Number:WP(C) Nos. 9362/2022; 9381/2022; 17318/2022; 17322/2022 (connected cases)

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.V. Kunhikrishnan
Judgment Date: 2022-06-09
Court Decision / Holding: The writ petitions are allowed. The respondents are directed to refund the amount deposited within two months from the date of receipt of a copy of this judgment. Ext.P5 in WP Nos. 17318/2022 and 17322/2022 is set aside.
Final Disposition: Writ petitions allowed; refund directed; Ext.P5 set aside.

Parties to the Case

Appellants / Petitioners

Nisha Varghese
SANTHA JOSE
P. Amina Umma
Muhammed M.A.

Respondents

The State of Kerala represented by its Secretary, Revenue Department
The Land Revenue Commissioner
The District Collector
The Sub Collector / Revenue Divisional Officer (RDO)

Legal Representation & Advocates

Counsels for Petitioners

• Rinny Stephen Chamaparampil
• Asha Elizabeth Mathew

Counsels for Respondents

• Smt. Deepa Narayanan, Sr. GP

Case Synopsis & Summary

These connected writ petitions challenge refunds of amounts collected as a condition precedent to an order under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008. The petitioners contend that payment of such amounts is not a valid condition precedent to an order under Sec. 27A and seek refunds of the funds collected by revenue authorities, arguing illegality in the levy. The court traces a chain of Supreme Court precedents holding that sums collected under unconstitutional levies must be refunded, irrespective of whether the claim is brought in a suit or under Article 226 of the Constitution. Notable authorities cited include Mahabir Kishore v. State of Madhya Pradesh, Hmm Limited v. Administrator, Bangalore City Corporation, Salonah Tea Company Ltd. v. Superintendent of Taxes Nowgong, and U.P. Pollution Control Board v. Kanoria Industrial Ltd. Based on these authorities, the court holds the petitioners are entitled to refunds and directs refund within two months; Ext.P5 in two petitions is set aside. The judgment consolidates four writ petitions, treats the unconstitutional levy as refundable, and clarifies that the constitutional remedy under Article 226 remains available. The decision thus requires the government to reimburse the deposits collected under the challenged regime.

Provisions of Law Cited

Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008Article 226 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the payment demanded under the challenged regime, premised on Sec. 27A of the 2008 Act, is improper and not a valid condition precedent to an order under Sec. 27A. They seek refunds of amounts collected as either fee, tax, or duty, relying on Supreme Court authority that refunds of unconstitutional levies are due, whether the claim is brought in a suit or under Article 226. They cite Mahabir Kishore, Hmm Limited, Salonah Tea Company, and U.P. Pollution Control Board in support of refunds.

Contentions of Respondents

The judgment notes that certain refund prayers were previously rejected in Ext. P5 (WP Nos. 17318/2022 and 17322/2022); however, explicit respondent arguments are not detailed in the text provided. The court proceeds to grant refunds in light of controlling jurisprudence and the petitions’ relief.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Mahabir Kishore & Ors. v. State of Madhya Pradesh	(1989) 4 SCC 1	Positive	Cited as authority establishing refund of amounts collected under unconstitutional levies.
Hmm Limited & Anr. v. Administrator, Bangalore City Corporation	(1989) 4 SCC 640	Positive	Cited as authority supporting refunds of unlawfully collected sums.
Salonah Tea Company Ltd. v. Superintendent of Taxes Nowgong & Ors.	(1988) 1 SCC 401	Positive	Cited for refund entitlement in cases of unconstitutional levies.
U.P. Pollution Control Board & Ors. v. Kanoria Industrial Ltd. & Anr.	(2001) 2 SCC 549	Positive	Cited as supportive precedent for refunds of levies not legally sustainable.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**WP(C) NO. 9362 OF 2022 & conn.cases** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 9[TH] DAY OF JUNE 2022 / 19TH JYAISHTA, 1944** ## **WP(C) NO. 9381 OF 2022** **PETITIONER/S:** SANTHA JOSE AGED 70 YEARS W/O LATE JOSE JOSEPH, MARUTHAMKUZHIL HOUSE, PANIYANKKARA P.O.RAKKANDI, ALATHUR TALUK, PALAKKAD DISTRICT-678 683 BY ADVS. RINNY STEPHEN CHAMAPARAMPIL ASHA ELIZABETH MATHEW **RESPONDENT/S:** 1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, KERALA GOVERNMENT SECRETARIAT, CENTRAL STADIUM, MAHATHMA GANDHI ROAD, THIRUVANANTHAPURAM695 001. 2 THE LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, MUSEUM ROAD, OPPOSITE ZOO, VIKHAS BHAVAN P.O.THIRUVANANTHAPURAM-695 033. 3 THE DISTRICT COLLECTOR COLLECTORATE, PALAKKAD-678 001. 4 THE SUB COLLECTOR/PALAKKAD, RDO OFFICE, KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD-678 013. ## **OTHER PRESENT:** SMT.VIDYA KURIAKOSE, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.06.2022, ALONG WITH WP(C).9362/2022, 17318/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 9362 OF 2022 & conn.cases** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 9[TH] DAY OF JUNE 2022 / 19TH JYAISHTA, 1944** ## **WP(C) NO. 9362 OF 2022** ## **PETITIONER/S:** NISHA VARGHESE AGED 36 YEARS W/O.SHYJAN ABRAHAM, VALIYAPARAMBIL HOUSE, KURRIKKANTHARIZHU,KORANCHIRA.P.O, ALATHUR TALUK, PALAKKAD DISTRICT-678684. BY ADVS. RINNY STEPHEN CHAMAPARAMPIL ASHA ELIZABETH MATHEW ## **RESPONDENT/S:** 1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, KERALA GOVERNMENT SECRETARIAT,CENTRAL STADIUM, MAHATHMA GANDHI ROAD, THIRUVANANTHAPURAM-695001. 2 THE LAND REVENUE COMMISSIONER PUBLIC OFFICE BUILDING, MESUEM ROAD, OPPOSITE ZOO, VIKHAS BHAVAN.P.O, THIRUVANANTHAPURAM-695033. 3 THE DISTRICT COLLECTOR COLLECTORATE, PALAKKAD-678001. 4 THE SUB COLLECTOR, PALAKKAD, RDO OFFICE, KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD-678013. SMT. DEEPA NARAYANAN, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.06.2022, ALONG WITH WP(C).9381/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 9362 OF 2022 & conn.cases** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 9[TH] DAY OF JUNE 2022 / 19TH JYAISHTA, 1944 WP(C) NO. 17318 OF 2022** ## **PETITIONER/S:** P.AMINA UMMA AGED 70 YEARS W/O.ALIKUNJU, ARYANKKALAYIL, MUDAVOOR P.O., MUVATTUPUZHA - 686 661. BY ADVS. RINNY STEPHEN CHAMAPARAMPIL ASHA ELIZABETH MATHEW ## **RESPONDENT/S:** 1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, KERALA GOVERNMENT SECRETARIAT, CENTRAL STADIUM, MAHATMA GANDHI ROAD, THIRUVANANTHAPURAM - 695 001. 2 THE LAND REVENUE COMMISSIONER PUBLIC OFFICE BUILDING, MUSEUM ROAD, OPPOSITE ZOO, VIKHAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 033. 3 THE DISTRICT COLLECTOR COLLECTORATE, KAKKANAD, ERNAKULAM - 678 001. 4 THE REVENUE DIVISIONAL OFFICER RDO OFFICE, MUVATTUPUZHA, ERNAKULAM DISTRICT - 686 673. SMT.DEEPA NARAYANAN, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.06.2022, ALONG WITH WP(C).9381/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 9362 OF 2022 & conn.cases** **4** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 9[TH] DAY OF JUNE 2022 / 19TH JYAISHTA, 1944 WP(C) NO. 17322 OF 2022** ## **PETITIONER/S:** MUHAMMED M.A. AGED 53 YEARS S/O. MAKKAR, MULAYAMKATTIL, MUDIKKAL ERNAKULAM DISTRICT - 683 547. BY ADVS. RINNY STEPHEN CHAMAPARAMPIL ASHA ELIZABETH MATHEW ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY REVENUE DEPARTMENT, KERALA GOVERNMENT SECRETARIAT, CENTRAL STADIUM, MAHATHMA GANDHI ROAD, THIRUVANANTHAPURAM - 695 001. 2 THE LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, MUSEUM ROAD, OPPOSITE ZOO, VIKHAS BHAVAN P.O, THIRUVANANTHAPURAM 695033. 3 THE DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD ERNAKULAM - 678 001 4 THE REVENUE DIVISIONAL OFFICER, RDO OFFICE, MUVATTUPUZHA, ERNAKULAM DISTRICT- 686 673 SMT.DEEPA NARAYANAN,SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.06.2022, ALONG WITH WP(C).9381/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 9362 OF 2022 & conn.cases** **5** ## **P.V.KUNHIKRISHNAN, J** **-------------------------------------------W.P.(C.) Nos. 9362, 9381, 17318 & 17322 of 2022** **-----------------------------------------------------Dated this the 9[th] day of June, 2022** ## **JUDGMENT** These writ petitions are connected and therefore, I am disposing of these writ petitions by a common judgment. 2. The main prayers in these writ petitions are to refund the amount collected from the petitioners. According to the petitioners, the petitioners are not bound to pay any amount as a condition precedent to an order under Sec.27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008. This point is considered by this Court in detail in several judgments and held that the petitioners are entitled refund of the amount. In the judgment dated 5.4.2022 in W.P.(C.) No. 5449/2019 and connected cases, this Court observed like this : “5. The issue whether the claim for refund of amounts which have been collected based on the unconstitutional levy **WP(C) NO. 9362 OF 2022 & conn.cases** **6** either in the form of fee or in the form of tax or in the form of duty is no longer res integra. In a series of decisions, the Hon'ble Supreme Court has held that the person from whom such amount is collected is entitled to refund of the amount whether the claim is made in a suit or whether it is made in an application under Article 226 of the Constitution of India. [See **Mahabir Kishore & Ors.** v. **State of Madhya Pradesh [(1989) 4 SCC 1], Hmm Limited & Anr.** v. **Administrator, Bangalore City Corporation [(1989) 4 SCC 640)], Salonah Tea Company Ltd.** v. **Superintendent of Taxes Nowgong & Ors. [(1988) 1 SCC 401]** and **U.P. Pollution Control Board & Ors.** v. **Kanoria Industrial Ltd. & Anr. [(2001) 2 SCC 549]]** . 6. In the light of the declaration of law made by the Hon'ble Supreme Court, the petitioners are entitled to succeed in these writ petitions. The writ petitions are allowed. The following directions are hence issued;” 3. In the light of the same, these writ petitions are to be allowed. The counsel for the petitioners submitted that the prayer for refund is rejected in W.P.(C) Nos. 17318/2022 and 17322/2022. Those orders are produced as Ext.P5 in those writ petitions. That orders also have to be set aside. Therefore, these writ petitions are allowed in the following manner : 1) Ext.P5 in W.P.(C.) Nos.17318/2022 & 17322/2022 is **WP(C) NO. 9362 OF 2022 & conn.cases** **7** set aside. 2) The respondents are directed to refund the amount deposited within two months from the date of receipt of a copy of this judgment. SD/- **P.V.KUNHIKRISHNAN** **JUDGE** SKS **WP(C) NO. 9362 OF 2022 & conn.cases** **8** ## **APPENDIX OF WP(C) 9362/2022** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF SALE DEED NO.3268/I/16 DATED| ||30/11/2016 OF SRO, CHITTUR.| |Exhibit P2|TRUE COPY OF THE GOVERNMENT ORDER DATED| ||25/02/2021 ISSUED BY THE 1ST RESPONDENT| |Exhibit P3|TRUE COPY OF THE GAZETTE NOTIFICATION SRO| ||NO.369/2021 PUBLISHED ON 21/04/2021.| |Exhibit P4|TRUE COPY OF THE CIRCULAR| ||NO.REV.P1/117/2021-REV DATED 23/07/2021| ||ISSUED BY THE 1ST RESPONDENT| |Exhibit P5|TRUE COPY OF THE CHELLAN DATED 08/09/2021| ||OF THE SUB TREASURY OFFICER, PALAKKAD.| |Exhibit P6|TRUE COPY OF THE ORDER DATED 14/09/2021| ||ISSUED BY THE 4TH RESPONDENT.| |Exhibit P7|TRUE COPY OF THE REFUND APPLICATION DATED| ||28/02/2022 SUBMITTED BY THE PETITIONER| ||BEFORE THE 1ST RESPONDENT| |Exhibit P8|TRUE COPY OF THE REFUND APPLICATION DATED| ||28/02/2022 SUBMITTEDBY THE PETITIONER| ||BEFORE THE 3RD RESPONDENT.| |Exhibit P9|TRUE COPY OF THE REFUND APPLICATION DATED| ||28/02/2022 SUBMITTED BY THE PETITIONER| ||BEFORE THE 4TH RESPONDENT.| **WP(C) NO. 9362 OF 2022 & conn.cases** **9** ## **APPENDIX OF WP(C) 17318/2022** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF NOTICE NO.7444/20 ISSUED BY THE 4TH RESPONDENT. Exhibit P2 A TRUE COPY OF THE CHELLAN DATED 14/09/2021 OF THE SUB TREASURY OFFICE, MUVATTUPUZHA. Exhibit P3 TRUE COPY OF THE ORDER DATED 20/09/2021 ISSUED BY THE 4TH RESPONDENT. Exhibit P4 A TRUE COPY OF THE REFUND APPLICATION DATED 07/03/2022 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. Exhibit P5 A TRUE COPY OF THE COMMUNICATION DATED 13/05/2022 ISSUED BY THE 4TH RESPONDENT. **WP(C) NO. 9362 OF 2022 & conn.cases** **10** ## **APPENDIX OF WP(C) 17322/2022** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF NOTICE NO.2249/21 ISSUED BY THE 4TH RESPONDENT. Exhibit P2 A TRUE COPY OF THE CHELLAN DATED 25/08/2021 OF THE SUB TREASURY OFFICE, MUVATTUPUZHA. Exhibit P3 TRUE COPY OF THE ORDER DATED 08/09/2021 ISSUED BY THE 4TH RESPONDENT. Exhibit P4 A TRUE COPY OF THE REFUND APPLICATION DATED 07/03/2022 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. Exhibit P5 A TRUE COPY OF THE COMMUNICATION DATED 13/05/2022 ISSUED BY THE 4TH RESPONDENT. **WP(C) NO. 9362 OF 2022 & conn.cases** **11** ## **APPENDIX OF WP(C) 9381/2022** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF SALE NO 3269/1/16 DATED 30.11.2016 OF SRO, CHITTUR - Exhibit P2 TRUE COPY OF THE GOVERNMENT ORDER DATED 25.2.2021 ISSUED BY THE 1ST RESPONDENT - Exhibit P3 TRUE COPY OF THE GAZETTE NOTIFICATION SRO NO 369/2021 PUBLISHED ON 25.2.2021 - Exhibit P4 TRUE COPY OF CIRCULAR NO REV P1/117/2021REV DATED 23.7.2021 ISSUED BY THE 1ST RESPONDENT - Exhibit P5 TRUE COPY OF THE CHELLAN DATED 8.9.2021 OF THE SUB TREASURY OFFICE, PALAKKAD - Exhibit P6 TRUE COPY OF THE ORDER DATED 14.9.2021 ISSUED BY THE 4TH RESPONDENT - Exhibit P7 TRUE COPY OF THE REFUND APPLICATION DATED 28.2.2022 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT - Exhibit P8 TRUE COPY OF THE REFUND APPLICATION DATED 28.2.2022 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT - Exhibit P9 TRUE COPY OF THE REFUND APPLICATION DATED 28.2.2022 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT