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2020 Supreme(Ker) 788

IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, J.
Ajith Kumar Shenoy S/o Narayana Shenoy – Petitioner
Versus
Revenue Division Officer/Sub Collector, Kottayam – Respondent
W.P. (C) Nos. 12721, 12744 of 2020
Decided On : 29-06-2020

Advocates:
Advocate Appeared:
For the Petitioner: Sri. P.K. Soyuz.
For the Respondent: Sri. K.J. Manu Raj.

Headnote:

Kerala Conservation of Paddy land and Wet land Act, 2008 - Section 27A -Fair value of the subject property covered by Sec. 27A(1) application should be strictly on the basis of such notified fair value as on the date of submission of Sec. 27A(1) application and not the fair value revised subsequently thereto.

Statement of facts:

Submitted applications in form No. 6 before the 1st respondent-RDO seeking for permission for change of user of the land as envisaged in Sec. 27A(1) of the Kerala Conservation of Paddy Land and Wetland Act, 2008- Based on the said report of the respondent-Village Officer, the 1st respondent-RDO has also permitted the petitioners to pay the prescribed fee computed on the basis of the fair value pertaining to the subject properties covered by the applications and Ext.P3 in W.P. (C) No. 12721/2020 is the chalan receipt evidencing receipt of an amount of Rs. 2,06,705/- and Ext.P4 in W.P. (C) No. 12744/2020 is the chalan receipt evidencing the remittance by that petitioner of an amount of Rs. 78,609/- etc. While so, the incumbent in the post of the 1st respondent- RDO had changed and the new officer, who is now holding the post of the 1st respondent has taken the view that the petitioners should pay the fair value as fixed for the adjacent property and that too, based on the correct fair value which has been revised subsequently. Ext.P4 in W.P. (C) No. 12721/2020 is the demand so made by the 1st respondent in that case and Ext.P5 in W.P. (C) No. 12744/2020 is the demand so made by the 1st respondent in the latter case.

Finding of the court:

While exercising the statutory powers either under Rule 6(2) of the KLU Order or under Sec. 27A(1) of the 2008 Act, the notified statutory officers cannot act as if they are ‘Collector of Taxes’ as no fee is involved in the application under Rule 6(2) and what is involved in the application as per Sec. 27A(1) is only imposition of a fee and not a tax.

Result: Writ Petitions (Civil) disposed of.

JUDGMENT :

ALEXANDER THOMAS, J.

1. As same issue is involved in both the cases, these Writ Petitions (Civil) are disposed of on the basis of common judgment.

2. The case set up in W.P. (C) No. 12721/2020 is as follows:

    That the petitioner is in ownership and in possession of 10.15 Ares (25.08 cents) of land comprised in Re. Sy. Nos. 128/27-2, 128/28-1, 128/15-3 and 128/28-3-1-1 in block No. 25 of Perumbayikkadu Village Kottayam Taluk. The lands are classified as Nilam in the BTR and recorded as converted land in data Bank prepared by the 2nd respondent LLMC. Since the land is classified as nilam in the BTR Petitioner had submitted Ext.P1 application under Section 27A of the Kerala Conservation of Paddy land and Wet land Act in form No. 6 with the prescribed documents, to the 1st respondent for change of nature of the land and also for permission to utilize 10.15 Ares (25.08 cents) covered by T.P. No. 8415 and 11175 of Perumbayikkadu Village. Petitioner had also paid the prescribed application fee of Rs. 1,000/-. As per Section 27A(3) of the Amendment Act 29 of 2019 petitioner is to pay the prescribed fee of 20% of the ‘Fair Value’ of the land since land is in Municipal Area. The Fair value fixed for the land was Rs. 56,100/- per Are which is evident from Ext.P2 report of the 3rd respondent village officer. On the basis of Ext.P2 report and the report of the Agricultural Officer, Kumaranalloor the 1st respondent had decided to allow Ext.P1 application and directed the petitioner to remit Rs. 20,6705/- as the fee which is the 20% of the Fair Value of the land owned by the petitioner. As directed petitioner had remitted the prescribed fee vide Ext.P3 chalan receipt. Thereafter, the Revenue Divisional Officer/Sub-Collector was transferred and the successor in office has sent Ext.P4 notice to the petitioner directing him to pay Rs. 15,99,599/- more in addition to the amount already remitted as per Ext.P3 chalan. Ext.P4 notice is against the judgment of this Court in Dr. Vimal Vincent vs. Revenue Divisional Officer, 2020 (1) KLT 145, 1st respondent has no power or authority to review the decision taken by her predecessor in office. The predecessor in office of the 1st respondent had decided to collect the total fees of Rs. 2,06,705/- as the fee which is the 20% of the Fair value of the land owned by the petitioner at that time, and petitioner had remitted the fees vide Ext.P3 chalan. Petitioner is highly aggrieved by Ext.P4 Notice issued by the 1st respondent which is illegal.

3. The prayers in W.P. (C) No. 12721/2020 are as follows:

    (i) issue a writ of certiorari or any appropriate or any appropriate writ, order or direction calling for the records leading to Ext.P4 Notice and quash the same.

(ii) declare that the 1st respondent has no right or authority to demand the increased Fair Value of a neighbouring land of the petitioner, after accepting the fees as per Section 27A(3) of Act 29 of 2018.

(iii) issue a writ of mandamus or any appropriate writ, order or direction directing the 1st respondent to issue final orders as per Section 27A(2) of Act 29 of 2018 and grant permission to utilize 10.15 Ares (25.08 cents) of land comprised in Re. Sy. Nos. 128/27-2, 128/28-1, 128/27-1, 128/15-3 and 128/28-1-1-1 in block No. 25 of Perumbayikkadu Village Kottayam Taluk, for other purposes including construction of building after accepting the fees remitted vide Ext.P3 Chalan.

(iv) grant such other reliefs as this Court deems fit and proper in the circumstances of this case including the cost of this Writ Petition.

4. The case set up in W.P. (C) No. 12744/2020 is as follows:

    That the petitioner is in ownership and in possession of 3.86 Ares (9.538 cents) of land comprised in Re. Sy. No. 128/28-1-1 in block No. 25 of Perumbayikkadu Village Kottayam Taluk. The lands are classified as Nilam in the BTR and Revenue records and recorded as converted land in data Bank prepared by the 2nd respondent LLMC. Since the land is classified as nilam in the BTR, petition

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