Unconstitutional levies are subject to refund as per the series of decisions by the Hon'ble Supreme Court.

JUDGMENT :

T.R. RAVI, J.

1. A common issue arises in all these writ petitions and hence they are being heard and disposed of together.

2. The Government of Kerala amended the Conservation of Paddy Land and Wetland Act, 2008 by introducing Section 27A, whereby applications for user of un-notified land for other purposes was permitted. A fee was prescribed for granting permission for such user. On 25.7.2021, the Government issued a Circular whereby a cut off date was fixed for applications seeking permissions for user of unnotified lands for other purposes. The Circular was challenged before this Court and a Division Bench of this Court in its judgment in Baby vs. District Collector, 2021 (6) KLT 316 held that the Circular was unconstitutional. This Court held that when the State Government intended to classify and exclude farmers holding upto 25 cents of un-notified paddy land from payment of fee/charge for utilisation of the same for other purposes, there cannot be a further reclassification based on date of submission of the application. The petitioners are all persons from whom fee has been collected which they are otherwise not liable to pay, solely based on the Circular which has been held to be unconstitutional. In W.P. (C) No. 5449 of 2019, the petitioner paid the amount based on interim order issued by this Court on 4.4.2019 wherein this Court had clearly stated that if the petitioner ultimately succeeds in the writ petition, he will be entitled to refund of the amount. The petitioners in all these cases claim refund of the amounts which have been collected from them illegally based on the Circular which has been held to be unconstitutional.

3. Heard learned counsel for the petitioners and learned Special Government Pleader for the respondents/State.

4. The Special Government Pleader appearing for the State defended the action stating that at the time when the amounts were paid, the Circular had not been declared as unconstitutional and it was valid for all purposes at that point of time. It is hence submitted that the collection of the amounts or the payment of the amount which was made voluntarily cannot hence be held as an illegal levy liable to be refunded.

5. The issue whether the claim for refund of amounts which have been collected based on the unconstitutional levy 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 and Others vs. State of Madhya Pradesh, (1989) 4 SCC 1, Hmm Limited and Another vs. Administrator, Bangalore City Corporation, (1989) 4 SCC 640, Salonah Tea Company Ltd. vs. Superintendent of Taxes Nowgong and Others, (1988) 1 SCC 401 and U.P. Pollution Control Board and Others vs. Kanoria Industrial Ltd. and Another, (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.

7. In W.P. (C) No. 5449 of 2019, the petitioner was directed to remit 20% of the fair value of the land as per Ext.P8 notice dated 15.2.2019. He had challenged Ext.P8 in the writ petition. On 4.4.2019, this Court directed the petitioner to remit the amount demanded in Ext.P8 without prejudice to the contentions raised in the writ petition. The petitioner has thereafter remitted the amount. The 3rd respondent is directed to refund the amount so remitted within two months from the date of receipt of a copy of this judgment.

8. In W.P. (C) No. 26888 of 2021, the petitioner has remitted a sum of Rs. 2,28,540/- as evidenced by Ext.P8 challan. The 1st respondent is directed to refund the said amount within two months from the date of rec