The circular fixing a cut-off date for fee exemption was declared unconstitutional. Amounts collected based on unconstitutional levies must be refunded.

JUDGMENT :

S. Manikumar, J

Instant writ appeal is filed by the State of Kerala and its officials challenging the judgment dated 5.4.2022 in W.P.(C) No.28181/2021, by which, relying on the decision in Baby M.K. and others v. District Collector, Ernakulam and others [2021 (6) KHC 318], a learned single Judge directed the Revenue Divisional Officer, Muvattupuzha, 3rd respondent therein, to refund the amount of Rs.8,83,500/- which the writ petitioner has remitted on 26.10.2021, within two months from the date of receipt of a copy of the said judgment.

2. W.P.(C) No.28181/2022 is filed by the respondent herein seeking to issue a writ of mandamus directing the appellants to refund the amount paid as per Exhibit-P2, challan issued by the Sub Treasury Officer, Muvattupuzha, respondent No.5 therein, with interest to the writ petitioner, within a time frame to be fixed by this Court.

3. Brief facts leading to the filing of the writ petition are as under: The respondent/writ petitioner is in possession of 6.07 Ares of property of Velloorkunnam Village. Since the property is shown as 'nilam' in the Basic Tax Register (BTR), he has applied for conversion of the same under the provisions of Kerala Conservation of Paddy and Wetland Act, 2008. According to the writ petitioner, the said property was not included in the data bank. However, in Form 6 application filed by the writ petitioner, the 3rd respondent – RDO has granted permission to change the nature of land in the BTR, but insisted for payment of fees, as contemplated under Section 27A of the Conservation of Paddy and Wetland Act. Accordingly, the writ petitioner has remitted a sum of Rs.8,83,500/-before the Sub Treasury Officer, Muvattupuzha, on 26.10.2021, as evident from Exhibit-P2 challan.

3.1. On 03.11.2021, the Revenue Divisional Officer, respondent No.3 therein, issued Exhibit-P3 proceedings on the basis of G.O.(P) No.47/2020/ Taxes dated 31-03-2020, which deals with fair value in the area. Writ petitioner has further stated that it is a fact that the requirement of payment of fees as per the amendment was introduced on 25-02-2021 as per GO(MS) No.1166/2021/Rev. dated 25-02-2021 (Exhibit-P5)

4. Before the writ court, respondent/writ petitioner contended that as per the amended schedule to Rule 12(9) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008, reclamation of any paddy land upto 25 Cents is not liable to be imposed with any fee, with effect from 25.02.2021, whereas, the properties exceeding 25 Cents and upto 1 Acre are liable to be imposed with 10% of the fair value, and the properties exceeding 1 Acre are liable to be imposed with 20% of the fair value.

5. It is also his contention that the schedule was introduced, by virtue of the powers conferred under Section 27A(3) r/w Rule 12(9) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008. That apart, placing reliance on the decision of a Hon'ble Division Bench of this Court in Baby M.K. (cited supra), respondent contended that the circular dated 23.07.2021 issued by the State Government restricting the benefit of exemption upto 25 Cents for application submitted after the cut off date of 25.02.2021, has been held as unconstitutional.

6. The further contention of the respondent before the writ court is that in view of the abovesaid decision, sum of Rs.8,83,500/-remitted by the respondent vide Exhibit-P2 is liable to be refunded, as the extent of land held by him is less than 25 cents.

7. Appellants have objected to the relief sought for by the writ petitioner/respondent herein.

8. After considering the rival submissions and taking note of the judgment in Baby M.K. (cited supra), writ court, vide judgment in W.P. (C) No.28181/2021 dated 5.4.2022 ordered as under:

“4. The Special Government Pleader appearing for the State defended the action stating that at the time when the amounts were paid, the Circular h