The imposition of a fee for buildings exceeding 3000 square feet under Rule 12(9) is ultra vires the Kerala Conservation of Paddy Land and Wetland Act, 2008, as it exceeds the authority granted by the Act and violates Article 265 of the Constitution.

JUDGMENT :

Petitioners seek, among others, a declaration that Note 1 to Rule 12(9) of the Kerala Conservation of Paddy Land and Wetland Rules (the Rules) framed under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (the Act) is ultra vires the provisions of the Act to the extent it provides for levying a fee for the area of buildings exceeding 3000 square feet proposed in lands falling under the Act. 161

2. The learned Senior Counsel Sri. B.G. Harindranath instructed by Sri. Amith Krishnan, Sri. P.K. Soyuz, Sri. K.C. Vincent, Sri. Jacob Sebastian, Sri. P. Sathisan and Sri. Shanavas Khan, on behalf of the petitioners, made the following submissions:

2.1. Section 27A (3) only stipulates that if the application under that Section, namely for regularisation of conversion made before the coming into force of the Act, is allowed, the applicant shall be liable to pay a fee at such rate as may be prescribed. Therefore, the provisions above do not empower the Government to levy a fee for the construction of apartments after regularisation, and hence, the Rule is ultra vires the Act. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. There is no conversion of land contrary to the provisions of the Act. In fact, the conversion with respect to the unnotified lands made prior to the commencement of the Act was legal. The KLU Order promulgated under the Essential 162 Commodities Act did not put fetters on the power of the landowner from converting a paddy land/wetland prior to the commencement of the Act i.e. before 12-8-2008.

2.2. Section 27A (6) of the Act specifies that no permission is needed for constructing residential buildings up to 120 sq.m. on 4.04 Ares or commercial buildings up to 40 sq.m. on 2.02 Ares. It clarifies that housing complexes do not qualify as residential buildings under this exemption. If the exempted area is later increased, the owner must pay a fee as per Section 27A(3), which only allows for a conversion fee upon regularisation. Therefore, the provisions do not grant the Government, the authority to levy additional fees for apartment construction, making the Rule ultra vires the Act. For one purpose a landowner has to pay three fees to the Government, which is illegal and not contemplated in the Act. The unreasonable levy of additional fees for conversion amounts to extortion. It is a well-settled position of law that the fee sought by the Government should be reasonable and commensurate with the 163 benefit derived by the petitioner. If permission is granted under the Kerala Land Utilisation Order, 1967, the landowner has the right to use the land as desired, without dictation from authorities. In cases where permission is granted under Section 9 on paddy lands in the data bank through Form 1, no fee is imposed for construction and therefore a levy of fee for construction under Note 1 is discriminatory as well.

2.3. Regarding unnotified lands, there is only a regularisation of records and no actual conversion. The government's service is limited to correcting the BTR, and thus, any fee imposed must have a direct correlation to this service. The classification of fees based on building area lacks rational connection to the Act's goals, violating the equality principle under Article 14 of the Constitution. Rules must align with the parent statute and cannot extend beyond its provisions. The correction of the BTR allows for construction, and imposing additional charges based on square footage for construction is irrational and arbitrary. The levy is hit by Article 265 of the Constitution of India. Furthermore, Article 164 300A of the Constitution guarantees property owners protection from deprivation without legal authority; therefore, any law must be constitutional and sustainable. Section 27A of the Act grants the competent authority the power to