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2020 DIGILAW 539 (KER)

Ajith Kumar Shenoy S/o Narayana Shenoy v. Revenue Division Officer/Sub Collector, Kottayam

2020-06-29

ALEXANDER THOMAS

body2020
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. 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. 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, 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 3.86 Ares (9.538 cents) of land comprised in Re. Sy. No. 128/28-1-1 in block No. 25 of Perumbayikkadu Village. The 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.P3 report of the 3rd respondent village officer. On the basis of Ext.P3 report and the report of the Agricultural officer, Kumaranelloor the 1st respondent had decided to allow Ext.P2 application and directed the petitioner to remit Rs. 78,609/- 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.P4 chalan receipt. Thereafter the Revenue Divisional Officer/Sub Collector was transferred and the successor in office has sent Ext.P5 notice to the petitioner directing him to pay Rs. 6,08,860/- more in addition to the amount already remitted as per Ext.P4 chalan. Ext.P5 notice is against the judgment of this Court in Dr. Vimal Vincent vs. Revenue Divisional Officer, 2020 (1) KLT 145 . The 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. 78,609/- 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.P4 chalan. Petitioner is highly aggrieved by Ext.P5 Notice issued by the 1st respondent which is illegal. 5. 78,609/- 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.P4 chalan. Petitioner is highly aggrieved by Ext.P5 Notice issued by the 1st respondent which is illegal. 5. The prayers in W.P. (C) No. 12744/2020 are as follows: “(i) issue a writ of certiorari or any appropriate writ, order or direction calling for the records leading to Ext.P5 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 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, for other purposes including construction of building after accepting the fees remitted vide Ext.P4 Chalan receipt. (iv) grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of this case including the cost of this Writ Petition.” 6. Heard Sri. P.K. Soyuz, learned counsel appearing for the petitioners in these two cases and Sri. K.J. Manuraj, learned Government Pleader appearing for the respondents in these two cases. 7. The case of the petitioners is to the effect that they had earlier 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. That the said application was duly considered by the 1st respondent and report has also been submitted by the 3rd respondent-Village Officer (as per Ext.P2 in W.P. (C) No. 12721/2020 and Ext.P3 in W.P. (C) No. 12744/2020) whereby the Village Officer has correctly reported about the fair value of the subject properties covered in these applications. That the said application was duly considered by the 1st respondent and report has also been submitted by the 3rd respondent-Village Officer (as per Ext.P2 in W.P. (C) No. 12721/2020 and Ext.P3 in W.P. (C) No. 12744/2020) whereby the Village Officer has correctly reported about the fair value of the subject properties covered in these applications. 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. 8. It is by now well settled by a series of rulings of this Court including the one as per Dr. Vimal Vincent vs. RDO and Others, 2020 (1) KLT 145 , that in such cases, the fee prescribed as per Sec. 27A(3) r/w Rule 12(9) of the Kerala Conservation of Paddy Land and Wetland Rules can only be the fair value of the subject property covered by the application filed under Sec. 27A(1) and it cannot be the notified fair value in respect of any other property. Further, it has also been held that in view of the abovesaid prescription, the said fair value should be that of the subject property as notified in terms of Sec. 28A of the Kerala Stamp Act. Further, it has also been held that in view of the abovesaid prescription, the said fair value should be that of the subject property as notified in terms of Sec. 28A of the Kerala Stamp Act. Further, this Court has also held in various other decisions that the prescribed fee should be computed not only in terms of the notified fair value of the subject property covered by Sec. 27A(1) application, but also should be such fair value of the subject property as on the date of submission of Sec. 27A(1) application and not the fair value which is revised subsequently thereto. 9. Prima-facie, it appears that the predecessor in office of the 1st respondent-RDO was fully satisfied about the correctness of the reports of the 3rd respondent-Village Officer as per Ext.P2 in the 1st case and Ext.P3 in the latter case and thereupon, the 1st respondent has duly permitted these petitioners to pay the said requisite amounts as computed in terms of Exts.P2/P3 as the case may be, as can be seen from Ext.P3 receipt in the 1st case and Ext.P4 receipt in the latter case. The petitioners would assert that the fair value now demanded in Ext.P3 is the fair value of another property. The impugned demand as per Exts.P4/P5 has been made not on the basis of notified fair value of the subject property, but in respect to some other property and that too, fair value revised subsequent to the submission of Sec. 27A(1) application. 10. In that view of the matter, it is ordered and declared that the matter would require serious reconsideration at the hands of the 1st respondent-RDO. The impugned Ext.P4 in W.P. (C) No. 12721/2020 and the impugned Ext.P5 order in W.P. (C) No. 12744/2020 will stand set aside and quashed and the matter will stand remitted to the 1st respondent-RDO for consideration of the limited issue as to the correctness of the factual aspects regarding the notified fair value as stated in Ext.P2 report of the respondent-Village Officer produced in the 1st case and Ext.P3 report of the respondent-Village Officer produced in the 2nd case, which has resulted in even payments as per Ext.P3 in the 1st case and Ext.P4 in the 2nd case. 11. 11. The 1st respondent will strictly adhere to the abovesaid legal position well settled by this Court that the prescribed fee payable in such cases is the notified fair value of the subject property covered by the application filed under Sec. 27A(1) and not that of any other property. Further, the said notified 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. 12. Before parting with this case, this Court would refer to certain observations made by this Court in judgments issued in similar cases as per judgment dated 12.6.2020 in W.P. (C) No. 12189/2020 wherein this Court has held that 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. 13. Therefore, it is the bounded statutory duty of the 1st respondent to ensure that meticulous adherence to the abovesaid legal principles be made so that the petitioners are not unnecessarily driven to this Court for any further litigative proceedings in this regard. The 1st respondent will also bear in mind that the predecessor in office of the 1st respondent has already taken a view by acting upon the abovesaid reports of the Village Officer, which resulted in even acceptance of the fee amounts as per Exts.P3 and P4. It is also made clear that decision in this regard may be duly taken by the 1st respondent after affording reasonable opportunity of being heard to the petitioners, within 2 weeks from the date of production of a certified copy of this judgment. Thereafter, the 1st respondent will ensure that the matters in relation to the applications in Ext.P1 in the 1st case and Ext.P2 in the 2nd case is duly considered, after following the requisite procedure. 14. Thereafter, the 1st respondent will ensure that the matters in relation to the applications in Ext.P1 in the 1st case and Ext.P2 in the 2nd case is duly considered, after following the requisite procedure. 14. It is pointed out by petitioners' counsel that the entire process of consideration has been duly completed by the predecessor in office of the 1st respondent and all what remains was only the payment of the requisite fee, which has also been completed as per Exts.P3 and what thereafter remains was only passing of final orders disposing of Ext.P1 application in the 1st case and Ext.P2 application in the 2nd case. 15. According to the petitioners, the figure shown in Ext.P5 produced in W.P. (C) No. 12744/2020 is not fully correct and the actual amount paid by the petitioner therein is Rs. 78,609/-. If that be so, it shall be ensured by the 1st respondent that the aforesaid process of hearing afforded to the petitioners should relate not only to matters in relation to fair value, but also on the merits of the matter and thus after concluding the process of hearing, as afore-directed, the 1st respondent-RDO should also pass final orders disposing of Ext.P1 application in W.P. (C) No. 12721/2020 and Ext.P2 application in W.P. (C) No. 12744/2020 without much delay, preferably within a period of 4 weeks from the date of production of a certified copy of this judgment. 16. The petitioners will produce certified copy of this judgment along with copies of the memorandum of these W.P. (C) with all the exhibits before the 1st respondent-RDO for necessary information and further action. 17. With these observations and directions, the above Writ Petitions (Civil) will stand finally disposed of.