Kerala High Court
Revenue Divisonal Officer/Sub ... vs Aswath Kumar Shenoy on 12 January, 2022
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 12TH DAY OF JANUARY 2022 / 22ND POUSHA, 1943
WA NO. 1467 OF 2020
AGAINST THE JUDGMENT IN WP(C) 13321/2020 OF HIGH COURT OF KERALA
APPELLANT:
1 REVENUE DIVISONAL OFFICER/SUB COLLECTOR
REVENUE DIVISIONAL OFFICE, MINI CIVIL STATION, KOTTAYAM
P.O., KOTTAYAM DISTRICT,PIN-680 125
2 THE LOCAL LEVEL MONITORING COMMITTEE,
KOTTAYAM MUNICIPALITY, REPRESENTED BY ITS CONVENOR,
AGRICULTURAL OFFICER, KRISHIBHAVAN, KUMARANALLOOR ,
KUMARANALLOOR P.O., KOTTAYAM DISTRICT,PIN-686 016
3 THE VILLAGE OFFICER,
PERUBAYIKKADU VILLAGE, S H MOUNT P.O.,
KOTTAYAM DISTRICT-686 006
BY ADV SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENERAL
RESPONDENTS:
ASWATH KUMAR SHENOY
S/O. NARAYANA SHENOY,KURINJIKATTIL HOUSE, KUMARANALLOOR
P.O., KOTTAYAM DISTRICT, REPRESENTED BY HIS POWER OF
ATTORNEY HOLDER VRINDA, W/O. NARAYANA SHENOY,
KURINJIKATTIL HOUSE, KUMARANALLOOR P.O., KOTTAYAM
DISTRICT,PIN-686 016
BY ADV.
SRI.P.K.SOYUZ
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.01.2022,
ALONG WITH WA.1475/2020 AND CONNECTED CASES, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.A.Nos.1467, 1475 & 1488 of 2020 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 12TH DAY OF JANUARY 2022 / 22ND POUSHA, 1943
WA NO. 1475 OF 2020
AGAINST THE JUDGMENT IN WP(C) 12744/2020 OF HIGH COURT OF KERALA
APPELLANTS:
1 REVENUE DIVISIONAL OFFICER/SUB COLLECTOR,
REVENUE DIVISIONAL OFFICE, MINI CIVIL STATION, KOTTAYAM P
O, KOTTAYAM DISTRICT , PIN-680125.
2 THE LOCAL LEVEL MONITORING COMMITEE
KOTTAYAM MUNICIPALITY, REPRESENTED BY ITS CONVENOR,
AGRICULTURAL OFFICER, KRISHI BHAVAN, KUMARANALLOOR,
KUMARANALLOOR PO, KOTTAYAM DISTRICT, PIN-686016.
3 THE VILLAGE OFICER
PERUMBAYIKKADU VILLAGE, S H MOUNT P O,
KOTTAYAM DISTRICT-686006.
BY SRI.RANJITH THAMPAN, ADDITIONAL ADVOCATE GENERAL.
RESPONDENTS:
SUDHA KAMMATH R.,
W/O AJITH KUMAR SHENOY, S/O NARAYANA SHENOY,
KURINJIKATTIL HOUSE, KUMARANALLOOR P O, KOTTAYAM
DISTRICT-686016.
BY ADV.SRI.P.K.SOYUZ
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.01.2022,
ALONG WITH WA.1488/2020, 1467/2020, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.A.Nos.1467, 1475 & 1488 of 2020 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 12TH DAY OF JANUARY 2022 / 22ND POUSHA, 1943
WA NO. 1488 OF 2020
AGAINST THE JUDGMENT IN WP(C) 12721/2020 OF HIGH COURT OF KERALA
APPELLANT:
1 REVENUE DIVISIONAL OFFICER / SUB COLLECTOR
REVENUE DIVISIONAL OFFICE,
MINI CIVIL STATION, KOTTAYAM P O, KOTTAYAM DISTRICT, PIN-
680125.
2 THE LOCAL LEVEL MONITORING
COMMITTEE, KOTTAYAM MUNICIPALITY, REPRESENTED BY ITS
CONVENOR, AGRICULTURAL OFFICER,
KRISHI BHAVAN, KUMARANALLOOR, KUMARANALLOOR PO, KOTTAYAM
DISTRICT PIN-686016.
3 THE VILLAGE OFFICER
PERUMBAYIKKADU VILLAGE,
S H MOUNT P O,
KOTTAYAM DISTRICT, PIN-686006.
BY ADV SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENERAL
RESPONDENT:
AJITH KUMAR SHENOY
S/O NARAYANA SHENOY, KURINJIKATTIL HOUSE,
KUMARANALLOOR P O, KOTTAYAM DISTRICT, PIN-686016.
BY ADV.SRI.P.K.SOYUZ
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.01.2022,
ALONG WITH WA.1475/2020 AND CONNECTED CASES, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.A.Nos.1467, 1475 & 1488 of 2020 4
JUDGMENT
[W.A.NOS.1467, 1475 & 1488 OF 2020] Dated this the 12th day of January, 2022 S. MANIKUMAR, CJ.
Being aggrieved by the judgment in W.P.(C) No.13321 of 2020 dated 7 th July, 2020 and a common judgment dated 29 th June, 2020 in W.P.(C) Nos.12744 & 12721 of 2020, instant appeals are filed. The issues raised in the instant appeals are common in nature, and therefore, we propose to pass a common judgment.
2. The followings were the reliefs sought for in the writ petitions:
W.P.(C) No.13321 of 2020i) Issue a writ of certiorari or any appropriate writ, order or direction calling for the records leading to Ext.P4 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, 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 27 A(2) of Act 29 of 2018 and grant permission to utilize of 14.04 Ares (34.69 cents) of land comprised in Re.Sy Nos.128/15-4, 128/28-2, in Block No.25 of Perumbayikkadu Village, Kottayam Taluk for other purposes including construction of building after accepting the fees on the basis of the fair value W.A.Nos.1467, 1475 & 1488 of 2020 5 of petitioner's land prevailing at the time of submission of Ext.P2 application.
iv) Grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case including the cost of this Writ petition.
W.P.(C) No. 12721 of 2020i) 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, and
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.
W.P.(C) No. 12744 of 2020i) "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 W.A.Nos.1467, 1475 & 1488 of 2020 6 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, and
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."
3. After considering the rival submissions, in W.P.(C) Nos.12744 & 12721 of 2020, writ court ordered thus:
"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 1 st case and Ext.P3 report of the respondent-Village Officer produced in the 2 nd case, which has resulted in even payments as per Ext.P3 in the 1st case and Ext.P4 in the 2nd case.
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 W.A.Nos.1467, 1475 & 1488 of 2020 7 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. 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 W.A.Nos.1467, 1475 & 1488 of 2020 8 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 aforedirected, 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.)s with all the exhibits before the 1st respondent-RDO for necessary information and further action.
With these observations and directions, the above Writ Petitions (Civil) will stand finally disposed of ."
4. In W.P.(C) Nos.133211 of 2020, writ court ordered thus:
"6. Since the said decision to the extend of insisting the said fair value has been rendered contrary to the facts and figures reported as per Ext.P3 and since the said decision has been rendered by the 1st respondent without reasonable opportunity to the petitioner and since the abovesaid aspects has not been duly taken into account, it is only to be ordered that the matter would require serious reconsideration at the hands of the 1st respondent and would warrant a remit. For effectuating such a remit, the impugned Ext.P4 notice to the limited extend, it insists for payment of the prescribed fee on the basis of fair value as mentioned in Ext.P4 would stand quashed and set aside. The substantive decision taken in Ext.P4 to the effect that the 1 st respondent has decided to allow the main prayer of the petitioner for statutory permission under Sec.27A(1) is not interfered with in any manner. Accordingly it is ordered that the 1st respondent RDO will afford reasonable opportunity of W.A.Nos.1467, 1475 & 1488 of 2020 9 being heard to the petitioner and should also examine the factual aspects borne out from Ext.P3 report and then should correctly ascertain the fair value of the subject property covered by Ext.P2 application dated 22-07- 2019 as on the date of submission of Ext.P2 application and then permit the petitioner to pay such correct fee, in terms of the dictum laid down by this Court in the aforementioned judgments. After giving the petitioner reasonable time to pay the said correct amounts, the 1st respondent should finalise the proceedings on Ext.P2 application in respect of the plea for grant of permission for change of use of the land in terms of Sec.27A(1) as already mentioned in Ext.P4. The entire process in that regard, in respect of not only stipulating the correct fee payable and also giving reasonable time to the petitioner to pay such correct fee and also passing of final orders on Ext.P2 application etc., should be duly completed by the 1st respondent RDO within the outer time limit of six weeks from the date of production of a certified copy of this judgment.
7. The petitioner will produce a certified copy of the judgment along with a copy of the memorandum of W.P(C) with all the Exhibits before the 1st respondent RDO for necessary information and further action.
With these observations and directions the above Writ Petition (Civil) will stand disposed of."
5. On this day, when the matter came up for hearing, Mr.P.K.Soyuz, learned counsel appearing for respondent in all the writ petitions, submitted that the directions issued by the writ court in the above writ petitions have been implemented and that, the Revenue Divisional Officer/Sub Collector, Kottayam District - appellant No.1, has issued orders in favour of the writ petitioners. That apart, learned counsel for respondent, submitted that in tune with the directions W.A.Nos.1467, 1475 & 1488 of 2020 10 issued, the Government have also issued a Circular dated 20.2.2021 as to how fees on the basis of the fair value of the property has to be calculated. The said circular, marked as Annexure R3, is reproduced hereunder:
GOVERNMENT OF KERALA No. Rev -P 1/219/2020-REV Rev -(P) Department Thiruvananthapuram Dated : 20.02.21 CIRCULAR Sub: Calculation of fees on the basis of fair value - for change of nature of land as per section 27A of Kerala Conservation of Paddy Land and Wet land Act 2008 - regarding.
Reference: (1) Judgment of the Hon. High Court of Kerala in W.P(C) 12189/2020 Dated 22.05.2020.
(2). S.R.O No 286/2020 issued by Tax (J) Department.
On the basis of the judgment of the Hon'ble High Court of Kerala, which is referred as item No. 1 above, direction is hereby issued to fix the Fair Value on the basis of the date on which an application under section 27 A of Kerala Conservation of Paddy Land and Wet land Act 2008, with all relevant documents were submitted before the office concerned. If the Fair Value of the property increases after the date of submission of the application, the said increase shall not be made applicable to the applicants who had already submitted the application. It is hereby clarified that those applications which were received before the date of the latest notification, which is referred as Item no 2 above, which came into effect from W.A.Nos.1467, 1475 & 1488 of 2020 11 15.05.2020 by which the Fair Value was increased, the earlier Fair Value rate as on the date of submission of their application shall be applicable. Those who had submitted their applications before the above date (15.05.2020) need not remit the enhanced rate which has come into effect; the cases where in fees has already been remitted need not be reconsidered based on this circular.
Dr. A. Jayathilak Principal Secretary"
6. Learned counsel for respondent submitted that in a similar, 'Writ Appeal No.1323 of 2020' filed by the Revenue Divisional Officer, Puthenangadi, Kottayam and others, taking note of the circular, this Court, vide judgment dated 8 th November, 2021, passed directions to the 1st appellant therein, to consider the application submitted by the writ petitioner therein. Operative portion of the directions in W.A.No.1323/2020, are reproduced hereunder:
"5. Pending disposal of the writ appeal, respondent No. 1 has produced Annexure R(a), a circular dated 20.02.2021 issued by the Principal Secretary, Department of Revenue, whereby Government of Kerala has issued orders instructing the officers concerned, including the first appellant to the effect that fair value shall be fixed based on the date of submission of the application before the office concerned.
6. In Annexure R(a) circular dated 20.02.2021, it is clarified that those who submitted applications before 15.05.2020 need not pay the enhanced rate.
7. In the light of Annexure R(a) dated 20.02.2021, Mr. S. Ranjith, learned Special Government Pleader, submitted that in the case on hand the W.A.Nos.1467, 1475 & 1488 of 2020 12 writ petitioner has submitted an application dated 27.08.2018 and the said application can be considered in terms of the said circular dated 20.02.2021. In view of the above, there is no need to delve into the issues raised in the writ appeal.
8. Placing on record the submission of the learned Special Government Pleader, we direct the Revenue Divisional Officer, Puthenangady, Kottayam - 686 001, the first appellant, to consider the application dated 27.08.2019 submitted by the writ petitioner/respondent and pass appropriate orders by considering the aforesaid circular and in accordance with law within one month from the date of receipt of a copy of this judgment.
Accordingly, this appeal is disposed of. "
7. We are of the view that as directions issued in the writ petitions have already been implemented, and in view of the above circular also, nothing survives to be adjudicated in the captioned appeals.
Accordingly, writ appeals are disposed of placing on record the above aspects.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE
W.A.Nos.1467, 1475 & 1488 of 2020 13
APPENDIX OF WA 1467/2020
PETITIONER ANNEXURES
ANNEXURE-I TRUE COPY OF THE ORDER PASSED BY THE REVENUE
DIVISIONAL OFFICER, KOTTAYAM DATED 27.08.2020 ANNEXURE-II TRUE COPY OF THE CIRCULAR BEARING NO.REV-
P1/248/2019-REV DATED 17.02.2020 OF REVENUE (P) DEPARTMENT, THRIUVANANTHAPURAM ANNEXURE-III TRUE COPY OF THE NOTIFICATION ISSUED BY THE GOVERNMENT OF KERALA GO (P) NO.47/2020/TAXES DATED 31.03.2020 OF TAXES (J) DEPARTMENT, THIRUVANANTHAPURAM ANNEXURE-IV TRUE COPY OF THE RELEVANT PAGES OF THE GOVERNMENT NOTIFICATION NO.4000(2) /LEG.A2/2020/CASES DATED 11.09.2020 ANNEXURE-V TRUE COPY OF THE INTERIM ORDER PASSED BY THE HON'BLE COURT IN CONTEMPT OF COURT CASE NO.1392/2020 DATED 24.09.2020 ANNEXURE-R1: TRUE COPY OF THE RELEVANT PAGES OF OFFICE NOTES OF FILE NO.RDOKTM/3678/2019- B1, THE 1ST APPELLANT FROM 01.01.20 TO 12.08.20 ANNEXURE- R1(a) ENGLISH TRANSLATION OF ANNEXURE-R1 ANNEXURE R2: TRUE COPY OF THE CIRCULAR NO.REV- P 1/219/2020-REV, REVENUE (P) DEPARTMENT DATED 20.02.2021 ANNEXURE- R2(a) ENGLISH TRANSLATION OF ANNEXURE-R2 W.A.Nos.1467, 1475 & 1488 of 2020 14 APPENDIX OF WA 1475/2020 PETITIONER ANNEXURES ANNEXURE-I TRUE COPY OF THE ORDER PASSED BY THE REVENUE DIVISIONAL OFFICER, KOTTAYAM DATED 27.08.2020. ANNEXURE-II TRUE COPY OF THE CIRCULAR DATED 17.02.2020. ANNEXURE-III TRUE COPY OF THE NOTIFICATION ISSUED BY THE GOVERNMENT OF KERALA DATED 31.03.2020.
ANNEXURE-IV TRUE COPY OF THE RELEVANT PAGES OF THE GOVERNMENT NOTIFICATION DATED 11.09.2020. ANNEXURE-V TRUE COPY OF THE INTERIM ORDER PASSED BY THE HON'BLE COURT IN CONTEMPT OF COURT CASE NO.1385/2020 DATED 23.09.2020.
ANNEXURE-R1: TRUE COPY OF THE GOVERNMENT CIRCULAR NO.REV-P 1/113/2020-REV, REVENUE (P) DEPARTMENT DATED 15.6.2020 ANNEXURE- R1(a) ENGLISH TRANSLATION OF ANNEXURE-R1 ANNEXURE R3: TRUE COPY OF THE CIRCULAR NO.REV- P 1/219/2020-REV, REVENUE (P) DEPARTMENT DATED 20.02.2021 W.A.Nos.1467, 1475 & 1488 of 2020 15 APPENDIX OF WA 1488/2020 PETITIONER ANNEXURES ANNEXURE-I TRUE COPY OF THE ORDER PASSED BY THE REVENUE DIVISIONAL OFFICER, KOTTAYAM, DATED 27.08.2020.
ANNEXURE-II TRUE COPY OF THE CIRCULAR BEARING NO. REV-
PI/248/2019-REV DATED 17.02.2020 OF REVENUE (P) DEPARTMENT, THIRUVANANTHAPURAM.
ANNEXURE-III TRUE COPY OF THE NOTIFICATION ISSUED BY THE GOVERNMENT OF KERALA G O (P) NO.47/2020/TAXES DATED 31.03.2020 OF TAXES (J) DEPARTMENT, THIRUVANANTHAPURAM.
ANNEXURE-IV TRUE COPY OF THE RELEVANT PAGES OF THE GOVERNMENT NOTIFICATION NO.4000(2)/Leg.A2/2020/LAW DATED 11.09.2020. ANNEXURE-V TRUE COPY OF THE INTERIM ORDER PASSED BY THE HON'BLE COURT IN CONTEMPT OF COURT CASE NO.1383/2020 DATED 23.09.2020.
ANNEXURE-R1 TRUE COPY OF THE GOVERNMENT CIRCULAR NO.REV-P 1/113/2020-REV, REVENUE (P) DEPARTMENT DATED 15.6.2020 ANNEXURE- R1(a) ENGLISH TRANSLATION OF ANNEXURE-R1 ANNEXURE R3 TRUE COPY OF THE CIRCULAR NO.REV-P 1/219/2020- REV, REVENUE (P) DEPARTMENT DATED 20.02.2021 ANNEXURE R3(a) TRUE ENGLISH TRANSLATION OF ANNEXURE R3