Kerala High Court
Georgekutty Thomas vs The Revenue Divisional Officer on 8 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 8TH DAY OF JULY 2021 / 17TH ASHADHA, 1943
WP(C) NO. 16800 OF 2020
PETITIONER:
GEORGEKUTTY THOMAS, AGED 59 YEARS,
POLACHIRA HOUSE, NALUKODI P. O., CHANGANASSERRY TALUK, KOT-
TAYAM DISTRICT, PIN - 686 548.
BY ADVS. SRI.T.P.PRADEEP & SRI.S.SREEDEV
RESPONDENTS:
1 THE REVENUE DIVISIONAL OFFICER,
REVENUE DIVISIONAL OFFICE, KOTTAYAM, PIN - 686 632.
2 THE TAHAZILDAR
TALUK OFFICE, CHANGANASSERRY - 686 101.
3 LOCAL LEVEL MONITORING COMMITTEE
REPRESENTED BY IT'S CONVENOR / AGRICULTURAL OFFICER, KRISHI
BHAVAN, PAIPPAD P. O., KOTTAYAM DISTRICT, PIN - 686 548.
SRI.K.J.MOHAMMED ANZAR, SPL.GP(REVENUE)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.07.2021, ALONG WITH WP(C).NO.16697/2020, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 8TH DAY OF JULY 2021 / 17TH ASHADHA, 1943
WP(C) NO. 16697 OF 2020
PETITIONER:
MINTU LUCKOSE, W/O. THOMMAN KURUVILA, THAMARAPPALY HOUSE,
MUTTAMBALAM VILLAGE, KOTTAYAM DISTRICT 686 002.
BY ADVS. SRI.T.P.PRADEEP, SRI.AJAI JOHN
RESPONDENTS:
1 THE R.D.O.,
REVENUE DIVISIONAL OFFICE, KOTTAYAM 686 632.
2 THE TAHAZILDAR,
TALUK OFFICE, CHANGANASSERRY 686 101.
3 LOCAL LEVEL MONITORING COMMITTEE,
REPRESENTED BY ITS CONVENOR/AGRICULTURAL OFFICER, KRISHI
BHAVAN, PAIPPAD P.O., KOTTAYAM DISTRICT 686 548.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.07.2021, ALONG WITH WP(C).NO.16800/2020, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
(C.R.)
ALEXANDER THOMAS, J.
--------------------------------------------------------
W.P. (C) No. 16800 of 2020
&
W.P. (C) No. 16697 of 2020
--------------------------------------------------------
Dated this the 8th day of July, 2021
JUDGMENT
As identical issue has been raised in these writ proceedings,
these WP(C)s are disposed of on the basis of this common judgment.
2.The prayers in W.P. (C) No. 16800 of 2020 are as follows:
"
i. Issue a writ of certiorari or other appropriate writ, direction or
order calling for records relating to Ext P4 and quash the same
to the extent it directs to comply with the provisions of The
Kerala Conservation of Paddy Land and Wetland (Amendment)
Ordinance, 2017.
ii. Declare that The Kerala Conservation of Paddy Land and
Wetland (Amendment) Ordinance, 2017 or The Kerala
Conservation of Paddy Land and Wetland (Amendment) Act,
2018 has no application at the time of issuing Ext P4 order.
iii. Issue a writ of mandamus or other appropriate writ, order or
direction commanding 2nd respondent to reassess the land tax
under Section 6A of the Land Tax Act, 1961 and make necessary
changes in the entries of the revenue records And
iv. Issue such other appropriate writ, order or direction as this
Hon'ble Court deem fit and proper, in the circumstances of the
case."
3.The prayers in W.P. (C) No. 16697 of 2020 are as follows:
"
i. Issue a writ of certiorari or other appropriate writ, direction or
order calling for records relating to Ext P3 and quash the same
to the extent it directs to comply with the provisions of The
Kerala Conservation of Paddy Land and Wetland (Amendment)
Ordinance, 2017.
ii. Declare that The Kerala Conservation of Paddy Land and
Wetland (Amendment) Ordinance, 2017 or The Kerala
Conservation of Paddy Land and Wetland (Amendment) Act,
2018 has no application at the time of issuing Ext P3 order.
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..4..
iii. Issue a writ of mandamus or other appropriate writ, order or
direction commanding 2nd respondent to reassess the land tax
under Section 6A of the Land Tax Act, 1961 and make necessary
changes in the entries of the revenue records And
iv. Issue such other appropriate writ, order or direction as this
Hon'ble Court deem fit and proper, in the circumstances of the
case."
4. Heard Sri.T.P.Pradeep, learned counsel appearing for
the petitioners in these two cases and Sri.K.J.Mohammed Anzar,
learned Senior Government Pleader (Revenue) appearing for official
respondents in these cases.
5. The case of the petitioners in these cases is to the effect
that, the subject property concerned in these cases, though described
as the nilam/paddy land in the Basic Tax Register (BTR), the same
has been converted as garden land/purayidam, long prior to
12.8.2008, the date of coming into force of the Kerala Conservation
of Paddy Land and Wetland Act, 2008 (State Act 28 of 2008).
Further that, there are grown up coconut trees aged more than 25
years situated in the subject properties and the subejct properties
have been clearly shown in the Land Data Bank prepared as per the
provisions of the State Act 28 of 2008 as "claimed/converted land
10 years prior to 2008".
6. The petitioners in these cases have submitted
applications (Ext.P-3 in the former case and copy of such application
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..5..
has not been produced in the latter case) before the 1 st respondent
RDO, some time in the last week of February, 2018 or in the first
week of March, 2018, seeking for statutory permission for change of
user of land for any non agricultural purposes. According to the
petitioners, though as on the date of submission of these
applications, the provisions of the Kerala Conservation of Paddy
Land and Wetland (Amendment) Ordinance, 2017, may have been in
vogue, the said ordinance was later re-promulgated twice and the
last of said ordinance was repealed and replaced by the Kerala
Conservation of Paddy Land and Wetland (Amendment) Act, 2018,
[hereinafter referred to as "The Amendment Act, 2018"] which had
retrospectively came into force on 30.12.2017. The complaint of the
petitioner is that, the 1st respondent RDO has issued Ext.P-4
proceedings dated 19.5.2018 in the former case and Ext.P-3
proceedings dated 19.5.2018 in the latter case, whereby it has been
ordered that the formal plea for change of user of land can be
allowed in terms of the provisions contained in the Kerala Land
Utilization Order, 1967, [hereinafter referred to as "The KLU Order,
1967"] and also taking into account Sec.16 of the abovesaid
Amendment Ordinance.
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..6..
7. The petitioners have got a contention that the plea of the
petitioners should be strictly considered in accordance with the KLU
Order, 1967. But, since the petitioner has not challenged the
provisions of the Amendment Act, 2018, which has introduced
Sec.27A thereof, and the other provisions including the rules framed
thereunder, the counsel for the petitioner has not made any serious
attempts to press the contention based on Rule 6 of the KLU Order.
The substantial contention raised by the petitioner is that, even if it
is held that since the petitioner has filed his application for change of
user of land after 31.12.2017, his case can at best is to be governed by
the provisions contained in Sec.27A(13) of the Amendment Act,
2018, which retrospectively came into force on 30.12.2017 and that
his case is to be regulated by the provisions contained in Sec. 28A(1)
the Act and the Rules framed there under. The cardinal aspect is
that, the 1st respondent RDO has gone wrong in holding that the
petitioners' cases are to be regulated by the provisions contained in
abovesaid Amendment Ordinance, 2017, more particularly Sec.16
thereof, which imposes a higher fee of 50% of the fair value of the
subject property, whereas as per the provisions contained in the
Amendment Act, 2018, which retrospectively came into force on
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..7..
30.12.2017 as well as the rules framed thereunder, he need to pay
only a much lesser fee based on the percentage of fair value of the
subject property.
8. The operative portion of Ext.P-4 proceedings dated
19.5.2018 issued by the 1st respondent in WP(C).No.16800/2020,
reads as follows:
"ചങന ശ ര ത ലക ൽ പ യ പ ട വ ശ ജ ൽ ശ ക 7 ൽ റ സർശ 189/4-1 ൽപപട
09.46 ആർ, റ സർശ 189/3-3 ൽപപട 02.58 ആർ, റ സർശ 189/3-1 ൽപപട
06.27 ആർ, റ സർശ 189/4-2 ൽപപട 13.15 ആർ, റ സർശ 189/3-2 ൽപപട
15.79 ആർ ഉൾപപപട 47.25 ആർ വസകൾ ശ"രള ഭവ ന ശയ ഗ ഉതരവ
clause 6 പ" രവ) ശ"രള ന യമ (ന യമ ന ർമ ണ ബ വകപ ) വകപ പ. 30.12.17 പ/
26798/പ/ഗ.ബ 2/2017/ന യമ) നമർ ഓർഡ നൻസ പ" രവ)
" ർഷ ശ"തര വശ6ങൾ" ഉപയകമ കവ ൻ അനമത നൽ" ഇത ന ൽ ഉതരവ കന ."
9. The operative portion of Ext.P-3 proceedings dated
19.5.2018 issued by the 1st respondent in WP(C).No.16697/2020,
reads as follows:
"ചങന ശ ര ത ലക ൽ പ യ പ ട വ ശ ജ ൽ ശ ക 7 ൽ റ സർശ 247/6 ൽപപട 95.20
ആർ, റ സർശ 246/5-1 ൽപപട 02.20 ആർ ഉൾപപപട 97.40 ആർ വസകൾ ശ"രള
ഭവ ന ശയ ഗ ഉതരവ clause 6 പ" രവ) ശ"രള ന യമ (ന യമ ന ർമ ണ ബ വകപ)
വകപ പ. 30.12.17 പ/ 26798/പ/ഗ.ബ 2/2017/ന യമ) നമർ ഓർഡ നൻസ
പ" രവ) " ർഷ ശ"തര വശ6ങൾ" ഉപയകമ കവ ൻ അനമത നൽ" ഇത ന ൽ
ഉതരവ കന."
10. At the outset, it has been held by this Court that since
indisputably the petitioners have submitted his application for change
of user of land after 30.12.2017 (date of coming into force of the
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..8..
Amendment Act), and since the petitioners have not challenged the
provisions of the vires and reasonableness of the provisions
contained in the said Amendment Act and the rules framed
thereunder, there is no question of this Court holding that the
petitioner's case is to be regulated solely by the provisions
contained in the KLU Order, 1967. It is by now well settled by a
series of rulings of this Court, more particularly that rendered
by the Division Bench of this Court in the cases as in Thomas v.
State of Kerala [2020 (6) KLT 405] that where the application
for change of user of land has been filed on or after 30.12.2017
(date of coming into force of abovesaid Amendment Act), then the
case is to be regulated by the provisions contained in the same
Amendment Act, and if in a case where the party has filed the
application for change of user of land prior to 30.12.2017,
then such case is to be strictly regulated by the provisions
contained in the KLU Order, 1967, and not by the abovesaid
Amendment Act, 2018, which came into force on 30.12.2017.
{See Shanmugam v. District Collector [2019 (2) KLT 45
(DB)], Renji K.Paul v. Revenue Divisional Officer [2019 (2)
KLT 262 (DB)], District Collector v. Fr.Jose Uppani
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..9..
[2020 (4) KHC 394 = 2020 (4) KLT 612] etc} Further, the SLP
filed by the State before the Apex Court for impugning the judgment
of the Division Bench of this Court in Fr.Jose Upani's case supra, has
been dismissed.
11. In the light of these aspects it is to be held that though
the 1st respondent RDO has inter alia stated in the abovesaid
impugned proceedings dated 19.5.2018 that the case of the
petitioner would also be regulated by the provisions contained in the
KLU Order, is not legally correct. So the main issue to be decided in
this case is the correctness or legality of the stand of the respondent
RDO in the impugned proceedings dated 19.5.2018 that the case of
the petitioner will be regulated by the provisions contained in Sec.16
of the abovesaid Amendment Ordinance, 2017, which came into
force on 30.12.2017.
12. In this regard, it may be profitable to examine the brief
history of the enactment of State Act 28 of 2008 as well as the
Ordinances framed on 30.12.2017 and thereafter, which was
followed by the Amendment Act, 2018, which was given
retrospective effect from 30.12.2017. Those aspects are dealt with in
para 7 of the judgment of the Division Bench of this Court in the case
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..10..
in Thomas v. State of Kerala [2020 (6) KLT 405] and the
same reads as follows:
"7. It is a fact that even though Act, 2008 was introduced on and
with effect from 12.08.2008 with the intention of conserving the paddy
land and wetland and to restrict the conversion or reclamation thereof,
in order to promote growth in the agricultural sector and to sustain the
ecological system, in the State of Kerala, it had only prospective
operation on and with effect from the date of introduction of the Act,
2008. Which thus means, any land converted prior to the introduction
of the Act, 2008 or any land which was not included in the data bank
constituted as per the Act, 2008 was governed by the provisions of the
Kerala Land Utilisation Order, 1967. The Act, 2008 has undergone
amendment as per, Act 14 of 2011 on and with effect from 06.07.2011,
Act 12 of 2015, Act 19 of 2016 and finally by Act 29 of 2018. The Act 29
of 2018 was introduced by the Government for the smooth
implementation of the major Government projects and also in public
interest and thus intended to amend Sections 2, 5, 8, 9, 12, 13, 14, 16, 19,
20, 23 and 25 and insert Sections 27A to 27D in the Act, 2008. As the
legislative assembly of the State of Kerala was not in session, and the
proposals had to be given effect to immediately, the Kerala
Conservation of Paddy Land and Wetland (Amendment) Ordinance,
2017 was promulgated by the Governor of Kerala on 30th December,
2017 as Ordinance No. 41 of 2017 in the Kerala Gazette Extraordinary
No. 2903 dated 30.12.2017. Evidently, a bill to replace the Ordinance
could not be introduced in its session commenced on the 22nd of
January, 2018 and ended on the 7th day of February, 2018. Therefore,
in order to keep alive the provisions of Ordinance, the Governor of
Kerala has promulgated the Kerala Conservation of Paddy Land and
Wetland (Amendment) Ordinance, 2018 on the 12th day of February,
2018, which was published in the Kerala Gazette Extraordinary No.
348 dated 12th February, 2018. Though a bill to replace the said
Ordinance by an act of the State Legislature was published as Bill No.
122 of the 14th Kerala Legislative Assembly, the same could not be
introduced in the Legislative Assembly during its session which
commenced on 26th February, 2018 and ended on the 4th day of April,
2018. Therefore, again the Ordinance No. 30 of 2018 was published in
the Kerala Gazette Extraordinary No. 919 dated 7th April, 2018. It was
the said ordinance that was replaced by the Kerala Conservation of
Paddy land and Wetland Amendment Act, 2018 on 6.7.2018 on and
with effect from 30.12.2017, i.e., the date of the first Ordinance No. 41 of
2017. Therefore, the contention of the appellant that the Amendment
Act was introduced in 2018 and retrospective effect was given from
30.12.2017, can never be sustained under law, because the deeming
effect to Section 27A and other amended provisions under the
Amendment Act, 2018 was given, to have continued force from the date
of the Ordinance dated 30.12.2017."
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..11..
13. So, it can be seen that three ordinances were
promulgated from 30.12.2017 onwards up to the later enactment of
the Amendment Act, 2018, which was given retrospective effect from
30.12.2017. The first ordinance in that regard (Ordinance 41 of
2017) was promulgated on 30.12.2017 and the same has been given
retrospective effect from 30.12.2017. This was followed by the
second ordinance which came into force on 12.2.2018, and
subsequently by the third ordinance on 7.4.2018 and ultimately by
the Amendment Act which was published in the Gazette on 6.7.2018
and given retrospective effect from 30.12.2017.
14. The submission of the 1st respondent is that the
applications for change of user of land in these cases were submitted
in the third week of February, 2018/ first week of March, 2018, at a
time when the first ordinance was in vogue. The impugned
proceedings dated 19.5.2018 was passed at a time when the third
ordinance was then in vogue. On this basis, it is contended on behalf
of the 1st respondent that since, the impugned proceedings dated
19.5.2018 was passed at a time when the abovesaid ordinance was in
force, and as Sec.16 thereof has clearly stipulated that the change of
user of land is entertained subject to payment of fee at the rate of
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..12..
50% of the fair value of the land, the petitioner will have to necessar-
ily pay said amount.
15. Whereas the rival contention of the petitioner is that,
subsection (13) of Sec.27A of the Amendment Act, 2018, which
retrospectively came into force on 30.12.2017, clearly mandates that
applications filed on or after 30.12.2017 is to be regulated by the said
provisions contained in the said Amendment Act, including Sec.27A
thereof. That, the Division Bench of this Court in the aforecited
judgments has clearly settled the said position etc. Accordingly, it is
pointed out that since the Amendment Act has been given
retrospective effect from 30.12.2017, the petitioner's case will be
regulated squarely by the provisions of said Act, and he need to pay
the requisite fee only on the basis of beneficial provisions made as
per the Rules of the said Amendment Act, prescribes that the fee
need be paid on the basis of percentage of the fair value, which is
much less than 50% of the fair value as stipulated in Sec.16 of the
Ordinance. There is no dispute in this case that the petitioners have
filed their applications for change of user of land in the last week of
February, 2018 or in the first week of March, 2018. Their
applications have been disposed of on the basis of proceedings dated
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..13..
19.5.2018 at a time when the third ordinance was in vogue. Sec.16 of
said Ordinance stipulates that 50% of the fair value of the subject
property has been paid as fee for the said process of permission for
change of user of land. So also, indisputably the ordinance has been
replaced by the Amendment Act, 2018, which was given
retrospective effect from 30.12.2017. As per the provisions contained
in Sec.27A(3) introduced as per the Amendment Act, 2018, fee has
been paid as per the provisions prescribed in the Rules. There is no
dispute that the prescription made in the Rules framed in terms of
Sec.27A(3) of the Amendment Act, stipulates that the amount to be
paid is much lesser than the 50% of the fair value of the fee as
stipulated in Sec.16 of the Ordinance which has introduced
amendment as Sec.27A(3) of the Act.
16. If the abovesaid technical contention of the respondents
are upheld, then it would amount to a situation whereby an appli-
cant like the present petitioners who were diligent enough to
immediately submit requisite applications, will have to suffer hostile
discrimination. Subsection 13 of Sec.27A clearly mandates that all
applications filed on or after 30.12.2017 for change of user of land
will be regulated by the provisions contained in Sec.27A(1) and the
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..14..
rules framed there under. Incidentally, there also to be noted that
there was no provision in the ordinance which is corresponding to
the amended Sec.27A(13) as per the Amendment Act, 2018. So, the
intention of the legislature as per Sec.27A(13) of the Act is very clear
that all or any application filed for change of user of land on or after
30.12.2017, will be regulated by the provisions contained in the said
Amendment Act, 2018, which has been given retrospective effect
from 30.12.2017. A person can get outside the rigour of said provisions
only if he is able to successfully challenge the prescriptions contained
in Sec.27A of the Act. Such is not the case here. Therefore, it is only
to be held that since the applications of the petitioners herein for
change of user of land have been filed on or after 30.12.2017, the
same will have to be regulated by the provisions contained in
Sec.27A(3). In other words, the fee to be paid by the petitioner shall
in terms of the fee prescribed by the rules framed by said
Amendment Act. If the contention of the 1 st respondent based on
Sec.16 of the Ordinance is upheld, then, it would amount to inflicting
hostile discrimination on a party like the petitioners. In these
aspects, this Court has no hesitation to hold that the impugned
proceedings dated 19.5.2018 (Ext.P-3/Ext.P-4 in these cases) is illegal and
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..15..
ultra vires and would require interdiction and are liable to be
quashed. The next issue to be decided is as to whether the petitioner
has to pay the requisite fee in terms of prescriptions under Sec.27A(3)
in terms of the fair value of the property that was in vogue, at the
time of submission of application or whether case of the petitioners
will be regulated by the subsequent amendment made to provisions
in Sec.27A by the introduction of the Kerala Finance (No.2) Act,
2020 (Act 8 of 2020), which was published in the Gazette on 11.9.2020
and which was given retrospective effect from 1.4.2020, etc.
17. In that regard it has to be borne in mind that this Court
has already held in decisions as in Dr.Vimal Vincent v. Revenue
Divisional Officer [2020 (1) KLT 145], that the fee prescribed as
per Sec.27A(3) read with 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. It has also been further held therein that in view of
abovesaid provisions, the said fair value should be that of the subject
property as notified in terms of Sec.28(A) of the Kerala Stamp Act,
1959. Further, this Court has also held in various decisions including
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..16..
the one in Ajith kumar Shenoy v. RDO [2020 (5) KLT 683]
that the fee should be computed not only in terms of the fair value of
the subject property covered by the application filed under
Sec.27A(1), but that it should be such fair value of subject property
as on date of submission of Sec.27A(1) application, and not the fair
value which is revised subsequently thereto.
18. As referred to herein, the Legislature has enacted the
Kerala Finance (No.2) Act, 2020 (Act 8 of 2020), which was pub-
lished in the Gazette on 11.9.2020 and which was given retrospective
effect from 1.4.2020. Sec.2 of the Kerala Finance (No.2) Act, 2020,
has introduced Amendment of Act 28 of 2008 and it stipulated
therein as follows:
"2. Amendment of Act 28 of 2008.-- In the Kerala
Conservation of Paddy Land and Wetland Act, 2008 (28 of
2008), in section 2, for clause (vi A) the following clause shall be
substituted, namely:--
"(vi A) "fair value" means the fair value of the garden
land adjacent to the unnotified land for which fair value has
been fixed under section 28A of the Kerala Stamp Act, 1959 (17 of
1959) or where such fair value has not been fixed for such land,
the fair value fixed for similar and similarly situated garden
land". "
19. Hence, it is contended by the respondents that in view of
the said amended provision made effective from 1.4.2020 the fair
value means the fair value of the garden land adjacent to the
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..17..
unnotified land for which fair value has been fixed under Sec.28A of
the Kerala Stamp Act or where such fair value has not been fixed for
such land, fair value fixed for such similar and similarly situated
garden land, etc. On this basis the respondents would contend that
in case, this Court is quashing the impugned proceedings and
remitting the applications for consideration, and as now the
abovesaid amended provision made retrospective effect from
1.4.2020 was already in force, the petitioner will have to pay the fair
value in terms of the said amended provision of the fee to be paid on
the basis of the fair value.
20. The petitioner's counsel would repel the said contentions
of the learned Government Pleader.
21. After considering rival pleas, it has to be borne in mind
that indisputably, the petitioners have filed their applications for
change of user of land, in the last week of February 2018 or first
week of March 2018. Indisputably, the abovesaid further
amendment has been given retrospective effect only from 1.4.2020.
Even if, the abovesaid retrospective effect given from 1.4.2020 is
accepted, still, at best it can only be applied for applications for
change of user of land filed on or after 1.4.2020. Whereas, in the
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..18..
instant case the petitioners have filed their applications for change of
user of land, much prior to 1.4.2020. So, the said amended
provisions will have no applications to the factual scenario in this
case. That apart, it has to be borne in mind that the Amendment
Act, 2018, which has introduced Sec.27A has been made effective
from 30.12.2017. An applicant cannot take advantage of the situation
and say that even if there is delay on his part in filing such
application under Sec.27A much after the cut-off date of 30.12.2017,
still he needs to pay the fee computed on the basis of the fair value as
it stood on 30.12.2017. So, the applicants will have to necessarily pay
such fee, as on the date of his application. So also, the respondent
revenue authorities cannot take advantage of their own wrong in
delaying the matter or lead to situations of passing wrongful orders
and then getting remit of the matter by contending that such fee
payable should be, the subsequently increased fee payable on the
basis of the fair value as on the date on which the decision is actually
rendered, and not on the date on which the application has been
filed. Such a stand of the respondent revenue authorities is accepted,
then it would amount to permitting the State authorities to take
advantage of their own wrong, delaying the consideration of
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..19..
application. Therefore, both the applicant as well as the State, cannot
be permitted to take advantage of their own wrongs. Therefore, from
an objective perspective, the only rational conclusion would be that
the fee is to be payable by the applicant on the basis of the norms as
it stood at the time of submission of application. This will be the
scenario where the fee is increased subsequent during the pendency
of the application. This Court is not dealing with the scenario, where
the fee is decreased, during the pendency of the application.
22. The contention of the State, to the contrary, if allowed to
stand, would be to arbitrary and irrational consequences, and would
amount to permitting the State to take advantage of their own wrong
in delaying the consideration of the applications, or passing
wrongful orders leading to remits and then demanding that even
though the applicant was entitled for grant of benefit, he will have to
pay the higher fee as it stood as on the date of actual consideration
and not the fee that was payable as on the date of application. This
is especially so in cases where, a higher fee is stipulated at a time
higher fee is in vogue at the time of consideration of application.
23. In the light of these aspects, it is only to be held that
even if the further amendment as per the Finance Act, given
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..20..
retrospective effect from 1.4.2020, is to be considered, the same can
regulate applications filed on or after 1.4.2020, and not applications
as in the instant case which have been filed much prior to 1.4.2020.
Hence, the abovesaid contentions of the respondents will also stand
rejected. The upshot of above discussion is that the impugned
proceedings dated 19.5.2018 (Ext.P-3 in the former case and Ext.P-4 in
the latter case) would require interdiction and the same will stand
quashed, only to the extent regarding the fee payable by the
petitioners. Correspondingly, the applications filed by the petitioners
for change of user of land as referred to in the impugned proceedings
will stand remitted to the 1st respondent RDO for reconsideration
and passing of orders for the fee payable by the petitioners, in the
light of the abovesaid decision.
24. A reading of impugned proceedings dated 19.5.2018
would clearly indicate that the 1 st respondent has already taken a
conscious decision to allow the plea of the petitioners for change of
user of land and the only dispute was regarding the fee payable for
formal allowing of said applications. The finding of R-1 in the
impugned order for allowing the pleas of the petitioners for change
of user of the land is upheld and confirmed. The 1 st respondent will
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..21..
afford reasonable opportunity of being heard to both the petitioners
through their authorized counsel/representatives if any, and then
should pass fresh orders, regarding the aspects of fee. The 1st
respondent cannot insist that the petitioners should pay the fees as en-
visaged in Sec.16 of the Ordinance. The 1st respondent will pass orders
in the matter of fee to be paid by the petitioner on the basis of the fair
value of the subject property covered by the applications of the peti-
tioners and not any other property, and also on the basis of the fair
value of the subject properties which was in existence at the time of
submission of applications, and not any revised fair value and not on
the basis of the further amendments made retrospective effective
from 1.4.2020. Orders in that regard should be duly rendered by the
1st respondent RDO within 2 months from the date of production of
a certified copy of this judgment.
25. The Secretary to the Office of the Advocate General, will
forward copies of this judgment to the 1 st respondent for necessary
information and immediate compliance.
With these observations and directions, the above Writ
Petitions will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE
MMG
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..22..
APPENDIX OF WP(C).NO.16800/2020
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF SALE DEED DOCUMENT
NO.2392/1/14 OF CHANGANASSERRY SUB
REGISTRAR OFFICE.
EXHIBIT P1 (A) TRUE COPY OF SALE DEED DOCUMENT
NO.2589/1/13 OF CHANGANASSERRY SUB
REGISTRAR OFFICE.
EXHIBIT P1 (B) TRUE COPY OF SALE DEED DOCUMENT
NO.2590/1/13 OF CHANGANASSERRY SUB
REGISTRAR OFFICE.
EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGE OF THE
DATABANK PREPARED BY THE 3RD
RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED
27.02.2018 SUBMITTED BEFORE THE 1ST
RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED
19.05.2018 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE ORDINANCE DATED
30.12.2017 (THE KERALA CONSERVATION OF
PADDY LAND AND WETLAND (AMENDMENT)
ORDINANCE, 2017)
W.P. (C) No. 16800/2020 &
W.P. (C) No. 16697/2020
..23..
APPENDIX OF WP(C).NO.16697/2020
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF SETTLEMENT DATED DOCUMENT
NO. 1892/15 OF CHANGANASSERRY SUB
REGISTRY OFFICE.
EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGE OF THE
DATA BANK PREPARED BY THE 3RD
RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED
19.05.2018 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE ORDINANCE DATED
30.12.2017 (THE KERALA CONSERVATION OF
PADDY LAND AND WETLAND (AMENDMENT)
ORDINANCE, 2017.
