P.M Philipose vs The Revenue Divisional Officer
2023 Latest Caselaw 3182 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
         THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
                          WP(C) NO. 7814 OF 2023
PETITIONER:

              P.M PHILIPOSE
              AGED 64 YEARS
              S/O. LATE MATHEW, PULICATHARA HOUSE, CHRUKOL P.O, RANNI,
              PATHANAMTHITTA, PIN - 689650

              BY ADV SOJAN JAMES



RESPONDENTS:

     1        THE REVENUE DIVISIONAL OFFICER
              THIRUVALLA, REVENUE DIVISION OFFICE, THIRUVALLA, PIN -
              689101

     2        THE VILLAGE OFFICER
              ERAVIPEROOR VILLAGE, PATHANAMTHITTA., PIN - 689542

              SMT.PARVATHY.-GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 7814 OF 2023                   2




                                    JUDGMENT

Dated this the 23rd day of March, 2023

This writ petition is filed seeking the following reliefs:-

i. issue a writ of certiorari or any appropriate writ, order or direction calling for the records leading to Ext.P10 proceedings and quash the same.

ii. Declare that the 1st respondent has no right or authority to demand the fees under section 27 A (3) for an existing building situated in the petitioner's land which was constructed prior to introduction of Sec. 27A of the Act.

iii. issue a writ of mandamus or any appropriate writ, order or direction directing the 1st respondent to recalculate the fees to be paid by the petitioner under section 27 A(3) in the light of the judgments in Global Education Trust V. State of Kerala 2020 (6) KHC 538 and Shiji Joshy V. State of Kerala 2022 (7) KHC 502.

2. Heard the learned counsel for the petitioner and the

learned Government Pleader.

3. It is submitted by the learned counsel for the petitioner

that Ext.P10 notice it so far as it demands an amount of

Rs.34,727.35/- as fees for the area by which the building in the

property exceeds 3000 sq.ft is completely untenable. It is

submitted that Rule 12(9) of the Kerala Conservation of Paddy

Land and Wet Land Rules, 2008 specifically refers to a building

intended to be constructed in the property in respect of which

permission is sought for and therefore a building which is

already in existence cannot be subject matter of the fee as

provided in Rule 12(9). It is submitted that the decision of this

Court in Shiji Joshy V. State of Kerala [2022 (7) KHC 502]

has considered this specific issue and it has been held that the

fee provided under Section 27A and Rule 12(9) with regard to

the building is only in respect of a proposed building and that

the building in existence cannot be made subject of the said fee.

The learned counsel relying on Ext.P3 building permit and Ext.P4

ownership certificate submits that the building was constructed

long prior to the submission of the application under Section

27A and that specific provisions of the Rules do not permit the

realization of fees in respect of a building which is already in

existence. The decision of this Court in Global Education Trust

V. State of Kerala and others [2020 (6) KHC 538] is also

relied on by the learned counsel for the petitioner to contend

that where building permits had been granted prior to

31/12/2017, the provisions of the 2008 Act as amened in 2017

would not be applicable to them.

4. The learned Government Pleader submits that the Rules

provide for fee with regard to buildings which have a plinth area

in excess of 3000 sq ft and that the petitioner's building has a

plinth area exceeding 3000 sq ft and that Ext.P10 is therefore

fully justified.

Having considered the contentions advanced and in the

light of the judgment of this Court in Shiji Joshy (supra), I

am of the opinion that the prayers as sought for in the writ

petition are liable to be granted. Ext.P10 demand to the extent

it requires payment of fees in respect of the building which is

already in existence is set aside. The respondents are directed

to pass appropriate orders on the Form 7 application without

demanding fees with regard to the building which is already in

existence in the property. Appropriate orders shall be passed

within a period of two months from the date of receipt of a copy

of this judgment.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE ska

APPENDIX OF WP(C) 7814/2023 PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE LAND TAX RECEIPT DATED 15-06-2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

ExhibitP2 TRUE COPY OF THE LAND TAX RECEIPT DATED 25-06-2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

ExhibitP3 TRUE COPY OF THE BUILDING PERMIT NUMBER A2 3068/2014 DATED 07.09.2015 ISSUED BY ERIVIPERUR GRAMMA PANCHAYATH TO THE PETITIONER.

ExhibitP4 TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 30.11.2019 ISSUED BY THE ERIVIPERU PANCHAYATH TO THE PETITIONER.

ExhibitP5 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER IN FORM NO. 7 TO THE 2ND RESPONDENT DATED 04.04.2019.

ExhibitP6 TRUE COPY OF THE CHALLAN FOR PAYMENT OF APPLICATION FEES DATED 02.04.2019

Exhibit P7 TRUE COPY OF THE PRINT OUT FROM THE OFFICIAL WEBSITE REGARDING THE FAIR VALUE OF THE PETITIONERS LAND AND NEARBY LAND .

Exhibit8 TRUE COPY OF THE NOTICE ISSUED BY THE RESPONDENT TO THE PETITIONER WITH NOTICE NO. A3 1415/19 DATED 17.03.2020

ExhibitP9 TRUE COPY OF THE JUDGMENT RENDERED IN WRIT PETITION NO.

19840 OF 2022 DATED 02-08-2022 .

ExhibitP10 TRUE COPY OF THE PROCEEDINGS ISSUED ON 17-01-2023

ExhibitP11 TRUE COPY OF THE JUDGMENT IN CONTEMPT OF COURT CASE NO.

101 OF 2023 DATED 08-02-2023 .