Kerala High Court
Nisha vs State Of Kerala on 30 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 30TH DAY OF MARCH 2023 / 9TH CHAITHRA, 1945
WP(C) NO. 20033 OF 2021
PETITIONER:
SABU K. ABEL,AGED 51 YEARS
S/O. K. E. ABEL, KATTANGANAL HOUSE,
KOTHAMANGALAM, ERNAKULAM - 686 691.
BY ADVS.
P.NANDAKUMAR
AMRUTHA SANJEEV
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY ITS
PRINCIPAL SECRETARY TO GOVERNMENT,
DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 REVENUE DIVISIONAL OFFICER
MINI CIVIL STATION, MUDAVOOR P. O.,
MUVATTUPUZHA - 686 669.
3 VILLAGE OFFICER
KOTHAMANGALAM - 686 666.
4 AGRICULTURAL FIELD OFFICER
KRISHI BHAVAN, KOTHAMANGALAM - 686 666.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.03.2023, ALONG WITH WP(C).18451/2022, 20040/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.20033 of 2021 & con. Cases
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 30TH DAY OF MARCH 2023 / 9TH CHAITHRA, 1945
WP(C) NO. 20040 OF 2021
PETITIONER:
ABI K.ABEL,AGED 55 YEARS
S/O. K.E ABEL, KATTANGANAL HOUSE,
KOTHAMANGALAM, ERNAKULAM 686 691
BY ADVS.
P.NANDAKUMAR
AMRUTHA SANJEEV
RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL
SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001
2 REVENUE DIVISIONAL OFFICER
MINI CIVIL STATION, MUDAVOOR P.O,
MUVATTUPUZHA 686 669
3 VILLAGE OFFICER
KOTHAMANGALAM 686 666
4 AGRICULTURAL FIELD OFFICE,
KRISHI BHAVAN, KOTHAMANGALAM 686 666
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.03.2023, ALONG WITH WP(C).20033/2021 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.20033 of 2021 & con. Cases
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 30TH DAY OF MARCH 2023 / 9TH CHAITHRA, 1945
WP(C) NO. 18451 OF 2022
PETITIONER:
NISHA,W/O.SHAJITH MUSALIAR, AGED 37 YEARS
RESIDING AT RHYTHM, PARAKUNNU P.O., NAVAIKULAM,
VARKALA TALUK, THIRUVANANTHAPURAM, PIN - 695603
BY ADVS.
PIRAPPANCODE V.S.SUDHIR
AKASH S.
A.MEGHA
GIRISH KUMAR M S
V.S.VARALEKSHMI
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 DISTRICT COLLECTOR
THIRUVANANTHAPURAM, CIVIL STATION, KUDAPPANAKUNNU,
THIRUVANANTHAPURAM, PIN - 695043
3 THE REVENUE DIVISIONAL OFFICER
CIVIL STATION, KUDAPPANAKUNNU, THIRUVANANTHAPURAM,
PIN - 695043
4 THE TAHSILDAR (LR)
THIRUVANANTHAPURAM, TALUK OFFICE, KOTTAKKAKAM,
THIRUVANANTHAPURAM, PIN - 695601
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.03.2023, ALONG WITH WP(C).20033/2021 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.20033 of 2021 & con. Cases
4
VIJU ABRAHAM, J.
.................................................................
W.P.(C) Nos.20033 of 2021, 20040 of 2021
&
18451 of 2022
.................................................................
Dated this the 30th day of March, 2023
JUDGMENT
W.P(C) No.20033 of 2021
Petitioner has applied for conversion of 4.05 Ares of
paddy land in Survey No.1260/13 of Kothamangalam Village and
Taluk in Ernakulam District as per Ext.P1 application dated
21.10.2020. As per Ext.P3 the fair value of the property has been fixed
as Rs.75,000/- for 4.05 Ares and 4th respondent has also submitted
Ext.P4 report dated 25.03.2021 stating that the property is not suitable
for paddy cultivation and not included in the data bank. The 2 nd
respondent has now issued Ext.P5 order directing the petitioner to pay
an amount of Rs.1,19,100/- inclusive of 100% increase of fair value.
The discrimination in fixation of fee under Section 27A of the Kerala
Conservation of Paddy Land and Wetland Act, 2008 was the subject
matter of challenge in W.P.(C) No.20990 of 2018 and connected
cases before this Court and by Ext.P6 common order this Court had
directed the Government to re-visit the fixation of fee to bring it to a
WP(C) No.20033 of 2021 & con. Cases
uniform rate. Consequently the Government has issued Ext.P7 order
dated 25.02.2021 whereby conversion of the land has been done
without any fee upto an extent of 25 cents of land and for lands above
25 cents upto one acre, 10% of the fair value has to be levied without
considering the fact that the land lies in Panchayat, Municipality or
Corporation. Subsequently the Government has issued Ext.P8 circular
whereby the modification made with regard to the relaxation of fee as
per Ext.P7 Government Order shall be applicable only to applications
submitted on or after 25.02.2021. Petitioner submits that the
abovesaid stipulation in Ext.P8 circular is absolutely arbitrary and
unjust.
W.P(C) No.20040 of 2021
2. Petitioner has applied for conversion of 9.52 Ares of
paddy land in Survey No.1260/13 of Kothamangalam Village and
Taluk in Ernakulam District as per Ext.P1 application dated
06.04.2019. As per Ext.P3 the fair value of the property has been fixed
as Rs.2,25,000/- for 9.11 Ares and Rs.3,20,000/- for 404 sq.metres
and the 4th respondent has also submitted Ext.P4 report dated
25.03.2021 stating that the property is not suitable for paddy
cultivation and not included in the data bank. Thereafter 2nd
respondent has issued Ext.P5 order directing the petitioner to pay an
amount of Rs.8,71,612/- inclusive of 100% increase of fair value.
Pursuant to the direction issued by this Court in Ext.P6 judgment the
WP(C) No.20033 of 2021 & con. Cases
Government has issued Ext.P7 order uniforming the fees and granting
exemption from fee for the lands having less than 25 cents.
Subsequently the Government has issued Ext.P8 circular whereby the
modification made with regard to the relaxation of fee as per Ext.P7
Government Order shall be applicable only to the applications
submitted on or after 25.02.2021 and therefore the petitioner
challenges Ext.P8 circular.
W.P.(C) No.18451 of 2022
3. Petitioner along with her husband is in ownership and
possession of a property having an extent of 3.93 Ares in re-survey
No.593/32-2 of Pangappara Village in Thiruvananthapuram Taluk and
as per Ext.P1 application she has applied for conversion of the said
land. By Ext.P2 the Agricultural Officer has reported that the property
is already reclaimed and by Ext.P3 report the fair market value of the
property was assessed at Rs.85,000/- per Are. The petitioner was
directed to remit an amount of Rs.2,00,430/- as per Ext.P4 order and
pursuant to the same petitioner has paid the amount as is evident
from Ext.P4(a) chalan. The contention of the petitioner is that she is
entitled for conversion free of cost relying on the circular dated
10.12.2021 issued by the Government and therefore Ext.P7
representation requested for refund of the said amount was submitted
by the petitioner. It is also contended that a Division Bench of this
Court as per Ext.P8 judgment reported in M.K.Baby & others v.
WP(C) No.20033 of 2021 & con. Cases
District Collector, Ernakulam and others (2021 (6) KLT 316) set
aside the circular dated 23.07.2021 prescribing a cut off date for
extending the benefit of the earlier circular. Based on which the
petitioner submits that she is entitled for refund of the amount already
paid. Therefore the above writ petition is filed seeking a direction to
refund the amount of Rs.2,00,430/-. Petitioner submits that in similar
circumstances this Court as per Ext.P9 judgment has directed refund
of the amount.
As regards W.P.(C) Nos.20033 of 2021 and 20040 of
2021 are concerned, these writ petitions are filed challenging Ext.P8
circular which has already been set aside by a Division Bench of this
Court as per judgment in Baby's case supra (Ext.P8 in W.P.(C)
No.18451 of 2022). It is not in dispute that the property covered in
these two writ petitions are below 25 cents and that the property has
been purchased prior to 30.12.2017. Since Ext.P8 circular has already
been set aside by this Court in Baby's case supra and that the
properties have been purchased prior to 30.12.2017, the petitioners
are entitled for the benefit of Ext.P7 Government order. Therefore, the
above two writ petitions are allowed setting aside Ext.P5 order with a
further direction to the 2nd respondent to issue orders converting the
nature of land applied for by the petitioners as per Ext.P1 without
insisting for any fee. A decision in this regard shall be taken within a
period of one month from the date of receipt of a copy of this
WP(C) No.20033 of 2021 & con. Cases
judgment.
As regards W.P.(C) No.18451 of 2022 is concerned, the
petitioner has already remitted the amount as is evident from
Ext.P4(a). The property was purchased by the petitioner on
30.05.2008 as is evident from Ext.P1 application and that the extent of
land is less than 25 cents. If that be so, petitioner is also entitled for
conversion of the land without payment of any fee. The circular fixing
a cut off date for consideration of such application has been set aside
by this Court in Ext.P8 judgment (Baby's case supra) and this Court
as per Ext.P9 judgment has directed refund of the amount already
remitted by similarly situated persons. Therefore, in the light of
Exts.P8 and P9 judgments, I am inclined to dispose the writ petition
with a direction to 2nd respondent to consider Ext.P7 application
requesting for refund of the amount already remitted as per Ext.P4(a)
and refund the same within a period of three months from the date of
receipt of a copy of this judgment.
All the writ petitions are ordered accordingly.
Sd/-
VIJU ABRAHAM
JUDGE
cks
WP(C) No.20033 of 2021 & con. Cases
APPENDIX OF WP(C) 20033/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF APPLICATION DATED
21.10.2020 SUBMITTED BY THE
APPLICANT.
Exhibit P2 TRUE COPY OF ENQUIRY REPORT DATED
09.11.2020 SUBMITTED BY THE 3RD
RESPONDENT BEFORE THE 2ND RESPONDENT.
Exhibit P3 TRUE COPY OF FAIR VALUE REPORT
SUBMITTED BY THE 3RD RESPONDENT
BEFORE THE 2ND RESPONDENT.
Exhibit P4 TRUE COPY OF REPORT DATED 25.03.2021
SUBMITTED BY THE 4TH RESPONDENT.
Exhibit P5 TRUE COPY OF ORDER DATED 12.08.2021
ISSUED BY THE 2ND RESPONDENT.
Exhibit P6 TRUE COPY OF COMMON INTERIM ORDER
DATED 08.01.2021 IN WP(C) NO.20990 OF
2018.
Exhibit P7 TRUE COPY OF GO(RT) NO.1166/2021/RD
DATED 25.02.2021.
Exhibit P8 TRUE COPY OF CIRCULAR DATED
23.07.2021 ISSUED BY THE GOVERNMENT.
WP(C) No.20033 of 2021 & con. Cases
APPENDIX OF WP(C) 20040/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF APPLICATION DATED 06-04-
2019 SUBMITTED BY THE APPLICANT
Exhibit P2 TRUE COPY OF ENQUIRY REPORT DATED 09-
11-2020 SUBMITTED BY THE 3RD
RESPONDENT BEFORE THE 2ND RESPONDENT.
Exhibit P3 TRUE COPY OF FAIR VALUE REPORT
SUBMITTED BY THE 3RD RESPONDENT
BEFORE THE 2ND RESPONDENT
Exhibit P4 TRUE COPY OF REPORT DATED 25-03-2021
SUBMITTED BY THE 4TH RESPONDENT.
Exhibit P5 TRUE COPY OF ORDER DATED 25-08-2021
ISSUED BY THE 2ND RESPONDENT.
Exhibit P6 TRUE COPY OF COMMON INTERIM ORDER
DATED 08-01-2021 IN W.P(C) NO. 26754
OF 2019
Exhibit P7 TRUE COPY OF GO(RT) NO. 1166/2021/RD
DATED 25-02-2021
Exhibit P8 TRUE COPY OF CIRCULAR DATED 23-07-
2021 ISSUED BY THE GOVERNMENT.
WP(C) No.20033 of 2021 & con. Cases
APPENDIX OF WP(C) 18451/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE APPLICATION DATED
15.11.2017, SUBMITTED BY THE
PETITIONER ALONG WITH HER HUSBAND
BEFORE THE LOCAL LEVEL MONITORING
COMMITTEE,
Exhibit P2 TRUE COPY OF THE ENQUIRY REPORT GIVEN
BY THE AGRICULTURAL OFFICER,
SREEKARIYAM ALONG WITH ITS ANNEXURES
Exhibit P3 TRUE COPY OF THE REPORT DATED
28.05.2020 GIVEN BY THE AGRICULTURAL
OFFICER, TO THE 3RD RESPONDENT
Exhibit P4 TRUE COPY OF THE ORDER DATED
07.10.2021 OF THE 3RD RESPONDENT
5248352202122M EVIDENCING THE
REMITTANCE OF RS.2,00,430/- AT THE
SUB TREASURY, KUDAPPANAKKUNNU,
PURSUANT TO EXT.P4 ORDER, BY THE
PETITIONER
Exhibit P5 TRUE COPY OF THE LETTER DATED
03.11.2021 OF THE HUSBAND OF THE
PETITIONER
Exhibit P6 TRUE COPY OF THE ORDER NO.C1-4767/22
DATED 07.03.2022, OF TEH 4TH
RESPONDENT
Exhibit P7 TRUE COPY OF THE REPRESENTATION DATED
17.12.2021 SUBMITTED BY THE HUSBAND
OF THE PETITIONER ALONG WITH HER TO
THE 2ND RESPONDENT
Exhibit P8 TRUE COPY OF THE JUDGMENT DATED
22.10.2021 OF THIS HON'BLE COURT IN
W.P.(C)NO.3797/2020
Exhibit P9 TRUE COPY OF THE JUDGMENT DATED
05.04.2022 OF THIS HON'BLE COURT IN
W.P.(C)NO.5449/2019
WP(C) No.20033 of 2021 & con. Cases
