Saresh Sanker vs State Of Kerala
2023 Latest Caselaw 3785 Ker

                                                            'CR'
           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
           THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
   THURSDAY, THE 30TH DAY OF MARCH 2023 / 9TH CHAITHRA, 1945
                     WP(C) NO.3538 OF 2023
PETITIONERS:-

    1     SUMESH.U, AGED 41 YEARS
          S/O.T.R UNNIKRISHNAN, THARAVANTHEDATH HOUSE,
          KODUVAYUR AMSOM & DESOM, CHITTUR TALUK,
          KODUVAYUR P.O, PALAKKAD DISTRICT, PIN - 678 501

    2     SUDHEESH.U, AGED 46 YEARS
          S/O.T.R UNNIKRISHNAN, THARAVANTHEDATH HOUSE,
          KODUVAYUR AMSOM & DESOM, CHITTUR TALUK,
          KODUVAYUR P.O, PALAKKAD DISTRICT, PIN - 678 501

          BY ADVS.
          JACOB SEBASTIAN
          K.V.WINSTON
          ANU JACOB
          DIVYA R. NAIR


RESPONDENTS :-

    1     THE REVENUE DIVISIONAL OFFICER PALAKKAD
          OFFICE OF THE REVENUE DIVISIONAL OFFICER PALAKKAD,
          PALAKKAD HEAD POST OFFICE, PALAKKAD DISTRICT,
          PIN - 678 001

    2     THE VILLAGE OFFICER
          KODUVAYUR-1 VILLAGE, KODUVAYUR P.O,
          PALAKKAD DISTRICT, PIN - 678 501

    3     THE AGRICULTURAL OFFICER FOR THE KODUVAYUR PANCHAYAT
          AGRICULTURE OFFICE, KODUVAYUR P.O,
          PALAKKAD DISTRICT, PIN - 678 501

          BY SMT.PARVATHY K., GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 07.3.2023, ALONG WITH WP(C).4450/2023, THE COURT ON
30.3.2023 DELIVERED THE FOLLOWING:
 WP(C) Nos.3538 & 4450 OF 2023

                                -: 2 :-

                                                               'CR'
             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
   THURSDAY, THE 30TH DAY OF MARCH 2023 / 9TH CHAITHRA, 1945
                         WP(C) NO.4450 OF 2023
PETITIONERS :-

     1      SARESH SANKER, AGED 52 YEARS
            S/O.SANKARANARAYANAN, EYYANI THOTTUNGAL, TRIPRAYAR,
            NATTIKA, THRISSUR, PIN - 680 566.

     2      RANCY SARESH, AGED 52 YEARS
            W/O.SARESH SANKER, EYYANI THOTTUNGAL, TRIPRAYAR,
            NATTIKA, THRISSUR, PIN - 680 566.

            BY ADVS.
            S.SREEDEV
            ENOCH DAVID SIMON JOEL
            RONY JOSE
            LEO LUKOSE
            KAROL MATHEWS SEBASTIAN ALENCHERRY
            DERICK MATHAI SAJI
            V.T.KAVITHA


RESPONDENTS :-

     1      STATE OF KERALA REPRESENTED BY SECRETARY
            DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT,
            THIRUVANANTHAPURAM, PIN - 695 001

     2      DISTRICT COLLECTOR
            FIRST FLOOR, CIVIL STATION, CIVIL LANES ROAD,
            KALYAN NAGAR, AYYANTHOLE, THRISSUR, PIN - 680 003

     3      REVENUE DIVISIONAL OFFICER
            RDO OFFICE, THRISSUR, PIN - 680 003

     4      VILLAGE OFFICER
            NATTIKA VILLAGE OFFICE, THRISSUR, PIN - 680 566

     5      LOCAL LEVEL MONITORING COMMITTEE
            NATTIKA GRAMA PANCHAYAT,
 WP(C) Nos.3538 & 4450 OF 2023

                                       -: 3 :-

            REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER,
            KRISHI BHAVAN, NATTIKA, THRISSUR, PIN - 680 566

            BY SMT.PARVATHY K., GP

      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   07.03.2023,    ALONG       WITH     WP(C).3538/2023,   THE   COURT   ON
30.03.2023 DELIVERED THE FOLLOWING:
 WP(C) Nos.3538 & 4450 OF 2023

                                  -: 4 :-


                                                                 'CR'
                                JUDGMENT

[W.P.(C) Nos.3538 and 4450 of 2023] Dated this the 30th day of March, 2023

The prayers in these writ petitions are for consideration of the

application submitted by the petitioners under Section 27A of the

Kerala Conservation of Paddy Land and Wetland Act, 2008 (for

short, 'the 2008 Act') without insisting on payment of fees.

2. It is submitted that the petitioners are owners in

possession of the property, the extent of property in both these

cases is below 25 cents. It is submitted that the property was

purchased from the prior owner and the extent of the property was

identical. It is, therefore, contended that since the extent of the

property as on 30.12.2017 was below 25 cents, the petitioners are

entitled to consideration of their Form 6 applications, without

payment of any fee as provided in Section 27A of the 2008 Act and

Rule 12(9) and the Schedule to the Kerala Conservation of Paddy

Land and Wetland Rules, 2008. It is submitted that the respondents

are refusing to consider the application on the ground that the

properties were purchased on a later date and that therefore, the

fees have to be paid.

3. A statement has been placed on record by the 3 rd

respondent in W.P.(C) No.4450/2023 contending that the exemption WP(C) Nos.3538 & 4450 OF 2023

from payment of fee for the conversion of the property is provided

only to specific extents of property which are below 25 cents each.

It is contended that since the petitioners had purchased the

properties after 2017, they are not entitled to the exemption. It is

contended that even if properties having a lesser extent is

purchased after 2017, the benefit of conversion without fee will be

lost.

4. Having considered the contentions advanced on either

side, I notice that Section 27A of the 2008 Act provides for

application seeking permission for use of unnotified land for other

purposes. It is specified that land below an extent of 25 cents can

be converted without payment of fees. The provision with regard to

payment of fees is provided in Rule 12(9), which reads as follows :-

12. 27® ÕµáMí (2) ©ÉÕµáMí dɵÞø¢ Õß¼í¾ÞÉÈ¢ æºÏîM¿ÞJ ÍâÎßÏáæ¿ ØbÍÞÕÕcÄßÏÞÈ¢ ¥ÈáÕÆßAáKÄßÈáU È¿É¿ßdµÎ¢ :_ (9)åÕß¼í¾ÞÉÈ¢ æºÏîæM¿ÞJ ÍâÎßÏáæ¿ ØbÍÞÕ ÕcÄßÏÞÈ¢ ¥ÈáÕÆßAáK ¥çÉfµ{ßW, ºGBZAí ¥ÈáÌtÎÞÏáU ÉGßµÏßW ÕcµñÎÞAßÏßGáU ÈßøAßÜáU ÄáµÏíAí ÁßÎÞaí dÁÞËíçxÞ ¥æÜïCßW §Üµíçd¿ÞÃßµí d¿ÞXØíËV Îáç¶È dÉØñáÄ Äáµ ËIßçÜAí ¥¿ºíºÄßæa æÄ{ßçÕÞ ÙÞ¼øÞAáKÄßçzW, ¥dɵÞø¢ ¥ÈáÎÄß ÈWµæMG ÍâÎßÏáæ¿ ÕßØñàVH¢, ØVæÕî ÈOV, ¥çÉfµX ¼ÜØ¢øfà ȿɿߵZ ØbàµøßçAI ÍâÎßÏáæ¿ ØVæÕî ÈOøᢠÕßØñàVHÕᢠ®KßÕ ÕcµñÎÞAßæAÞIᢠ¼ÜØ¢øfà ȿɿߵZ ÕßÖÆÎÞAßæAÞIᢠùÕÈcâ ÁßÕß×ÃW ³ËàØV ©JøÕí ÉáùæM¿áÕßçAIÄᢠ©JøÕßçÈÞæ¿ÞM¢ çÎW ÉùE ÕßÖÆÞ¢ÖBZ ØâºßMߺíºá æµÞIáU dÉØñáÄ ÍâÎßÏáæ¿ ²øá Øí浺îí ©IÞÏßøßçAIÄáÎÞÃá.å WP(C) Nos.3538 & 4450 OF 2023

The provision with regard to fee in the Schedule is as follows :-

"2008_æÜ çµø{ æÈW ÕÏW _ ÄHàVJ¿ Ø¢øfà ºGBZ Õß¼í¾ÞÉÈ¢ æºÏîæM¿ÞJ ÍâÎßÏáæ¿ ØbÍÞÕ ÕcÄßÏÞÈ¢ ¥ÈáÕÆßAáKÄßÈá ¥¿ÏíçAI ËàØí ________________________________________________________________________ dµÎåååå ÕßØñàVH¢åååååËàØÞÏß ¥¿ÏíçAI ÍâÎßÏáæ¿ ÈOVåååå(¦V)åååååååÈcÞÏÕßÜÏáæ¿ ÖÄÎÞÈ¢ (%) åååååååååå--____________________________________________ ååååååååååååÉFÞÏJíååÎáÈßØßMÞÜßxßå çµÞVMçù×X ________________________________________________________________________

3. 40.47_Èá Îáµ{ßW 30åå 40ååååå 50 ________________________________________________________________________ µáùßMí :_ (1) ¥dɵÞø¢ ØbÍÞÕ ÕcÄßÏÞÈ¢ ÕøáJÞX ©çgÖßAáK ÍâÎßÏßW ÈßVNßAÞX ©çgÖßAáK æµGß¿Jßæa Äù ÕßØñàVH¢ 3000 ºÄáødÖ ¥¿ßÏßW µâ¿áÄW ¦æÃCßW ¥dɵÞø¢ ¥ÇßµÎÞÏß ÕøáK ³çøÞ ºÄáødÖ ¥¿ßAᢠ100 øâÉ ÈßøAßÜáU ËàØí µâ¿ß ¥¿ÏíçAIÄÞÃá.

µáùßMí :_ (2) 4.04 ¦V ÍâÎßÏßW 120 ºÄáødÖÎàxV Õæø ÕßØñcÄßÏáU Õà¿í ÈßVNßAáKÄßçÈÞ, ÉáÈVÈßVNßAáKÄßçÈÞ ÕßÉáÜàµøßAá KÄßçÈÞ 2.02 ¦V ÍâÎßÏßW 40 ºÄáødÖÎàxV ÕßØñcÄßÏáU ÕÞÃß¼cæµGß¿¢ ÈßVNßAáKÄßçÈÞ, ÉáÈVÈßVNßAáKÄßçÈÞ ÕßÉáÜàµøßAáKÄßçÈÞ ÏÞæÄÞøá ËàØᢠÈWçµIÄßÜï."

Ext.R3(a) Government Order produced by the Government Pleader

also specifically states as follows :-

"(2) 30.12.2017 Õæø ²KÞÏßAß¿K ÍâÎß, ¥ÄßÈáçÖ×¢ Äßøߺîí 25 æØæaÞ ¥ÄßÈá ÄÞæÝçÏÞ ÕßØñàVHÎáU çÉïÞGáµ{ÞAßÏßGáæICßW, ¥ÕÏíAí çÎWdɵÞøÎáU Øì¼Èc¢ ÌÞǵÎÜï.å¥Õ ²KÞÏß µÃAÞAßÏÞÃá ËàØí ¨¿ÞçAIÄí."

Reliance is sought to be placed by the learned Government Pleader

on Exts.R3(b) and R3(c) documents. It is pertinent to note that

Ext.R3(c) circular dated 23.7.2021 has been set aside by this Court WP(C) Nos.3538 & 4450 OF 2023

in its entirety in the decision reported in Baby v. District Collector

[2021 (6) KLT 316]. With regard to the clarification which is relied

on by the learned Government Pleader, I notice that the

clarifications are not in the form of either a circular or a

Government Order and they are only communications issued by

individual officers apparently to queries raised with regard to the

applicability of the exemption. Since the said communications are

not orders issued by the Government, I am clearly of the opinion

that they cannot have any applicability or operation over and above

the statutory provisions or the executive Government Orders validly

issued on the subject.

5. A reading of the provisions of the Act, the Rules, the

Schedule as well as Ext.R3(a) Government Order would make it

amply clear that the exemption would be lost only in case there is a

transaction after 30.12.2017 by which, a property having a larger

extent is fragmented to make the individual parcels of land of an

extent of less than 25 cents. The contention that any property

purchased after December, 2017 would loss the exemption even

when the said property was less then 25 cents in extent even prior

to such transaction cannot be accepted in view of the specific

language of the Act, the Rule and the Schedule. In the above view

of the matter, I am of the opinion that the contentions raised in the WP(C) Nos.3538 & 4450 OF 2023

statement are completely untenable. The communications issued,

which do not have the force of law, cannot stand in the way of

consideration of applications in accordance with law.

These writ petitions are, accordingly, ordered directing

the RDO to pass appropriate orders on the Form 6 applications

submitted by the petitioners without insisting on the payment of

fee. Appropriate orders shall be passed within a period of two

months from the date of receipt of a copy of this judgment.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/9.3.2023 WP(C) Nos.3538 & 4450 OF 2023

APPENDIX OF WP(C) 3538/2023

PETITIONER EXHIBITS

Exhibit-P1 A TRUE COPY OF THE REGISTERED SALE DEED NO.1878/2020 OF THE SRO, KODUVAYUR DATED 30.11.2020.

Exhibit-P2 A TRUE COPY OF THE REGISTERED SALE DEED NO.2555/2010 OF THE SRO, KODUVAYUR DATED 04.09.2010.

Exhibit-P3 A TRUE COPY OF THE REGISTERED SALE DEED NO.1418/1990 OF THE SRO, KODUVAYUR DATED 22.11.1990.

Exhibit-P4 A TRUE COPY OF THE REGISTERED SALE DEED NO.1501/1991 OF THE SRO, KODUVAYUR DATED 29.11.1991.

Exhibit-P5 A TRUE COPY OF THE JUDGMENT DATED 03.08.2020 IN W.P.(C) NO.14860/2020 OF THIS HONOURABLE COURT.

Exhibit-P6 A TRUE COPY OF THE ORDER DATED 06.02.2021 ISSUED BY THE FIRST RESPONDENT.

Exhibit-P7 A TRUE COPY OF THE APPLICATION IN FORM 6 SUBMITTED BY THE PETITIONERS DATED 09.02.2022.

Exhibit-P8 A TRUE COPY OF THE PAY- IN- SLIP DATED 10.01.2023 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT.

WP(C) Nos.3538 & 4450 OF 2023

APPENDIX OF WP(C) 4450/2023

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE SALE DEED NO. 1026/2021 OF SRO TRIPRAYAR DATED 12.10.2021.

Exhibit P2 A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 09.12.2021 ISSUED BY THE 4TH RESPONDENT.

Exhibit P3 A TRUE COPY OF THE BUILDING PERMIT NO. A2-

82/9-10 DATED 05.09.2009 ISSUED BY SECRETARY, NATTIKA GRAMA PANCHAYAT.

Exhibit P4 A TRUE COPY OF THE FINAL DATA BANK DATED 17.08.2022 OF THE 5TH RESPONDENT.

Exhibit P5 A TRUE COPY OF THE CHALLAN RECEIPT DATED 12.01.2022 ISSUED FROM THE TREASURY, TRIPRAYAR.

Exhibit P6 A TRUE COPY OF THE NOTICE DATED 3.11.2022 ISSUED BY THE 3RD RESPONDENT AGAINST THE PETITIONERS.

RESPONDENT ANNEXURES

ANNEXURE R3(a) A TRUE COPY OF THE GOVERNMENT ORDER NO.1166/ 2021/REV DATED 25.02.2021

ANNEXURE R3(b) TRUE COPY OF THE LETTER NO.REVP1/69/2022/REV DATED 07.05.2022 OF THE ADDITIONAL CHIEF SECRETARY, REVENUE(P) DEPT.

ANNEXURE R3(c) TRUE COPY OF THE CIRCULAR NO.REV-P1/117/ 2021/REV DATED 23.07.2021 OF REVENUE (P) DEPT.

ANNEXURE R3(d) A TRUE COPY OF THE LETTER NO.REV-P1/206/2022-

REV DATED 01.08.2022 OF ADDITIONAL CHIEF SECRETARY, REVENUE DEPT.