Aloysius C Antony v. District Collector, Kottayam & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944 OP(C) NO. 2376 OF 2019 AGAINST THE ORDER/JUDGMENT IN CRA 82/2012 OF ADDITIONAL DISTRICT COURT, KOTTAYAM** ## **PETITIONER/S:** ALOYSIUS.C.ANTONY AGED 57 YEARS S/O.K.K.ANTONY, AUXILIUM, VATTAPPALLY MURI, VAZHAPPALLY EAST VILALGE, CHANGANACHERRY P.O., KOTTAYAM DISTRICT. BY ADVS. T.P.PRADEEP SRI.S.SREEDEV SRI.P.K.SATHEES KUMAR SMT.NITHYA VIJAYAN SMT.MINIKUMARY M.V. ## **RESPONDENT/S:** 1 THE DISTRICT COLLECTOR COLLECTORATE, KOTTAYAM P.O., KOTTAYAM DISTRICT, PIN-686 002. 2 THE R.D.O., REVENUE DIVISIONAL OFFICE, KOTTAYAM P.O., KOTTAYAM DISTRICT, PIN-686 002. 3 THE VILLAGE OFFICER, VAZHAPPALLY VILLAGE OFFICE, CHANGANASSERRY P.O., KOTTAYAM DISTRICT, PIN-686 102. 4 SUB INSPECTOR OF POLICE, CHANGANASSERRY POLICE STATION, CHANGANASSERY P.O., KOTTAYAM DISTRICT, PIN-686 102. 5 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, KOTTAYAM, COLLECTORATE, KOTTAYAM P.O., KOTTAYAM DISTRICT, PIN-686 002. 6 LOCAL LEVEL MONITERING COMMITTEE, REPRESENTED BY CONVENER/AGRICULTURAL OFFICER, VAZHAPPALLY WEST P.O., CHANGANSSERRY, KOTTAYAM DISTRICT, PIN-686 103. 7 TOMY ZCHARIA, CHENNAKKARA HOUSE, EDTHUA P.O., ALAPPUZHA O.P.(C) No.2376 of 2019 -2- DISTRICT, PIN-689 573. 8 CHANGANASSERRY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, CHANGANASSERRY P.O., KOTTAYAM DISTRICT, PIN-686 102. BY ADVS. SRI.K.S.SAJEEV KUMAR SRI.M.P.MADHAVANKUTTY SRI.MOHANDAS K.CHACKO SRI.RAMESH.P.N. SHRI.PAREETH K B. ## **OTHER PRESENT:** GP ADV.S.UNNIKRISHNAN; SC FOR R8 ADV.M.P.MADHAVANKUTTY **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29.11.2021, THE COURT ON 29.03.2022, THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(C) No.2376 of 2019 -3- ## **JUDGMENT** Dated this the 29[th] day of March, 2022 The petitioner is the registered owner of a JCB bearing registration No.KL-33-05. On 26.04.2011, while the JCB was being used for earthwork in the property of one Tommy Zacharia/7[th] respondent comprised in Vazhappally Village, Block No.21, Re-Sy.Nos.5/2-3, 5/3-2, 5/2-4, 5/3, 6/1-1, 5/2-2, the Sub Inspector of Police, Changanassery seized the vehicle on the premise that it was being used for illegal reclamation of paddy land. Later, on the basis of the report of the Revenue Divisional Officer, Kottayam and Sub Inspector of Police, Changanassery, the District Collector, Kottayam issued Ext.P1 order confiscating the JCB in exercise of the power under Section 20 of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter 'the Act'). Aggrieved by O.P.(C) No.2376 of 2019 -4- Ext.P1, the petitioner preferred appeal to the District Court, Kottayam under Section 21 of the Act. Pending the appeal, the learned District Judge passed Ext.P3 order staying Ext.P1 and directing release of the JCB to the petitioner on deposit of Rs.3,00,000/-. Thereafter, by Ext.P4, petitioner's appeal was dismissed confirming the order of the District Collector and directing surrender of the vehicle within one week. Hence, this original petition. 2. The challenge against Exts.P1 and P4 are primarily on the ground that the property from which the JCB was seized is not paddy land. Learned Counsel for the petitioner submitted that at the time when the JCB was seized, the property was included in the draft data bank. In the final data bank was published on 18.11.2016, the land belonging to the 7[th] respondent and his wife is not included. To buttress the submission, reliance is placed on Ext.P5 certificates issued O.P.(C) No.2376 of 2019 -5- by the Agricultural Field Officer, Changanassery. It is contended that prosecution/confiscation under the Act can be initiated/effected only if the land in question is notified as paddy land or wetland. In support of the argument, reliance is placed on the decision in _**Kaipadath Property Development Company (Pvt) Ltd v. State of Kerala and others [2011 (1) KHC 291]**_ and _**Firose v. Revenue Divisional Officer, Malappuram and**_ _**another [2011 (1) KHC 615]**_ . It is contended that the District Collector and the District Judge failed to consider this crucial aspect. 3. I find substantial merit in the contention. As per Section 5(4) of the Act, the Local Level Monitoring Committee is bestowed with the duty of preparing the data bank with the details of cultivable paddy land and wetland within the area of jurisdiction of the Committee and to get the data bank notified by the ## O.P.(C) No.2376 of 2019 -6- concerned Panchayat/ Municipality/ Corporation. Section 19 of the Act empowers the officers mentioned therein to enter and search any premises and seize any vessel, vehicle or other conveyance utilised for any activity in contravention of the Act. Here, the alleged contravention is reclamation of paddy land. For the purpose of prosecution and confiscation, a property could be termed as paddy land only if it is included in the data bank and notified by the Panchayat/Municipality/ Corporation. It is evident from Ext.P5 that the property of the 7[th] respondent, comprised in Block No.21, ReSy.Nos.5/2-3, 5/3-2, 5/2-4, 5/3, 6/1-1, 5/2-2 is not included in the data bank published on 18.11.2016 and notified under Section 5(4). As ## held in _**Kaipadath Property Development Company**_ _**(Pvt) Ltd** (supra)_ for any successful prosecution proceedings, there should be a notification under O.P.(C) No.2376 of 2019 -7- Section 5(4) of the Act and the alleged violation of the provisions of the Act, by converting or reclaiming such notified land alone can result in prosecution/confiscation. The above position has been reiterated in _**Firose** (supra)_ in the following manner; _“7. Now the question is whether in the light of the above, prosecution against petitioners could stand. I stated from Section 23 of the Act that penalty is imposed on any person who in violation of the provisions of the Act converts or reclaims "any paddy land or wet land notified_ _under sub-section (4) of Section 5". Reason persuades me to hold that notwithstanding whatever power is vested with the authorities concerned for re-conversion of the land under Sections 13 to 20 of the land whether or not there is a notification, so far as prosecution is concerned, it could be initiated only with respect to conversion of land which is notified, meaning thereby that prosecution could stand only if conversion was after the notification was published in whatever manner it is prescribed. It is relevant to note that in the decision referred supra, learned Judge of this Court has observed in paragraph 42 that the notification (under Section 5(4)(i) of the Act will be a condition precedent for the applicability of certain provisions of the Act. The publication of notification under Section 5(4)(i) of the Act is intended to provide protection to the landowner.”_ The legal position being as above and the fact ## O.P.(C) No.2376 of 2019 -8- that the land from which the JCB was seized alleging reclamation is not paddy land being undisputed, the seizure and confiscation cannot be sustained. In the result, the original petition is allowed by setting aside Ext.P1 order and Ext.P4 judgment. Consequently, the first respondent is directed to release the JCB bearing registration No.KL-33-05 to the petitioner forthwith. Sd/- **V.G.ARUN JUDGE** Scl/ O.P.(C) No.2376 of 2019 -9- ## **APPENDIX OF OP(C) 2376/2019** |PETITIONER|EXHIBITS| |---|---| |EXHIBIT P1|TRUE COPY OF THE ORDER DATED| ||10.02.2012 ISSUED BY THE 1ST| ||RESPONDENT.| |EXHIBIT P2|TRUE COPY OF THE CRL.APPEAL NO.82/2012| ||FILED BEFORE THE DISTRICT COURT,| ||KOTTAYAM.| |EXHIBIT P3|TRUE COPY OF THE ORDER DATED| ||12.04.2012 IN CRL.MP NO.854/2012.| |EXHIBIT P4|TRUE COPY OF THE JUDGMENT DATED| ||23.01.2017 BY THE ADDITIONAL SESSION| ||JUDGE-1, KOTTAYAM.| |EXHIBIT P5|TRUE COPY OF THE CERTIFICATE DATED| ||28.05.2018 ISSUED BY THE 3RD| ||RESPONDENT.| |EXHIBIT P6|TRUE COPY OF A CERTIFICATE DATED| ||16/01/2020 ISSUED BY THE INSPECTOR OF| ||POLICE, CHANGANACHERRY, POLICE STATION|