High Court of KeralaSingle Judge2014-08-04Quashed

Kadavukarakath Saidu Haji v. Village Officer, Mangalam Village & State of Kerala

Case / Petition Number:Crl.MC.No. 3677 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Hariprasad
Judgment Date: 2014-08-04
Court Decision / Holding: Annexure A complaint pending in C.C No.98/2013 on the file of the Chief Judicial Magistrate Court, Manjeri is hereby quashed. All pending interlocutory applications will stand dismissed.
Final Disposition: Quashed

Parties to the Case

Appellants / Petitioners

Kadavukarakath Saidu Haji

Respondents

Village Officer, Mangalam Village, Tirur Taluk, Malappuram District
State of Kerala, represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. Venugopal

Counsels for Respondents

• Sri Justin Jacob, Public Prosecutor

Case Synopsis & Summary

This is a Criminal Misc. Case under Section 482 Cr.P.C. challenging the prosecution initiated under Section 23 of the Kerala Conservation of Paddy Land & Wetland Act, 2008 against the petitioner for reclaiming paddy land in Mangalam Village. The complainant (Village Officer) filed Annexure A under a complaint alleging violation of Section 3 of the Act and the penal provisions of Section 23. The Act contemplates a Local Level Monitoring Committee under Section 5(4) which requires preparation of a databank and notification of cultivable paddy land; notification is a condition precedent for applicability of the Act's penal provisions. Section 3 prohibits reclamation without compliance. The petitioner urged that no notification has been published as required under Section 5(4)(i), and Annexure B reveals the databank exists but is not notified as of the date of complaint. He further contends that a stop memo under Section 12(2)(b) cannot substitute for notification. The Public Prosecutor contends the stop memo shows enforcement powers, but the court relies on earlier judgments (Kaipadath and Firose) to hold that prosecution under Section 23 is contingent on the land being notified. Consequently, the lack of notification renders the prosecution untenable, and the complaint is quashed. The court notes it does not decide on the authorities' powers under the Act, but quashes the complaint, leaving the powers of enforcement undetermined.

Provisions of Law Cited

Section 3 of the Kerala Conservation of Paddy Land & Wetland Act, 2008Section 5(4)Section 5(4)(i)Section 12(2)(b)Section 23Section 16Sections 13 to 20Cr.P.C. Section 482

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that the complaint under Section 23 of the Kerala Conservation of Paddy Land & Wetland Act, 2008 cannot be maintained because the mandatory notification under Section 5(4) has not been published for the paddy land. The databank under Section 5(4)(i) was prepared but not notified, as evidenced by Annexure B; thus no land can be considered 'notified' for penal action. Section 3 prohibits reclamation without compliance. The stop memo under Section 12(2)(b) has been issued, but it cannot substitute for the required notification. The law requires that prosecution for contravention of the Act be based on compliance with the notification regime; hence the complaint should be quashed for lack of prerequisites. The court should accordingly exercise its jurisdiction under Section 482 Cr.P.C. to prevent an improper prosecution.

Contentions of Respondents

The learned Public Prosecutor contends that the stop memo under Section 12(2)(b) shows enforcement against the petitioner, and the authorities have power to prevent and remedy violations under the Act. It was argued that the facts establish a possible contravention of Section 3 and Section 23, and the petition should not be allowed to bar criminal action. The Respondents rely on earlier decisions interpreting Section 23 against non-notified land, asserting that the Act's provisions and the mechanisms of notification are not mere formalities but conditions precedent to invocation of penal provisions.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kaipadath Property Development Company (Pvt.) Ltd. v. State of Kerala and Others	2011(1) K.H.C 291	Positive	Cited as part of the interpretive framework that Section 23 penalties apply only where the land is notified under Section 5(4)(i).
Firose v. Revenue Divisional Officer, Malappuram and Another	2011 (1) K.H.C 615	Positive	Used to support the view that prosecution can stand only for land notified under Section 5(4)(i); notification is a precondition and provides protection to landowners.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Kadavukarakath Saidu Haji v. Village Officer, Mangalam Village & State of Kerala and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY, THE 4TH DAY OF AUGUST 2014/13TH SRAVANA, 1936** **Crl.MC.No. 3677 of 2013 () ---------------------------** ## **AGAINST THE ORDER/JUDGMENT IN CC 98/2013 of C.J.M.,MANJERI.** **PETITIONER/ACCUSED:** - **------------------** **KADAVUKARAKATH SAIDU HAJI, S/O.KUNHAHAMMED, PERUNTHIRUTHI, CHENARA.P.O., MANGALAM VILLAGE, TIRUR TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI.P.VENUGOPAL (1086/92).** **RESPONDENTS/DEFACTO-COMPLAINANT & STATE:** **----------------------------------------** **1. VILLAGE OFFICER, MANGALAM VILLAGE, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676561.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 3677 of 2013 () ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **------------------------** **ANNEXURE-A: TRUE COPY OF THE COMPLAINT PREFERRED BY THE FIRST RESPONDENT BEFOFORE THE CJM COURT MANJERI.** **ANNEXURE-B: TRUE COPY OF THE INFORMATION FURNISHED BY THE FIRST RESPONDENT DATED 14.8.2013.** **RESPONDENT(S)' EXHIBITS : NIL.** **-----------------------** **//TRUE COPY//** **==> picture [73 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> P.A TO JUDGE<br>**----- End of picture text -----**<br> **amk** ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl.M.C No.3677 of 2013** **-----------------------------------------------Dated this the 4[th] day of August, 2014.** ## **O R D E R** Petition filed under Section 482 Cr.P.C. Petitioner is the accused in C.C No.98/2013 on the file of the Chief Judicial Magistrate Court, Manjeri. He is called up to answer a charge under Section 23 of the Kerala Conservation of Paddy Land & Wetland Act, 2008 ( in short 'the Act of 2008'). 2. Annexure A is the complaint filed by the Village Officer, Mangalam against the petitioner. The complainant is authorized to file the complaint as per the provision of the Act of 2008. As per Section 3 of the Act of 2008, from the date of commencement of the Act, an owner, occupier or the person in custody of any paddy land shall not undertake any activity for the conversion or reclamation of such paddy land except in accordance with the provisions of the Act. The complainant alleged that the petitioner in violation of the provisions of the Act of 2008 reclaimed a paddy land in spite of issuing a stop **Crl.M.C No.3677 of 2013 2** memo under Section 12(2)(b). Therefore, the complainant requested the trial court to prosecute the petitioner under Section 23 of the Act of 2008. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. Learned counsel for the petitioner submitted that the complaint is not maintainable for the sole legal reason that the steps required under the Act of 2008 to notify the paddy land has not been taken by the authorities. According to him, that is a prerequisite for launching a prosecution. Section 5(4) of the Act of 2008 reads as follows : ## _“_ _**5. Constitution of Local Level monitoring**_ ## _**Committee** .-_ _x x x x x x_ - _(4) The Committee shall perform the following functions, namely :-_ _(i) to prepare the data-bank with the details of the cultivable paddy land and wetland, within the area of jurisdiction of the Committee, with the help of the map_ **Crl.M.C No.3677 of 2013 3** _prepared or to be prepared by the State Land Use Board or Centre State Science and Technology Institutions on the basis of satellite pictures by incorporating the survey numbers and extent in the data-bank and get it notified by the concerned Panchayat/ Municipality/Corporation, in such manner as may be prescribed, and exhibit the same for the information of the public, in the respective Panchayat/ Municipality/Corporation Office and in the Village Office/Offices;_ _(ii) to make alternate arrangements under Section 16 where a paddy land is left fallow without taking steps in spite of the instructions given by the Committee under item (iv) of sub-section (3);_ _(iii) to prepare detailed guidelines for the protection of the paddy lands/wetlands in the areas under the jurisdiction of the Committee;_ _(iv) to collect the details of the paddy land within the area of jurisdiction of the_ **Crl.M.C No.3677 of 2013 4** _Committee, reclaimed in contravention of the provision of any law for the time being in force, before the date of commencement of this Act and to give the report to the Revenue Divisional Officer;_ _(v) to perform such other functions, as may be prescribed from time to time.”_ 6. Section 23 of the Act of 2008 is extracted hereunder for clarity : _“_ _**23. Penalty** .- Any person who in violation of the provisions of this Act converts or reclaims any paddy land or wetland notified under sub-section (4) of Section 5, shall on conviction be punishable with imprisonment for a term which may extend to two years but shall not be less than six months and with fine which may extend to one lakh rupees but shall not be less than fifty thousand rupees.”_ 7. These provisions have been interpreted by learned Single Judges of this Court in two different cases, viz; **Crl.M.C No.3677 of 2013 5** ## _**Kaipadath Property Development Company (Pvt.) Ltd. v. State**_ _**of Kerala and Others (2011(1) K.H.C 291)**_ and _**Firose v.**_ ## _**Revenue Divisional Officer, Malappuram and Another (2011**_ _**(1) K.H.C 615)**_ . In _**Firose's**_ case (supra), it has been laid down as follows : _“ 7. Now the question is whether in the light of the above, prosecution against petitioners could stand. I stated from S.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-s.(4) of_ _S.5”. Reason persuades me to hold that notwithstanding whatever power is vested with the authorities concerned for reconversion of the land under Ss.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_ **Crl.M.C No.3677 of 2013 6** _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 S.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 S.5(4)(i) of the Act is intended to provide protection to the landowner.”_ 8. There is force in the argument raised by the petitioner that a penalty under Section 23 of the Act of 2008 will be attracted only if the land is notified as required under Section 5 (4) of the Act of 2008. Annexure B is the information received under the Right to Information Act from the Village Office concerned showing that in Mangalam Village though a databank of paddy fields was prepared, it was not notified till the date of the complaint. Therefore, it is evident that the prosecution on this score has to fail. **Crl.M.C No.3677 of 2013 7** 9. However, learned Public Prosecutor submitted that in this case a stop memo was issued under Section 12(2)(b) of the Act of 2008 and by flouting that direction the petitioner proceeded with the reclamation of land. It is true that the authorities have various powers under the Act of 2008 even to see that the land is restored to its original condition. I do not wish to pass any opinion in this case as to how the powers of the authorities under the Act of 2008 have to be invoked. However, I am of the view that the present complaint is not maintainable for non compliance of the mandatory provisions in order to attract Section 23 of the Act of 2008. In the result, Annexure A complaint pending in C.C No.98/2013 on the file of the Chief Judicial Magistrate Court, Manjeri is hereby quashed. All pending interlocutory applications will stand dismissed. amk