Lijish Kumar C.K. v. The District Collector, Thrissur, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **THURSDAY, THE 23RD DAY OF JULY 2020 / 1ST SRAVANA, 1942** ## **WP(C).No.14202 OF 2020(A)** ## **PETITIONER:** **LIJISH KUMAR C.K. AGED 45 YEARS S/O. KUMARAN, CHOLAYIL HOUSE, THONNOORKKARA P.O. CHELAKKARA, THRISSUR DISTRICT 680 586. (REGISTERED OWNER OF TIPPER VEHICLE KL-48-J-3404).** **BY ADV. SRI.SHOBY K.FRANCIS** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR COLLECTORATE, THRISSUR 680 003.** - **2 REVENUE DIVISIONAL OFFICER, OFFICE OF THE ROAD, AYYANTHOLE P.O. THRISSUR 680 003.** - **3 AGRICULTURAL OFFICER, KRISHI BHAVAN, CHELAKKARA P.O. THRISSUR DISTRICT 680 586.** - **4 VILLAGE OFFICER, CHELAKKARA VILLAGE CHEKAKKARA THONOORKKARA PULAKKODE GROUP VILLAGE OFFICE, CHELAKKARA P.O. THRISSUR DISTRICT 680 586.** - **5 DISTRICT GEOLOGIST, OFFICE OF THE SENIOR GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, THRISSUR 680 003.** - **6 SUB INSPECTOR OF POLICE, STATION HOUSE OFFICER, CHELAKKARA POLICE STATION, CHELAKKARA P.O. THRISSUR DISTRICT 680 586.** **BY ADVS. SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 W.P(C) No. 14202 of 2020 ## ALEXANDER THOMAS, J. ------------------------------------ W.P(C) No. 14202 of 2020 ------------------------------------ Dated this the 23[rd] day July, 2020 ## **JUDGMENT** The prayers in the above Writ Petition (C) are as follows: - _“i. Issue a writ of certiorari and set aside Exhibit P-5 order passed by the 1st respondent to the extent which ordered to proceed against the petitioner under Mines and Minerals (Development & Regulation) Act._ - _ii. Issue a Writ of Mandamus directing the respondents to release the petitioner’s vehicle bearing reg. number KL-48-J-3404 to the petitioner forthwith._ - _iii. Issue a Writ of mandamus declaring that the 1st respondent have no authority to direct the 2nd respondent to proceed against the petitioner under MMDR Act, 1957, when he exonerated the petitioners vehicle sized under Exhibit P-2 seizure Mahazar from the proceedings initiated under Sec. 20 of the Kerala Conservation of Paddy and Wet Land Act, 2008._ - _iv. Issue a Writ of mandamus directing the respondents to permit the petitioner to compound the offence, in the event if it is found that the offence would lie against the petitioner under Mines and Minerals (Development & Regulation) Act, 1957._ - _v. Such other relief as this Hon’ble Court may think deem fit.”_ 2. Heard Sri.Shoby.K.Francis, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents 3. The petitioner's vehicle (2016 model Swaraj Mazda tipper lorry bearing registration No.KL-48-J/3404) has been seized as per Ext.P1 seizure mahazar dated 20-03-2019 issued by the 4[th] respondent Village Officer on the allegation that the said vehicle has 3 W.P(C) No. 14202 of 2020 been used in contravention of the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 etc,. This court as per Ext.P4 judgment dated 30-01-2020 rendered in W.P(C) No.34602/2019 filed by the petitioner herein has directed the respondent District Collector, who is the Government Official concerned, to finalise proceedings in pursuance of Ext.P1 seizure mahazar in terms of Sec.20 of the Kerala Conservation of Paddy Land and Wetland Act, 2008, within the time limit mentioned therein. Now the 1[st] respondent District Collector has passed the impugned Ext.P5 order dated 17-06-2020 holding that the proceedings under Sec.20 of the Kerala Conservation of Paddy Land and Wetland Act, 2008 will not lie in the facts and circumstances of the case inasmuch as the subject property has already been excluded from the land data bank prepared as per the 2008 Act in terms of Ext.P3 decision of the LLMC. However, the 1[st] respondent District Collector has ordered in Ext.P5 that the said order will be without prejudice to the power of the competent authorities concerned for initiating and finalising action for the alleged contravention of the provisions of the Mines and Minerals (Development & Regulation) Act, 1957 and rules framed thereunder etc,. 4 W.P(C) No. 14202 of 2020 4. It is by now well established that adverse proceedings in the nature of Sec.19 & 20 etc., of the abovesaid 2008 Act can be initiated and finalised only if the subject property, which is involved in the case, in question is one which would fulfil the definition of paddy land as per Sec.2(xii) or that of wet land as per Sec.2(xviii) of the 2008 Act as on 12-08-2008. It is indisputable that the subject property has been excluded from the land data bank as per Ext.P3 proceedings dated 20-01-2020 issued by Local Level Monitoring Committee in terms of the provisions of the 2008 Act and the benefit of the said decision as per Ext.P3 will regulate that too from 12-082008 (date of coming into force of the 2008 Act). Therefore there cannot be any doubt that the subject property will not fulfil the definition of paddy land as per Sec.2(xii) of the 2008 Act as on 1208-2008. Further respondents do not have any case that the subject property would fulfil the definition of 'wet land' as per Sec.2(xviii) of the Act as on 12-08-2008. 5. The complaint of the petitioner is that though the 1[st] respondent District Collector has passed final orders as per Ext.P5 that proceedings under Sec.20 of the 2008 Act will not lie, the vehicle is not with the petitioner presumably on the ground that proceedings 5 W.P(C) No. 14202 of 2020 under the MMDR Act is being contemplated. 6. The learned counsel for the petitioner submits that the petitioner is prepared to seek compounding of the case in relation to the alleged contravention of the provisions of the MMDR Act and the rules framed thereunder and necessary directions may be issued to ensure that steps in that regard are duly finalised by the 5[th] respondent District Geologist, who is the competent authority in that regard. 7. The respondents do not have any serious objections in the said course of action. Accordingly, the following directions and orders are passed: _(i) The competent official among the respondents more particularly, the 6[th] respondent Sub-Inspector of Police, shall immediately release the seized vehicle of the petitioner covered by Ext.P1 seizure mahazar & Ext.P5 order, on the petitioner filing a bond that he will not transfer, alienate or encumber the vehicle in any manner until of the finalisation of the proceedings contemplated in terms of the provisions contained in the Mines and Minerals (Development &_ 6 W.P(C) No. 14202 of 2020 _Regulation) Act, 1957 and the rules framed thereunder._ _(ii) The 4[th] respondent Village Officer will forward attested copies of Ext.P1 seizure mahazar & Ext.P5 proceedings dated 17-06-2020 as well as a comprehensive report regarding the factual aspects involving the abovesaid vehicle etc., to the 5[th] respondent District Geologist, who is the competent authority to deal with the cases relating to contravention of the provisions of the MMDR Act and the rules framed thereunder. The abovesaid direction shall be duly complied with by the 4[th] respondent Village Officer within 10 days from the date of receipt of a copy of this judgment. The 4[th] respondent will also send a letter to the petitioner informing about the forwarding of the said report to the 5[th] respondent District Geologist and a copy of the said report should also be enclosed in the said letter addressed to the petitioner._ _(iii) Thereafter the petitioner may approach the 5[th]_ 7 W.P(C) No. 14202 of 2020 _respondent District Geologist for compounding the case in terms of the applicable guidelines issued by the State Government and on filing of such representation/application along with a copy of the judgment, the 5[th] respondent should consider and take necessary action on the said plea of the petitioner for compounding the case in terms of the applicable norms issued by the State Government, without much delay preferably within a period of one week from the date of filing of such application along with a copy of this judgment._ 8. The petitioner will produce certified copies of the judgment along with copies of the memorandum of the W.P(C) before respondents 4 to 6 for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand disposed of. Sd/- ## **ALEXANDER THOMAS JUDGE** KAS 8 W.P(C) No. 14202 of 2020 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE SEIZURE MAHAZAR DATED 20.3.2019 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P2** **TRUE COPY OF THE COLOR PHOTOGRAPHS DATED NIL SHOWING THE PRESENT APPEARANCE OF THE SHOPPING COMPLEX BUILDING SITUATED IN SURVEY NO. 294 OF CHELAKKARA VILLAGE.** **EXHIBIT P3 TRUE COPY OF THE REPORT SUBMITTED BY THE 3RD RESPONDENT DATED NIL TO THE 1ST RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WPC NO. 34602/2019 DATED 30.1.2020.** **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 17.6.2020 PASSED BY THE 1ST RESPONDENT IN ORDER NO. B6-4528/2019.** **RESPONDENT'S/S EXHIBITS: NIL**