P.M. Sivadas v. The State of Kerala and V.H. Habeeb

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 23[RD] DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943 ## CRL.MC NO. 3153 OF 2018 AGAINST THE PROCEEDINGS IN CC 38/2017 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA ## PETITIONER/1ST ACCUSED: P.M. SIVADAS AGED 49 YEARS S/O.MADHAVAN NAIR, PANDAPLACKAL HOUSE, CHIRAKKADAVU,KOOVAPPALLY VILLAGE, KOTTAYAM. BY ADVS. SRI.C.S.MANILAL SRI.S.NIDHEESH ## RESPONDENTS/STATE AND COMPLAINANT: 1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2 V.H.HABEEB S/O.MUSTHAFA, VELOOR HOUSE,VANDANPATHAL, ERUMELI NORTH VILLAGE, MUNDAKAYAM - 686 513. R1 BY SRI.RANJIT GEORGE, SR.PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 23.02.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC 3153 OF 2018 2 ## O R D E R The petitioner is the 1[st] accused in C.C.No.38/2017 on the file of the Chief Judicial Magistrate Court, Thodupuzha. The case mentioned above arises from Crime No.3/2017 of Peruvanthanam Police Station for the offences punishable under Sections 7 and 8 of the Kerala Land Conservancy Act, 1957. 2. The aforesaid crime was registered based on a complaint submitted by the 2[nd] respondent, who was the Village Officer of Peruvanthanam Village, alleging that on 01/01/2017, the petitioner herein, who was a works contractor, along with the 2[nd] accused, trespassed into the Government property in Survey Nos.811 of Peruvanthanam Village and constructed a wall encircling the well and put a crossbar for the well. Based on the same CRL.MC 3153 OF 2018 3 Crime No.3/2017 was registered, and after completing the investigation, the police submitted Annexure-1 final report for the offences mentioned above. This Crl. M.C. is filed seeking to quash the proceedings above. 3. Heard Sri. C.S. Manilal, the learned counsel for the petitioner and Sri. Ranjit George, the learned Public Prosecutor for the State. 4. The contention put forward by the learned counsel for the petitioner is that the prosecution based on Annexure-1 is not legally sustainable. There is a serious dispute about the possession of the land in question. According to the learned counsel for the petitioner, the property mentioned above is in possession of Peruvanthanam Devaswom, which traces its original Vanjipuzha Madom. It is also pointed out that Travancore Devaswom is now managing the aforesaid properties, and the above mentioned property is in possession and management CRL.MC 3153 OF 2018 4 of the Travancore Devaswom in connection with the temple Panchalimedu Buvaneswari Temple. It is also pointed out that the construction they allegedly carried out was to create the necessary infrastructure for the temple mentioned above. It is also pointed out that, the aforesaid properties are not Government lands, and the said properties belong to the Devaswom. The learned Counsel also places reliance upon Annexure-II order issued by the Ombudsman for Travancore and Cochin Devaswom Boards, by which works which are the subject matter of the dispute in this case, were awarded to the petitioner and contended that he was only executing the said work in pursuance to the same. 5. On the other hand, the learned Public Prosecutor opposes the aforesaid contentions. It is pointed out that the question as to whether the property is government land or not is a matter to be adjudicated during the course of the trial, and CRL.MC 3153 OF 2018 5 going by the statements contained in Annexure-1 final report, there is a specific averment to the effect that it is government land. In such circumstances, the aforesaid question cannot be decided in a proceeding of this nature, contends the learned Public Prosecutor. 6. The only question that arises is whether the complaint contained in Annexure-A1 final report and the materials produced along with the same would justify a prosecution against the petitioner herein for the offences alleged. The primary offence alleged against the petitioner is under Sections 7 of the Kerala Land Conservancy Act which reads as follows: _“7. Punishment for unauthorizedly occupying land which is the property of Government.Notwithstanding anything contained in this Act,-_ _a) Whoever with the intention of using or holding any land which is the property of Government, whether poramboke or not, for any non-Governmental purpose, unlawfully enters or occupies such land shall be punishable with imprisonment of either description for a term which shall not be less than three years but which may extend to five years and shall also be liable to pay a fine which shall not be less than fifty thousand rupees, but which may extend to two lakhs rupees:_ _Provided that a person who is occupying any Government land not exceeding 5 cents as on the date of commencement of this Act and is not having any other land in his name or in the name of his family members and is having any of_ CRL.MC 3153 OF 2018 6 _the following documents in order to prove that he was residing therein, namely, record of rights or a ration card or an electoral identity card issued in the address of such Government land which he is so occupying or a proceeding assigning house number to a building in such property or an electric connection or water connection, issued by the competent authorities of the Government or the Local Self Government Institution or the respective statutory bodies, as the case may be, shall not be considered as an unlawful occupant for the purpose of imposing punishment;_ _(b) whoever, for the purpose of effecting transfer of any land which is the property of Government for consideration or otherwise-_ _(i)commits the offence of cheating by fraudulently or dishonestly creating documents; or_ _(ii) makes or creates any forged document in support of any claim or title to such land shall be punishable with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years and shall also be liable to pay a fine which shall not be less than fifty thousand rupees, but which may extend to two lakhs rupees;_ _(c) whoever being an officer entrusted with the responsibility of reporting unlawful occupation of land which is the property of Government or of initiating action to removes such unauthorized occupation fails to report or to initiate action to remove such unlawful occupation, shall be punishable with imprisonment of either description for a term which shall not be less than three years but which may extend to five years and shall also be liable to pay a fine which shall not be less than fifty thousand rupees, but which may extend to two lakhs rupees;_ _(d) Whoever erects or causes to erect any wall, fence or building or put up or causes to put up any overhanging structure or projection, whether on a temporary or permanent basis in contravention of sub-section(2) of Section 5,_ CRL.MC 3153 OF 2018 7 _shall be punishable with imprisonment of either description for a term which shall not be less than one year but which may extend to two years and shall also be liable to pay a fine which shall not be less than ten thousand rupees, but which may extend to twentyfive thousand rupees and in the case of a continuing contravention, such additional fine which may extend to five hundred rupees for each day during which the contravention continues after conviction for the first such contravention.”_ A perusal of the aforesaid provision would indicate that the same would be attracted only when anybody intentionally holds any land that is the government’s property or enters the said property and occupies the same. In this case, whether the property is government land or not is a serious dispute in question. 7. The petitioner's specific case is that Travancore Devaswom Board was managing the aforesaid property, and the constructions alleged to have been made were a part of the same. The case of the petitioner in this regard is that the property in question forms part of the Temple property of Panchalimedu Buvaneshwari Temple CRL.MC 3153 OF 2018 8 (hereinafter referred to as the temple). Originally the aforesaid temple and the properties thereon of being managed by Vanchipuzha Chief, of Vanchipuzha Madom, and was the owner of a large extent of properties in Cheruvally Changanacherry Taluk, Chirakadavu in Changnacherry Taluk and Peruvanthanam in Peerumedu Taluk. The rights held by the Vanchipuzha Chief was described as Edavagai rights. Later, as per The Edavagai Rights Acquisition Act, 1955 (Travancore), the Edavagai rights came to be vested with the Government. Section 3(2) of the said Act reads as follows: _“ Section 3 - Acquisition or extinguishment of Edavagai rights:_ _(2) All the Edavagai rights of the Edapally Swaroopam and the Poonjar Koickal other than those mentioned in sub-section (1) and all the Edavagai rights of the Kilimanoor Kottaram and the Vanjipuzha Matom over their respective Edavagais, and all rights, title and interests vested in the Chiefs, in respect of waste lands or thanathu lands which have been assigned by them on Kuthagapattom or other like demises and all rights, title and interests vested in the chiefs, in respect of waste lands or thanathu lands which have not been so assigned by them are hereby_ CRL.MC 3153 OF 2018 9 _acquired by Government, and all such rights, title and interests shall vest in Government free of all encumbrances.”_ 8. As per section 6 of the Act, read with the Schedule thereof, Rs 4,16,358/- was fixed as compensation. As per subsection (4) of Section 6, out of the said amount of compensation, Rs 1,00,000/- was retained by the Government, with the obligation to pay interest thereon, for the maintenance and upkeep, in accordance with the customary religious practices and ceremonies, of certain Devaswoms including Peruvanthanam Devaswom. It is further provided in the aforesaid provision that the maintenance and upkeep of the said Devaswoms shall be entrusted with any agency as agreed between the Government and Chief. In case no such agreement could be arrived at Government shall make necessary arrangements for the same in consultation with the Travancore Devaswom Board. CRL.MC 3153 OF 2018 10 9. According to the petitioner, Travancore Devaswom thus manages the said properties, which is not disputed. The petitioner's further case that constructions made by the petitioner were part of the improvements in the infrastructure of the said temple, and the same was carried out by the petitioner based on a contract awarded by the Devaswom Board in this favour. On this aspect also there is no serious dispute. According to the petitioner, the property wherein the said improvements were made forms part of the properties which are in possession of the temple, which comes under the management of the Travancore Devaswom Board. Thus according to the petitioner, the improvements made thereon were as part of the management of the Devaswom in the property which is in their possession. Though the Government disputes the same by claiming rights over the said properties, it reveals an apparent dispute CRL.MC 3153 OF 2018 11 concerning the same. On examining the materials on record, I could not find anything indicating that the actions on the part of the petitioner herein was for any personal benefit. 10. In this case, it is evident from the records that the petitioner was a contractor, even according to the prosecution. The petitioner relies on the Annexure-II order passed by the Learned Ombudsman, by which administrative sanction has been accorded for carrying out the work. When a contractor executes the works based on the works awarded to him by an authority, he cannot be attributed with any mens rea to attract any criminal prosecution in respect of the property wherein the work was carried out. The respondents indeed have a case that it is government land, which the Devaswom seriously disputes. The contention that the work carried out ## CRL.MC 3153 OF 2018 12 by the petitioner was based on the Annexure-II order is not disputed. 11. Thus, it is evident that there is a genuine dispute about the rights of the land. In such circumstances, the materials produced along with the Final report are very relevant. In this case, the materials available on record is only a certificate issued by the Village Officer stating that the property in question is Government land. On going through the said certificate, there is nothing to indicate the identification of the property, and there are no details relating to the same to say that the property is Government land. No location sketch or other documents indicating the exact spot on which the alleged constructions were made are also not seen produced. This aspect assumes significance when considering the existence of a dispute as to the rights over the property. CRL.MC 3153 OF 2018 13 12. In such circumstances, I am of the view that, as there is a bona fide dispute as to the nature of the property and also because of the lack of specific materials showing the identity of properties, the proceedings against the petitioner is an abuse of process of law. The acts committed by the petitioner herein would not attract any culpability so as to warrant a prosecution case against him. If at all, the Government has a case that it is Government property, appropriate proceedings can be taken by invoking the other provisions of the Land Conservancy Act to take possession of the property in accordance with the law. The prosecution based on the materials now produced along with Annexure-A1 is not justifiable. 13. The learned counsel for the petitioner also places reliance upon the judgment rendered by the Hon’ble Supreme Court in Govind Prasad Kejriwal v. CRL.MC 3153 OF 2018 14 State of Bihar [2020(2)KLT 1167(SC)] wherein it is held by the Hon’ble Supreme Court that when the dispute is having predominantly civil in nature, the prosecution initiated against the accused can be quashed. When I examine the essential nature of the dispute involved in this case, it is evident that the same is related to the nature of rights over a particular piece of land between the Devaswom and the Government. In such circumstances, I am of the view that the dispute is basically civil in nature and initiation of criminal prosecution is unwarranted. Criminal prosecution initiated against the petitioner herein is a clear abuse of the process of law. As a result, this Crl. M.C. is allowed. All further proceedings in Annexure-1 final report in Crime No.3/2017 of Peruvanthanam Police Station and all further proceedings in C.C.No.38/2017 on CRL.MC 3153 OF 2018 15 the file of the Chief Judicial Magistrate Court, Thodupuzha are hereby quashed. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC 3153 OF 2018 16 ## APPENDIX OF CRL.MC 3153/2018 PETITIONER’S ANNEXURES: ANNEXURE I: CERTIFIED COPY OF THE FINAL REPORT IN F.I.R.3/2017 DATED 03/01/2017. ANNEXURE II: TRUE COPY OF THE PROCEEDINGS ISSUED BY THE HON'BLE OMBUDSMAN ON 30/11/2010 ANNEXURE III: TRUE COPY OF THE COMMUNICATION ISSUED BY THIS HON'BLE COURT DATED 21/03/2017. //TRUE COPY// SD/- P.S. TO JUDGE