S. JAJALUDEEN & NISHA MANZIL v. STATE OF KERALA & ORS.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** # **MONDAY, THE 23RD DAY OF JANUARY 2017/3RD MAGHA, 1938** ## **WP(C).No. 37710 of 2010 (K)** ## **-------------------------------------------** **PETITIONER(S) :** **-------------------------** **S.JAJALUDEEN, NISHA MANZIL, THAZHATHUVADAKKU, PATTAZHY, PATHANAPURAM.** ## **BY ADV. SRI.M.SREEKUMAR** **RESPONDENT(S) :** - **-----------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **2. THE COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE BUILDING,THIRUVANANTHAPURAM- 695 001.** **3. THE DISTRICT COLLECTOR, COLECTORATE, KOLLAM-691 001.** **4. THE REVENUE DIVISIONAL OFFICER, KOLLAM-691 001.** **5. THE ADDITIONAL TAHSILDAR, TALUK OFFICE, PATHANAPURAM-689 695.** ## **BY SR. GOVERNMENT PLEADER SRI. T.K.ANANDA KRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 37710 of 2010 (K)** ## **-------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER AND HIS BROTHER IN L.C.NO. 63/2002 DATED 13.02.2003.** - **EXHIBIT P2: TRUE COPY OF THE ORDER NO. B6.LC.63/02 DATED 31.07.2003 OF THE 5TH RESPONDENT.** - **EXHIBIT P3: TRUE COPY OF THE ORDER NO. K.DIS.9284/2005/L5 DATED 23.11.2006 OF THE 3RD RESPONDENT.** - **EXHIBIT P4: TRUE COPY OF THE ORDER NO. LR(K3)4195/07/D.DIS DATED 18.06.2007 OF THE 2ND RESPONDENT.** - **EXHIBIT P5: TRUE COPY OF THE LETTER NO. 62657/U2/2007/RD DATED 07.05.2008.** - **EXHIBIT P6: TRUE COPY OF THE LETTER NO. 40432/U2/2008/RD DATED 02.09.2008.** - **EXHIBIT P7: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P(C).NO. 7758/09 DATED 08.04.2009.** - **EXHIBIT P8: TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT IN OCTOBER, 2009.** - **EXHIBIT P8(A): TRUE COPY OF THE DELAY CONDONATION PETITION ALONG WITH AFFIDAVIT FILED BY PETITIONER BEFORE 1ST RESPONDENT.** - **EXHIBIT P9: TRUE COPY OF THE ORDER G.O.(MS)NO. 393/2010/RD DATED 15.09.2010.** ## **RESPONDENT(S)' EXHIBITS :** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. **NIL** ## **DEVAN RAMACHANDRAN, J.** **--------------------------------------WP(C) No.37710 of 2010 --------------------------------------Dated this the 23[rd] day of January, 2017** ## **JUDGMENT** The petitioner is impugning Exts.P2 to P4 and P9 orders, as per which, he and his brother have been found guilty of certain offences under the Kerala Land Conservancy Act, 1957 [herein after referred to as 'the Act']. They have thus been imposed with fine and have also been mulcted with damages, which represents the value of sand that they have alleged to have obtained from the river and sold illegally and that of trees, which are alleged to have been destroyed during the illegal activity of collecting and removing sand from the Kallada river. 2. The initial order of the Tahsildar, Pathanapuram, Punalur is Ext.P2, the order in the statutory appeal preferred by the petitioner and his brother is Ext.P3, the order issued by WP(C) No.37710 of 2010 2 the Commissioner of Land Revenue under Section 16 of the Act is produced as Ext.P4 and the final order of the Government issued in a revision, which was filed by the petitioner is Ext.P9. These orders are under challenge in this writ petition. 3. The singular ground of attack against these orders by the petitioner is that, there is nothing on record to show that he was directly involved in the alleged illegal activity of removal of sand from the river and that he and his brother have been implicated merely on conjectures and surmises. He, therefore, impugned these orders as being illegal and unlawful and contrary to the provisions of Section 10 of the Act. 4. I have heard Sri.M. Sreekumar, the learned counsel appearing for the petitioner and the learned Senior Government Pleader appearing on behalf of the respondents. 5. Before I go into the evaluation of the facts of this case, it will be fructiferous to consider the impact of Section 10 of the Act, in issues like this. The said Section reads as follows: _“_ _**10. Penalty for destruction or appropriation of trees** -Any person who destroys or appropriates any useful tree belonging to the Government shall be liable for_ WP(C) No.37710 of 2010 3 _damages not exceeding three times the value of the tree as adjudged by the Collector, and shall also be liable on conviction by a magistrate to be punished with imprisonment for a term extending to six months or with fine not exceeding five hundred rupees, or with both.”_ 6. This provision has been considered by this Court several times before, two of them being in the judgments reported in _**State of Kerala v. Sreedharan Nair [1998 (1) KLT 524**_ and _**Sasidharan v. District Collector [1974 KLT Case No.76 Page No.27.**_ In the latter judgment, this Court was considering the scope of ambit of Section 10 of the Act and the ratio emphatically declared is that the accused should be given fullest opportunity to meet the charges, that he should be able to controvert the statements made against him by cross-examining, if necessary, the persons who made the statements and that for such purpose, copies of all such statements should be made available to them. This Court reiterated that, the proceedings are quasi criminal in its nature and that the authorities may have the right not to disclose the source of information. However, it was then stated that even in those cases the person charged should be given sufficient WP(C) No.37710 of 2010 4 indication of the accusation raised against them, so that he could meet them. This Court also went on to declare that the authorities cannot be allowed to take evidence behind the back of the person, charged with the wrong or refuse to disclose the source or the nature of statements made against them on the basis of which, the case is to be finally adjudicated and decided. 7. From the touch stone of the law as has been declared above, I have made an endeavour to see whether Exts.P2 to P4 and P9 orders would satisfy the procedural requirements as are ingrained as safeguards in Section 10 of the Act. I see from Ext.P2 that action has been proposed against the petitioner on the ground that the Village Officer had obtained credible information about the unauthorised mining and removal of river sand from the Kallada river and that he had inspected the property and made local enquiries. It appears that he was convinced and that he had created a Mahazar obtaining the signature of the President and Vice President of Pattazhi Vadakkekkara Panchayat. The orders also go to state WP(C) No.37710 of 2010 5 that on receipt of such report of the Village Officer, the Additional Tahsildar, Pathanapuram visited the site and made enquiries to convince himself that the allegations are correct and that the actions of the accused is 'real and objectionable'. On such basis a Land Conservancy case was registered against the petitioner and his brother and they were given notice to appear before the authorities to explain their stand. The petitioner, thereafter, appeared before the authority and filed objections denying all the allegations against him saying that he did not commit any of the offences alleged against him and that sand had not been removed by him as alleged. He asserted that even if it had been removed, it had been done without his knowledge, perhaps by other persons, whom he calls the 'sand mafia'. The Additional Tahsildar, however finalised the proceedings against the petitioner, solely of the ground that the petitioner was unable to prove that he had not committed the offence as alleged against him. Obviously, the course adopted by the Tahsildar is that the allegations that were levelled against the petitioner was initially presumed to WP(C) No.37710 of 2010 6 be true and then the burden was shifted over to the petitioner to prove otherwise. This is a case where the petitioner was expected to lead negative evidence to rebut a presumption assumed to be against him. The petitioner, thereafter, filed an appeal against the order of the District Collector, who confirmed the order of the lower authorities and in further appeal before the Commissioner of Land Revenue, these orders were again confirmed. Even though the petitioner had filed revision before the competent Secretary of the Government, as is discernible from Ext.P9 order, it was also dismissed, believing the version of the Revenue Officers and for no other. 8. I have examined these orders in detail. As I have already noticed the ratio of the judgments of this Court declares that action under Section 10, being a quasi criminal proceeding in nature, it was incumbent and mandatory that such action could have been proposed and finalised against the petitioner only after he could be linked to the allegations with cogent and tangible evidence. I do not see from the orders impugned that this has been done. On the contrary, what has WP(C) No.37710 of 2010 7 been done in these orders is that the petitioner has been assumed to have committed a crime based on certain enquiries of the authorities and then the petitioner was invited to disprove these allegations. I do not think this is what is contemplated under Section 10 of the Act. Therefore, I do not think that the orders impugned before this Court would stand scrutiny of law. 9. In such circumstances, it should have been the normal procedure that the orders are quashed and the petitioner is set at liberty. However, I am of the view that the petitioner has also not been able to prove that he is completely beyond guilt and there is a valid suspicion against him, because not only is the allegation that he removed sand but that he opened a new road through his brother's property, which is on the side of the river to remove the sand illegally mined. Of course, none of the orders, impugned before this Court, would show that the allegation that he sold the sand has been completely proved, however, the lingering suspicion that he may have some connections to the allegations now made against him and his WP(C) No.37710 of 2010 8 brother is not something than what can be taken casually. 10. In such circumstances, I do not deem it a fit case for the entire proceedings to be quashed and terminated, but since the orders impugned do not show that they have complied with the mandatory requirements of Section 10 of the Act, I am of the view that it is appropriate that it goes through a process of re-look at the hands of the First Appellate Authority, namely, District Collector. 11. In such circumstances, I quash Exts.P3, P4 & P9 orders and direct the District Collector, Kollam, the 3[rd] respondent herein, to consider the appeal of the petitioner afresh, after affording an opportunity of being heard and then issue necessary orders under the provisions of the Act based on and strictly complying with the ratio of the judgments of this Court referred to above and in compliance an adherence to all other requirements as is mandated under the Act. Since this is a matter that has been pending before this Court for the last more than 7 years, I deem it necessary that the District Collector reconsider the matter and issue further orders within WP(C) No.37710 of 2010 9 the shortest possible time. I, therefore, direct him to complete the aforesaid exercise within a period of three months from the date of receipt of a certified copy of this judgment. I order that these directions are to be taken by him to be peremptory in nature and he shall not seek any further time for compliance with these directions. The writ petition is ordered as above. In the facts and circumstances of this case, I make no order as to costs and I direct the parties to suffer their respective costs. Sd/- **DEVAN RAMACHANDRAN, JUDGE.** sp/28/01/16 //True Copy// P.A. to Judge