Sainul Abid v. Deputy Tahsildar, Pattambi Taluk Office, Palakkad District and District Collector, Palakkad District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 8TH DAY OF APRIL 2014/18TH CHAITHRA, 1936** **WP(C).No. 9589 of 2014 (W)** **---------------------------** **PETITIONER:** **--------------------------** **SAINUL ABID, AGED 20 YEARS S/O. SADALAVI, ORUKAN KUNNATH HOUSE, KOZHIKKATIRI.P.O. MUTHUTHALA, PATTAMBI TALUK PALAKKAD DISTRICT. (OWNER OF A LORRY BEARING REGISTRATION NO. KL-9-7374)** **BY ADV. SRI.P.M.ZIRAJ** **RESPONDENTS:** **----------------------------** ## **1. DEPUTY TAHSILDAR, PATTAMBI TALUK OFFICE PALAKKAD DISTRICT-679534.** ## **2. THE DISTRICT COLLECTOR, PALAKKAD DISTRICT-679534.** ## **R BY GOVERNMENT PLEADER, SMT.C.K.SHERIN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-04-2014, ALONG WITH W.P.(C) No.9488/2014, THIS COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 9589 of 2014 (W)** **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-------------------------------------** - **P1. TRUE COPY OF THE MAHAZAR IN CONNECTION WITH THE SEIZURE OF THE VEHICLE OF THE PETITIONER DATED 4-3-2014 PREPARED BY THE FIRST RESPONDENT.** - **P2. TRUE COPY OF THE CERTIFICATE ISSUED BY THE AGRICULTURAL OFFICER, KRISHI BHAVAN, PATTAMBI DATED 13-3-2014.** - **P3. TRUE COPY OF THE RECEIPT ISSUED BY THE PATTAMBI GRAMA PANCHAYATH DATED 20-1-2014.** - **P4. TRUE COPY OF THE SAID REPRESENTATION DATED 5-3-2014 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT.** - **P5. TRUE COPY OF THE APPLICATION DATED 5-3-2014 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.** - **P6. TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 12-3-2014 IN WPC NO. 5952 OF 2014.** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **//TRUE COPY//** **PA TO JUDGE** **ALEXANDER THOMAS, J. --------------------------------W.P.(C) Nos.9589 & 9488 OF 2014 --------------------------------Dated this the 8[th] day of April, 2014** **J U D G M E N T ~~~~~~~~~~~** ## W.P.(C) No.9589 OF 2014: The case of the petitioner in W.P.(C) No.9589 of 2014 is as follows: The petitioner's vehicle has been seized by the 1[st] respondent Deputy Tahsildar, Pattambi Taluk, Palakkad District, for alleged violation of the provisions of the Kerala Conservation of the Paddy Land and Wet Land Act, 2008 and that the land in question is not a paddy land or wet land, but is a dry land. The petitioner contends that it is clear from Ext.P2 certificate dated 13.3.2014 issued by the Agricultural Officer, Krishi Bhavan, Pattambi, wherein it is certified that the land comprised in Survey Nos.44/5, 44/4 with an extent of 28 cents is actually a converted paddy land in Valtore Desham of Pattambi panchayat as per draft data bank prepared and that land has been classified as converted paddy land. Accordingly, it is contended that the action taken by the 1[st] respondent to seize the vehicle as per Ext.P1 seizure mahazar for alleged violation W.P.(C) Nos.9589 &9488/2014 2 of the above said Act of 2008 is ultra vires and unlawful as such proceedings would have been taken by virtue of the provisions of the Act, 2008 only if the land in question is a paddy land or wet land as defined in that Act. Accordingly, it is contended by the petitioner that offences under the Kerala Conservation of Paddy Land and Wet Land Act would not lie and that, at the most , the offences for the alleged violation of the of the provisions of the Mines and Mineral (Development and Regulation) Act, 1957 (MMDR Act) and the Kerala Minor Mineral Concession Rules, 1967 (KMMC Rules) alone would lie. The petitioner has submitted Exts.P4 and P5 representations before the 2[nd] respondent District Collector, but that no action has been taken on the basis of the same and that the illegal seizure of the vehicle is still continuing and that the delay would cause considerable hardship and injury to the petitioner. In the light of these factual averments and legal contentions, the petitioner has approached this Court by instituting the above Writ Petition with the following prayers: “1. Issue a writ of mandamus or any other appropriate writ, order or direction directing the first respondent to receive and consider Exhibit P5 request and thereby give an opportunity to the W.P.(C) Nos.9589 &9488/2014 3 petitioner for compounding alleged offence under Section 60(A)(1) of the Kerala Minor Mineral Concession Rules, 1967. 2. Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to release the vehicle of the petitioner unconditionally since the seizure is illegal. 3. Direct the second respondent to consider and dispose Exhibit P4 representation submitted by the petitioner after giving an opportunity to the petitioner for personal hearing within a period fixed by this Honourable court.” 2. The petitioner contends that since the only offence that would lie in the facts of this case are those pertaining to the alleged violation of the MMDR Act and KMMC Rules, then such offence can be compounded as stipulated in Section 23A of the MMDR Act and Rule 60A of the KMMC Rules as held by this Court in **Digil v. Sub Inspector of Police** reported in 2013 (1) KLT 600 and in a catena of other judgments of this Court regarding compounding of offences arising under the MMDR Act and KMMC Rules. The directions given by this Court in **Digil's** case reported in 2013(1)KLT 600 are as follows: “i) In cases where compounding applications have been acted upon as per the interim orders passed by this Court and the offences have been compounded and compounding fees have been W.P.(C) Nos.9589 &9488/2014 4 collected and vehicles have been released, it is declared that no further proceedings can be taken for confiscation of the vehicles; ii) In cases where complaints have been filed before the Court but compounding applications have been entertained and offences have been compounded, appropriate applications will be filed before the Courts and the concerned Courts will pass appropriate orders in the matter with regard to the closure of the cases pending; iii) In cases where compounding applications are yet to be filed by the parties concerned, it is open to them to file applications which will be dealt with by the officer concerned in accordance with law and they will be free to pass appropriate orders on it. If no applications are filed within a period of three weeks from today and if compounding is not being allowed, it is open to the concerned officers to complete the procedures as enjoined by law.” 3. Heard Sri.P.M.Ziraj, learned counsel for the petitioner and the learned Government Pleader appearing for the respondents. Learned Government Pleader submits for the offences involving alleged violation of the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, the competent authority under the said Act of 2008 to consider the interim release of the vehicle is the District Collector concerned and it is pointed out that the petitioner can seek interim release W.P.(C) Nos.9589 &9488/2014 5 of the vehicle by filing appropriate application before the respondent District Collector and on furnishing security to the value to the tune of 1.5 times the value of the vehicle as stipulated in Act, 2008. The crucial issue in this case is as to whether the offences under the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 would lie in the light of the fact as to whether or not the land has been included in the relevant data bank prepared for the area in question. That essentially is a matter of fact to be ascertained by the competent authority. If as a matter of fact, the land in question is not classified as paddy land or wet land as per the data bank prepared for the area in question, then no action would lie as per the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 and in which case, the offences that would lie would only be in relation to the MMDR Act and KMMC Rules, which are compoundable in terms of Section 23A of the MMDR Act and Rule 60A of the KMMC Rules. Accordingly, it is directed that the respondent District Collector shall immediately take up for consideration the applications of the petitioner's for release and compounding of the offences as submitted by the petitioner. In case the petitioner has not submitted any such application, he is W.P.(C) Nos.9589 &9488/2014 6 permitted to submit such representation/application before the respondent District Collector along with a certified copy of this judgment. The respondent District Collector shall ascertain within two weeks from the date of production of the certified copy of this judgment, to find out whether the land in question has been classified as paddy land or wet land in the draft data bank concerned prepared for the area in question and if the averments of the petitioner that the land is not classified as paddy land or wet land in the data bank is correct, then the petitioner's request for compounding the offences as per the provisions of Section 23A of the MMDR Act and Rule 60A of the KMMC Rules shall be considered and granted. In such a case, the petitioner is permitted to pay the compounding fee of Rs.25,000/- before the competent authority concerned for getting the offences compounded as contemplated in Section 23A of the MMDR Act and Rule 60A of the KMMC Rules and in such a situation, the offences shall be forthwith compounded and the vehicle concerned shall be released to the petitioner concerned forthwith and on compounding of the offences as directed above, no prosecution proceedings would lie against the petitioner. This exercise shall be completed within an outer time W.P.(C) Nos.9589 &9488/2014 7 limit of three weeks from the date of production of the certified copy of this judgment. If, after consideration of the matter, the respondent District Collector finds that the land in question has actually been classified as paddy land or wet land in the data bank and that the offences would lie against the petitioner in relation to the alleged violation of the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, then the question of interim release of the vehicle shall be considered by the respondent District Collector within two weeks on the petitioner filing appropriate application and on furnishing the prescribed security as stipulated in Kerala Conservation of Paddy Land and Wet Land Act, 2008. In such a case, the finalisation of the proceedings as per the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 shall also be expeditiously completed within an outer time limit of two months thereafter. In the light of the aforesaid directions and observations, this Writ Petition stands finally disposed of. ## W.P.(C) No.9488 OF 2014 4. The averments and contentions in this Writ Petition is broadly similar to that raised in W.P.(C) No.9589/2014. The W.P.(C) Nos.9589 &9488/2014 8 directions issued in the judgment of this Court rendered in W.P.(C) No. 9589/2014 will govern this case as well. The 2[nd] respondent District Collector, Palakkad shall forthwith take up for consideration the representation of the petitioner as per Ext.P2 and take a decision thereon in the light of the specific directions and orders issued by this Court in the judgment rendered in W.P.(C) No.9589/2014. The 2[nd] respondent District Collector shall ascertain within two weeks from the date of production of the certified copy of this judgment as to whether the land in question is classified as paddy land or wet land in the draft data bank/data bank prepared for the area in question and if it is found that the land in question has not been classified as paddy land or wet land in the data bank, then no proceedings for alleged violation of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 would lie and in such a case, the application of the petitioner for compounding the offences in terms of Section 23A of the MMDR Act and Rule 60A of the KMMC Rules shall be granted forthwith on payment of the compounding fee of Rs.25,000/- to the competent authority concerned. In such a case, the offences shall be forthwith compounded and the vehicle shall be forthwith released to the petitioner and once the offence W.P.(C) Nos.9589 &9488/2014 9 is so compounded, then no prosecution steps should be initiated against the petitioner. The exercise in this regard shall be completed within three weeks from the date of production of a certified copy of this judgment. If on the other hand, the respondent District Collector finds that the land in question is classified as paddy land or wet land in the data bank concerned prepared for the area in question, then the question of interim release of the vehicle shall be considered expeditiously on the petitioner furnishing the prescribed security as stipulated under the Kerala Conservation of Paddy Land and Wet Land Act, 2008. As further directed in the judgment in W.P.(C) No.9589/2014, in such eventuality, the finalisation of the proceedings under the said Act of 2008 shall also be expeditiously completed within a outer time limit of two months thereafter. In the light of the aforesaid directions and observations, this Writ Petition stands finally disposed of. **Sd/ALEXANDER THOMAS, JUDGE.** ps/22/5/2014 //True copy// PA to Judge