Salim K.M. v. The State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MRS. JUSTICE MARY JOSEPH` ``` FRIDAY, THE 14[TH] DAY OF OCTOBER 2022 / 22ND ASWINA, 1944 ``` ## `CRL.MC NO. 3439 OF 2020` ``` TO QUASH ALL FURTHER PROCEEDINGS IN ANNEXURE-VIII, FINAL REPORT IN CC NO.10 OF 2018 ON THE FILES OF CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA. ``` ## `PETITIONER/ACCUSED:` ``` SALIM K.M. AGED 56, S/O.MOIDEEN.K.K., KODASERIL HOUSE, THRIKKAKARA, NOW RESIDING AT DOOR NO.11/195 B, HMT COLONY P.O., PALLILAMKARAYIL, KALAMASSERY, ERNAKULAM DISTRICT, PIN-683 503. ``` ``` BY ADVS. SRI.P.K.SOYUZ SRI.E.V.BABYCHAN ``` ## `RESPONDENTS/COMPLAINANT:` ``` THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. ``` ``` BY PUBLIC PROSECUTOR SMT.MAYA M N. ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C.No.3439 Of 2020 ``` ``` 2 ``` ## **`ORDER`** ## **`Dated this the 14[th] day of October,2022`** This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’) by the sole accused in Crime No.603 of 2017 of Vagamon Police Station. The crime was investigated by Vagamon police and final report was laid chargesheeting the petitioner for offences punishable under Sections 7(a) and (b) of the Kerala Land Conservancy Amendment Act, 2009 (for short ‘the Act’) and Section 447 of the Indian Penal Code (for short ‘the IPC’). The final report has been taken cognizance by Chief Judicial Magistrate, Thodupuzha and CC No.10/2018 was registered on it’s file. The true copies of the FIR, and the Final Report in CC No.10/2018 were produced alongwith the petition on hand as Annexures VII and VIII. Petitioner seeks to quash the criminal prosecutions initiated against him in the petition on hand by invoking the jurisdiction under Section 482 of the Cr.P.C. 2. The petitioner is an agriculturist and is in possession and enjoyment of 72.30 Ares (178.65 Cents) of agricultural land ``` Crl.M.C.No.3439 Of 2020 ``` ``` 3 ``` comprised in Survey No.185/1, part of Vagamon Village, Peerumedu Taluk. Petitioner was in possession and enjoyment of the abovementioned land since 2007 onwards. In the year 1960, one Mr.Cahill Raman was in possession of the land and thereafter his son Thambi @ Murali handed over possession of the land to one Mrs.Savithri w/o Kumaran. In the year 2007 the said Savithri handed over possession of the above mentioned land which is full of Tea plants to the petitioner. Thereafter the petitioner has been duly maintaining and cultivating the tea plants in the land. Now the petitioner is eking out his livelihood from the income derived from the tea plantation in the above mentioned property. Therefore, since 1960 the land is not in the possession of the Government, but in the possession of the predecessors of the petitioner as well as the petitioner. Therefore the petitioner moved an application before Special Tahsildar, Land Assignment on 25.05.2015 under the Kerala Land Assignment Rules, 1964. The application was submitted under Rule 11(8) of the Kerala Land Assignment Rules, 1964 (for short ‘Rules 1964’), true copy of which is produced alongwith the petition on hand as Annexure-I. An enquiry was conducted by ``` Crl.M.C.No.3439 Of 2020 ``` ``` 4 ``` the Special Tahsilder (LA) as per Rule 12 of Rules, 1964. Annexure-I application was also forwarded by him to the Taluk Surveyor, Peerumedu Taluk who was in charge of Vagamon Village and also to the Village Officer, Vagamon Village. The Taluk Surveyor inspected the property and prepared a sketch on 24.11.2016, true copy of which is produced alongwith the petition on hand as Annexure-II. The Village Officer, Vagamon Village had also inspected the property and prepared a Mahasar on 06.06.2017, true copy of which is also produced alongwith the petition on hand as Annexure-III. Thereafter the Special Tahsildar (LA) Peerumedu had sent a letter to the Village Officer, Vagamon directing him to furnish detailed report about the land in possession of the petitioner, true copy of which is produced alongwith the petition on hand as Annexure-IV. Thereafter notices were issued under Rule 12(1) of Rules, 1964 by the Special Tahsildar (LA) to Tahsildar, Peerumedu, Village Officer, Vagamon, and to the Secretary of the Grama Panchayath, true copy of one such is produced alongwith the petition on hand as Annexure-V. It has been stated in Annexure-V that Special Tahsildar (LA) Peerumedu who is the ``` Crl.M.C.No.3439 Of 2020 ``` ``` 5 ``` assigning authority, had decided to convey the above mentioned 72.30 Ares of property comprised in Survey No.185/1 which is included in Vagamon Village, Peerumed Taluk to the petitioner. 3. While matters being so, petitioner was arrested by the Vagamon Police in connection with Crime No.603/2017 alleging that he has committed offences under Sections 7(a) and (b) of the Act and Section 447 IPC. On investigation in the crime being concluded, a final report was laid on which cognizance stands taken by Chief Judicial Magistrate, Thodupuzha. In the said context, the petitioner has preferred the petition on hand before this Court seeking to quash the prosecution initiated against him. Copies of Annexures-I to V were also obtained by applying under the Right to Information Act, 2005 and appended to the petition on hand. 4. It is contended by the learned Public Prosecutor that the petitioner has failed to establish successfully that the properties have been possessed and cultivated by his predecessors since 1960. According to the learned Public Prosecutor, that being the context, the prosecution and other ``` Crl.M.C.No.3439 Of 2020 ``` ``` 6 ``` proceedings followed cannot be quashed by invocation of the power under Section 482 Cr.P.C. According to the learned Public Prosecutor though Annexure-I application was filed by the petitioner before the Special Tahsildar seeking for assignment of the property comprised in Survey No.185/1 in his favour, an order to the effect has not been passed till date. A letter dated 10.10.2022 and issued by the Special Tahsildar (LA) Peerumedu has been placed on record by the learned Public Prosecutor and it is indicated from its contents that the property in question has been examined personally by the Village Officer, Perrumedu alongwith the Head Surveyor and Revenue Inspector and found it to have been comprised in Survey No.185/1 of Vagamon Village but, devoid of any cultivation and improvements as pleaded by the petitioner. It was further stated that the property was not demarcated by boundaries. 5. It is observed from the records of the case that Annexure-I application has been filed by the petitioner before the Special Tahsildar, Peerumedu as early as on 25.05.2015 wherein possession of 2 acres 6 cents of property comprised in Survey No.185/1 by his predecessors since 1960 was claimed. ``` Crl.M.C.No.3439 Of 2020 ``` ``` 7 ``` The surveyor has submitted a report on 24.11.2016, copy of which is appended to the petition on hand as Annexure-II wherein it was found stated based on materials available that the properties comprised in Survey No.185/1 forms part of Vagamon Village of Peerumedu Taluk and that the property is demarcated by boundaries. It has also been reported that the property was in the possession of petitioner and his predecessors till date. It was reported that the authorities have also decided to grant patta for the land in favour of the petitioner. A survey sketch was prepared, copy of which is produced alongwith the petition on hand as Annexure -II/2. A mahazar was also prepared wherein the property was described as having tea plantation. The Special Tahsildar has reported on 16.06.2017 to the Village officer, Vagamon that the disputed property is in the possession of the petitioner itself and that patta needs to be granted in his favour. 6. On 16.08.2017 a notice has been published seeking for objection if any against the grant of patta in favour of the petitioner. In the meantime, Tahsildar (LR) Peerumedu has reported to the Station House Officer of Vagamon Police Station ``` Crl.M.C.No.3439 Of 2020 ``` ``` 8 ``` that the property comprised in Survey No.185/1 was occupied by the petitioner unauthorisedly and necessary action is required. On it’s basis crime referred to was registered and a final report was laid chargesheeting the petitioner for the offences alleged. 7. Sri.Peeyus A. Kottam, has invited the attention of this Court to various provisions of Rules, 1964 . Rule 7 of Rules, 1964 has been relied on by him as applicable in the context and therefore is extracted hereunder: “7. Priority to be observed in assignment .- (1) Where any person is in occupation of Government lands under lease, whether current or time expired, or by way of encroachment, not considered objectionable such land if such occupation is before the 1[st] day of August, 1971 shall be assigned to him on registry.” 8. The learned counsel has also quoted Rule 2 (cc) which defines “Encroachment not considered objectionable” which is also extracted hereunder for easy reference: “ 2.Definitions: (x) (x) ``` Crl.M.C.No.3439 Of 2020 ``` ``` 9 ``` (x) (cc)“ Encroachment not considered objectionable” means encroachment on Government land, which is available for assignment, by a person or a family eligible to get land, or registry under these rules.” 9. It has been claimed by the petitioner that his predecessors in interest have been occupying the disputed land and cultivating it since 1960. Revenue authorities have also reported after conducting site enquiry that the property has been occupied by the predecessors of the petitioner since 1960 and cultivated by tea plantation. Annexures-II to IV establish those aspects. 10. Rule 2 (cc) provides for the property in occupation and not objectionable. Kunhali v. Tahsildar, Kozhikode and Others (2021 (1) KHC 586) was cited by the learned counsel in reliance wherein it has been held that the power to initiate action under the Act would arise only when a person is found in occupation of a Government land and if such person is able to show that he is in possession of the land, without determining possession, proceedings under the Act cannot be initiated. It is ``` Crl.M.C.No.3439 Of 2020 ``` ``` 10 ``` noticed that Sections 6 and 7 have been introduced into the Act only in the year 2009 and since then only the violations have been made punishable. 11. In the case on hand possession of the land was claimed since 1960. According to the petitioner, he was in possession of the land since 2007. Annexure-I application was filed by him before Special Tahsildar (Land Assignment), in the year 2015 claiming occupation of the property since 1960. When a person claims to be in occupation of a Government land, without determining possession, proceedings under the Act cannot be initiated as held by the Single Bench in **Kunhali** supra. Therefore, the Vagamon police is highly unjustified in registering the crime and initiating the prosecution on hand against the petitioner alleging commission of offences punishable under Sections 7(a) and (b) of the Act. The Chief Judicial Magistrate, Thodupuzha ought not to have taken cognizance of and registered CC No.10 of 2018 on it’s file based on the final report laid by the Vagamon police. Those were found done without application of mind to the facts and legal provisions discussed above. In the above circumstances Crl.M.C is liable to be allowed. ``` Crl.M.C.No.3439 Of 2020 ``` ``` 11 ``` In the result, Crl.M.C. is allowed and Annexure-VII FIR, and Annexure -VIII Final Report in CC No.10 of 2018 pending on the files of Chief Judicial Magistrate, Thodupuzha are quashed forthwith. ``` Sd/- ``` ``` MARY JOSEPH JUDGE ``` ``` MJL ``` ``` Crl.M.C.No.3439 Of 2020 ``` ``` 12 ``` ## **`APPENDIX OF CRL.MC 3439/2020`** ## `PETITIONER’S ANNEXURES:` ``` ANNEXURE ITRUE COPY OF THE APPLICATION FOR LAND ASSIGNMENT DATED 25.05.2015. ``` ``` ANNEXURE IITRUE COPY OF THE REPORT ALONG WITH SKETCH DATED 24.11.2016 OF THE TALUK SURVEYOR, PEERUMEDU ANNEXURE IIITRUE COPY OF THE ASSIGNMENT MAHASAR PREPARED BY THE VILLAGE OFFICER, VAGAMON DATED 06.06.17. ANNEXURE IVTRUE COPY OF THE LETTER ISSUED BY THE SPECIAL TAHSILDAR(LA), DATED 16.06.2017. ANNEXURE VTRUE COPY OF THE NOTICE ISSUED BY THE SPECIAL TAHSILDAR(LA) DATED 16.08.2017. ANNEXURE VITRUE COPY OF THE COMPLAINT SUBMITTED BY THE TAHSILDAR(LR) PEERUMEDU DATED 01.11.2017. ANNEXURE VIITRUE COPY OF THE FIR IN CRIME NO.603 OF 2017 OF VAGAMON POLICE STATION DATED 16.11.2017. ANNEXURE VIIITRUE CERTIFIED COPY OF THE FINAL REPORT IN CC NO.10 OF 2018 OF THE CHIEF JUDICIAL MAGISTRATE, THODUPUZHA. ``` ``` RESPONDENT’S ANNXURES: NIL ``` ``` TRUE COPY ``` ``` PA TO JUDGE ```