Syriac Varghese s/o Kallely Varghese, Syriac Varghese and Antony s/o Moothadan George and Biju Philip s/o Koonampareyil Philip v. Village Officer, Muriyad Village Office, Muriyad P.O., Thrissur-680683, and State of Kerala through Public Prosecutor

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 23RD DAY OF MAY 2013/2ND JYAISHTA 1935 Crl.MC.No. 1213 of 2013 () --------------------------ST 1343/2012 of C.J.M.,THRISSUR ## PETITIONERS/RESPONDENTS: --------------------------------- 1. SYRIAC VARGHESE S/O.KALLELY VARGHESE, KALLELY HOUSE MUKUNDAPURAM TALUK, EAST CHALAKUDY VILLAGE. 2. ANTONY, S/O.MOOTHEDAN GEORGE, EAST CHALAKUDY VILLAGE MUKUNDAPURAM TALUK, THRISSUR. 3. BIJU PHILIP, S/O.KOONAMPARAYIL PHILIP, CHETTIKULAM DESOM THRISSUR DISTRICT. BY ADV. SRI.T.N.MANOJ ## RESPONDENTS/COMPLAINANT: --------------------------------- 1. THE VILLAGE OFFICER, MURIYAD VILLAGE OFFICE MURIYAD P.O., THRISSUR-680683. 2. STATE OF KERALA - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682 301. BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23-05-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1213 of 2013 ## APPENDIX ## PETITIONERS' EXHIBITS: ANNEXURE (A): TRUE COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT. ANNEXURE (B):TRUE COPY OF THE INFORMATION OBTAINED FROM THE 1ST RESPONDENT. - ANNEXURE (C):TRUE COPY OF THE LETTER DATED 18.6.2012 BY THE LAND REVENUE COMMISSIONER. - ANNEXURE (D):TRUE COPY OF THE LETTER FROM THE AGRICULTURAL OFFICER, MURIYAD. - ANNEXURE (E):NOTIFICATION NO GO M/S DATED 30.4.2009 BY THE DEPARTMENT OF REVENUE, TRIVANDRUM. ANNEXURE (F):TRUE COPY OF THE TITLE DEED NO.1423/1/2009. RESPONDENTS' EXHIBITS: NIL ## //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== CRL.M.C. No.1213 OF 2013 ==========================** Dated this the 23[rd] day of May, 2013 ## **ORDER** Petitioners are accused 1 to 3 in S.T.No.1343 of 2012 pending on the files of the Court of Chief Judicial Magistrate, Thrissur arising from Annexure-A complaint filed by the first respondent alleging commission of offence under sections 11 and 12 read with section 23 of the Kerala Conservation of Paddy Land and Wet Land Act (for short the 'Act') on account of the alleged action on the part of the petitioners in reclaiming the lands comprised in Survey Nos.673/1 and 675/1, 3, 4, 5, 6, 9, 11 and 12 of Muriyad Village in Mukundapuram Taluk. According to the first respondent, the lands in question were shown in the Basic Tax register as 'Nilam'. Obviously, to attract the aforesaid provisions under the Act, the lands in question must be lands identified as cultivable paddy land and wet land by the committee constituted under section 5 of the Act and should be **Crl.M.C.1213/13** 2 included in the Data Bank. The contention of the petitioners is that the provisions under the Act viz., section 5(4)(i) of the Act read with Rule 4(2)(b) of the Rules framed thereunder makes it mandatory to publish the Data Bank and it should be notified in the official gazette, as well, in order to render the person converting the land liable for prosecution. The core contention of the petitioners is that in terms of the said mandatory procedures, no notification was published after identifying the lands in question as cultivable land by the committee constituted under section 5 of the Act. It is in the said circumstances that the petitioners contend that no prosecution would lie against them. To buttress the said contention, the learned counsel for the petitioners relies on a decision of this Court in **Firose v. Revenue Divisional Officer** reported in **2011 (1) KLT 868.** 2. I have heard the learned counsel for the petitioners and the learned Public Prosecutor. In order to have a better understanding of the scope of contentions of the petitioners herein, it is only appropriate to look into the question posed for consideration in **Crl.M.C.1213/13** 3 **Firose's** case (supra). The opening sentence in the very said decision is worthy to be extracted in that context and it reads thus:- “Question raised for a decision in these proceedings at the instance of the accused is whether in the absence of the notification contemplated under S.5(4)(i) of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for short, “the Act”) a person who converts paddy land/wet land could be prosecuted under S.23 of the said Act?” 3. Thus, it is obvious that the question dealt with in **Firose's** case (supra) is the same that is now posed for consideration in the instant case. After considering the relevant provisions under the Act **Firose's** case and considering the rival contentions, this Court in (supra) held thus:- “7.Now the question is whether in the light of the above, prosecution against petitioners could stand. I stated from S.23 of the Act that penalty is imposed on any person who in violation of the provisions of the Act converts or reclaims “any paddy land or wet land notified under sub-s.(4) of S.5”. Reason persuades me to hold that notwithstanding whatever power is vested with the authorities concerned for reconversion of the land under Ss.13 to 20 of the land whether or not there is a notification, so far as prosecution is concerned, it could be initiated only with respect **Crl.M.C.1213/13** 4 to conversion of land which is notified, meaning thereby that prosecution could stand only if conversion was after the notification was published in whatever manner it is prescribed. It is relevant to note that in the decision referred supra, learned Judge of this Court has observed in paragraph 42 that the notification (under S.5(4)(i) of the Act) will be a condition precedent for the applicability of certain provisions of the Act. The publication of notification under S.5(4)(i) of the Act is intended to provide protection to the landowner.” (emphasis added) 4. Thus, in unambiguous terms this Court held that whatever power is vested with the authority concerned for reconservation of the land under sections 13 to 20 of the land whether or not there is a notification so far as prosecution is concerned it could be initiated only with respect to the conservation of land which is notified meaning thereby that prosecution could stand only if conversion was after the notification was published in whatever manner it is prescribed. In other words, in the absence of a notification contemplated under section 5(4)(i) of the Act, a person could not be prosecuted under section 23 of the Act on the allegation of conversion of paddy land/wet land. The learned Public Prosecutor submitted that **Crl.M.C.1213/13** 5 there is no notification in terms of the provisions under section 5(4)(i) of the Act in respect of the lands in question. When that be the position, I am of the considered view that the contentions raised by the learned counsel for the petitioners are only to be accepted. In such circumstances, the petitioners are liable to succeed. In the result this petition is allowed. Annexure-A complaint is quashed and consequently, all proceedings based on Annexure-A in S.T.No.1343 of 2012 pending on the files of the Court of Chief Judicial Magistrate, Thrissur are quashed. **Sd/C.T. RAVIKUMAR (JUDGE)** ## **spc/** **Crl.M.C.1213/13** 6 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **Crl.M.C.1213/13** 7