The District Collector, Kozhikode and the Tahsildar, Kozhikode v Surendran

W. A. No. 2199 of 2015 -1- # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` THURSDAY, THE 8[TH] DAY OF DECEMBER 2022 / 17TH AGRAHAYANA, ``` ``` 1944 ``` ``` WA NO. 2199 OF 2015 ``` ``` AGAINST THE JUDGMENT WPC 3133/2013 OF HIGH COURT OF KERALA APPELLANT/S: ``` ``` 1THE DISTRICT COLLECTOR, KOZHIKODE KOZHIKODE - 673 001. 2THE TAHSILDAR KOZHIKODE - 673 001. BY ADV V. TEKCHAND, SENIOR GOVERNMENT PLEADER ``` ## **`RESPONDENT/S:`** ``` SURENDRAN S/O.KUNHUNNI NAIR, SURABHI, THACHERI THAZHATH HOUSE, KAKKODI, KOZHIKODE DISTRICT. BY ADV SRI.C.P.PEETHAMBARAN ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W. A. No. 2199 of 2015 -2- ## **J U D G M E N T** ## Shaji P. Chaly, J. The above appeal is preferred by the District Collector, Kozhikode and the Tahsildar, Kozhikode challenging the judgment of the learned Single Judge dated 05.01.2015 in W. P (C) No. 3133 of 2013 whereby the writ petition was allowed and accordingly Ext. P6 order passed by the District Collector dated 22.01.2013 as per Section 13 of the Kerala Conservation of Paddy Land and Wetland Act, 2008, is quashed. As per Ext.P6, the District Collector directed the writ petitioner / respondent to remit Rs. 7,27,500/- within 14 days, for releasing the vehicle bearing registration No. KL-11-AG-5405, pending adjudication of the proceedings. 2. Brief material facts for the disposal of the appeal are as follows:- 3. Writ petitioner is the owner of a tipper lorry bearing registration No. KL-11-AG-5405. The above vehicle was seized by the Tahsildar, the 2[nd] appellant on 25.12.2012 alleging that the vehicle was used for unloading red earth in a property in resurvey Nos. 51/1A and W. A. No. 2199 of 2015 -3- 1B of Kuruvattoor Village having an extent of 32 cents owned by one Ushakumari, evident from Ext. P2 seizure mahazar. The allegation made against the petitioner is that the said vehicle was used for reclamation of paddy field in violation of the provisions of Act 2008. The case projected by the writ petitioner is that though in the revenue records the nature of land is recorded as paddy field where red earth was unloaded, it is a pucca garden land having several improvements and trees aged more than 15 years. Ext. P3 series of photographs are produced to show that the property is a garden land. 4. The case put forth by the petitioner is that the provisions of Act 2008 would not be applicable to a property which was converted prior to the introduction of Act 2008 and therefore the seizure effected is illegal. That apart it is pointed out that there are two houses situated in the adjacent property bearing building Nos. KPIII/305 and KPXVIII/191 within the limits of Kuruvattoor Grama Panchayat in ward Nos. 3 and 18. 5. Earlier, the petitioner had approached this Court by filing W. P. (C) No. 318 of 2013 and the said writ petition was disposed of directing the District Collector to consider the release of the vehicle as W. A. No. 2199 of 2015 -4- an interim measure within two weeks from the date of application claiming such a relief. However the matter was considered finally and the vehicle was directed to be released on condition that the petitioner remits an amount of Rs. 7,27,500/- being one and a half times the value of the seized vehicle. It is thus challenging the legality and correctness of the said order the writ petition was filed. 6. A counter affidavit was filed in the writ petition justifying the stand adopted by the District Collector. It is also contended therein that the property in question is classified as paddy field in the revenue records and included in the draft data bank prepared as per the Act 2008. Copy of the data bank is produced as Ext. R1(a). According to the counter affidavit, the vehicle was used for reclamation of the paddy field. It is also submitted that the red earth used for filling up of paddy land is removed by the owner of the paddy field as per the directions. Other contentions are also raised justifying the impugned order passed. 7. The learned Single Judge after taking into consideration the rival submissions made across the Bar has held as follows:- - “6. This Court in **Shahanaz Shukkoor v. Chelannoor** - **Gramapanchayat** [2009 (3) KLT 899] has held that mere W. A. No. 2199 of 2015 -5- description of an item of property as 'nilam' (paddy field or wet land) in revenue records is insufficient to assume that the land cannot be used for any purpose other than those, for which, a paddy field or wet land uses. This is because of the fact that the Act deals with the conservation of lands, which are wet lands and paddy fields, on the basis of actual fact situation and not depending on the description of property in revenue records. Viewed in that profile, it has to be held that the seizure on the basis of the alleged violation of the provisions of the Act itself is illegal. Moreover, as per Ext.R1(b), the red earth said to have been deposited in the aforesaid property has been removed by the owner subsequently. Now, the District Collector, by Ext.P6 order directed the petitioner to remit a sum of 7,27,500/-, which is 1½₹ times value of the seized vehicle. As this Court is of the view that the seizure itself is illegal, the direction to remit the amount for release of the vehicle cannot be sustained. Therefore, on a consideration of the entire materials now placed on record, this Court is of the view that the petitioner is entitled to succeed. ## In the result, the writ petition is allowed. Ext.P6 is quashed. The respondents are directed to release the vehicle to the petitioner without imposing any further condition in the light of what has been stated above. Formal orders to this effect shall be issued within a period of one month from the date of receipt of a copy of this judgment.” ## 8. The sole question to be considered is whether any interference ## is required to the order passed by the learned Single Judge. W. A. No. 2199 of 2015 -6- 9. Apparently, the District Collector has finalized the proceedings as per Ext. P6, though this Court in the earlier writ petition had directed to consider release of the vehicle as an interim measure. True the District Collector is vested with powers under Sections 12 and 13 of the Act 2008 to adjudicate for violation of the provisions of the Act and pass appropriate orders, including restoration of the paddy field. The said provision reads as follows:- “ **13. Power of the District Collector** – Notwithstanding anything contained in this Act, the District Collector may take such action, as he deems fit, without prejudice to the prosecution proceedings taken under the Act, to restore the original position of any paddy land or wet land reclaimed violating the provisions of this Act, and realize the cost incurred in this regard from the holder or occupier of the said paddy land or wetland, as the case may be, so reclaimed after giving him a reasonable opportunity of being heard. Where the decision is to restore the original position of paddy land or wetland, the District Collector may take any action in such manner, as may be prescribed, to dispose clay, sand, earth etc. removed from the paddy land or wetland or any brick or tile made of all or any of them, in the process of such restoration and cause to remit the sums collected to the fund.” 10. It is true as per Section 20, the District Collector is vested W. A. No. 2199 of 2015 -7- with powers for confiscation of the vehicle, and on being satisfied with the violation, one and a half times value of the vehicle can be imposed by the District Collector in lieu of confiscation. Section 20 reads as follows:- “ **20. Confiscation of vessel, vehicle, etc** – (1) After obtaining a report regarding seizure under section 12 or section 19, the District Collector may, if he thinks fit, order confiscation of the object seized: Provided that the owner or the person in custody of the same, shall be given an option to pay, in lieu of its confiscation, a sum equal to one and a half times the value of the seized articles, as may be determined by the District Collector. Provided further that the District Collector may take any action, in such manner as may be prescribed, to dispose the seized clay, sand, earth, brick, tile etc. and cause to remit the sums collected to the Fund. (2) No order of confiscation under sub-section (1) shall be made by the District Collector unless the owner thereof has been given an opportunity of being heard in the matter. (3) No order of confiscation under sub-section (1) shall be invalid merely by reason of any defect or irregularity in the notice given under sub-section (2), if the provisions have been substantially complied with.” W. A. No. 2199 of 2015 -8- 11. Therefore it can be seen that the District Collector while adjudicating the issue has not considered the issue raised by the writ petitioner that the property is already converted. We do not think the said approach made by the District Collector is in accordance with law, while adjudicating the issue for violation of the provisions of the Act 2008. This we say because under Section 2(iii), conversion is defined to mean the situation whereby land that has been under paddy farming and its allied constructions like drainage channels, ponds, canals, bunds and ridges are put to use for any other purpose. That apart under Section 2 (xii), paddy land is defined to mean all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ponds and canals. 12. Therefore a reading of the aforesaid provisions would make it clear that when the writ petitioner has raised a contention that the property was converted prior to the introduction of Act 2008 and planted with coconut trees, the District collector ought to have considered the said aspect in order to arrive at a conclusion as to whether there is any violation of the provisions of Act 2008 by virtue W. A. No. 2199 of 2015 -9- of the power vested on the District Collector under Section 12 read with Section 20 of Act 2008. 13. Moreover, as per Section 5 (4) of the Act 2008, a Local Level Monitoring Committee is constituted and vested with various powers to prepare the data bank which clearly specifies that it has to prepare the data bank with the details of the cultivable paddy land and wetland within the area of the jurisdiction of the Committee, with the help of the map prepared or to be prepared by the State Land Use Board and other institutions and get it notified by the concerned local body. 14. Therefore, when the District Collector considered any violation, the District Collector should first have identified whether the property owner had already converted the property. It was taking into account the peculiar facts and circumstances in the case, the learned Single Judge has arrived at the conclusions. It is also clear from the counter affidavit filed by the appellants that red earth unloaded in the property in question was removed. It was taking into account the above background facts and the law that the learned Single Judge has quashed Ext. P6 order passed by the District Collector and held that W. A. No. 2199 of 2015 -10- the seizure itself is illegal. Taking into account the facts, circumstances and the law, we do not think the appellants have made out a case for interference with the judgment of the learned Single Judge. However, we make it clear that, since the property is included in the data bank, without securing orders for removal of the property from the data bank in contemplation of the provisions of Act 2008, the property shall not be utilized for any other purposes by taking advantage of the judgment in question. Writ appeal is disposed of with the above observations. **Sd/S. MANIKUMAR CHIEF JUSTICE** **Sd/SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE