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  Judgement - 11KLC-3896
 
   
   
 

Thomas P.Joseph
friday,11th day of February 2011/22nd Magha 1932

Party Array / Case No.


 

 

1. FIROSE, S/O. VALLUVAMBALI MUHAMMEDALI

                      ...  Petitioner

 

                        Vs

 

 

 

1. REVENUE DIVISIONAL OFFICER,

                       ...       Respondent

 

2. STATE OF KERALA, REPRESENTED BY

Judgement



     

     O R D E R

                                                                       'CR'

     

                       THOMAS P JOSEPH, J.

     

                      ----------------------------------------

     

       Crl.M.C.Nos.4915, 4916, 4917, 4918 and 4919 of 2010

     

                      ---------------------------------------

     

                 Dated this 11th day of February, 2011

     

                                    ORDER

     

          Question raised for a decision in these proceedings at the

     

    instance of the accused is whether in the absence of the

     

    notification contemplated under Sec.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 Sec.23 of the said Act?.

     

          2.   Petitioners     own     paddy      lands    within  the local

     

    jurisdiction of jurisdiction of the Revenue Divisional Officer,

     

    Perinthalmanna.     The said officer preferred complaints before

     

    learned   Chief    Judicial    Magistrate,      Manjeri    alleging that

     

    petitioners in violation of the prohibition contained in Sec.3 of the

     

    Act converted their paddy lands and hence are liable to be

     

    punished under Sec.23 of the said Act. Annexure-B in these

     

    proceedings are copy of those complaints. Based on those

     

    complaints learned Chief Judicial Magistrate took cognizance of

     

    the said offence, filed C.C.Nos.19 to 22 and 34 of 2010 and

     

    issued process to the petitioners. Petitioners have approached


     

    Crl.M.C.Nos.4915, 4916, 4917, 4918 and 4919 of 2010

                                         -: 2 :-

     

    this Court to quash proceedings against them contending that at

     

    the time paddy lands were allegedly converted, no notification

     

    had been published as required under Sec.5(4)(i) of the Act and

     

    hence whatever may be the power of the Government for

     

    reconversion of the land as provided under the Act, a prosecution

     

    would not lie against petitioners. Learned counsel for petitioners

     

    have referred me to the relevant provisions of the Act and placed

     

    reliance on the decision of this Court Kaipadath Property

     

    Development Company (P) Ltd Vs. State of Kerala (2011(1)

     

    KLT 526) where it is observed in paragraph 42 that the

     

    notification (under Sec.5(4)(i) of the Act) will be a condition

     

    precedent for the applicability of certain provisions of the Act.

     

          3.    Replying to the averments in the petitions, the first

     

    respondent has sworn a counter affidavit in Crl.M.C.No.4915 of

     

    2010. Learned Public Prosecutor requested that the same may

     

    be read in answer to the allegations in the other petitions as well.

     

    In the counter affidavit, apart from averring that petitioners have

     

    converted their paddy lands in violation of Sec.3 of the Act it is

     

    stated that the Act came inot force with effect from August 12,

     

    2008, a local monitoring committee was constituted as required

     

    under Sec.5(4)(i) of the Act on December 14, 2010 vide order

     

    No.B4-49519/08 of the District Collector, Malappuram and that


     

    Crl.M.C.Nos.4915, 4916, 4917, 4918 and 4919 of 2010

                                         -: 3 :-

     

    Data bank was prepared by the monitoring committee and

     

    published on September 30, 2010 in Kalikavu Grama Panchayath

     

    and Vellayur Village (within the limits of which admittedly the

     

    lands in question come). In paragraph 9 of the counter affidavit it

     

    is contended that after commencement of the Act, (ie from

     

    August 12, 2008 onwards) conversion of paddy land to dry land

     

    is totally prohibited and from the date of commencement of the

     

    Act onwards the first respondent, Revenue Divisional Officer

     

    being the authorised officer is competent to lodge complaint in

     

    the Criminal Court against persons who convert paddy lands

     

    without permission as per provisions of the Act. It is therefore

     

    contended that initiation of prosecution against petitioners is

     

    valid and is not required to be interfered. I have heard learned

     

    Public Prosecutor also in the matter. Learned Public Prosecutor

     

    pointed out the laudable object behind enactment of the Act and

     

    the object it is intended to achieve by making stringent provisions

     

    in the Act including penal provisions. Learned Public Prosecutor

     

    wanted me to bear in mind the said aspects while interpreting

     

    the relevant provisions of the Act to hold whether the complaints

     

    are maintainable.

     

          4.    No doubt the Act has a laudable object as is revealed

     

    from its preamble. It is stated that the Act is made to conserve


     

    Crl.M.C.Nos.4915, 4916, 4917, 4918 and 4919 of 2010

                                         -: 4 :-

     

    paddy land and wet land and restrict conversion or reclamation

     

    thereof, in order to promote agricultural growth, to ensure food

     

    security and to sustain the ecological system in the State of

     

    Kerala. The statement of objects and reasons of the Act states

     

    that there has been alarming shift from rice and subsistence food

     

    farming to cash crops.          The area under rice cultivation has

     

    drastically declined from above 8 lakhs hectares in the early

     

    1970's to nearly 2 lakhs hectares in 2000s mainly due to

     

    conversion of paddy land, Kerala is importing more than 80% of

     

    its rice requirements from other states and that it is as a

     

    remedial measure to prevent such consequences that the Act is

     

    enacted.

     

          5.     A penal provision is required to be construed strictly

     

    for, it visits the person concerned with penal consequences. The

     

    rule of strict interpretation of a penal statute can be said to be

     

    not rigid or universal application if it leads to absurd results. It is

     

    apposite to refer to the relevant provisions of the Act. Under

     

    Sec.3 and 11 there is a total prohibition of conversion or

     

    reclamation of paddy land and wet land, respectively subject of

     

    course to the exceptions provided thereunder.         Secs.13 to 20

     

    empower the authorities concerned with remedial measures

     

    when there is a violation of the prohibitions under Secs.3 and 11.


     

    Crl.M.C.Nos.4915, 4916, 4917, 4918 and 4919 of 2010

                                         -: 5 :-

     

    I am now concerned with Sec.23 of the Act which reads:

     

             "Any person who in violation of the provisions of

     

             this Act converts or reclaims any paddy land or

     

             wetland notified under sub-section (4) of Sec.5,

     

             shall     on    conviction       be    punishable with

     

             imprisonment for a term which may extend to two

     

             years but shall not be less than six months and with

     

             fine which may extend to one lakh rupees but shall

     

             not be less than fifty thousand rupees."

     

          6.    It is the contention of learned counsel for petitioners

     

    that a penal consequence when there is a conversion of paddy

     

    land or wet land in violation of Secs.3 or 11 would arise only if

     

    such land had been notified in the manner prescribed, be it by

     

    publication in the Gazette or otherwise as required under Sec.5

     

    (4)(i) of the Act. Sec.5 of the Act states that there shall be a

     

    Local Level Monitoring Committee in each Panchayat or

     

    Municipality, consisting of members specified in Sub Sec.(2), for

     

    the purpose of monitoring implementation of provisions of the

     

    Act. Sub Sec.(4) states that the Committee shall perform the

     

    functions enumerated therein. I quote Sec.(4)(i) (which alone is

     

    relevant for consideration in these proceedings) which is as

     

    under:


     

    Crl.M.C.Nos.4915, 4916, 4917, 4918 and 4919 of 2010

                                         -: 6 :-

     

            "(4) - The Committee shall perform the following

     

            functions, namely:-

     

                   (i)   to prepare the Data-bank with the

     

            details of the cultivable paddy land and wetland,

     

            within the area of jurisdiction of the Committee,

     

            with the help of the map prepared or to be

     

            prepared by the State Land Use Board or Centre-

     

            State Science and Technology institutions on the

     

            basis of satellite pictures by incorporating the

     

            survey numbers and extent in the data bank and

     

            get      it     notified     by      the   concerned

     

            Panchayat/Municipality/Corporation,         in  such

     

            manner as may be prescribed, and exhibit the

     

            same for the information of the public, in the

     

            respective Panchayath/Municipality/Corporation

     

            Office and in the Village Office/Offices:"

     

    The said provision informs me that the committee has to prepare

     

    the Data bank with details of cultivable paddy land and wet land

     

    within the area of its jurisdiction in the manner provided therein

     

    and       "get        it       notified        by     the   concerned

     

    Panchayat/Municipality/Corporation, in such manner as may be

     

    prescribed, and exhibit the same for the information of the public,

     

    in the respective Panchayath/Municipality/Corporation Office and

     

    in the Village Office/Offices". In the present case complaints were

     

    preferred against petitioners on January 26, 2010 alleging that

     

    conversion came to the notice of the authorities concerned on

     

    October 26, 2009. Paragraph 6 of the counter affidavit of the first


     

    Crl.M.C.Nos.4915, 4916, 4917, 4918 and 4919 of 2010

                                         -: 7 :-

     

    respondent states that the "Data bank was prepared by the

     

    monitoring committee and published on 30.09.2010". Learned

     

    Public Prosecutor has an argument that it is not necessary that the

     

    notification should be published in the Official Gazette. Without

     

    going into the acceptability of that contention and assuming so,

     

    there is nothing brought on record, not to say it is not mentioned in

     

    the counter affidavit also that there was publication of the

     

    notification in any manner whatsoever on any day prior to

     

    September 30, 2010.          Even on the admitted case of the first

     

    respondent, alleged detection of conversion of paddy lands was on

     

    October 26, 2009 in which case I am persuaded to think that the

     

    alleged conversion was on or before October 26, 2009. In other

     

    words, conversion in these cases were before the notification dated

     

    September 30, 2010.

     

          7.    Now the question is whether in the light of the above,

     

    prosecution against petitioners could stand. I stated from Sec.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-sec (4) of Sec.5". Reason persuades me

     

    to hold that notwithstanding whatever power is vested with the

     

    authorities concerned for reconversion of the land under Secs.13 to

     

    20 of the land whether or not there is a notification, so far as


     

    Crl.M.C.Nos.4915, 4916, 4917, 4918 and 4919 of 2010

                                         -: 8 :-

     

    prosecution is concerned, it could be initiated only with respect 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 Sec.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

     

    Sec.5(4)(i) of the Act is intended to provide protection to the

     

    landowner.

     

           8.   I found that so far as these cases are concerned the

     

    alleged conversions were before the notification dated September

     

    30, 2010. In the light of the interpretation I have given to Sec.23 of

     

    the Act, prosecution against petitioners cannot stand.

     

           Resultantly these petitions are allowed and Annexure-B,

     

    complaints in C.C.Nos.19 to 22 and 34 of 2010, cognizance taken

     

    thereon and all further proceeding taken by the learned Chief

     

     

    Judicial Magistrate, Manjeri against petitioners are quashed.

     

     

     

     

                                      (THOMAS P JOSEPH, JUDGE)

     

    Sbna/-



     
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