O R D E R
'CR'
THOMAS P JOSEPH, J.
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Crl.M.C.Nos.4915, 4916, 4917, 4918 and 4919 of 2010
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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
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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
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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
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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
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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
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"(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
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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
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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/-
