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IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.Nagaresh, J.
Deepu.D S/o. Divakaran - Appellant
Vs.
The District Collector Collectorate, Kollam - Respondent
WP(C) NO. 15957 Of 2022
Decided On : 19-07-2022
Kerala Conservation of Paddy Land and Wetland Act, 2008 - Section 5(4), 2(i), 27A, (1), B,C, 19(1), 3(1), 2(xii), 11, 3 - Amendment Act 29 of 2018 - Kerala Panchayat Raj Act, 1994 - Kerala Municipality Act, 1994 - JCB Seized - Custody of Vehicle - Whether petitioner's JCB has been used or deemed to have been used for any activity in contravention of provisions of Act – The act of the land owner in unloading or depositing ordinary earth/black earth in his unnotified land which is used as a garden land without the permission of the Revenue Divisional Officer, cannot be treated as violation of Section 27A for the reason that the land owner has not used the land for residential or commercial or for other purpose. The seizure and confiscation of the petitioner's JCB Excavator is therefore illegal. (Para 29)
Finding of the court: In case of petitioner, land owner concerned is alleged to have deposited 15 loads of earth in his land, which admittedly is an un notified land and is a garden land with standing trees - Act of land owner in unloading or depositing ordinary earth/black earth in his unnotified land which is used as a garden land without permission of Revenue Divisional Officer, cannot be treated as violation of Section 27A for reason that land owner has not used land for residential or commercial or for other purpose - Seizure and confiscation of petitioner's JCB Excavator is therefore illegal - For facts and reasons stated above, Ext.P6 is set aside - 1st respondent is directed to give custody of JCB Excavator bearing registration to petitioner forthwith
Result: Petition allowed.
JUDGMENT :
The petitioner, whose JCB Excavator bearing registration No.KL-23U-6043 has been seized alleging violation of the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, is before this Court seeking to quash Ext.P6 order of the 1st respondent-District Collector and to direct the 1st respondent to give the interim custody of the vehicle to the petitioner.
2. The petitioner states that he used to let on hire the JCB to needy people, as a means of his livelihood. The JCB was used to clear bushes in a land in Clappana Village, on 19.03.2022. The 3rd respondent-Village Officer came to the spot and seized the JCB stating that the land is 'Nilam' in Revenue records and the JCB was used to violate the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as “the Act, 2008”, for brevity).
3. The petitioner states that 7.69 Ares of land in Survey No.603/9-1 of Clappana Village where the JCB was used, is not included in the Data Bank and hence is an unnotified land. It, in fact, is a garden land with standing trees 20 year old. A report has not been forwarded to the 1st respondent-District Collector so far and the matter is still pending with the 2nd respondent-Tahsildar.
4. The petitioner filed W.P.(C) No.10778 of 2022 and this Court by Ext.P5 order on 31.03.2022 directed the 1st respondent to consider the petitioner’s request for interim custody of the JCB. The 1st respondent conducted a hearing and passed Ext.P6 order directing to confiscate the JCB, because the property where the JCB was used is shown as 'Nilam' in Revenue records.
5. The learned counsel for the petitioner would urge that since the land is admittedly an unnotified land, Ext.P6 is unsustainable. In Ext.P2 Mahazar, there is no allegation that the JCB was used to fill up a land included in the Data Bank. Even though in Revenue records the property is described as 'Nilam', as long as the land is not included in the Data Bank, no offence of converting the land can be sustained.
6. The counsel for the petitioner relied on the judgment of this Court in Sabu T.K. v. State of Kerala and others [2017 (2) KHC 610] and argued that even when a vehicle was seized alleging filling up of a notified land which was described as converted land in Data Bank, this Court held that there could be no proceedings initiated for violation of the provisions of the Act, 2008 since there was no filling up of paddy land or wetland.
7. The counsel for the petitioner further relied on the judgment in Kaipadath Property Development Company (Pvt.) Limited v. State of Kerala and others [2011 (1) KLT 526] wherein this Court has held that for any successful prosecution proceedings, there should be a notification under Section 5(4) of the Act, 2008 and the violation of the provisions of the Act by converting or reclaiming any such land notified alone, will lead to a conviction. In the petitioner’s case, the land is not notified and therefore there cannot be any prosecution or punishment.
8. The Senior Government Pleader opposed the writ petition. The JCB of the petitioner was seized when it was found converting a land which is classified as paddy land in Revenue records, pointed out the Government Pleader. Though the land in question is not included in the Data Bank, the Agricultural Officer was instructed to notify and include the said land in the Data Bank. The Kollam Sub Collector had already rejected an application for changing the nature of the said land in Revenue records.
9. Without obtaining any permit or authorisation, as many as 15 loads of earth were deposited in the land, stated the Government Pleader. The land has been illegally converted. Therefore, the landlord was directed to restore the land to its original position. The petitioner’s JCB was used for the illegal conversion. All procedural requirements were met and the petitioner was given an opportunity of hearing, before passing Ext.P6 order. The confiscation of the JCB of
The term 'other purpose' appearing in Section 27A can only mean any purpose other than the purpose for which the unnotified land is/was being used as on 30.12.2017, with effect from which date Sectio....
Point of law: Under Section 81(3) of Kerala Land Reforms Act, Government can exempt any holding from provisions of ceiling area, for public purpose.
The inquiry under Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act must focus solely on impacts to neighbouring paddy lands, disregarding irrelevant criteria for application reje....
Conversion of land - Commercial building - An order passed under Section 27A can be cancelled only in certain conditions mentioned in Section 27A(11).
Statutory authorities must act within their jurisdiction, and rejection of an application for land classification cannot rely on factors outside the scope of the inquiry defined in the relevant law.
The discretion of the District Collector in vehicle seizures under the Kerala Conservation Act allows for conditions in the release of third-party owned vehicles used in contravention of the law.
As per section 19 of Act, 2008, authorised officers are vested with powers of entry and seizure of the vehicles which had indulged in conversion of paddy fields.
Rule 12 of Rules 2008 deals with procedure for change of nature of un-notified land.
The Court confirms the District Collector's discretion in vehicle confiscation under the Kerala Conservation of Paddy Land and Wetland Act, emphasizing strict liability for third-party involvement.
When land is not included in the data bank, the District Collector has discretion under S.20 to release a seized vehicle subject to confiscation proceedings and without requiring cash deposit or bank....
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