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2022 Supreme(Online)(KER) 51603
HIGH COURT OF KERALA
N. NAGARESH, J
DEEPU.D – Appellant
Versus
THE DISTRICT COLLECTOR – Respondent
WP(C)/15957/2022
R.SUNIL KUMAR, A.SALINI LAL
The court clarified that only specific uses of unnotified land require permission from authorities, thereby invalidating the seizure of a vehicle used on land not classified under the Act.
Headnote:
Seizure - JCB Excavator - Kerala Conservation of Paddy Land and Wetland Act, 2008 - Sections 2(i), 3(1), 19(1), 27A - The court ruled the seizure of the JCB was illegal as no violation occurred regarding unnotified land utilization, reinforcing the necessity of official permission only for specific uses outlined in Section 27A.
Fact of the Case:
The petitioner sought to quash the District Collector's order confiscating his JCB Excavator, seized for alleged violations of the Kerala Conservation of Paddy Land and Wetland Act, claiming the land where it was used was unnotified and not subject to the Act's prohibitions.
Finding of the Court:
The court found that the land was indeed garden land and not subject to the Act's prohibitions. The act of depositing soil on unnotified land did not constitute a violation of the required permissions under the Act, rendering the seizure illegal.
Issues: Whether the seizure of the JCB was justified under the Kerala Conservation of Paddy Land and Wetland Act for utilizing unnotified land without permission.
Ratio Decidendi: Permission from the Revenue Divisional Officer is only required under Section 27A if an unnotified land is to be used for residential or commercial purposes, not for its existing unnotified use.
Final Decision: The writ petition is allowed, and the confiscation of the JCB is set aside.
JUDGMENT
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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 inKaipadath 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 con
