Allowed

Asharaf & Another v. the State of Kerala & Anr.

Kerala HC2 Jun 2011Crl.MC/1275/2011

Case brief

AI extract

What is this about?

Courts quashed criminal proceedings against accused for alleged land conversion under the Kerala Conservation of Paddy Land and Wet Land Act. The court held that prosecution is not maintainable under Section 23 of the Act because the mandatory data bank under Section 5(4)(i) had not been notified at the time of the alleged offences.

What did the court decide?

Cognizance and proceedings in C.C. Nos. 207, 4, and 30 of 2010 in Chief Judicial Magistrate Court, Manjeri were quashed.

Asharaf & Another Vs the State of Kerala & Anr. — Property and Title | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH

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THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933

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Crl.MC.No. 1275 of 2011()

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------------------------------CC.207/2010 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI

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PETITIONER(S): ACCUSED

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

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1. ASHARAF, S/O. MOIDEEN HAJI, KAPPURATH HOUSE, CHERAVANNUR, VALAVANNUR, PARAMMALANGADI.P.O, MALAPPURAM DISTRICT.

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2. FATHIMA, W/O. ASHARAF, KAPPURATH HOUSE, CHERAVANNUR, VALAVANNUR, PARAMMALANGADI.P.O, MALAPPURAM DISTRICT.

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BY ADVS. SRI.BABU S. NAIR SRI.K.RAKESH

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RESPONDENT(S): STATE AND COMPLAINANT

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

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1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.

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2. M.P. KALYANIKUTTY, THE REVENUE DIVISIONAL OFFICER, TIRUR, MALAPPURAM DISTRICT - 676 101.

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R1 BY PUBLIC PROSECUTOR SRI.MANU

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/06/2011, ALONG WITH CRMC NO. 1276 OF 2011, CRMC. NO.1320/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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svs

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THOMAS P. JOSEPH, J.

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Crl.M.C. Nos.1275, 1276 & 1320 of 2011

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Dated this the 2^nd day of June, 2011.

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ORDER

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Since common questions of law are involved in all these cases, same are disposed of by a common order.

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In all these cases, complaints preferred by the second respondent against respective petitioners before learned Chief Judicial Magistrate, Manjeri for violation of Section 3 of the Kerala Conservation of Paddy Land and Wet Land Act (for short, “the Act”) are challenged on the ground that no data bank has been prepared or published as required under Section 5(4)(i) of the Act. It is contended by learned counsel for petitioners that in that situation complaints are not maintainable and the learned Chief Judicial Magistrate was not correct in taking cognizance of the alleged offence in view of the decision of this Court in

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Firose v. Revenue Divisional Officer (2011 (1) KLT 868) . I have

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heard learned Public Prosecutor also.

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In Crl.M.C.No.1275 of 2011 Annexure-A, complaint was filed by the second respondent on 12.10.2010 alleging that land in question was converted in violation of Section 3 of the Act. Learned Chief Judicial Magistrate took

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Crl.MC Nos.1275, 1276 and 1320/2011

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cognizance of the offence and filed C.C.No.207 of 2010. Learned Public prosecutor has submitted that data bank has not been published with respect to the land involved in that case till date of his getting instruction (17.05.2011).

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In Crl.M.C.No.1276 of 2011 Annexure-A, complaint was filed by the second respondent on 04.01.2010 alleging that the land in question was converted on 03.12.2009 in violation of Section 3 of the Act. Learned Chief Judicial Magistrate took cognizance of the offence and filed C.C.No.4 of 2010. Learned Public prosecutor has submitted that the data bank has not been published with respect to the land involved in that case till date of his getting instruction (02.05.2011).

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In Crl.M.C.No.1320 of 2011 Annexure-A, complaint was filed by the second respondent on 02.2.2010 alleging that land in question was converted on 05.01.2010 in violation of Section 3 of the Act. Learned Chief Judicial Magistrate took cognizance of the offence and filed C.C.No.30 of 2010. Learned Public prosecutor on getting instruction submitted that though data bank was prepared on 18.09.2010 and it was submitted for Gazette notification it has not been published till 02.05.2011 (date of getting instruction).

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Crl.MC Nos.1275, 1276 and 1320/2011

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Thus, it is revealed that in all these cases data bank had not been published as on the date of alleged conversion or even as on date of filing complaints. In the decision referred supra, this Court pointed out that though for restoration or other purposes referred to in the Act publication of data bank is not required, a prosecution under Section 23 of the Act would lie only if conversion is made of the land notified (under Section 5(4) of the Act). Under Section 5(4)(i) of the Act, the local committee formed for the purpose shall prepare data bank with details of the cultivable paddy land and wet land within the area of jurisdiction of such committee and data bank shall be notified by the Panchayat/Municipality/Corporation concerned in such manner as may be prescribed and exhibit the same for information of the Public in the respective Panchayat/Municipality/Corporation Office and in the Village Office/Offices. In the absence of notification published as may be prescribed as required under Section 5(4)(i) of the Act a prosecution cannot stand. The decision referred supra applies to the facts of the present cases as well.

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Since as I stated above, on the date of alleged conversion data bank has not been notified in the manner prescribed, prosecution against petitioners cannot stand. In that view of the matter learned Chief Judicial Magistrate was not correct in taking cognizance of the offences attributed to the petitioners.

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Crl.MC Nos.1275, 1276 and 1320/2011

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Resultantly these Criminal Miscellaneous Cases are allowed in the following lines:

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i. The cognizance taken and proceeding against petitioners(in Crl.M.C.No.1275 of 2011) in C.C.No.207 of 2010 of the court of learned Chief Judicial Magistrate, Manjeri are quashed.

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ii. The cognizance taken and proceeding against petitioners(in Crl.M.C.No.1276 of 2011) in C.C.No.4 of 2010 of the court of learned Chief Judicial Magistrate, Manjeri are quashed.

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iii. The cognizance taken and proceeding against petitioners(in Crl.M.C.No.1320 of 2011) in C.C.No.30 of 2010 of the court of learned Chief Judicial Magistrate, Manjeri are quashed.

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THOMAS P.JOSEPH, Judge.

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cks

Asharaf & Another v. the State of Kerala & Anr.

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Asharaf & Another v. the State of Kerala & Anr.

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