Allowed

The District Collector, v. M/S. Amity Rock Products

Kerala HC19 Nov 2021WA/1421/2021

Case brief

AI extract

What is this about?

This bench set aside the judgment of the Single Judge which had quashed proceedings under Section 19 of the Kerala Conservation of Paddy Land and Wetland Act, 2008. The court held that the 'deemed to have been used' provision allows authorities to proceed on reasonable belief, leaving factual inquiries to the fact-finding authority.

What did the court decide?

The judgment of the learned Single Judge was set aside and the writ petition was dismissed.

The District Collector, Vs M/S. Amity Rock Products — Land Acquisition | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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FRIDAY, THE 19^TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943

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WA NO. 1421 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 23829/2020 OF HIGH COURT OF KERALA, ERNAKULAM

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APPELLANTS/RESPONDENTS IN THE WPC:

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1 THE DISTRICT COLLECTOR,

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KOTTAYAM, COLLECTORATE, KOTTAYAM-686 002.

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2 THE VILLAGE OFFICER,

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PANACHIKKAD VILLAGE OFFICE, KOTTAYAM, PIN -686 533.

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BY SR. GOVERNMENT PLEADER SRI.V.TEKCHAND

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RESPONDENT/PETITIONER IN THE WPC:

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M/S. AMITY ROCK PRODUCTS,
THOTTATHUMKUZHI, CHUNKAPARA P.O., RANNI,

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PATHANAMTHITTA, REPRESENTED BY ITS MANAGING DIRECTOR,
ABRAHAM K. THOMAS.

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SRI. PHILIP J VETTICKATTU FOR RESPONDENT.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.11.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.No.1421 of 2021

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JUDGMENT

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Dated this the 19^th day of November, 2021

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Shaji P. Chaly, J.

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This appeal is preferred by the respondents in W.P. (C)No.23829 of 2020 challenging the judgment of the learned single Judge dated 08.01.2021 whereby the proceedings initiated against the petitioner under Section 19 of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short ‘Act 2008’) was quashed basically holding that as per the statutory provision, the powers can be invoked only if the vehicle has been used for the purpose of reclamation of paddy land or wetland. It is thus challenging the legality and correctness of the judgment of the learned single Judge, the appeal is preferred. The brief material facts for the disposal of the writ appeal are as follows:

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Writ petitioner/respondent is the registered owner of a tipper lorry bearing registration No.KL-28/B-7659. The 2^nd

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appellant has prepared Exhibit P2 mahazar stating that the vehicle belonging to the petitioner was used in violation of

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W.A.No.1421 of 2021

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the provisions of the Act 2008 and filled up a portion of a paddy land, situated within the jurisdiction of the village in question. A hearing notice dated 21.10.2020 was issued from the office of the first appellant ie. the District Collector, Kottayam in respect of the allegations made in the mahazar prepared by the Village Officer. It was thus challenging the legality and correctness of the proceedings initiated by the appellants, the writ petition was preferred.

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The learned single Judge, after hearing the parties,

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was of the opinion that a vehicle cannot be seized or confiscated merely on an apprehension that the transportation of red earth in the vehicle is for reclamation of paddy land or wetland. It was also observed that going by the provisions of section 19, a vehicle can be seized only if the same is deemed to have been used for any activity in contravention of the provisions of Act 2008. Therefore, according to the learned single Judge, it means the vehicle must have been actually used for reclamation of any paddy land or wetland, but if the vehicle has not been used so far for

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W.A.No.1421 of 2021

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reclamation activity, such vehicle cannot be proceeded under section 19 of Act 2008. It is also observed in the judgment that as per the mahazar, the vehicle was seized on the apprehension that the vehicle was transporting red earth for the purpose of reclamation of paddy land. It was further found that the report of the Village Officer, produced along with a memo by the Government Pleader, also shows that the vehicle was seized near to the converted land.

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We have heard the learned Senior Government Pleader Sri.V.Tekchand appeared for the appellants and the learned counsel Sri.Philip J. Vettickattu appeared for the respondent/writ petitioner and perused the pleadings and the materials on record.

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The paramount contention advanced by the learned Senior Government Pleader is that the judgment of the learned single Judge is contrary to the facts and against the provisions of Act 2008; learned single Judge was not right in finding that the vehicle was not actually used to fill up the paddy land and further submitted that the property

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W.A.No.1421 of 2021

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comprised in Sy.No.581/Part of Panachikkad Village is included as paddy field in the data bank prepared by the Local Level Monitoring Committee. It was also contended that the owner of the paddy land has filled up the paddy land for the construction of a road, which is quite discernible from Annexure-I photographs produced along with the writ appeal. It was also submitted that the statutory authority under the Act 2008, namely the District Collector, has proceeded against the owner of the paddy field as per section 11 of Act 2008 and has passed Annexure-II order dated 23.12.2020 directing to restore the paddy field to its original position by invoking the powers conferred apparently under Section 18 of Act 2008 and in the said order it is clearly specified that vehicle No.KL28/B-7659 belonging to the writ petitioner was found unloading soil on the side of the pathway leading to the pond and the lorry was seized. It is further stated in the said order that Sri.Murali representing Amity Rock Products ie. the writ petitioner has stated that Amity is a sister concern of Begorra and the vehicle in question is owned by them. The Village

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W.A.No.1421 of 2021

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Officer, Panachikkad in the mahazar has stated that the vehicle was taken into custody when the same was unloading soil at the paddy land after unloading two other loads on the pathway leading to the pond constructed under Jalanidhi Project.

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Apart from the same, it is stated that at the time of inspection, soil was seen unloading in the said paddy field and it was accordingly that the District Collector had issued notice dated 04.04.2018 to the owner of the paddy field. Therefore, according to the appellants, the quashing of the hearing notice by the learned single Judge cannot be sustained under law. On the other hand, learned counsel appearing for the writ petitioner submitted that the learned single Judge was right in quashing the proceedings since going by the mahazar as well as the notice of hearing, it is clear that the Village Officer has only found the vehicle loaded with red earth and unless and until there was clear proof that the vehicle was deemed to have been used for any activity in contravention of the provisions of Act 2008 and a report regarding such seizure

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W.A.No.1421 of 2021

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alone, the seizure proceedings can be initiated by the District Collector. In order to understand the real and true implication of section 19, it is extracted hereunder:

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“ 19. Power of entry and seizure .- (1) Any officer of the Revenue Department not below the rank of Village Officer or any Officer authorised by the Government in this behalf or any police officer not below the rank of a Sub-Inspector, with a view to ensure the compliance of the provisions of this Act, may enter and search any premises and seize any vessel, vehicle or any other conveyance or any clay, sand, earth etc., removed from the paddy land or wetland or any brick, tile made of all or any of them or machinery used or deemed to have been used for any activity in contravention of the provisions of this Act, and a report regarding such seizure, whether prosecution proceedings have been initiated or not, shall be given to the District Collector having jurisdiction over that area within forty eight hours of such seizure.

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(2) The provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) relating to search and seizure shall, so far as may be, apply to search and seizure under this Act.”

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On an analysis of section 19, it is clear that any officer

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of the Revenue Department not below the rank of a Village Officer or any officer authorised by the Government or any

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W.A.No.1421 of 2021

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police officer not below the rank of a Sub-Inspector in order to ensure compliance of the provisions of the Act may enter and search any premises and seize any vessel, vehicle or any other conveyance or any clay, sand, earth, etc. removed from the paddy land or wetland or any brick, tile made of all or any of them or machinery used or deemed to have been used for any activity in contravention of the provisions of the Act 2008, can be seized by the concerned officer. Which thus means the authorised officer need be satisfied at that stage of the proceedings that there is every likelihood of a particular vehicle used for filling up the paddy field, or else the phraseology “deemed to have been used” ought not have found a place in Section 19 of Act 2008. To put it otherwise the terminology “deemed”, a legal fiction is incorporated in the provision with the intention of empowering the statutory authority to proceed to take action in contemplation of law on a reasonable belief and justifiable inference that prima facie one has committed the illegal action to circumvent the imperative provisions of the statute.

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W.A.No.1421 of 2021

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On a reading of the mahazar prepared by the Village

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Officer in vernacular, it is clear that the Village Officer was satisfied that the vehicle in question was used for filling up of paddy fields. Apart from stating that, earlier the paddy field in question was filled up with red earth, it is further stated that, it is over and above that the two loads of red earth are seen unloaded afresh. Whatever that be, the truth and veracity of the matter contained under the proceedings in question is a clear factual circumstance to be deciphered by a fact finding body after analysing the evidence and hearing respective parties. Added to that, Annexure-II proceedings of the District Collector, Kottayam dated 23.12.2020 issued against the owner of the paddy field shows that respective parties were heard including representative of the respondent/writ petitioner and has arrived at the conclusion that the vehicle in question was taken into custody when the same was about to unload soil at the paddy land after unloading two other loads on the pathway leading to the pond constructed under Jalanidhi Project. Above all,

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provisions of Sections 19 and 20 of Act 2008 are self contained ones having its own characteristic features for adjudication and confiscation after providing opportunity to an aggrieved person, apart from the right of appeal under Section 21 of the Act to the jurisdictional District Court, which is empowered to pass such order either confirming, amending or annulling the order appealed against.

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After having assimilated the factual and legal situation, we are of the definite opinion that the subject issue ought to have been left to the consideration of the fact finding authority as per the provisions of Act 2008. Therefore, interference is required to the judgment of the learned single Judge.

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Accordingly, we set aside the judgment of the learned single Judge and dismiss the writ petition. However, we make it clear that the observations and findings rendered above are in order to arrive at the right conclusions on the basis of the rival submissions made at the Bar, and the statutory authority shall consider all the contentions

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W.A.No.1421 of 2021

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advanced by the respondent/writ petitioner untrammelled by any observations contained in this judgment, and take a decision dispassionately and independently, in accordance with law, and taking into account the evidence adduced and the pleadings put forth by the rival parties.

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Writ appeal is allowed.

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Pending interlocutory applications, if any, shall stand closed.

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Sd/- S.Manikumar Chief Justice

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Sd/-

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Shaji P.Chaly Judge

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vpv

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W.A.No.1421 of 2021

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APPENDIX OF WA 1421/2021

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PETITIONER ANNEXURES

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Annexure IPHOTOGRAPHS SHOWING THE ILLEGAL FILLING
UP OF THE PADDY LAND.
Annexure IITRUE COPY OF THE ORDER IS PASSED BY THE
DISTRICT COLLECTOR DATED 23/12/2020.

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//TRUE COPY//

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P.A. TO JUDGE

The District Collector, v. M/S. Amity Rock Products

Case brief

What is this about?

What did the court decide?

The District Collector, v. M/S. Amity Rock Products

Case brief

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What did the court decide?

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