The District Collector vs M/S. Amity Rock Products
2021 Latest Caselaw 22599 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
         THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                &
             THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
    FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943
                       WA NO. 1421 OF 2021
AGAINST THE JUDGMENT IN WP(C) 23829/2020 OF HIGH COURT OF KERALA,
                            ERNAKULAM


APPELLANTS/RESPONDENTS IN THE WPC:

    1      THE DISTRICT COLLECTOR,
           KOTTAYAM, COLLECTORATE, KOTTAYAM-686 002.

    2      THE VILLAGE OFFICER,
           PANACHIKKAD VILLAGE OFFICE, KOTTAYAM, PIN -686 533.

           BY SR. GOVERNMENT PLEADER SRI.V.TEKCHAND

RESPONDENT/PETITIONER IN THE WPC:

           M/S. AMITY ROCK PRODUCTS,
           THOTTATHUMKUZHI, CHUNKAPARA P.O., RANNI,
           PATHANAMTHITTA, REPRESENTED BY ITS MANAGING DIRECTOR,
           ABRAHAM K. THOMAS.

           SRI. PHILIP J VETTICKATTU FOR RESPONDENT.


     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.11.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.1421 of 2021
                                2


                          JUDGMENT

Dated this the 19th day of November, 2021

Shaji P. Chaly, J.

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:

2. Writ petitioner/respondent is the registered owner of

a tipper lorry bearing registration No.KL-28/B-7659. The 2 nd

appellant has prepared Exhibit P2 mahazar stating that the

vehicle belonging to the petitioner was used in violation of W.A.No.1421 of 2021

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.

3. The learned single Judge, after hearing the parties,

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 W.A.No.1421 of 2021

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.

4. 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.

5. 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 W.A.No.1421 of 2021

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.KL-

28/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 W.A.No.1421 of 2021

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.

6. 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 W.A.No.1421 of 2021

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:

"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.

(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."

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

of the Revenue Department not below the rank of a Village

Officer or any officer authorised by the Government or any W.A.No.1421 of 2021

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.

W.A.No.1421 of 2021

8. On a reading of the mahazar prepared by the Village

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, W.A.No.1421 of 2021

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.

9. 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.

10. 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 W.A.No.1421 of 2021

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.

Writ appeal is allowed.

Pending interlocutory applications, if any, shall stand

closed.

Sd/-

S.Manikumar Chief Justice

Sd/-

Shaji P.Chaly Judge vpv W.A.No.1421 of 2021

APPENDIX OF WA 1421/2021

PETITIONER ANNEXURES

Annexure I PHOTOGRAPHS SHOWING THE ILLEGAL FILLING UP OF THE PADDY LAND.

Annexure II TRUE COPY OF THE ORDER IS PASSED BY THE DISTRICT COLLECTOR DATED 23/12/2020.

//TRUE COPY//

P.A. TO JUDGE