Kerala High Court
Usman vs State Of Kerala on 30 May, 2011
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1151 of 2011()
1. USMAN, S/O,.MOHAMMED MUSLIAR
... Petitioner
Vs
1. STATE OF KERALA,REPRESENTED BY THE
... Respondent
2. THE REVENUE DIVISIONAL OFFICER
For Petitioner :SRI.K.K.MOHAMED RAVUF
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :30/05/2011
O R D E R
THOMAS P JOSEPH, J.
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Crl.M.C.No.1151 of 2011
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Dated this 30th day of May, 2011
ORDER
Petitioner is accused in C.C.No.208 of 2010 of the Court of learned Chief Judicial Magistrate, Manjeri facing trial for offence punishable under Sec.3 r/w Sec.23 of the Conservation of Paddy Land and Wet Land Act, 2008 (Kerala) (for short, "the Act"). Learned Magistrate took cognizance of the said offence on a complaint preferred by the second respondent, the Revenue Divisional Officer who is otherwise the officer authorised to prefer a complaint. Petitioner seeks to quash proceeding against him on the contention that even as on the date of filing of complaint (12-10-2010), no data bank including the land in question had been notified in the manner prescribed and hence in the light of the decision in Firose Vs. Revenue Divisional Officer (2011(1) KLT 868) the complaint against petitioner is not maintainable. Learned counsel contended that nowhere in the complaint it is stated when actually the offence was allegedly committed and whether data bank was prepared and notified as required under Sec.5(4)(i) of the Act and Rule 4(2)(b) of the Conservation of Paddy Land and Wet Land Rules (Kerala) (for Crl.M.C.No.1151 of 2011 -: 2 :- short, "the Rules"). Learned Public Prosecutor has submitted after getting instruction that the local monitoring committee was constituted on 22-10-2009 which prepared a data bank and a draft notification of the data bank was handed over to the Panchayath Secretary on 15.12.2009. Learned Public Prosecutor submitted that so far the notification has not been published.
2. In Firose Vs. Revenue Divisional Officer (supra) this Court, referring to the provision of Sec.5(4)(i) of the Act held that prosecution under the Act can stand only if conversion was after notification was published in whatever manner it is prescribed. Reference was also made to Sec.5(4)(i) of the Act which states that data bank shall be prepared and got notified by the Panchayath/Municipality/Corporation concerned in such manner as may be prescribed. Learned counsel has invited my attention to Rule 4(2)(b) of the Rules where it is stated that draft notification has to be finalised only after inviting objections.
3. It is not disputed that even as on the date of complaint, notification referred to in Sec.5(4)(i) of the Act has been published in any manner prescribed. If that be so, in the light of the decision referred supra and the relevant provisions of the Act and Rules which I have referred above, cognizance taken by the learned Magistrate is illegal and is liable to be quashed. Crl.M.C.No.1151 of 2011 -: 3 :-
Resultantly this criminal miscellaneous case is allowed. Cognizance taken and proceeding against petitioner in C.C.No.208 of 2010 of the Court of learned Chief Judicial Magistrate, Manjeri are quashed.
(THOMAS P JOSEPH, JUDGE) Sbna/-