Kerala High Court
Mundavalappil Rukhiya vs Revenue Divisional Officer on 17 June, 2011
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1476 of 2011()
1. MUNDAVALAPPIL RUKHIYA,
... Petitioner
Vs
1. REVENUE DIVISIONAL OFFICER,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.P.VENUGOPAL (1086/92)
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :17/06/2011
O R D E R
THOMAS P. JOSEPH, J.
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Crl.M.C. No.1476 of 2011
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Dated this the 17th day of June, 2011.
ORDER
Petitioner is accused in C.C.No.209 of 2010 of the court of learned Chief Judicial Magistrate, Manjeri (for short, "the CJM") for offence punishable under Section 23 of the Kerala Conservation of Paddy Land and Wet Land Act (for short, "the Act"). The CJM has taken cognizance on Annexure-A, complaint preferred by first the respondent. It is alleged that petitioner converted 11.46 cents of paddy land in R.S.No.23/3 of Thalakkad Village without authority and thus committed offence as above stated. Petitioner requests to quash proceeding against him contending that even on the date of complaint (06.08.2010) no data bank has been prepared or published as required under Section 5(4)(i) of the Act. It is contended by learned counsel that in that situation a complaint is not maintainable and the learned CJM was not correct in taking cognizance of the alleged offence in view of the decision of this Court in Firose v. Revenue Divisional Officer (2011 (1) KHC 615).
2. Learned Public prosecutor after getting instruction has submitted that draft data bank (inviting objections) was published on 18.09.2010 as required under the Act but the final data bank has not been published so far. Annexure-A, complaint is dated 06.08.2010 and filed on 20.10.2010 and going by the records produced along with Annexure-A, complaint, alleged conversion was in May 2, 2010.
Crl.MC No.1476/2011 2
3. In the decision referred supra it is held that though for other purposes mentioned in the Act like restoration of the land in question publication of data bank as required under Section 5(4)(i) of the Act is not required, in the matter of prosecution under Section 23 of the said Act, such a publication in the manner prescribed is mandatory. This Court has held that in the absence of such publication prosecution under Section 23 of the Act cannot stand.
4. In the present case alleged conversion was in May 2, 2010, complaint is dated August 6, 2010 and filed in the court on October 20, 2010 while the draft data bank was published (inviting objections) on September 18, 2010 and the final data bank has not so far been published. If that be so prosecution against petitioner cannot stand, cognizance taken is illegal and is liable to be quashed.
Resultantly this Criminal Miscellaneous Case is allowed. Annexure-A, complaint, cognizance taken and proceeding against petitioner in C.C.No.209 of 2010 of the court of learned Chief Judicial Magistrate, Manjeri are quashed.
THOMAS P.JOSEPH, Judge.
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