IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 Crl.MC.No. 1332 of 2009(B) -------------------------------------- (CRIME NO. 1374/2008 OF VADAKARA POLICE STATION (KOZHIKODE DISTRICT) ...... PETITIONER: ------------------- V.R.KRISHNAN, AGED 71 YEARS, S/O.LATE CHEKKU, RESIDING AT SANTHI NILAYAM, NUT STREET, VADAKARA-673 104, KOZHIKODE DISTRICT. BY ADV. MR.T.P.M.IBRAHIM KHAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, VADAKARA, KOZHIKODE DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE TAHSILDAR, VADAKARA TALUK, VADAKARA, KOZHIKODE DISTRICT. R1 & R2 BY PUBLIC PROSECUTOR MR. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 1332 of 2009-B ================== Dated this the 4th day of June, 2009. O R D E R Petitioner is the owner of 40 cents of land in Re-survey No.1/6 B3 and 6C of Chorode Village of Vadakara Taluk, purchased under Annexure 2 Sale Deed dated 4-10-2008. This petition is filed under Section 482 of the Code of Criminal Procedure to quash Annexure 1 FIR in Crime No.1374/2008 registered by Sub Inspector of Police, Vadakara for the offences under Section 188 of Indian Penal Code and Section 7(1) of Essential Commodities Act read with Section 7(1) of Kerala Land Utilisation Order, 1967. Prosecution case is that inspite of an order prohibiting filling up of wet land, petitioner filled up wet land in violation of the provisions of the Kerala Land Utilisation Order and thereby committed the offences. Case of the petitioner is that he purchased the property only in 2008 Crl.M.C.No.1332/2009-B -2- and at that time of purchase the property contained 28 coconut tress aged 35 years and in such circumstances, he cannot be proceeded for violation of the provisions of Kerala Land Utilisation Order and hence Annexure 1 FIR and the proceedings are to be quashed. 2. Learned Counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned Counsel appearing for the petitioner pointed out that the Mahazer prepared by the Sub Inspector of Police seen along with Annexure 1 FIR itself establish that the property contained coconut tress aged above 15 years and there is no material to show that the property was being used for cultivating paddy within a period of three years prior to the date of initiation of proceedings and when petitioner himself purchased the property, which was reclaimed and planted with coconut trees, proceedings against the petitioner is only an abuse of process of Court and it is to be quashed. Crl.M.C.No.1332/2009-B -3- 4. Learned Public Prosecutor made available the case diary and submitted that case diary establish that inspite of the order of prohibition of reclamation of the property, petitioner filled up the wet land and hence the FIR cannot be quashed. 5. It is not disputed that petitioner purchased the 40 cents of property only in 2008 under Annexure 2 sale deed. The Mahazer establish that when the Sub Inspector inspected the property it was not a paddy field but part of a coconut garden, though a small portion was filled with water. The case diary made available by the Prosecutor shows that Sub Inspector found it difficult to decide whether it is a paddy field or a garden land because of the existence of coconut trees in the property as well as in the surrounding properties. He verified the records from the Village Office. Evidently as the original property was registered as wet land, it was concluded that it is a wet land and there is violation of the provisions in Rule 6 of Kerala Land Utilisation Order. Crl.M.C.No.1332/2009-B -4- 6. Rule 7 of Kerala Land Utilisation Order enables the District Collector, if it appears to the Collector that any person is attempting to contravene the provisions of sub- clause (1) or sub-clause (2) of Rule 6, to pass an order prohibiting that the land shall not be filled up. But Rule 6 makes it absolutely clear that to enable the District Collector to pass an order under Rule 7, the land should be used for cultivation of any food crops, for a continuous period of 3 years immediately before the commencement of the Land Utilisation Order. Rule 6(1) reads:- “6. Land cultivated with any food crop not to be cultivated with any other food crop.- (1) No holder of any land, which has been under cultivation with any food crop for a continuous period of three years immediately before the commencement of this Order, shall convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector.” The fact that the petitioner had purchased the reclaimed land, where coconut trees were cultivated at least 15 years back is absolutely clear from case diary. Therefore Crl.M.C.No.1332/2009-B -5- reclamation of paddy field was several years earlier to the purchase of the property by the petitioner. In the absence of any material to enable the District Collector to proceed under Rule 7, in the absence of satisfying the conditions provided under Rule 6, petitioner cannot be proceeded for violation of rules under Rule 6. If so he cannot be prosecuted for the violation of Rule 7 of the Order. If so, continuation of the proceedings is only an abuse of process of court. 7. The petition is allowed. Annexure 1 FIR in Crime No.1374/2008 of Vadakara Police Station against the petitioner is quashed. M.SASIDHARAN NAMBIAR JUDGE dkr