IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 Crl.MC.No. 907 of 2011() ------------------------------------ (CRIME NO.85/2011 OF AMBALAPPUZHA POLICE STATION,ALAPPUZHA) ............. PETITIONER(S): ACCUSED: ----------------------------------------- 1. SR.AGNUS,D/O.THOMAS,AGED 61 YEARS, THE PRINCIPAL CARMEL ENGLISH MEDIUM SCHOOL, THAKAZHY.P.O,ALAPPUZHA. 2. SR.JEESA MARIA,THE MANAGER, CARMEL ENGLISH MEDIUM SCHOOL,THAKAZHY.P.O, ALAPPUZHA. 3. SR.REEBA LEOMOL ANTONY,CARMEL CONVENT, THAKAZHY.P.O,ALAPPUZHA. 4. KOCHURANI EAPPEN,KULAKKATTUPARAMBA, THAKAZHY-ALAPPUZHA. 5. ROSAMMA VARGHESE,ALAMPALLY,KUNNUMMA, ALAPPUZHA. 6. SARITHA.D,AYIKKADU,CHIRAYAKOM,ALAPPUZHA. 7. JAYALAKSHMY,KESAVAPURAM,THAKAZHI, ALAPPUZHA. 8. SREEKUMARI.D,GOKULAM,THAKAZHY-ALAPPUZHA. 9. REETHAMMA JOSEPH,NADUVIL PARAMBU,THAKAZHY-ALAPPUZHA. 10. SHYLAMMA.M.P,CHACKALAKKAL,EDATHWA-ALAPPUZHA. 11. SHEENA MATHEW,THUMBAYIL,KARUMADI-ALAPPUZHA. 12. MARIAMMA JOSEPH,PATHILCHIRA, THENNADY,ALAPPUZHA. Kss ..2/- ..2.... CRMC.NO.907/2011 13. SHYNY BIJU,VADAKKE PARAMBU, THENADY,ALAPPUZHA. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT(S): STATE: --------------------------------------- 1. THE REVENUE DIVISIONAL OFFICER, ALAPPUZHA. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.907 of 2011 ==================================== Dated this the 30th day of March, 2011 O R D E R Petitioners are the Principal, Manager and teaching and non- teaching staff of a school (Carmel English Medium School), Thakazhy. It is stated that the School authorities wanted to construct toilets and urinal sheds for the use of students of the School and embarked on construction of the same in the property belonging to the School. The Revenue Divisional Officer (RDO) issued Annexure-III, notice to the School authorities obviously under provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, “the Act”) alleging that paddy land is being reclaimed or converted for the purpose of construction and directing the School authorities to desist from the said acts. The School authorities without losing time approached this Court with W.P(C) No.34435 of 2010 raising their objections to the notice and requesting to quash the same. This Court disposed of the said Writ Petition as per Annexure-I, judgment dated November 16, 2010. This Court directed that notice issued by the RDO be treated as one calling upon petitioners in the Writ Petition CRL.M.C. No. 907 of 2011 -: 2 :- to show cause why action shall not be taken against them (for alleged conversion or reclamation of paddy land). It was also directed that if objection is preferred by the petitioners in the Writ Petition before the RDO the latter shall hear petitioners in the Writ Petition and order shall be passed in the matter. It was further directed that since the order of the RDO is to be treated as a notice “no coercive action based on Ext.P5 (in the Writ Petition) can be continued until proceedings are finalised as above”. I am told that pursuant to the said direction petitioners in that Writ Petition preferred their objection before the RDO. According to the petitioners the RDO has not so far disposed of the matter finally as directed by this Court in Annexure-I, judgment. In the meantime the District Collector, Alappuzha issued Annexure-II, order dated January 3, 2011 stating that violation of the Act is brought to his notice, action for restoration of the land under Section 13 of the Act is recommended and hence petitioners in the Writ Petition are to restore the land within 15 days of receipt of Annexure-II, order failing which the Department will take action (for restoration) and the expenses for the same will be recovered from the petitioners in the Writ Petition or their property as the case may be. Pursuant to the said CRL.M.C. No. 907 of 2011 -: 3 :- order, RDO issued Annexure-III, notice dated 01.02.2011 informing the School authorities that since they have not complied with Annexure-II, order, the Department proposes to restore the land directly on 09.02.2011 at the expenses of School authorities. The School authorities challenged Annexures-II and III in this Court in W.P(C) No.4197 of 2001 and this Court passed Annexure-IV, order on February 09, 2011 staying (operation of) Annexures-II and III, orders for a period of two months from that date. It is the case of respondents that since School authorities did not comply with Annexures-II and III, orders, the Department officials attempted to restore the land on 09.02.2011 at about 10.00 a.m. which was resisted by petitioners herein which according to them constituted offences punishable under Sections 143, 147, 149, 353 and 188 of the Indian Penal Code. On the information given in that line Ambalapuzha police registered a case against petitioners as Crime No.85 of 2011 on the same day at 2.30 p.m. The FIR in that Crime case is challenged in this petition. Learned counsel for petitioners contended that the act of Department officials in attempting to restore the land on 09.02.2011 is blatant violation of Annexure-I, judgment passed by this Court in that, this Court had directed the order issued by CRL.M.C. No. 907 of 2011 -: 4 :- the RDO to be treated as a notice calling upon the School authorities to give their objection for restoration of land and in case any objection is preferred, the RDO was to take final decision on the question after hearing the School authorities but no such order has been passed. It is without passing such order in compliance of Annexure-I, judgment that the Department officials attempted to restore the land on 09.02.2011. It is also the contention of learned counsel that this Court by Annexure-IV, order dated 09.02.2011 granted stay of Annexures-II and III, orders relied on by the Department Officials and that it is after the order of stay was granted that the Department Officials attempted to restore the land which itself is in violation of Annexure-IV, order. 2. Learned Public Prosecutor submitted that if order of this Court is violated remedy is not to challenge the FIR but to move contempt proceeding against the alleged contemner. It is also submitted by learned Public Prosecutor that it was after giving intimation to restore the land by Annexure-III, notice that Department Officials tried to enter property of the School on 09.02.2011 at 10.00 a.m which was prior to this Court passing Annexure-IV, order since according to the learned Public CRL.M.C. No. 907 of 2011 -: 5 :- Prosecutor Annexure-IV, order could have been passed only at or after 10.15 a.m on 09.02.2011. 3. So far as the proceedings of Court are concerned there is a presumption that it is initiated at the earliest point of time and in the absence of other evidence it must be presumed that this Court passed Annexure-IV, order, at the earliest point of time, at 10.15 a.m. on 09.02.2011. That question need not detain me much since in the FIR it is stated, and unless otherwise proved it must stand for the time being that incident occurred at 10.00 a.m on 09.02.2011. Annexure-IV, order could have been passed at the earliest only at 10.15 a.m on that day. I am not inclined to hold at this stage in this proceeding that there is violation of Annexure-IV, order. 4. Then the question is whether proceeding against petitioners should be annulled. True that if there is a violation of judgment of this Court (Annexure-I) petitioners in that Writ Petition are entitled to the remedy of moving a contempt petition. But here the question is whether the FIR against petitioners should be allowed to stand. If the Department Officials have no right to enter the property of School and restore the property at the point of time they made an attempt to do so necessarily it CRL.M.C. No. 907 of 2011 -: 6 :- cannot be said to be in discharge of the official duty. Learned counsel for petitioner has invited my attention to the decision in Paulose v. State of Kerala (1984 KHC 327) where scope of Sec.353 of the IPC when an order passed by the Tahsildar was stayed, the authorities tried to execute the said order was considered and it was held that since the order was stayed action by the Officials cannot be said to be in execution of the duty so that offence under Sec.353 of the IPC applied. 5. In the present case order issued by the RDO initially was considered by this Court in Annexure-I, judgment and it was directed that the said order be treated as a notice (that means, the order lost its operativeness) calling upon the School authorities to prefer their objection. This Court directed that the RDO on getting objection from the School authorities to hear them and pass appropriate final order on the matter. It is not brought on record that the RDO had after hearing objection disposed of the matter finally. It is in the meantime that the District Collector passed Annexure-II, order. The District Collector could not have pleaded ignorance of Annexure-I, judgment since he was respondent No.5 in the judgment. Necessarily he must be imputed with the knowledge of the judgment and direction CRL.M.C. No. 907 of 2011 -: 7 :- given by this Court that the RDO is to treat his order as a notice and after hearing objection of the School authorities to dispose of the same as provided under law. In such a situation the District Collector in my view should not have embarked upon a procedure to pass fresh order as seen from Annexure-II, order. At any rate the RDO who was directed to treat his order as a notice and dispose of the matter as per Annexure-I, judgment was not correct in issuing Annexure-III, notice to the School authorities stating that the Department proposes to restore the property on 09.02.2011. In the light of the above I am inclined to hold that it was not a case where the Department Officials were exercising their duty cast on them. If that be so resistance to the act of Department Officials which I stated is illegal cannot amount to an offence punishable under Sec.353 of the IPC. Allegation against petitioners is only that they stopped the JCB attempted to be made use of by the Department Officials for restoration of land and preventing them from entering into the School compound. In the circumstances no offence is disclosed against petitioners. In that view of the matter the FIR and proceeding thereon are nothing but abuse of process of the court. Resultantly, Criminal Miscellaneous Case is allowed. CRL.M.C. No. 907 of 2011 -: 8 :- Annexure-V, FIR in Crime No.85 of 2011 of Amabalapuzha Police Station and all further proceedings thereon against petitioners are quashed. THOMAS P. JOSEPH, JUDGE. vsv