IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 Crl.MC.No. 242 of 2010() ------------------------ CC.663/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PERINTHALMANNA FIR NO.324/2007 OF PERINTHALMANNA POLICE STATION, MALAPPURAM DIST. .................... PETITIONER/ACCUSED ---------------------------------- MUKUNDANUNNI NAMBOODIRIPPAD, MUTHUKURUSI MANA, ELAMKULAM, MALAPPURAM DISTRICT, REP.BY HIS POWER OF ATTORNEY HOLDER, SHRI.AJAYAKUMAR. BY ADV. MR.M.P.ASHOK KUMAR RESPONDENTS/COMPLAINANT ---------------------------------------------- 1. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. REVENUE DIVISIONAL OFFICER, PERINTHALMANNA, MALAPPURAM DISTRICT. R1 & R2 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.242 of 2010 -------------------------- ORDER Petitioner is the owner in possession of 43 cents of land in Sy.No.20/1A of Elamkulam Village of Perinthalmanna Taluk. It was shown as wet land in the revenue records. That land is lying on the side of a public road and is adjacent to Elamkulam Market. On the side of the road, there was a shop building constructed prior to 1967, wherein a Barber Shop, a Rice Mill and a Hotel were functioning. It belongs to the petitioner. As the building was deteriorated, petitioner decided to reconstruct it. He filed a petition for permission to convert a portion of the wet land into dry land for reconstructing the building, as construction is possible only leaving a width of three metres from the road and consequently, the reconstructed building could only be further three metres away from the original position. When the building was under construction, notice was affixed directing to stop the construction. Then, petitioner was not in India and therefore, personal notice was not effected. Thereafter, Revenue CRMC 242/10 2 Divisional Officer, Perinthalmanna sent Annexure- A1 communication to the Sub Inspector of Police, Perinthalmanna, to register a case against the petitioner for the offence under Section 7 of Essential Commodities Act for violation of Section 3(2), alleging that petitioner has contravened the provisions of Kerala Land Utilisation Order, 1967. Crime No.324/2007 was registered under Annexure-A2 FIR, based on that communication, for the offences under Sections 3(1)(b) (2) and 7 of Essential Commodities Act on the allegation that petitioner violated the provisions of Kerala Land Utilisation Order. His request for permission to reconstruct the building was rejected. Petitioner challenged the order before Land Revenue Commissioner. By Annexure-A3 order, Revenue Divisional Officer was directed to reconsider the question finding that when the building is to be demolished and a new building is to be constructed, sufficient width of land is to be left from the road as per Section 220(b) of Kerala Panchayat Raj Act and therefore, the reconstructed building could only be further three metres away from the original position. Thereafter, by CRMC 242/10 3 Annexure-A4 order, Government directed the Revenue Divisional Officer, Perinthalmanna to grant permission to the petitioner to reconstruct the building. Finally, by Annexure-A6 order, Revenue Divisional Officer permitted the petitioner to convert 43 cents of wet land into dry land. By Annexure-A7 order dated 8.12.2007 of the Land Revenue Commissioner, taking note of the fact that by Annexure-A6 order, Revenue Divisional Officer has permitted the petitioner to convert 43 cents to dry land, the appeal filed by President of Kerala State Karshaka Thozhilali Union, Elamkulam Panchayat Committee was dismissed. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A2 FIR and the proceedings pending before Judicial First Class Magistrate's Court- I, Perinthalmanna. Annexure-A8 final report was subsequently submitted alleging that petitioner committed an offence under Section 7 read with Section 3(1)(b)(2) of Essential Commodities Act. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. CRMC 242/10 4 3. Learned counsel appearing for the petitioner pointed out that though Kerala Land Utilisation Order was enacted, as provided under section 3 of Essential Commodities Act, Order 6 of Kerala Land Utilisation Order would apply only if the land was being used for cultivation with any food crop, for a continuous period of three years immediately before the commencement of Kerala Land Utilisation Order, 1967 and neither Annexure-A1 communication sent by the Revenue Divisional Officer to the Sub Inspector of Police nor Annexure-A2 FIR or Annexure-A8 final report show that the land was being used for cultivating any food crop for a continuous period of three years prior to 1967 and therefore, Order 6 of Kerala Land Utilisation Order is not applicable. 4. Learned counsel also argued that Order 7 of Kerala Land Utilisation Order provides the procedure in case of contravention of Order 6 and under Order 7, a show cause notice is to be issued to the person who contravenes the provisions of Order 6 and an enquiry is to be conducted and only thereafter an order is to be passed directing the person to cultivate the land with CRMC 242/10 5 food crop and when the Revenue Divisional Officer did not even issue a notice to the petitioner and did not conduct any enquiry, he cannot be prosecuted for the offence under Section 7 of Essential Commodities Act for violation of the provisions of Order 6 or 7 of Kerala Land Utilisation Order and therefore, continuation of the prosecution is only an abuse of process of the court. Learned counsel also pointed out that by Annexure-A7 order, Land Revenue Commissioner has already permitted the petitioner to reconstruct the building including on the disputed land and in such circumstances, it is not in the interest of justice to continue the prosecution. 5. Learned Public Prosecutor submitted that though Order 7 of Kerala Land Utilisation Order enables the Revenue Divisional Officer to direct cultivation of land with food crop, which was being cultivated in contravention of Order 6, it does not affect the criminal prosecution, if any, initiated under Section 7 of Essential Commodities Act, for violation of the provisions of Order 6 of Kerala Land Utilisation Order. It was pointed out that under Section 7 of Essential CRMC 242/10 6 Commodities Act, if any person contravenes any order made under Section 3, he shall be punishable under Section 7 of Essential Commodities Act. 6. Sub-section (1) of Section 3 of Essential Commodities Act enables the Government, if it is of the opinion that it is necessary or expedient to do so, for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the Defence of India or for the efficient conduct of military operations, it may, by order, provided for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. Sub-section (2) of Section 3 provides that without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide the conditions provided under clause (b) to clause (h). It is argued that as Kerala Land Utilisation Order was passed as an order under Section 3(2) of Essential Commodities Act and there is contravention of its provisions, it is punishable under Section 7 of Essential Commodities Act and if there is CRMC 242/10 7 violation of the provisions under Order 6 of Kerala Land Utilisation Order, by converting a wet land into dry land without sanction, which is being cultivated with paddy, it is punishable under Section 7 of Essential Commodities Act and therefore, the case cannot be quashed. Learned Public Prosecutor also made available the case diary. 7. As rightly pointed out by the learned counsel appearing for the petitioner, neither Annexure-A1 communication sent by the Revenue Divisional Officer, based on which the case was registered nor Annexure-A2 FIR nor Annexure-A8 final report contain an allegation that the land was being used for cultivating paddy or any other food crop continuously for three years prior to the commencement of Kerala Land Utilisation Order. For the reason that the land is registered in the revenue records as a wet land, it cannot be presumed that the land was being utilised for paddy cultivation continuously for three years prior to the commencement of Kerala Land Utilisation Order, 1967. Therefore, in the absence of an allegation that the land was being utilised for paddy cultivation, continuously for three CRMC 242/10 8 years prior to the commencement of Kerala Land Utilisation Order, it cannot be said that there is violation of Order 6 of Kerala Land Utilisation Order. Even if it is a paddy field, if it was not being used for cultivation with any food crop, for a continuous period of three years, prior to the commencement of Kerala Land Utilisation Order, there cannot be contravention of Order 6, which is an offence punishable under Section 7 of Essential Commodities Act. 8. Added to this, the facts of the case reveal that there was an existing building, adjacent to the disputed land, on the side of the public road, near Elamkulam Market. Annexure-A6 order passed by the Revenue Divisional Officer gives a clear picture of the land. That shop building was in existence prior to 1967. The building needs reconstruction. Petitioner had applied for permission to reconstruct the building. When permission was refused, petitioner challenged that order. By Annexure-A3 order, Revenue Divisional Officer was directed to reconsider the same. By Annexure-A4 order, Revenue Divisional Officer was directed to grant CRMC 242/10 9 permission to reconstruct the building. Subsequently, by Annexure-A6 order, Revenue Divisional Officer permitted the petitioner to convert the wet land into dry land to enable him to reconstruct the building. Though it was challenged, by Annexure-A7 order, it was finally upheld. In the light of these subsequent developments, it is not in the interest of justice to continue the prosecution. Petition is allowed. C.C.No.663/2007 on the file of Judicial First Class Magistrate's Court-I, Perinthalmanna is quashed. 24th February, 2010 (M.Sasidharan Nambiar, Judge) tkv