Anil Kumar vs State Of Kerala And Ors

The petitioner is the owner of a mini Hydraulic excavator bearing Model TB 235. He used to give his vehicle on hire for his livelihood. While so

Respondent No.4 has seized the vehicle and the District Collector, the 2nd respondent on 1.8.2019 (Ext.P7) issued order for confiscation of the

vehicle alleging that he has used the vehicle to convert a paddy land against the provisions of the Kerala Conservation of Paddy Land and Wetland

Act, 2008 (for short 'Wetland Act'). The order of the District Collector was challenged before the District Court in No. 22 of 2019 and it was set

aside with liberty to issue fresh order in accordance with the law(Ext.P8). Thereafter, the 2nd respondent passed a fresh order of confiscation on

27.9.2019 (Ext.P10). Again the petitioner approached the District Court with C.M.A. No. 31 of 2019.But the said C.M.A. was dismissed by the

District Judge by judgment dated 5.11.2019 (Ext.P11). Aggrieved by the said judgment, this O.P has been filed.

The learned counsel for the petitioner has contended that the petitioner has not violated the provisions of Wetland Act and in fact the owners of the

land where the petitioner was engaged to do work had obtained valid building permit from authorities and totally ignoring the same, the order was

issued by the 2nd respondent. The petitioner has purchased the vehicle by availing loan from the Bank and his entire family is depending upon the said

vehicle for their livelihood. The order of the District Collector has thus caused much prejudice to the petitioner especially because he has not acted

against the provisions of Wetland Act.

The 6th respondent filed a counter affidavit contending that the building permit was actually granted to one Mohandas as early as on 20.02.2015.

Later the permit was renewed on 4.4.2018 and it was renewed in the name of Chandrasekharan and others, the persons presently holding the land.

Actually, the property owned by Chandrasekharan and others is surrounded by PWD road, residential buildings and commercial buildings on its four

sides. That land was converted prior to the Wetland Act, which came into effect from 12.08.2008.

Heard the learned counsel for the petitioner and the learned Government Pleader.

Wetland Act 2008 was enacted to conserve paddy land and wetland and to restrict conversion or reclamation of the same to promote growth in the

agricultural sector in State of Kerala. Admittedly, the vehicle involved was used for certain works in a land within Manjeri Municipality. That land was

owned by one Mohandas. His request for building permit was once rejected by the Manjeri Municipality. Aggrieved by the same he approached this

Court with a Writ Petition. As per judgment dated 14.01.2015 in W.P.(C) No. 1265 of 2015 this Court, directed the Secretary of Manjeri Municipality

to reconsider the application for building permit within a period of one month from the date of the order and consequently permit was granted.

Thereafter, the present land owners ie; Chandrasekharan and others, purchased the property with the building permit and renewed the permit in their

favour as per Ext. P3 order dated 5.5.2018. The vehicle owned by the petitioner was hired by them and while he was doing some excavation work in

the land, it was seized by the revenue officials under the provisions of the Wetland Act, 2008. This petitioner then approached this court with W.P.(C)

No.17666 of 2019 (Ext.P6) seeking release of the vehicle from the 2nd respondent as there was delay in disposing of his application. This court then

directed the 2nd respondent to dispose of his application within two weeks from the date of receipt of a copy of the judgment. Thereafter, Ext.P7

order was issued and thus the vehicle was confiscated by the District Collector. The said order of confiscation dated 1.8.2018 was challenged in

C.M.A. No. 22 of 2019 by this petitioner. In the C.M.A. the said order was set aside and the District Collector was given liberty to issue fresh orders

under Section 20 of Wetland Act in accordance with law. Thereafter, fresh order was issued and that is Ext.P10. As per Ext.P10, the petitioner was

directed to deposit a sum of Rs.30,00,000/-; a sum equal to 1 and 1/2 times of the value of the seized vehicle to get release of the vehicle under

Section 20 of the Act. Aggrieved by the order the petitioner preferred an appeal wherein the District Judge vide impugned judgment dated

26.08.2019,upheld the order of the District Collector and dismissed the appeal by Ext.P11.

Under Section 20 of Wetland Act, 2008 the District Collector is empowered to issue order of confiscation on the report of seizure of vehicle by the

revenue authorities when it is revealed that the same is used for any activity, in contravention of the provisions of the Act. Here, it is to be noted that

building permit was given by the Municipality to the previous land owner by Ext.P2 and it was later renewed by Ext.P3 in favour of the land owners

who are holding the land presently. Admittedly, the petitioner gave his vehicle on hire for works. A perusal of the records available before me would

show that the land owners have raised a contention that the property was not a paddy land coming under the provisions of Wetland Act, 2008

(Ext.P13). They have also a contention that though said property was included in the Basic Tax Register (BTR) as paddy land, it was not included in

the Data Bank prepared by the Local Level Monitoring Committee (LLMC)under the Wetland Act and is not a notified paddy or wetland. Sub Section

(3) of Section 5 of the Wetland Act,2008 provides constitution of LLMC for monitoring the implementation of the Act and the committee has to collect

the details of the paddy lands reclaimed in contravention of the provisions of any law for the time being and report to the RDO. It is pertinent to note

that the land owners/aggrieved parties approached this court with W.P. (C) No. 34404 of 2019 when the Village Officer, Manjeri had issued a stop

memo while construction of the building was going on in the property owned by them. The allegation raised in that stop memo was that the

Municipality had illegally issued building permit to the land owners. Per contra, the contention raised by the land owners was that the stop memo

issued to them was quite illegal as the land was not included in the Data Bank prepared by the LLMC under the provisions of Wetland Act, but their

applications under Section 27A, before the Revenue Divisional Officer for changing the nature of unnotified land have not been disposed of by the

RDO. Aggrieved by the delay in disposal of the applications, they preferred the writ petition. By Ext.P13, this court on 16.12.2019 directed the RDO

to take up the applications preferred by the petitioners therein and dispose of the same following due procedure within a period of two months from

the date of the said judgment. But, it is to be noted that despite such a direction, the RDO has not disposed of the applications submitted by the

aggrieved parties and it is not revealed from the records that the RDO had passed any final order in the said applications. The learned Government

Pleader who represents the Government officials has no case that the RDO has complied with the direction.

So, it is not definite from the records that the petitioner had used his vehicle for any activity to convert a paddy land against the provisions of the

Wetland Act, 2008. Though a written submission was given to the District Collector by the land owners no reference was made by the District

Collector to the effect that an order has to be passed by the RDO in the applications submitted by the land owner under Section 27A of Act, 2008.

Therefore, it is not crystal clear from the records available that the vehicle owned by the petitioner was used by him at the instance of the land owners

to do construction work in a land which was originally a paddy land included in the Data Bank against the provisions of Act, 2008. Moreover from the

order issued by the District Collector itself it appears that LLMC has not prepared data-bank including this land on the basis of satellite pictures and as

such final decision regarding the nature of the land is yet to be decided. Therefore, the property is having the character of an unnotified land under the

Wetland Act. Here, as referred above no order was passed by the RDO in the applications submitted by the land owners inspite of the direction of

this Court. When the applications for change of the nature of unnotified land by the statutory authority are pending consideration, as per the direction

of this Court there is no justification to direct the petitioner to remit the amount ordered to be paid to get release of his vehicle. Therefore, the order of

confiscation dated 01.08.2019 of the District Collector, Malappuram under challenge is not valid in the eye of law and it is liable to be set aside and I

do so. Consequently, the judgment of the learned District Judge stands dismissed.

O.P. is allowed as prayed for. The District Collector, Malappuram is directed to release the vehicle to the petitioner forthwith.