Nixon Augustine vs State Of Kerala

N. Nagaresh, J

Aggrieved by Ext.P5 confiscation order passed by the 2nd respondent-District Collector under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, the petitioner is before this Court.

The petitioner states that he is owner of an Excavator JCB 3DX2 bearing registration No.KL-36-6424. The Public Works Department (PWD) executed a Work Agreement with M/s.Deens Constructions for improvement work of Elanad-Chelakkara Road and Ext.P2 Work Order was issued on 04.08.2020. The work had to be executed under the supervision of the Assistant Executive Engineer, Public Works Department, National Highway, Chavakkad Division.

M/s.Deens Constructions took the Excavator of the petitioner to execute the work, on monthly rent of ₹50,000/-. The work included road widening and the work required removal and temporary storage of red earth. There was no suitable place to dump red earth in the nearby area. The Assistant Executive Engineer and representatives of M/s.Deens Constructions had discussions with the Juma-Ath Committee and they later agreed to store the red earth in their property temporarily.

On 12.10.2020, the Excavator of the petitioner was seized by the Village Officer alleging that the land of the Juma-Ath Committee is a Paddy Land and the petitioner’s Excavator was used to fill up the Paddy Land, in violation of Section 3 of the Kerala Conservation of Paddy Land and Wetland Act, 2008.

The petitioner filed C.M.P. No.2347/2021 before the Judicial First Class Magistrate's Court, Wadakkanchery seeking custody of the Excavator and the learned Magistrate dismissed the petition as per Ext.P3 order dated 08.10.2021 holding that the confiscation proceedings are already initiated. The 2nd respondent passed Ext.P5 order in the proceedings initiated under Section 20 of the Act, 2008 confiscating the Excavator of the petitioner.

The counsel for the petitioner argued that the Excavator of the petitioner was never used for filling up any paddy land. Red earth collected in connection with the road widening work was deposited in the property of Juma-Ath Committee under the supervision of Public Works Department officials, as per the instructions of the Contractor and with the consent of the Juma-Ath Committee.

The red earth deposited was to be taken back for completing the road work. The Public Works Department officials had informed the District Collector and the Revenue Divisional Officer that the temporarily deposited red earth will be used for the formation of the Road. Ext.P5 proceedings of the District Collector is therefore highly arbitrary and unsustainable, contended the counsel for the petitioner.

The Government Pleader resisted the writ petition. On behalf of the 2nd respondent, the Government Pleader submitted that the Revenue Divisional Officer, Thrissur furnished a report on the illegal conversion of 'Nilam' comprised in Survey Nos.462 and 466 in Pangarapilli Village of Thalappilli Taluk owned by Secretary, Kallya Road Jaram Committee, Chelakkara. As per that report, the red earth deposited in the land was used for filling and levelling the lower area of the ground. This is violation of Section 3 of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Hence, the Village Officer Kurumala/Pangarappilli seized the JCB having registration No.KL-36-6424. The illegally converted land is recorded as 'Nilam' in Basic Tax Register and included in the Data Bank also.

The Assistant Executive Engineer, National Highway Sub Division, Chavakkad submitted a report dated 26.11.2020 to the District Collector, Thrissur stating that there is no other government property available in that area to deposit the red earth for the Elanadu-Chelakkara Road construction. But, the land in question is recorded as 'Nilam' in Basic Tax Register and included in Data Bank also. Here, the red earth is not only stored in 'Nilam' but the earth is used to fill the lower area of the property without prior permission. The illegal filling is witnessed by the Village Officer who seized the JCB as per Mahazar dated 12.10.2020. The averment of the petitioner is that his Excavator was used only for development work of the road is made without any bonafides.

The vehicle owner, land owner, Village Officer Kurumala/Pangarappilli group and Agriculture Officer, Chelakkara were heard on 10.08.2021, 18.02.2021 and 30.03.2021. On verification of reports and documents submitted, it was clear that the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 are violated and accordingly the respondent issued Ext.P5 order under Section 13 of the Act directing the owner of the land to restore it to its original position and to confiscate the vehicle as per Section 20 of the Kerala Conservation of Paddy Land and Wetland Act, 2008. There is no illegality or irregularity in Ext.P5 order.

The Government Pleader further submitted that the issue involves disputed questions of fact and the petitioner has efficacious alternate remedy and hence the writ petition is liable to be dismissed.

I have heard the learned counsel for the petitioner and the learned Government Pleader representing the respondents.

Ext.P5 order issued by the 2nd respondent is under challenge. In Ext.P5, the 2nd respondent found that the land which was sought to be filled up is a paddy land as per Revenue records. The land is included in the Data Bank. The conversion is after the year 2008. The 2nd respondent noted that the Village Officer has witnessed the reclamation of the land.

But in this case, it has to be noted that the road work including the removal and deposit of red earth has been made under the supervision of the Public Works Department authorities and it was as part of a public work. There was no suitable land where the red earth removed for road work could be deposited. It is the further case of the Public Works Department authorities that the red earth was deposited in the land owned by the Juma-Ath Committee with their consent and was intended to utilise for completion of road work. The Assistant Executive Engineer, Public Works Department had informed the District Collector about non-availability of suitable land to deposit the red earth.

Ext.P4 declaration to which the Assistant Executive Engineer is a party would show that the red earth was deposited in the land in question as no other suitable land was available in the nearby areas. It would further show that the red earth was intended to be taken back and utilised for completion of the road widening and renovation work.

The petitioner has only rented out his Excavator to the Contractor who undertook a public work. When the Public Works Department authorities have stated that it was in exceptional circumstances and with their knowledge that as part of execution of a public work, the red earth was deposited in Juma-Ath land which is recorded as Paddy Land in Revenue records, it would be too harsh and inequitable to confiscate the Excavator of the petitioner. The petitioner had only rented out his Excavator for executing a public work which was to be carried out under a contract and supervision of the State authorities. Therefore, confiscation of the Excavator of the petitioner would be highly arbitrary and unsustainable.

Ext.P5 proceedings to the extent it confiscates the Excavator of the petitioner is therefore set aside. There will be a consequential direction to respondents 2 and 3 to release and give custody of the Excavator to the petitioner within a period of two weeks.

Writ petition is disposed of as above.