M.D. George vs District Collector, Thrissur and Others

K. Harilal, J.—1. Petitioner and his brother are the title holders in possession of about 29.4 Ares of property in Killannoor Village, Thrissur Taluk, since 1981, by virtue of Exts. P1(a) and P1(b). Adjacent to the said property, there was a piece of poramboke land, where some local persons were conducting illegal quarrying operations, without any licence or permit. So the petitioner could not cultivate the said land and he was not able to prevent the blasting operation in that adjacent land. Subsequently, by sale deed No. 4995/95 of SRO Thrissur, he assigned half of the said property to his brother and the poramboke portion has been touching both the petitioners and his brothers land. Thereupon, the petitioner and his brother gave their property for quarrying operation to a third party. While so, the petitioner was served with Ext. P3 order, issued under the Kerala Land Conservancy Act, 1957 (hereinafter referred to as ''the Act''). In Ext. P3, the petitioner was directed to pay Rs. 1,91,250/- with 6% interest for the granite stone, alleged to have been illegally quarried from the poramboke. The petitioner submitted that Ext. P3 was issued, without complying with the provisions of the Act and without considering factual and legal basis.

Aggrieved by Ext. P3 order, the petitioner filed Ext. P4 appeal before the 2nd respondent. But, neither Ext. P4 appeal nor stay petition was considered by the 2nd respondent. In that context, the petitioner approached this Court, by filing W.P. (C) No. 34625 of 2008, which culminated into Ext. P5 judgment and by Ext. P5, the 2nd respondent was directed to dispose of the appeal within three months from the date receipt of Ext. P5. Thereafter, in compliance with the direction in Ext. P5, the 2nd respondent heard the petitioner and dismissed Ext. P4 appeal, by Ext. P8, without application of mind and without objectively considering any of the grounds urged by the petitioner and confirming Ext. P3 order. Aggrieved by Ext. P8, the petitioner filed Ext. P10 revision before the 1st respondent and the 1st respondent dismissed Ext. P10 revision by Ext. P12 order, confirming Ext. P8. According to the petitioner, Exts. P3, P8 and P12 orders were passed, without considering the objection raised by the petitioner and the amount sought to be realised from the petitioner as per Ext. P3 is unfounded and arbitrary in the absence of any material on record to prove that the petitioner illegally quarried building stones from the poramboke land. Thus, the legality and propriety of the concurrent findings in Exts. P3, P8 and P12, that the petitioner is liable to remit the amount of Rs. 1,91,250/- towards the penalty for the building stones illegally quarried from the poramboke land, without any Authority or licence are under challenge. It is with this averments, this Writ Petition is filed with a prayer to quash Exts. P3, P8 and P12 and to declare that the petitioner is neither liable nor responsible for the illegal quarrying in the poramboke land comprised in Sy. No. 1463/2 of Killannoor Village and hence, he is not liable to pay any penalty on that account.

Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents.

The 1st respondent filed a counter affidavit, justifying the proceedings initiated against the petitioner under the Act. According to the 1st respondent, on getting information regarding unauthorised quarrying from the poramboke land comprised in Sy. No. 1463/2 of Killannoor Village in Thrissur District, the Village Officer conducted an enquiry and found that the petitioner has done quarrying of about 10200m2 from Sy. No. 1463/2 of Killannoor Village. The Village Officer, Killannoor reported the matter with Form AA sketch and Mahazar to the Tahasildar, Thrissur. As per Village records, the land comprised in Sy. No. 1463/2 of Killannoor Village is ''Paraporamboke''. Hence, the ownership of the said land is vested with the Government. So on the evidence to the effect that the petitioner had conducted illegal quarrying operation, quarrying 10200m2 building stones from the said property, he is liable to pay the amount quantified in Ext. P3. There is no procedural irregularity in the proceedings initiated against the petitioner under the provisions of the Act. So there is no reason or circumstance, warranting interference of this Court with Exts. P3, P8 and P12 invoking the extraordinary jurisdiction under Article 226 of the Constitution of India.

The case against the petitioner is that he had illegally quarried 10200m2 building stones from Sy. No. 1463/2 of Killannoor Village, which is lying as poramboke vested with the Government. But, it is the case of the petitioner that he never conducted quarrying operation in Sy. No. 1463/2 of Killannoor Village, the poramboke land, which is lying adjacent to the property owned and possessed by the petitioner and his brother.

Going by Ext. P3, it is seen that the entire penalty proceedings under the Act against the petitioner had been initiated on the basis of a report filed by the concerned Village Officer. Ext. P11 is the mahazar prepared by the concerned Village Officer. Needless to say, the entire proceedings were commenced on the basis of Ext. P11 mahazar, prepared by the Village Officer, who inspected the property on 09.08.2001. Going by Ext. P11, it is seen that the Village Officer has reported that one ''M.V. George'', Kizhakkambalam, Ernakulam has illegally quarried about 3010m2 building stones from the paraporamboke comprised in Sy. No. 1463/2 of Killannoor Village. Neither the name of house nor the Village in which the said ''M.V. George'' resides, is seen disclosed in the said report.

In short, the identity of the person is not disclosed except narrating the name, as ''M.V. George''. Needless to say, ''George'' is a common name and several persons are having the said name. More importantly, the petitioner herein, is admittedly ''M.D. George'' and the person mentioned in Ext. P11 is ''M.V. George''. In the absence of any kind of particulars, disclosing identity of the said ''George'' no reliance can be placed on Ext. P11. In Ext. P11 mahazar, the Village Officer has no case that while he was inspecting the property, the said ''George'' was found illegally conducting quarrying operation. Without any supporting material in the mahazar, he simply stated that one ''M.V. George'', Kizhakkambalam, Ernakulam has illegally quarried 3010m2 granite stones from the poramboke land comprised in Sy. No. 1463/2 of Killannoor Village. Ext. P9 is the report filed by the concerned Geologist, under whose jurisdiction and power, the poramboke is vested. He visited the property on 26.06.2009 and filed a report, stating that at the time of his inspection it was found that no quarrying operation was recently conducted in the said poramboke land, and the said land was found filled up with water and fishes and it is not possible to determine the quantity of granite excavated from the said land. Ext. P9 report filed by the Geologist can never be brushed aside as the inspection was conducted and the report was filed by the subject expert. Even though, name and signature of two persons are also shown in Ext. P11 mahazar, the particulars of those witnesses are also not disclosed in the mahazar. Subsequently, they filed an affidavit, stating that when they visited the Village office, for some other purpose, they were forced to sign the document prepared, by the Village Officer and they have not gone through the document, at the time, when they signed the document. Thus, on analysis of Exts. P9 and P11, basic documents, under which the proceedings were initiated against the petitioner under the Act, this Court finds that the allegation against the petitioner is neither reliable nor believable. The respondents, who initiated proceedings against the petitioner under the Act, miserably failed to give a clear identity of the person, who have allegedly conducted illegal quarrying operation. In short, the respondents miserably failed to prove the allegation against the petitioner.

In the above analysis, I find that Exts. P3, P8 and P12 orders passed on the basis of Ext. P11 mahazar is unsustainable. The respondents miserably failed to analyse Ext. P11 mahazar independently. In other words, they miserably failed to apply their mind independently over the documents under which proceedings under the Act initiated against the petitioner. Consequently, Exts. P3, P9 and P12 will stand quashed.

This writ petition is allowed accordingly.