Land Law Project

36
NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES LAND LAWS PROJECT TOPIC: - KERALA CONSERVATION OF PADDYLAND AND WETLAND ACT SUBMITTED BY, YAMUNA VIJAYAGOPAL, ROLL NO.:502

Transcript of Land Law Project

NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES

LAND LAWS PROJECT

TOPIC: - KERALA CONSERVATION OF PADDYLAND AND WETLAND ACT

SUBMITTED BY,

YAMUNA VIJAYAGOPAL,

ROLL NO.:502

VIII SEMESTER

B.A.LL.B (Hons.)

ACKNOWLEDGEMENT

I express my heartfelt gratitude to the almighty for his choicest blessings showered on us without

whom I cannot make this project a reality.

I take this opportunity with pleasure to express my heaps of gratitude to our most revered faculty

Smt. Namitha Madam for his valuable guidance on the preparation of this project and also for his

facilitation on our studies during the course of semesters.

I’m thankful to the librarian of this university for providing us various sources of materials on

the preparation of this project.

I’m very much thankful to all our friends in the class for their benevolent corporation and help in

the course of preparing this project

CONTENTS

1. Introduction

2. Definitions Clauses

3. Enabling Provisions

4. Statutory Authorities for Enforcement-Constitution and Powers

5. Exceptions

6. Kerala Land Utilisation Order And The Kerala Paddyland and Wetland

Conservation Act

7. Procedure for Cultivation of the Paddy land

8. Provisions for Enforcement of the Act :Civil and Criminal

9. Miscellaneous provisions10. Conclusion

INTRODUCTION

If its neighboring States sneeze, Kerala catches a cold. That is how when bad weather or blight

damage crops in Andhra Pradesh or Tamil Nadu, Kerala becomes hard-pressed to source grain

and vegetables.

The State is not self-reliant in food. High input costs, scarcity of farm labour, vagaries of

weather, poor prices, and so on have led to a free fall in cultivation of paddy and other food

crops. Governments come up with measures to protect farming, but a resurgence is possibly

some distance away. Loss of farmlands and the large-scale shift from food crops to plantation

crops have been the reality in the State.

The Assembly enacted the Kerala Conservation of Paddy Land and Wetland Act, 2008, in that

context. It is aimed at conserving paddy fields and wetlands and restricting their conversion or

reclamation so that the agriculture sector can be developed in an environmentally sustainable

manner.

The Act aims to ensure food security by bringing more land under cultivation. The owner,

occupier, or the person in custody of a piece of paddy land shall not convert or reclaim it, except

in accordance with the provisions of the Act. The government shall take steps from time to time

to assist farmers to augment paddy production.

The Act provides for a local-level monitoring committee in each panchayat or municipality for

monitoring the implementation of the Act. The committee is empowered to recommend to the

State-level committee or the district-level authorised committee, as the case may be, the

reclamation of paddy land for public purpose or for construction of residential buildings for the

owner of the land, subject to conditions fixing the extent of the land to be so utilised. The

committee can examine complaints from the public about attempts to violate the provisions of

the Act and intervene to prevent violation. It has the power to examine the reasons for keeping

paddy land fallow and to suggest remedial measures so as to help resume cultivation of paddy or

any intermediary crops. The State-level committee has to scrutinise each application

recommended by the local-level committee for filling up or reclamation of paddy land for public

purpose. It should examine in detail if alternative land is available in the area for the purpose and

the ecological changes that may occur from reclamation.

The Act emphasises that no local authority shall grant any licence or permit for carrying out any

activity or construction on a piece of paddy land or wetland, converted or reclaimed in

contravention of the provisions of the Act. Any person who reclaims paddy land or wetland shall

be imprisoned for six months to two years, with a minimum fine of Rs.50,000.

If a company contravenes the clauses of the Act, it and the person in-charge will face charges.

The Act has enabled the authorities to take up cases of reclamation and deal with them

appropriately. The district collectors had initiated action against use of tipper lorries and

earthmovers for paddy-field conversion. The administration had imposed fines on the owners of

the vehicles for their involvement in reclamation.

Definitions Clauses

The definitions of paddy land and wetland are important. It is only when the property is included

one of the two categories that conversion of paddy land or wetland takes place. The classification

of land is extremely important. “Paddy land”1 means all types of land situated in the State where

paddy is cultivated at least once in a year or left fallow, and includes its allied constructions like

bunds, drainage channels, ponds and canals.

“Wetland”2 means land lying between terrestrial and aquatic systems, where the water

table is usually at or near the surface or which is covered by shallow water or characterized by

1 S2 (xii)2 S 2 (xvii)

the presence of sluggishly moving or standing water, saturating the soil with water and includes

backwaters, estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests but does

not include paddy lands and rivers.

A large extent of the wetlands have got illegally converted, in gross violation of all the prevailing

laws of the land and without obtaining any permission from the authorities concerned.

In Shahanaz Shukkoor v. Chelannur Grama Panchayat,3 Dispute related to land could not be

used for any purpose other than for which a paddy field or wetland could be used. It was held,

statute operates on the basis of the facts as they existed on ground realties and not on any quality

or type of land, depending on its description in the title document. The definition of the terms

'paddy field' and ‘wetland’ in the said Act was said to be sufficient material to hold that the said

statute operates on the basis of the facts as they exist on ground realties and not on any quality or

type of land, depending on its description in the title document. It having been shown that the

land in question was surrounded by lands on which buildings were being constructed and a part

of the land in question also has another building, which was one that stood with the approval of

Panchayat there was no reason to hold that the Petitioner had to obtain decision of committee

under the Act to put the land to use for purpose of constructing a building.

In Poyil Sulaiman v  Peravoor Grama Panchayat4 the dictum in the Shahnaz case was followed

in the present case that the ground realities should be assessed by the authorities concerned and

thus herein, the mere description in the title deed cannot lead to the rejection of the application

for building permit, etc.

Enabling Provisions

3 2009(3)KLT8994 W.P.(C) No. 34619 of 2009-V

S3 restrains the conversion5 or reclamation of paddy land. This prohibition comes into effect

against the owner, occupier or the person in custody of any paddy land only if the conversion or

reclamation takes place after the commencement of the Act and not retrospectively. S3 (2)

provides that there is not illegality in to the cultivation of any intermediary crops6 that are

cultivated without changing the ecological nature of that paddy land or the strengthening of the

outer bunds for protecting the cultivation. This provision adds food security of the state. The

other measures used to boost paddy cultivation is contained in S4 of the Act. The state has to

mandatorily provide assistance to farmers in order to augment the production of paddy in the

State.

This above restriction is placed on companies also. The persons behind responsible for the

conduct of the business of the Company, as well as the company shall be liable to be proceeded

against and punished if the offence was committed with the consent or connivance of, or is

attributable to any neglect. This can be disproved if it is shown that there is a lack of knowledge

or that he had exercised due diligence to prevent such contravention. But if the on the part of any

Director, Manager, Secretary or other officer of the company, such Director, Manager, Secretary

or other officer shall also be deemed to be guilty of that offence and shall be liable to be

proceeded against and punished accordingly.

In  Praveen v. Land Revenue Commissioner,7 the Petitioner filed an application for permission

to convert a piece of wet land under provisions of Kerala Land Utilization Order, 1967, The

question was whether, after commencement of Kerala Conservation of Paddy Land and Wet

Land Act, 2008 an application filed by Petitioner for constructing a residential building was

maintainable. On combining reading of the provisions Sections 1,2,4 and 5, it can be seen that

the application of the Act is confined to paddy land and wet land alone and as per Section 3,

5 S2 (iii) “conversion” means the situation whereby, land that has been under paddy farming andits allied constructions like drainage channels, ponds, canals, bunds and ridges are put to use forany other purpose6 S2 (ix) “intermediary crop” means a short term crop, cultivated in between two paddy cultivation periods in an interchangeable manner according to the ecological nature of the paddy land like vegetables, pulses, plantain, fish, etc;7 2010(2)KLJ617

except in accordance with the provisions of the Act, the owner or occupier or the person in

custody of any paddy land shall not undertake any activity for con version or reclamation of

such paddy land, after coming into force of the Act. But there is a total prohibition of

reclamation of such wet land and removal of sand there from after the commencement of the

Act except the removal of slurry and mud to maintain the ecological condition of wetland.

There is also a provision for making the application for permission for reclamation of the

paddy land for construction of residential building to the owner of the paddy land and for

taking a suitable decision as provided for under Section 9 of the Act and such application has

to be considered by the District Level Authorised Committee on the recommendation of the

Local Level Monitoring Committee, if such reclamation does not adversely affect the

ecological condition and cultivation in the adjoining paddy land and the owner of the

paddy land is not having suitable land in the district and construction is proposed for his own

purpose and such paddy land is not situated surrounded by other paddy lands. Besides,

notwithstanding anything contained in Section 3, Government has also freedom to grant

exemption subject to the condition imposed under Sub-section (2) of Section 10 of the Act.

Section 11 totally prohibits conversion or reclamation of wet land and removal of land

therefrom and there is a total prohibition of reclamation of wet land on and from the date of

commencement of the Act. It was held land in question was a paramba and not a paddy field

as defined in the Act, 2008 nor a property as defined under the Kerala  Land Utilization Order

- Therefore, there was no need or necessity to seek any permission either under Kerala Land

Utilization Order or under Kerala Paddy Land and Wet Land Act, 2008.

Statutory Authorities for Enforcement-Constitution and Powers

1. Local level Monitoring Committee 8

Constitution:

8 Section 5

(1) There shall be a Local Level Monitoring Committee in each Panchayat or Municipality,

consisting of the following members for the purpose of monitoring the implementation of the

provisions of this Act:-

a. The President or Chairperson /Mayor of the Grama Panchayat or the Municipality or the

Corporation, as the case may be who will be the Chairman

b. The Agricultural Officer/Officers having jurisdiction in the Grama Panchayat or

Municipality/Corporation, and the Officer/Officers having jurisdiction in the said area

will act as the Member/Members.

c. Three representatives of farmers in the Panchayat/Municipality/Corporation to be

nominated in such manner, as may be prescribed.

(2) The Agricultural Officer shall be the convenor of the Committee.

Quorum: The quorum for a meeting of the Committee shall be three and it shall meet as and

when required and the venue for the meeting shall be the respective Panchayat Office and the

time of meeting shall be fixed by the Chairman.

Procedure: The Committee may decide the procedure for its meetings and the concerned

Agricultural Officer shall keep the proper minutes of the meeting signed by every person

attended.

Powers:

a. To recommend to the State Level Committee or District Level Authorised Committee for

the reclamation of paddy land, for public purpose9 or for construction of residential

building for the owner of the paddy land which shall not exceed ten cents in a Panchayat

or five cents in a Municipality / Corporation for the construction of residential building

for the owner of the paddy land.

9 S2 ( xiv)“public purpose” means purposes for the schemes undertaken or financed by the Centre- State Governments, Government-Quasi-Government Institutions, Local Self Government Institutions, Statutory Bodies and other schemes as may be specified by the Government from time to time

b. To inspect the paddy land situated within the jurisdiction of the Committee to monitor

whether the provisions of this Act are being complied with and to report to the Revenue

Divisional officer regarding violations of any of the provisions of this Act

c. To inquire into complaints received from the public regarding the attempts to violate the

provisions of this Act and to intervene in the issue to prevent such violation;

d. To examine the reason for keeping the paddy land fallow and to suggest remedial

measures so as to persuade the holder of paddy land to cultivate it with paddy or any

intermediary crops;

e. None of the local authorities has the discretionary power to grant any licence or permit

under the said Act for carrying out any activity or construction in a paddy land or a

wetland converted or reclaimed despite the provisions of the Kerala Panchayat Raj Act,

1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994) no Local

Authority .

Functions:

a. to prepare the land data-bank, using the map prepared or to be prepared by the State

Land Use Board or any Centre-State Science and Technology Institutions on the basis of

satellite pictures by incorporating the survey numbers and extent in the data-bank and get

it notified by the concerned Panchayat/ Municipality/Corporation and exhibit the same

for the information of the public in the respective Panchayat/Municipality/Corporation

Office and in the Village office/Officers.

b. Where a paddy is left fallow despite the orders of the Committee to take measures to

make alternate use of the land the Committee can take steps under section 16

c. To prepare detailed guidelines for the protection of the paddy lands / wetlands in the

areas under the jurisdiction of the Committee;

d. to collect data of paddy land within the area of jurisdiction of the Committee, reclaimed

in contravention of the provision of any law for the time being in force, before the date of

commencement of this Act and to give the report to the Revenue Divisional Officer;

e. Other miscellaneous functions. .

The question raised in Firose v  Revenue Divisional Officer,10 was whether in the absence of the

notification contemplated under Sec.5(4)(i) of the Kerala Conservation of Paddy Land and Wet

Land Act, 2008 (for short, "the Act") a person who converts paddy land/wet land could be

prosecuted under Sec.23 of the said Act. A penal consequence as to a conversion of paddy land

or wet land in violation of Secs.3 or 11 would arise only if such land had been notified in the

manner prescribed, be it by publication in the Gazette or otherwise as required under Sec.5 (4)(i)

of the Act. As per the provision the local committee has to prepare the Data bank with details of

cultivable paddy land and wet land within the area of its jurisdiction in the manner provided

there and "get it notified by the concerned Panchayats / Municipality / Corporation, in such

manner as may be prescribed, and exhibit the same for the information of the public, in the

respective Panchayath /Municipality/Corporation Office and in the Village Office/Offices".

Sec.23 of the Act states that penalty is imposed on any person who in violation of the provisions

of the Act converts or reclaims "any paddy land or wet land notified under Sub-sec (4) of Sec.5".

The notification (under Sec.5(4) (i) of the Act) will be a condition precedent for the applicability

of certain provisions of the Act. The publication of notification under Sec.5(4)(i) of the Act is

intended to provide protection to the landowner.

Term of office: The term of office of the non-official members shall be three years from the date

of its constitution.

But after the expiry of the term of the Committee its non-official members may continue in

office till the constitution of the next Committee. A non-official member may resign at any time

by giving letter in writing.

Reporting Officers: The Agricultural Officers shall be the reporting officers, in respect of the

paddy land in the area and it shall be their responsibility to report the Revenue Divisional Officer

regarding any act in violation of the provisions of this Act. If any paddy land is kept fallow

during any agricultural season, the Agricultural Officer shall inform that matter also to the

Committee. Willful omission to make a report, shall be deemed to be an offence punishable with

two years imprisonment which shall not be less than six months and with fine which may extend

to one lakh rupees but shall not be less than fifty thousand rupees.

10 11KLC-3896

2. State Level Committee

Constitution :The state Government shall, constitute a State Level Committee for furnishing

report to Government after the detailed scrutiny of the applications recommended by the

Committee regarding the filling of paddy land for public purposes. The persons nominated to the

Committee are the Agricultural Production Commissioner, the Commissioner of Land Revenue

and an expert in the field of environment and a Scientist in the field of paddy cultivation, to be

nominated by the Government, shall be the members of the State Level Committee and the

Agricultural Production Commissioner shall be its Convenor. Each application recommended by

the Local Level Monitoring Committee for filling up or reclamation of paddy land for public

purpose shall be scrutinized by the State level Committee and shall also examine in detail

whether any alternate land, other than paddy land, is available in that area and the ecological

changes that may occur due to such filling up of paddy land and submit a report to Government.

3. District Level Authorised Committee

Constitution : The District Level Authorised Committee consists of the Revenue Divisional

Officer, Principal Agricultural Officer and three paddy cultivators to be nominated by the

Collector and the Revenue Divisional Officer shall be its Chairman and the Principal

Agricultural Officer, shall be its Convenor with the proviso that where there are more than one

Revenue Divisional Officer in a District, the Collector shall nominate one among them to the

District Level Authorised Committee.

Purpose: This is a non-obstante clause and is an exception to the purpose of the whole Act

contained in S 3. Hence each Collector shall constitute a District Level Authorised Committee

for considering the applications for reclamation of paddy land for the construction of residential

building to the owner of paddy land and for taking suitable decision. The District Level

Authorised Committee shall not take any decision granting permission for the filling up of paddy

land for the construction of residential building exceeding ten cents in a panchayat and five cents

in a Municipality/ Corporation.

Term of office: The nominated members shall hold office for a fixed of three years from the date

of their assuming charge in the office. Nominated members may resign from the Committee at

any time by giving letter under his hand to the Collector.

Functions: The District Level Authorised Committee shall take decision on the recommendation

made to it within one month. No application shall be considered by the District Level Authorised

Committee, unless the Local Level Monitoring Committee has recommended that-

(i) such reclamation shall not adversely affect the ecological condition and the cultivation in the

adjoining paddy land;

(ii) the owner of the paddy land or his family do not own a suitable land for this purpose in the

District;

(iii)the building to be constructed for his own purpose; and

(iv)such paddy land is not situated surrounded by other paddy lands.

Appeal: Any person aggrieved by the decision of the District Level Authorised Committee, may

prefer an appeal before the Collector within thirty days from the receipt of the decision. The

Collector shall take a decision thereon within one month from the date of receipt of the appeal

and the decision of the Collector shall be final.

As per Section 9 of the Act when an application before the Revenue Divisional Officer is filed

for conversion of paddy land for residential purpose in the light of Section 9 of the Kerala

Conservation of Paddy Land and Wetland Act, 2008 the application has to be dealt with District

Level Authorised Committee.11

4. Authorised Officers

Constitution: The Government may, by notification in the official Gazette, appoint such officers

of the Revenue Department not below the rank of a Revenue Divisional Officer, as authorized

11 R.Divakaran v. Revenue Divisional Officer, Kollam. WP(C).No. 8213 of 2010(B)

officers and may determine the area of jurisdiction within which they shall exercise their powers

under this Act.

Powers: The Authorised Officer12 may, for the purpose of inspecting whether any of the

provisions of this Act have been violated, or to prevent the commission of any of the offences

under this

Act.:

(a) enter any premises or any place connected therewith with such preparation as he thinks

necessary for the inspection or investigation into the alleged offence under this Act;

(b) (b) require any person to stop any act in contravention of section 3 or section 11;

(c) (c) seize any vessel, vehicle or other conveyance or any implements used or purported to

be used in contravention of the provisions of this Act and sent a report to the Collector

for initiating proceedings for their confiscation;

(d) (d) require any person to furnish such information13 as he may consider necessary;

(e) (e) take photographs, make inventories or do other things necessary for collecting

evidence regarding the commission of the offence and sent a report to the Court of

competent jurisdiction in order to prosecute the accused.

Failure to take action regarding the violation of the Act i on the basis of the report submitted by

the reporting officer under section 7nvites prosecution under S23 of the Act.

A reading of the section shows that only an authorized officer can seize a vehicle as

contemplated in Section 12 (2) (c). However 12(1) shows that the power of the Government to

authorise an officer of the Revenue Department has to be only in respect of those officers who

are not below the rank of Revenue Divisional Officer.14

12 Shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code.

13 Any person required to produce any document or thing or to give any information to an authorised officer under this section shall be legally bound to do so within the meaning of section 175 and 176 of the Indian Penal Code, 1860 (Central Act 45 of 1860).14 Komalamma Vijayan vs The Thahzilda, Taluk Office, W.P.(C) NO. 4304 OF 2009 (K)

5. The District Collector 15

Power: The Collector has the discretionary power to take such action, as he deems fit, without

prejudice to the prosecution proceedings taken under the Act, to restore the original position of

any paddy land reclaimed violating the provisions of this Act, and realize the cost incurred in this

regard from the holder or occupier of the said paddy land, as the case may be, so reclaimed after

giving him a reasonable opportunity of being heard. He also has the special power to take or

cause to be taken

proceedings as may, in his opinion, be reasonable for the compliance of an order issued under the

provisions of this Act.

The question in Kaipadath Property Development v. State Of Kerala16 was whether Section 13

confers wide and unrestricted power on the District Collector to order restoration of reclaimed

paddy land and wet land and can the power be exercised in the absence of a notification

notifying paddy lands and wet lands and whether he is exercising an unguided power in the

absence of prescribed rules with respect to the action to be taken under Section 13. Evidently, if

the property is a wetland, the District Collector is not having any jurisdiction under Section

13. Restoration of a wet land is not mentioned anywhere in the Act even though there is total

prohibition of its conversion. This amounts to a lacuna in the Act. Wet land used for any paddy

cultivation is not included in the definition of either paddy land or wet land. Paddy lands and

rivers are specifically excluded from the definition of wetland . Evidently, no attempt was made

by the District Collector to resolve this issue before the order is passed. He has proceeded as if

the property is wet land, based on the fact that kol land is included in the list declared as Ramsar

sites and by relying on certain other details and consequently the power is invoked under Section

13 describing it as wet land, in various parts of the order. He is not conferred with any

jurisdiction as regards restoration to the original position of a wet land itself. It is pointed out that

unless and until a notification is there, the District Collector is disabled to proceed under Section

13 of the Act and therefore it cannot be assumed that the District Collector can exercise such a

15 Section 1316 WP(C).No. 10248 of 2010(E)

power to direct reconversion and restoration of the property to its original position. It is pointed

out that the non obstante clause contained in Section 13 will not help the District Collector to

exercise such a power.  The power given to the District Collector under Section 13 is evidently to

restore to its original position paddy land in case of violation of the provisions of the Act. After

the data bank is prepared under Section 5(4) of the Act and notified under Rule 4(2)(b) of the

Rules, then only the District Collector can find out whether there is any violation in respect of a

paddy land. In the absence of any rules framed for exercising the power under Section 13, the

only conclusion possible therefore is that he will have to rely upon such a notification to find out

whether the area under dispute is a cultivable paddy land or wet land or a converted land. No

other machineries have been provided to the District Collector to have any other source of

information on these vital aspects required for him to exercise the power under Section Sections

7 and 12 will help only to take preventive action.

Exceptions

The Government may grant exemption from the provisions of this Act, if such conversion or

reclamation is essential for any public purpose. But the Local Level Monitoring Committee has

to recommend the conversion or reclamation17 and the Government are satisfied on the basis of

the report submitted by the State Level Committee, that no alternate land is available and such

conversion or reclamation shall not adversely affect the cultivation of paddy in the adjoining

paddy land and also the ecological conditions in that area.

Though there is a total prohibition on reclamation of wetland and removal of sand there from,

removal of slurry and mud can be undertaken to maintain the ecological condition of such

wetland.

In C.V.Lalu, Cherivukalayil House vs The Director Of Mining And Geology18  the question was

whether mining sand from paddy lands is totally prohibited. According to Section 11 it was held

that the aforementioned Act does not bring about a complete prohibition of sand from paddy

17 Section 1118 WP(C).No. 8452 of 2009(B)

fields, it cannot be done except on the strength of a specific permission granted in that behalf by

the competent authority. An enquiry was ordered to be conducted by the Revenue Divisional

Officer as to whether there is removal of sand from Paddy land or wet land , within his

jurisdiction. If he finds that sand is being removed from wet land he shall proceed to take action

as contemplated by Section 23 of the Act. By filing a report stating that an offence has been

committed by the concerned person as contemplated by Section 23 and 25 of the Act. He shall

also take action to see that no sand is removed from paddy land except that an authority granted

on that behalf by an officer not below the rank of the Revenue Divisional Officer and that only

for an appropriate utilisation of the land for any commercial exploitation.

Kerala Land Utilisation Order And The Kerala Paddyland and Wetland Conservation Act

The Kerala Land Utilisation Order, 967, a subordinate legislation under the Essential

Commodities Act, 1955, agricultural lands has not served the purpose. One of the reason for its

failure is that, the said law gives a discretionary power to the District Collectors to grant

permissions for conversion. But the provision does not contain any guidelines as to how and

when the power is to be exercised. The legislation does not empower any one to grant permission

for converting the agricultural land.

The Kerala Land Utilisation Order is issued under the Essential Commodities Act which is in

force even now. The Act in question viz. the Conservation of Paddy Land and Wet Land Act,

2008 does not nullify the orders passed under the Kerala Land Utilisation Order. Apart from that,

the Central Act, viz. Essential Commodities Act, especially Section 6 of the said Act contains a

provision with regard to the effect of the orders inconsistent with other enactments. It provides

that any order made under Section 3 shall have effect notwithstanding anything inconsistent

therewith contained in any enactment other than this Act or any instrument having effect by

virtue of any enactment other than this Act. The question therefore is whether in the absence of

any repeal of the Kerala Land Utilisation Order and whether even in case of such repeal the

orders issued under the Act will lose its significance and will become inoperative.

Therefore, the dictum will show that pending applications under the Kerala Land Utilisation

Order will have to be considered under the Act. In the light of the finding that the Act is only

prospective in operation, the question will have to be considered is whether the orders passed

already under the Kerala Land Utilisation Order, can be said to be nullified by the provisions of

the Act pending applications alone need be considered under the Act. The provisions of the

Kerala Land Utilisation Order still survives in respect of other food crops.

As we have noticed, as per the definition; under the Land Utilization Order, encompasses not

only paddy crops but also fish, sugar cane, vegetable, tapioca, yam, tea, coffee, cardamom,

pepper, groundnut, cocoa, banana plantain etc. Since Act 28/2008 confines its application to

paddy land and wet land, restriction imposed under the Land Utilization Order under Cl.(6)

thereof in respect of other food crop will have continued operation and such conversion or

attempt of conversion or utilize or attempt to utilize such land other than paddy land or wet land

will continued to be governed by the provisions contained in the Land Utilization Order and such

application for permission has to be moved before appropriate authority and to be dealt with in

accordance with the provisions of the Kerala Conservation of Paddy Land and Wet Land Act,

2008.

Procedure for Cultivation of the Paddy land

The committee has the power to suomotu initiate proceedings direct a person holding any paddy

land whether as owner or under a legal right of any paddy land if it feels so, which is

uncultivated and left fallow, to cultivate it by himself or through any other person of his choice,

with paddy or any other intermediary crops under the provisions of this Act.

If practical difficulties prevent holder of paddy land to comply with direction of the Committee,

the Committee may, request him to grant permission in writing the cause to cultivate the said

paddy land through the Panchayat. The holder of paddy land has to give a reply in writing, as

soon as possible, either granting or withholding permission. If permission is granted to cultivate

the said paddy land, the Committee may execute an agreement between the Panchayat and the

holder of the land, in such form and subject to such conditions as may be prescribed, entrusting

the said paddy land to the Panchayat either to cultivate or to get it cultivated for a fixed period.

If the Panchayat/Municipality/Corporation is not directly cultivating the paddy land entrusted to,

it may grant the right to cultivate the said paddy land, to a third party by auction or otherwise,

not inconsistent with the conditions of the agreement executed earlier, for a maximum period of

two years and make arrangement for the same. While entrusting the right to cultivate said paddy

land the following organizational structure of paddy shall be followed, namely:-

(i) Padasekhara Samithis or Joint Farmers Societies;

(ii) Self Help Groups;

(iii)the Kudumbasree Units functioning in the Grama

Panchayat/Municipality where the paddy land

is situated.

a. Rights and duties of cultivator:

The person getting the right to cultivate such paddy land shall not render the land unsuitable for

future cultivation nor convert or reclaim the same. The person shall, pay in advance, the amount

as per the agreement, to the holder of the paddy land and such sum shall cover the cost of

cultivation.

The land owner can of his own turn over the land to the the Panchayat for cultivation even

without the receipt of a notice if an owner of paddy land is unable to

cultivate his paddy land by himself.

The person having the right to cultivate the land can take the profits from cultivating paddy or

any other crop and has no other right. entrusted with the right to cultivate a paddy land shall have

no right whatsoever. He can be summarily evicted after the expiry of the period for which such

right has been accrued or after the termination of such right, if there is continued possession of

the land.

Provisions for Enforcement of the Act :Civil and Criminal

1. Provisions of entry and seizure and confiscation

A officer of the Revenue Department not below the rank of a Revenue Divisional Officer or any

authorized officer of the Government or any police officer not below the rank of a Sub-Inspector,

has the power to enter and search any premises and seize any vessel, vehicle or any other

conveyance or machinery used or believed to have been used for any activity in contravention of

the provisions of this Act, and a report shall be submitted to the Collector regarding such seizure,

whether prosecution proceedings have been initiated or not, shall be given to the Collector

having jurisdiction within forty eight hours of such seizure.

The Collector may, after studying the situation and report of the seizure order confiscation of the

object seized.19 To get the vehicle out the owner or person in custody of the same, can pay a sum

equal to one and a half times the value of the seized articles, for the release of the vehicle, as may

be determined by the District Collector. The District Collector owes the owner an opportunity of

being heard in the matter. No order of confiscation shall be invalid merely by reason of any

defect or irregularity in the notice given if the provisions have been substantially complied with.

The award of any confiscation is apart from the other penal provision to punish the person

affected thereby is liable under this Act.

An appeal against an order of confiscation may be filed by an aggrieved person within thirty

days from the date of communication such order. The appeal is to be given before the District

Court having jurisdiction over the area in which the articles were seized and the District Judge

shall, after giving the parties a reasonable opportunity of being heard issue such order either

confirming, amending or annulling the order appealed against.

19 Section 20

The High Court of Kerala in a writ petition20 filed herein challenging an order of 'seizure' passed

under Section 20 of the Kerala Conservation of Paddy Land and Wetland Act upheld the order of

the lower court. The court stated that it is an appealable order under Section 21 of the Act.

Section 20 of the Act provides for confiscation of vehicles seized under Section 19. Such an

order of confiscation is passed in the instant case by the District Collector which was the subject

matter of the challenge in the writ petition. Hence Section 21 was found to categorically provide

for an appellate remedy for a situation under Section 20. Any person aggrieved by an order of

confiscation under Section 20 may within thirty days from the date of communication to, appeal

to the District Court having jurisdiction over the area in which the articles were seized and the

District Judge shall, after giving the parties a reasonable opportunity of being heard issue such

order either confirming, amending or annulling the order appealed against.

2. Other Penal provisions

1. Any person who converts or reclaims any paddy land or wetland notified under sub-

section (4) of section 5, be punishable with imprisonment for a term which may extend to

two years but shall not be less than six months and with fine which may extend to one

lakh rupees but shall not be less than fifty thousand rupees.21

In K.P.Hussain, S/O.Kunhahemmad vs Revenue Divisional Officer 22 it was noted that though,

Sec.3 of the Act deals with prohibition of conversion or reclamation of paddy land except in

accordance with the provisions of the Act, Sec.23 of the Act which deals with penalty states that

the penalty is attracted only when any paddy land or wet land notified under sub- section (4) of

Sec.5 is reclaimed/converted.

20 Varghese v District Collector WA.No. 1081 of 2010()

21 Section 2322 Crl.M.C. No.756 of 2011

2. No court below the rank of Chief Judicial Magistrate Court shall take cognizance of any

offence punishable under this Act except on a report in writing of the fact constituting

such offence by an authorized officer.

3. Civil remedies

1. A civil court shall grant an injunction or make any order for any other relief against the

Government or any officer authorized under this Act, for the actions taken by them on the basis

of no valid notices has been issued.

2. Sums due recoverable as arrears of land revenue to Government shall be recoverable

under the Revenue Recovery Act for the time being in force.

3. Under the power of revision23 the Government may either suo motu or on application

from any aggrieved party call for the records of any act or proceedings of the Collector in

any case under this Act, and pass such orders thereon, as it may deem fit.

In Devassykutty A.M. Vs. The District Collector and Anr.24 an Order was passed by District

Collector directing the restoration of land/nilam to its previous position was under challenge It

was held, the order is revisable under Section 28 land was filled up and plantains were planted

in the concerned land even before the coming into force of the Act and that if the plantains are

uprooted, it could again be used for paddy. There was also a specific case for the Appellant

that had not preferred any such application.

Miscellaneous provisions

1. Protection of action taken in good faith- No suit, prosecution or other legal proceedings

shall lie against any person for an act done in good faith done or intended to be done in

pursuance of any provisions of this Act. No action can be initiated against the government on the

same grounds either.

23 Section 2824 MANU/KE/1381/2010

2. Power to make rules- The Government may, by notification in the Gazette, make rules for

the purpose of carrying into effect the provisions of this Act. The rules have to be placed before

the

Legislative Assembly while it is in session for a total period of fourteen days, which may be

comprised in one session or in two successive sessions the rule may be modified so however

such modification or annulment shall be without prejudice to the validity of anything previously

done under that rule.

CONCLUSION

As many other pieces of legislation, the law to protect wetlands and paddy fields have not been

foolproof. One of the recent proposals for development of projects on reclaimed land, which has

reportedly come up for official consideration, was for establishment of a golf course, a hotel, and

luxury resorts in the Kuttanad area of Alappuzha district. The project, if sanctioned, aims at

reclamation of 180 hectares of wetland.

A single window clearance system is needed. An updated database of landholdings in the state is

required for the effective implementation of the Kerala Conservation of Paddy Land and

Wetland Act.

An Amendment Act of 2011 is sought to be enacted by which up to 5 percent of plantations

could be used to cultivate other agriculture crops or medicinal plants or for garden farming or

even for tourism purposes. Also the Bill seeks to empower village officers with the authority to

take action against those flouting the provisions of the original Act of 2008.

A balance has to be struck between developments needs on the one hand and the food security

situation and environment on the other. The High Court directive that certain lands could be

converted into residences did not sit well with the environmental groups. The Bill has to see

about this matter and take care that unemployment and homelessness does not come about too.

BIBLIOGRAPHY

1. www.manupatra.com

2. www.indiakanoon.com