Land Law Project
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