Kerala Land Conservancy Act

T.J JosephDeputy Tahsildar,Kottayam.

KERALA LAND CONSERVANCY ACT:THE WAY AHEAD

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Land Conservancy Act-1957.

Land Conservancy Rules-1958.

The Kerala Land Conservancy (Amendment Act-2009

LAND

1. Government Land.

2. Registered Land.

Role of Revenue Officers.

1. Protect Government Land.

2.Prevent Encroachment.

3.Eviction.

Report to tahsildar regarding encroachment

of property.

1. Report in A form

2.SKETCH

3.Mahazar.

AA

Report to tahsildar regarding

Transfer of materials.Rule-4

1.Report in AA form

2.SKETCH.

3.Mahazar.

AAAA

TAHSILDAR ISSUES NOTICE FOR

HEARING..Rule-9

1. Notice in B form

2.If the party appears,3.A statement of the person may be recorded.Evidence may be marked, initialed with date and filed.

BB

TAHSILDAR ISSUES FINAL ORDER..Rule-11

1. Order in C form

2.The final order ofThe tahsildar shall be in his own hand writing and contain the reason for the decision.The occupant is directed to vacate within a specific period.

cc

Summary eviction –Rule 13 A

When the tahsildar isopinion that it is expedient in the public interest to remove an unauthorised occupation notice in form CC is issued.If the land is not vacated, tahsildar may enter upon the land and take possession.

cccc

Warrant and arrest.–Rule 12

When the eviction is resisted, Tahsildar may summarily enquire the Matter and issue a warrant in form D.

DD

Permit for the removal of materials/quarrying.

–Rule 17

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EE

Register Of Permits.–Rule 28

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FF

Application for license for erection of

wall/fence/building –Rule 28

GG

License for erection of

wall/fence/building –Rule 28.

HH

The Kerala Land Conservancy (Amendment )Act-2009

7a, Unauthorised occupation is a punishable offence with imprisonment for a term 3 to 5 years with fine Rs.50000 to Rs 2 lakhs.A land less occupant as on 07/10/2009 residing in government land extending below 5 cents with sufficient record of evidence shall not be considered as an unlawful occupant

The Kerala Land Conservancy (Amendment )Act-2009

7b, Who ever for the purpose of transfering govt land makes or create any forged document is punishable with imprisonment for a term 5 to 7 years with fine Rs.50000 to Rs 2 lakhs.

Punishment is same for abetment.

The Kerala Land Conservancy (Amendment )Act-2009

7c, An officer who is bound to protect govt. land fails to take action to remove the unlawful occupation shall punishable with imprisonment for a term 3 to 5 years with fine Rs.50000 to Rs 2 lakhs.

The Kerala Land Conservancy (Amendment )Act-2009

7d, who ever erects unlawfully any wall /fence /building are punishable with imprisonment for a term 1 to 2 years with fine Rs.10000 to Rs.25000.

Appeal&Revision

Building TaxBuilding Tax

The easy way

Summary eviction:How easy and fast is it..?

Section11(3) KLC Act

• “Notwithstanding anything contained in sub-section (2), where the Collector is of opinion in any case falling under sub-section (1) that it is expedient in the public interest to take urgent action without following the procedure laid down in sub-section (2) he may, after recording his reasons for so doing issue a notice to the person in occupation calling upon him to vacate the land within such period as may be specified in the notice, and if the land is not vacated within the said period, any officer authorised by the Collector may enter upon the land and take possession of the same, if necessary by using such force as the circumstances may justify”

Rule 13A of KLC Rules

• “Notwithstanding anything contained in the foregoing rules,where the Collector is of opinion that it is expedient in the public interest to remove an unauthorised occupation, he may,after recording the reasons therefore, serve or cause to serve a notice in Form ‘CC’ appended to these rules on the person in occupation directing him to vacate the land within such period as may be specified therein, and if the land is not so vacated within the said period, any officer authorised by the Collector may enter upon the land and take possession of the same, if necessary by using such force as the circumstances of the case may justify.”

• “serve a notice in Form ‘CC’”• “expedient in the public interest”• “recording the reasons”

(This space is the form is always left blank!)• “take possession”

(Sometimes not done. Procedure completed on paper alone)

• ………any missing link renders it vulnerable.

The vital legal ingredients

Why the easy way out?

• This route provides ‘single’ step action.• There is perceived ‘fast’ action on the field. • Administration looks ‘responsive’, sounds

‘energetic’.• Public ‘sees’ results in a matter of days.• Very impressive….but

Easy,but invalid!

• Repeatedly, the High Court has held such a summary eviction without giving an opportunity for hearing as ‘violation of Principles of Natural Justice’

• Fast action under Form ‘CC’ seems administratively easy,or rather too simplistic a solution; but in a Court of law it simply does not survive.

• Often the High Court has remitted the case back directing that Form ‘CC’ should be treated as a Notice. This would render Form ‘CC’ as Form ‘C’ itself!

• Effectively, there is nothing called ‘summary eviction!

The Judicial blunders……………….……..with due respect.

• The Munsiff Courts seem to be unaware of ousting of their jurisdiction u/s.20A.

• Often they seem to be even unaware of the perpetual caveat for the Government u/s.80 of CPC which reads:“(1)Save as otherwise provided in sub-section (2), no suits [shall be instituted] against the Government or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been [delivered to, or left at the office of]-…………. c) in the case of a suit against [any other State Government], a Secretary to that Government or the Collector of the district;

• ……(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu & Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit”

• No reasonable opportunity/any opportunity is given!• A casual survey can verify that Section 80 Notice has

become a rarity, while it is the mandated rule!• Officers are forced to file caveats.• And when the officers file a caveat, they become

villains….??!!

• The High Court has on one occasion passed strictures against a Tahsildar for filing such a caveat while the law of the land mandates a caveat automatically!

• The Hon’ble High Court observed: – “ I am not happy with the conduct of the Tahsildar. I

also note the contention of the petitioner that the Tahsildar has even filed a caveat application before the Subordinate Court, Quilandy, against the petitioner anticipating that the petitioner may file a suit.”

• Maybe,the Government side is often not well represented.

• Besides,the encroachers have the services of the legal eagles.

Slow and steady vs ‘summary eviction’

Form B Notice

Form C Notice

Hearing

STAYEviction

Form CC Notice

Form AA

Tahsildar

Village Officer

ENCROACHMENT

Village Officer

Form AA

Tahsildar

High Court

To rejuvenate summary eviction

• Section 11(3) is for use in emergent situations which should necessarily be protected.

• It may be suitably amended to provide for hearing opportunity, but after the summary eviction.

• Post facto hearing will satisfy ‘natural justice’ requirement (Maneka Gandhi case says - ‘post facto hearing also satisfies the requirement of natural justice’). If upon hearing, it is found that the eviction was not necessary, the land could be handed back. Till then no property shall be demolished

• Such an amendment alone will make this section valid in Court.

To effectively oust Civil Court Jurisdiction

Section 20A of KLC Act: “Bar of jurisdiction of civil courts-1) No civil court shall have jurisdiction to entertain any suit or proceeding for the eviction of any person who is in unauthorised occupation of any land which is the property of Government….”

• So, an encroacher can still approach a Civil Court for relief with a contention that the land does not belong to the Government at all or that he is not in ‘unauthorised’ occupation citing some lease deed etc.

• For the ‘bar of jurisdiction’ to be in operation, as per the present Act, it has become the onus of the Government to prove in the Munsiff Court that the land indeed is Government Property and that the occupation is unauthorised. Injunctions are plenty! (In violation of s.80 of C.P.C)

The Bar of jurisdiction of Civil Court should be of a blanket nature concerning all procedures under this Act. Judicial Review is not lost as the High Court can anytime intervene.

It may now read, “No civil court shall have jurisdiction to entertain any suit or proceeding for the eviction under this Act….”

1. The fine imposable u/s.7 of KLC Act should be hiked and should have a band varying with extent of occupation and the land value etc .

2. Prohibitory assessment as provided for u/s.8 should be revised and made truly prohibitory by amending the rules made there under. If the Collector is satisfied, the rates imposable should be in lakhs.

3. A specific provision should be introduced to provide for removing a tenant who is unauthorisedly holding over even after the expiry of his term of lease over government land.

Number of People refusing to vacate government land after expiry of lease is rising.They find litigation easier.

Other amendments badly in need…

Of Panchayats and Municipalities • Largescale encroachment of LSG body owned

land (eg. Puzha puramboke) is taking place. • Places like Municipal bus-stands have illegal

encroachment and largescale unauthorised shops.• Unfortunately,LSGs due to vested interests or due

to other reasons do not remove them.Corruption is also a factor.

• Even law & order issues have resulted of late.• Undoubtedly, Revenue Department is bound to

protect Government land.The KLC Act also says the same.

.….Panchayats & Municipalities

• However, in the Court of law, an eviction of such an encroachment is often annulled solely because the LSG Body had not asked the Revenue authorities to remove the encroachment in writing.

• Though the Act nowhere says of such a requirement, the Courts have interpreted that the ‘owner’ should raise a complaint. This has to be rectified with an amendment.

• Specific provision should be incorporated stating that unless the local body has on record regularised and legally authorised any occupation, the Revenue authorities are empowered to evict such encroachments without receiving any written complaint from the LSG.

• Any occupier of Government land should necessarily be having a legal document authorising him. Or else, he is liable to be evicted by Revenue authorities.

To act…enact

• The Act needs timely ‘fine tuning’ so as to enable it to be in action.

• The legal support apparatus in the form of Government Pleaders need to have better liaison.

• Proper & timely communication of Orders and judgments in writing to be made mandatory.( Non-existent ‘stays’ have been many a time orally passed on by the encroachers’ lawyers, thus paralysing the whole effort.)

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Thank You…………………………

T. James Joseph, Adhikarathil,

Kottayam,Kerala.