EDITORIAL: Heading SouthwardsThe state of Kerala was one of the few later states in filing the compliance affidavit before the Supreme Court proceedings in Jagpal Singh & Others versus State of Punjab & Others... (More...)

Developments around Commons in KarnatakaIn 2012, the Deccan Herald newspaper had reported that the Karnataka Government Land Protection Task Force in its report had highlighted a total of 9,43,268 acres of land... (More...)

Kerala – State’s Actions and Legal Struggles In response to the Supreme Court’s ‘commons order’ dated 28 January 2011, the Under Secretary to Government, Revenue Department, Government of Kerala, filed an affidavit... (More...)

The Disappearing Commons in Kerala Illegal encroachments on common lands in villages in Kerala are not a new phenomenon. All over the State, every other bit of government land and puramboke land has been... (More...)

Disclaimer: The views presented in this resource are those of the authors and are not necessarily shared by the contributors. The content of this work is an additional aid to understanding the law. Only sections of the law considered to be relevant have been incorporated. While all efforts have been made to maintain the accuracy of content, relevant official gazettes and judicial pronouncements may be consulted for authenticity. The authors of this resource will not be responsible for any loss arising out of the use of this resource. Any discrepancy found may kindly be brought to the notice of the authors.

Contents

Invoking Tamil Nadu’s Panchayat Legislation The Supreme Court order of 28 January 2011 re-emphasises the responsibilities of state governments and union territories to protect the village commons under their jurisdiction... (More...)

Issue 5 December 2014 Bimonthly e-publication

The Case for the Commons

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Heading SouthwardsThis issue of ‘The Case for The Commons’ takes us to southern India and particularly the three states of Karnataka, Kerala and Tamil Nadu.

The state of Kerala was one of the later few states in filing the compliance affidavit before the Supreme Court proceedings in Jagpal Singh & Others versus State of Punjab & Others (Civil Appeal No.1132 of 2011 @ Special Leave Petition No. 3109 of 2011). Despite the order of 28 January 2011 and the subsequent one dated 3 May 2011, in which the Supreme Court observed that it is deeply regrettable that in spite of our order dated 28 January 2011, only the State of Jharkhand has filed an affidavit’, the state had not made any submissions till July 2011 (as the Report of the SC Registry tells us).

Yet, Kerala is seen by some as steps ahead of other states in terms of governance. Much before the Supreme Court’s January order the state already had the Kerala State Land Bank (KSLB) to address the issue of encroachment of Government Land. The KSLB had been set up under a project in 2008-2009. Though it is to be seen if that in itself is sufficient to protect the essential nature of village commons. Nonetheless, the KSLB is key to the efforts by the state to address the issue of encroachment. Each and every piece of Government Land in each of the 14 districts of the state has a unique 12-digit identification number for quick data retrieval. The KSLB is also very much part of a State Action Plan that was put into place to comply with the Supreme Court order; you will find more about the scheme in the piece on Kerala in the following pages.

Within the State Government, the Kerala Revenue Department (KRD) has been the key department dealing with the compliance of the Supreme Court order. KRD gave instructions for compliance of the order to all District Collectors (DCs) – executive heads of the district administration. It also developed the State Action Plan, wherein it categorised government lands into two, those held by the Revenue Department and the second being lands held by other Government Department/Institutions. Specific procedures for the speedy eviction of illegal occupation/trespass/encroachment of such lands was also detailed in the said Plan.

Apart from the Revenue Department, the then Chief Secretary’s office was also cognisant of the matter. He had issued instructions to all DCs with respect to encroachments, but had done so highlighting them as violations of environmental regulations. In this context he had referred to the Kerala Paddy and Wetland (Conservation) Act 2008 and the Coastal Regulation Zone (CRZ) Notification 2011.

The extent of the encroachments in Kerala is brought out by our guest commentator, Dr Latha Anantha of the River Research Centre. Her piece gives us the context of the state in which the Supreme Court order is to be implemented. She also points to the potential in other state legislation for the protection of common lands.

Other than purely land-related legislation, many state governments have also invoked their state panchayat legislation to deal with the issue of encroachments. This is the case even in

Editorial

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Tamil Nadu, wherein the relevant section of the Tamil Nadu Panchayats Act, 1994 was invoked. Our piece on Tamil Nadu has the details for you.

The Tamil Nadu government had filed its compliance affidavit to the Supreme Court order dated 3 May 2011; this was done through advocate B. Balaji. Subsequently, there have also been cases before the Madras High Court, where the Supreme Court order has been cited. But it must be mentioned that Tamil Nadu has previously had its own set of public interest litigation on the issue of commons. The relevant cases are detailed in the section on Tamil Nadu cases. These predate the Supreme Court case on the commons.

The (Tamil Nadu) Revenue Department Policy Note 2011-2012 as well as the Revenue Department’s Manual under Right to Information Act, 2005 make express mention of the court cases. The latter also makes mention of G.O.Ms. No.186 of the Revenue Department, dated 29 April 2003 in which orders were issued to evict all encroachments in watercourse porambokes without any reservation. The regularisation of these encroachments was also banned.

The reader will also recall that in Issue 1 of The Case for The Commons, we had made mention of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948). As per that law though lands did vest in the government, but that by itself does not mean that the rights of the community over it were taken away. Thus, there is enough and more within Tamil Nadu’s legal landscape to further develop the jurisprudence on village commons.

The section on Karnataka covers different aspects of the issue in the state. On one hand there were attempts to make amendments in the state Revenue Laws to deal with encroachments and  (See the newspaper report) on the other hand, concerned citizens and environmental groups have sought judicial remedies around commons under existing legislation.

The section also summarises the recommendations of the A.T. Ramaswamy Committee constituted on 17 June 2006 to look into the matter of encroachments in Bangalore city.

As you will notice, each state in the South that we’ve attempted to cover in this issue has its own particular story. Yet no matter how different the tale, there is something common to all – the struggle to keep the commons. May the New Year give renewed strength to all those in the struggle.

– Shalini & Kanchi

Developments around Commons in Karnataka[Note: this section is largely based on news reports compiled on the http://claim-for-commons.blogspot.in/]

In 2012, the Deccan Herald newspaper reported that the Karnataka Government Land Protection Task Force in its report had highlighted that a total of 9,43,268 acres of land has been encroached in the district including 16,249 acres of revenue land and 35,946 acres of forest land. Some of the figures on encroachment on Government Land brought in the public domain showed that about 12.1 lakh acres of land have been encroached in the state out of which authorities reclaimed 47,000 acres, about 388.19 acres forest land had been encroached in Mudigeretaluka (block) and about 282.13 acres forest land has been encroached in Aldoor forest division. Similarly, In Tarikeretaluka, 14,919 acres has been encroached, in Sringeri—3,070 acres, Koppa—11,968.11 acres, Narasimharajapura—4,278.38 acres and Chikkagrahara—2,785 acres have been encroached (See here).

1. Administrative Response to encroachments on Government Land A news report in October 2013 (See here) highlighted that the Principal Secretary, Revenue Department, Government of Karnataka has issued a circular dated 14 June 2013 to all the Regional Commissioners and Deputy Commissioners with a direction to demarcate village boundaries and protect government lands including Gomala (grazing) and tank bed. According to the article, the action was prompted by a Right to Information application filed by an activist Shri Kalidas Reddy, enquiring about the action taken by the government following the Supreme Court orders dated 28 January 2011 related to the protection of commons. According to the circular Regional Commissioners, Deputy Commissioners and Tahsildars were instructed to verify records pertaining to the Form-9 of the Revenue Department. The Tahsildars were authorised and directed to certify and demarcate village boundaries. It was also directed that any violations of the regulations must be dealt with stern actions.

2. Discussions around Legal Changes to check encroachmentsAccording to the website of the Department of Parliamentary Affairs and Legislation in Karnataka, the State Government sent the Karnataka Land Revenue (Amendment) Bill, 2012 to the State Governor for approval in 2012. This was after State’s Legislative Assembly and Legislative Council had passed it as per procedure. This Bill was to amend by substituting Section 94C of the Karnataka land Revenue Act, 1964 with modifications. The full text can be downloaded here.

The Governor returned the Bill to the State Government citing reason that “policy of regularisation of encroachment of Government Land directly encouraged illegal occupation of Government Land.” An article in The Hindu newspaper (See here) dated 4 September 2012 highlights that the particular objection was the replacement of the section 94C, which stated that “the object of the amendment is to grant Government Land unauthorisedly occupied by persons in rural areas who have built dwelling houses prior to January 1, 2012”.

The communication from the office of the Governor had stated that the Article 2001 of the Constitution, which allows for reconsideration of the State’s Legislative Assembly and the

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1Article 200 of The Constitution deals with the Governor’s Assent to Bills, In this article 4 instances mentioned for Governor’s assent. In one instance the Governor may return the bill (if not a Money Bill) for reconsider citing reason. This is to be done “as soon as possible after the presentation” of the Bill (First Proviso).

1This piece is based entirely on the information received in reply to an application under the Right to Information Act, 2005.2Letter No. PDA 56/2014/56 dated Dispur 9 May 2014.

Legislative Council in such cases. It also mentioned the State Task Force report on protection of public lands and the observations of the Joint Legislature Committee constituted to look into the details of the problems of land grabbing and encroachments in the state, in order to substantiate the reconsideration request. A particular section of the State Task Force was quoted in the communication, which highlights that in the background of large-scale unauthorised occupation of public land, the task force looked into large-scale unauthorised occupation of government land, including forest land and common land. The report, submitted in 2011, highlighted that an extent of over 11 lakh acres of Government Land are under unauthorised occupation. Further, the observation of the Joint Legislature Committee’s stated that because of the inaction of the government against land-grabbers, real estate agents and their abettors, ordinary citizens have come to lose faith in government and administration. The committee has said that it is essential for the government to take action against land-grabbers and their abettors.

The Hindu news article also states that the communiqué from the Governor’s office particularly was concerned as “(t)his amendment will cause severe inroads into the lofty principles such as Rule of Law, Equality before Law, Due Process, Majesty of Law, Dignity of Courts, Inalienable Fundamental Rights, Directive Principles, etc., which are enshrined in the Constitution. The Bill, extending the period till January 2012, has given scope for further illegal occupation of Government Land. In the larger interest of the public, illegal occupation of Government Land has to be curbed. The article mentions that the Governor was of the view that amendment does not have any “public good and social cause” and concerns were raised that amendment would encourage illegal encroachment of Government Land and it is not intended to prohibit grant and regularisation of common land.

In a significant development the then Chief Minister (CM) of the State in his first meeting on 28 May 2013 after resuming the office, with the Deputy Commissioners of districts, Chief Executive Officers of Zilla Panchayats and heads of the government departments took up the matter of illegal encroachment of Government Land in the state. In this meeting CM made clear that in the case of any encroachment of Government Land concerned Tahsildars of Taluks would be held responsible for encroachment. The CM directed the Tahsildars to identify Government Land in their jurisdiction, conduct a survey of such lands, fence them and put up a board stating that the properly belonged to the government. He told Tahsildars to initiate steps to bring back the encroached Government Land.

The CM stated that his cabinet would look into the report of the A.T. Ramaswamy Committee (see more about this committee in point 3 in this section). This Committee was constituted on 17 June 2006 to look into the encroachment of Government Land in and around Bengaluru. Local level administration also initiated efforts to restore the Government Lands under their jurisdictional boundaries.

3. Efforts to Protect Commons in Karnataka: Some efforts beyond the Commons Case

Several news reports have indicated that commons across the state of Karnataka state have been severely encroached. Organisations and individuals have raised voices against these encroachments and brought their concerns before competent authorities to take action. Some examples are:

• Government Land in Kushalnagar Town Panchayat had been illegally encroached for commercial interest. Local residents raised the issue and brought the matter to the notice of the administration. Kushalnagar Town Panchayat took the note of the matter and passed a resolution to take actions to remove the encroachment from the Government Land including

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Gomala, Paisari, Kumbaragundiand Nagarahole National Park (see here). In November 2013, it was reported that the Town Panchayat has taken a resolution to remove the encroachment and also reclaim the land (see here).

• In Challakere in Chitradurga district, local residents have opposed the government’s move to allot grazing land to Defence Research Development Organisation (DRDO), Indian Institute of Science (IISc) and Bhaba Atomic Research Centre (BARC). The land had been sought to organise a competition on Micro Air Vehicles (MAV). Concerned groups had highlighted that the land was grazing land critical for Amruta Mahal breed of cattle. A local organisation Jilla Amritmahal Kaval Horata Samiti based in Chitradurga opposed the allotment with argument that it would cause harm to the environment and livelihood of local people. It hhighlighted that the “(t)he Amruta Mahal grazing reserve is perhaps the largest grazing grounds in the state, if not in the country. The grazing reserve for Amruta Mahal cows and bulls endemic to Challakere, created over four centuries ago, extends to over 10,000 acres.” (More details in Section 3 below and also see here)

• Another important problem of encroachment are is with impacts on state. An historic Aanekere near Chikkathoor-Basavathoor in Koodumangalur Gram Panchayat limits was reported to have been encroached causing the tank area to reduce substantially. The villagers have been raising voices against this. The management and protection of tank lies with Gram Panchayat who allegedly had failed to ensure protection and management of tank. Local individuals and groups had demanded to ensure protection of tank (See here).

4. Litigation related to CommonsThere have also been several instances in Karnataka where concerned citizens and environmental groups have sought judicial remedies around commons. These have not necessarily referred to the Supreme Court judgment on Commons, which are discussed through this e-publication but are important examples of legal action towards protection of commons in the state. This section highlights some of these examples:

Public Interest Litigation on Amrut Mahal grazing reserve:

A very important and critical litigation, which has emerged from the state related to commons, is around the Amruta Mahal grazing reserve. This grazing reserve extends to over 10,000 acres and as mentioned in the previous section was under threat due to diversion in favour of Defence Research Development Organisation (DRDO), Indian Institute of Science (IISc) and Bhaba Atomic Research Centre (BARC) to organise an event. A public interest litigation (PIL) was filed before the Karnataka High Court by All India Kisan Sabha, Karnataka state committee in July 2012 (26144 of 2012). Other parties also intervened and joined the case subsequently (Writ Petition Nos. 24144-26146 and 26147 of 2012). The PIL raised an important issue that the lands are essentially gomaal (pasture) lands used for cattle and sheep grazing. Grazing land is significantly linked to the occupation of an arid area where the average annual rainfall is only 573mm. In the dated 30 September 2013 issued in this PIL, it is highlighted that the petitioner had argued that the lands in question were originally reserved for grazing under Sections 71 and 72 of the Karnataka Land Revenue Act, 1964 and the change of user and allotment of lands was in violation of the provisions of Rule 97(4) of the Karnataka Land Revenue Rules, 1966, for the reason that the Deputy Commissioner, who was the competent officer, had not made the necessary order. It was submitted and argued that the villagers, who were using the lands for grazing of cattle, had a vested right and they were not even heard or put to notice

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about the large tracts of land being given away to aforesaid organisations. It is also contended that the respondents concerned have not considered the ecological aspects and biodiversity of area, as also the interest of the cattle upon whom, the two dominant communities of kurubas and gollas were dependent. Developing the claim further, it is also contended that the lands allotted to respondents ought to have been considered as district forest lands. Thus, in short, legal, environmental and ecological issues have been sought to be raised, after four years of allotment of lands.

The Additional Deputy Commissioner, Chitradurga filed an affidavit raising questions of locus standi of the petitioners and that since they are not residents of the area they cannot file the petitions. The affidavit argued that the order for the use of the land was as per the procedure contemplated under the provisions of Land Revenue Act and Rules, especially Rule 27 of the Land Grant Rules, 1969, which had been duly followed. It was shared that the lands in question were basically Amrith Mahal Kaval lands and reserved for breeding Amrith Mahal Kaval cattle by Veterinary Department since 1971. It was reserved 40 years ago but not in use for which it was reserved. Department of Animal Husbandry and Veterinary Sciences have control on the lands and grazing for the cattle of the villagers were not allowed. Petitioners argument that people of the area depend on animal husbandry was contested by the respondent who mentioned that district economy is based on agriculture. The State Government had, in its wisdom, thought it fit to use the lands in question to provide basic infrastructure to the entire district, even as only a few families of kurubas and gollas were engaged in the household industry of cattle breeding. It was also brought before the court that the National Green Tribunal was approached to challenge the allotment of lands in question. The matter is pending before the Southern Bench of the National Green Tribunal, Chennai (For details and ESG update on matter in the National Green Tribunal see here).

This matter was heard by a division bench headed by Chief Justice Vikramajit Sen. On 19 November 2012, in first hearing, the Bench issued notice to the state government, DRDO, IISC, ISRO, BARC (Mysore), KSSIDC and KHB with regard to this PIL challenging the government’s grant of 8,932 acres of land to these institutions at various villages in Challakere taluk of Chitradurga district. In its direction the bench asked the government to inform the court whether any grazing land is left for cattle grazing (See here). The Court heard the matter in detail and on 30 September 2013 passed an order (See here) and disposed off all the petitions with cost. They stated that the petitions had been filed without having any genuine and bona fide interest in the matter and an attempt is made to thwart the work of development carried on in national and public interest, in the name of assumed or alleged injury or loss to a few indefinite number of villagers or animals.

Case related to the Hesaraghatta grasslands

A group of concerned citizens had initiated a campaign to save the Hesaraghatta grasslands in Bangalore. An online campaign was launched in 2012 to save 300 acres of grassland, which was allotted to establish a film city. In 2012, the concerned individual who initiated the campaign and his colleagues from the Arkavathy and Kumudvathy River Rejuvenation Trust had met with state Chief Minister other concerned authorities and had raised concerns with the department who was responsible to carry out the activities to establish film city. Due to no response from the department, Arkavathy and Kumudvathy River Rejuvenation Trust approached the High Court and had filed a PIL (Writ Petition 45759 of 2012) in December 2012. The Court took up the case on 4 January 2013 and issued the notices to the Government and directed to maintain status quo till the further order (See here).

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Commons in Mandya DistrictIt has been reported that Mandya District has faced massive encroachment of government land. According to a news report dated 12 July 2012 (See here), 1,44,273 acres of government land are available in the district and around 32,718 acres was encroached back then. District administration had initiated actions and 2808 acres had been restored. However, around 29,909 acres still remained under encroachments. Maddur taluka (block) of district is an administrative unit where 7,919 acres government land was under encroachment, which is highest in the district in year 2012 and in Nagamangala taluka, which is largest in the district, 362 acres land was under encroachment.

It has been highlighted that various types of government land have been encroached in Gundutopu which includes school premises, graveyards, roads, ponds, land reserved for public purpose and even forest land. As per the abovementioned newsreport the encroachments in various other talukas in the district was as follows: Mandya Taluk: 6,408 acres; Malavalli: 2,307 acre; Srirangapatna: 3,397 acres; Pandavapura: 3,193 acres; and K.R.Pet: 6,321.14 acres. The administration initiated the steps to clear the land. However, the progress was slow and only 10 to 15 acres of encroached land was restored every month.

The government land has been used illegally for cultivation across the district. To legalise occupation of such land administration received around 50 to 53 forms to approve total 17,868.3 acres. These applications had been received from various talukas like Mandya: 2980.25 acre; Maddur: 5483.11 acres; Malavalli: 426.03 acres; Srirangapatna: 2,942 acres; Nagamangala: 141.02 acres in Nagamangala; Pandavapura: 1944 acres K.R.Pet: 3,938.02 acres.

The limitations of the shortage of surveryors in the Revenue Department was also brought out. 100 posts of surveyors sanctioned for the district but only 76 posts had been filled. Moreover, theyare assigneda range of tasks including handling records, collection of papers and mutation related work along with their regular work as a surveyor. Other than this, there is also a shortage of equipment and funds to carryout the work of restoring government lands from encroachments.

5. A.T. Ramaswamy Committee Report:A.T. Ramaswamy Committee was constituted on 17 June 2006 to look into the matter of encroachment in Bangalore city. Committee submitted detailed interim reports on encroachments, which highlights the massive encroachments in the area. Report was submitted in two parts before the state assembly on 1 February 2007 and on 26 July 2007 respectively.

Background to the Committee’s formation:

On 21 March 2006 Shri G.V.Sreerama Reddy during the Question hour of Karnataka Legislative Assembly raised the issue of encroachment of government land. The same issue was raised in the Karnataka Legislative Council the next day. The House was informed that encroachment on Government Lands worth thousand of crores of rupees has taken place in the limits of Bengaluru city and Bengaluru Urban District. The questions brought the protection of commons at the center and there were heated discussions in the state assembly. This resulted in the formation

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of the Joint House Committee (JHC), which was constituted through the vide publication No. 206, dated 17 June, 2006. This Committee was to enquire into the matter and submit a report by the Speaker of the House.

The Committee had 17 members from across the party lines who were given the mandate to enquire the details of the matter of land grabbing in Bengaluru Urban District; the nature and extent of encroachments; names of encroachers and land-grabbers and point to solutions to bring back the land in question. Shri A. T. Ramaswamy, MLA, was appointed as the Chairman and V. Balasubramanian, IAS, Retired Additional Chief Secretary as the Adviser. The Committee reportedly made detailed enquiries and submitted two Reports on 1 February 2007 and 26 July 2007 before the state assembly (See here).

From 28 June 2006 till 20 December 2006, the Committee conducted 19 meetings and inspected the encroached government lands by personally visiting 46 places in 9 days. Around 491 complaints were received from the public, which they sought to examine and also gather additional information.

The Joint House Committee has examined the information from 28 June 2006 till December 2006 at the time when interim report was made available. 28 departments of the states participated in the Committee functions and provided information on encroachment of government lands. Based on the information furnished by the departments the Committee gave its opinion, recommendations and suggestions. This included amendments to be brought to the existing laws, establishment of special court and constitution of permanent authority to control encroachment of government Lands.

Recommendations of the Committee

In its 14 point recommendation, the Committee suggested to establish special court to deal with encroachments. This was to avoid infructuous litigation before the courts, allow for such cases can be considered before the special court and reduce delays in the disposal of cases. The orders of this Special Court could be open to challenge before the High Court and Supreme Court, suggested the Committee. The Committee sited the Andhra Pradesh land Grabbing (Prohibition) Act in 1982, which provided formation of a Special Court in Hyderabad and Special Tribunals at district level to punish land grabbers and abettors with imprisonment up to three years and fine. It said that a similar legislation with suitable modification should be immediately enacted for Karnataka.

Other than the setting up of the Special courts, the Ramaswamy Committee also recommended:

• Effective implementation of the existing Laws against Land Grabbers.

• Initiating Legal Action against Government and public servants under the Indian penal code for crating false documents or destruction of records.

• Amendments to existing laws, action under public Premises (Eviction of Unauthorised Occupation) Act.

• Action under section 133 of code of Criminal Procedure.

• Taking stock of cases pending before the courts.

• Protection of Public properties.

• Violation of land grant and lease conditions, safeguarding public properties as done in the neighbouring states.

• Illegal acts committed by housing Co-operative Societies.

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• Constituting a permanent legal authority to control the encroachments and prosecute encroachers before the special court; and

• Specifying an officer to properly implement the joint house committee report and recommendations.

Full text of report downloaded here and here.

The government after taking note of the Committee’s report, instructed all the concerned authorities and custodian of lakes to take actions without any delay and ensure removal of encroachments. In its report the Committee reported that the custodians of 426A-37G and 150A-16G had removed as per the Karnataka Public Lands Corporation Limited. On the matter of common land encroachment a meeting was held on 16 August 2013 under the Chairmanship of Principal Secretary to Government, Urban Development of the State. (For more details about the Committee see here).

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Kerala – State’s Actions and Legal Struggles1

State Submission before the Supreme CourtIn response to the Supreme Court’s ‘commons order’ dated 28 January 2011, the Under Secretary to Government, Revenue Department, Government of Kerala, filed an affidavit before the Court on 19 November 2011 with details of the action plan for speedy eviction of illegal occupation from the Government Lands in the State of Kerala in accordance with the judgment of this Hon’ble Court. The two-paged affidavit had an eleven-paged Annexure 1 containing the State Action Plan (given in the last section of this piece).

The State submitted before the court that the State Government had already initiated efforts in the past to ensure protection of Government Lands and eviction of illegal occupation from them as the Court had directed to do. State government had established a Kerala State Land Bank (KSLB) to address the issue of encroachment of Government Land. (See web site http://www.kslb.kerala.gov.in/) It was shared with the Court that the KSLB ensured “inventorisation and protection of the Government Land and efforts could be made more effective, proper and scientific”. As per the affidavit the database provided by the Land Bank supported proper demarcation of the Government Land and boundary protection was ensured.

Under the established procedure, the District Administration is to prepare an inventory on Government Land and the same is to be submitted to the State Land Bank. Plan was made that more data reaches the Land Bank through inventory and protection of land mentioned in inventory can also be ensured. Periodic reconciliation with the District database and the KSLB is also envisaged to ensure protection of Government Land from encroachment.

The State Government also told the Court in the affidavit that the KSLB also uses a ‘Lease Alert System’ to track those lands, which are given out under lease. On expiry of the lease period the Government is automatically alerted.

The State Government stated on affidavit that it had also decided that Government Land including surplus land, arable waste land, ‘nikuthi kettatha land’, bought-in-land, escheat land, etc., will be surveyed, photographed and georeferenced. Each land will be allotted a unique identity number with details like status, survey number, area and other relevant land particulars. Another system called ‘Beat System’ has also been brought in by the KSLB to ensure protection of Government Land along with the Beat Book. The Beat System is to be implemented with the effective participation of the people i.e. by using the service of home guards.

In its affidavit the state shared with the court that the process of eviction of illegal occupation/encroachment has been carried out since 2006 and till the affidavit was filed, around 5551.427 hectares of Government Land had been restored. The cases of further encroachment or illegal occupation will stringently be dealt with and immediate steps would be taken to evict such cases by giving notices and opportunity to be heard. Tahasildars and the District Collectors had been assigned the task to carry out evaluation in periodical meetings with concerned officers to ensure protection of Government Land.

Commons – Legal Struggles Before the State JudiciaryThe state judiciary has been hearing cases related to village commons on various grounds, including illegal encroachment and passed order/judgment to comply. Since the Supreme Court

1This piece is based entirely on the information received by the team in reply to an application under the Right to Information Act, 2005.

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passed an order dated 28 January 2011 on village commons, state judiciary started to consider and referring to the said order on matters related to village commons.

The Kerala High court heard a case K.K. Sachidanandan versus The District Collector and Others Writ Petition (Civil) No. 3890 of 2011(S). It was disposed of with an order passed on 16 March 2011. The matter was related to a common pond in Veluthur Village in Arimbur Grama Panchayat. There is a temple in the said village that is owned by an individual and in front of the temple there is a pond. The pond is village common/Puramboke as per the Kerala Land Conservancy Act mentioned in the petition. The petitioner stated that the owner of the temple Devaswom claimed the pond and decided to construct a marriage hall and started activities for same. Since petitioner understand that the pond is common, so the matter was brought to the notice of the state authority. But no action was taken, so the court was approached. In response to the matter, the state government filed a report before the court that the land is not ‘Puramboke’, but ‘nilam’ land and owned by Devaswom. It was established from the report that person started activity on said pond.

The High Court considered the Supreme Court ‘commons order’ and quoted a couple of its paragraphs before its own final words. The court articulated that here whether the said pond is ‘Puramboke’ or as ‘nilam’ is matter of facts and revenue record to reflect on; that will decide whether Devaswom has the right to fill up pond and the conditions that such right can be carried out also vary. Even though the Court on the technicality of what it ought to consider under its Article 226 writ jurisdiction opined that the present was not such a matter; yet the Court directed the authority to maintain the status quo for the pond and gave liberty to petitioner to approach civil court, invoking Sections 91 and 92 of the Code of Civil Procedure. Source: FES Commons blog http://claim-for-commons.blogspot.in/search/label/Kerala

Revenue Department’s Circular to Comply with the Court DirectionsTo comply with the Supreme Court order dated 28 January 2011 Additional Chief Secretary, Revenue (U) Department sent a circular No. 13295/U1/2011/RD dated 14 March 2011 to all the District Collectors (DCs) with a copy to the Commissioner, Land Revenue, Thiruvananthpuram and Revenue (A&L) Department. This circular was specifically to inform the DCs and others about the Supreme Court order as was communicated to the Revenue Department vide letter No. 28/2011/AAG/(B3 – 10503/2006) dated 1 March 2011. It reiterated the direction of the Court to “chalk out a scheme for the speedy eviction of the illegal occupants/encroachers/trespassers of public land”.

The Circular asked the DCs to “furnish all details for information pertaining to illegal occupation/encroachments/trespassers of the Puramboke land in your jurisdiction, in the prescribed performa appended herewith, the action taken to take over the land and whether taken over, which should invariably reach the office of the Additional Chief Secretary (Revenue) on or before 31 March 2011”. Urgency to comply with this circular was also communicated given the need to submit reports before the Supreme Court within the set time.

The (Then) Chief Secretary’s LetterThe Supreme Court’s order on village commons drew the attention of the authorities to the governance of commons within the state. Kerala’s Chief Secretary Shri P. Prabhakaran had issued direction to all the DCs to carry out a drive to check the recent spurt in reclamation of wetlands and paddy fields, destruction of mangroves and other violations of environmental regulations like illegal sand-mining and extraction of soil. He admitted violation of the Kerala

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Paddy and Wetland (Conservation) Act 2008 and the Coastal Regulation Zone (CRZ) Notification 2011. This communication of the Chief Secretary quoted the Supreme Court order prohibiting the regularisation of puramboke land that had been encroached upon and directing state governments to evict illegal occupants. On this, he urged Collectors to ensure timely action to prevent violations and to book offenders, invoking the provisions of various rules and regulations. The Collectors had also been asked to instruct secretaries of local bodies to take appropriate action in such cases and inform the field officers about suspected violations. Source: FES Commons blog http://claim-for-commons.blogspot.in/search/label/Kerala

State’s Action Plan/Scheme in accordance with the Supreme Court Directions2

The State Government of Kerala formulated a detailed scheme to ensure protection of common lands and eviction in case of encroachment in accordance with the Jaspal Singh case orders.

Under the said scheme, the government categorised Government Land into two categories as mentioned below for speedy eviction of illegal occupation/trespass/encroachment of such land. The State Government directed that an action taken report in the matter be submitted to the Government within 10 days from date of communication so that a timely action report can be submitted to the Supreme Court.

Categorisation of Government LandGovernment Land is classified into two broad categories i.e.

1. Land held by the Revenue Department including Bought-in-Land and Escheat Land;

Under this category Land held by Revenue Department was further sub-categorised into three:

A) Land given under lease;

B) Land under encroachment;

C) Land kept as vacant or idle

2. Land held by other Government Department/Institutions;

Details of each category and sub-categories

1. Land held by the Revenue Department:Under the category of Land held by the Revenue Department including Bought-in-Land and Escheat Land, government formulated a procedure to ensure that proper records of said land are maintained. As per the procedure following steps will be followed.

All the District Collectors directed to prepare an inventory with survey/Resurvey numbers of lands and share with the Government within the prescribed time limit of 10 days. It was laid down that a copy of prepared inventory has to be submitted to the Kerala State Land Bank so that proper augmented inventory and protection of such land in future can be ensured. KSLB was assigned the task to carry out periodical reconciliation of data with the district database. It was made mandatory for the KSLB to make effective use of the ‘Lease Alert System’ regard to land given under lease. The state scheme went on to deal with the around 50-60 percentage cases of realising defaulted lease rent arrears in the state are under the various courts proceedings

2Extracted from Annexure 1 submitted by the Revenue Department, Government of Kerala, to the Supreme Court of India in the Jagpal Singh case

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and where courts granted stay in some cases. In such cases the concerned DCs were asked to take all possible steps to get the stay vacated.

In case of escheat lands, the DCs were directed to demarcate the such area with proper boundary protection and then put up sign boards notifying the land as – “Government Land and Trespassers will be prosecuted”.

The DCs were also directed to consider cases of bought-in-land due to arrears towards Government and initiate urgent actions to mark the area with proper boundary protection and send proposals to the government for further use of such land.

A) Land given under Lease: This sub-category was further divided into two:

(i) Land given on lease to individuals

(ii) Land given under lease to Clubs/Institutions.

The purpose of lease, period of lease and lease rent are to be considered under the following circumstances for above-mentioned two categories. If

• the lease land was not subject by the lessee to the purpose for which it was leased;

• the leased land is kept idle;

• the defaulted lease rent arrears, with regard to the time expired or current lease, are not remitted;

• renewal of lease was not sought by the lessee within the time limit prescribed in accordance with the relevant Land Assignment rules of 1964 or 1995

• land is under possession by virtue of any deed not in accordance with the statutory provisions contained in the Kerala Land Assignment Act, 1960, Kerala Land Assignment Rules 1964 and 1965;

• the lease falls under the category of time-expired; then

Then ‘Action to be taken’ is prescribed as has been mentioned in details below:

A (i) Land given on Lease to Individuals:

DCs of the state will analyse each and every case and prepare an inventory with the Survey/Resurvey Nos. In case of violation of any or all of the above mentioned conditions the concerned DC will initiate stringent and time bound action giving notice of reasonable period and allow to hear party before cancellation of such lease and resumption of land.

Once this is carried out at DC level, then Tahasildar is assigned the duty to issue fresh and updated demand notice to the lessee concerned in every appropriate case before 30th of every month of April. In case of non-remittance of the same reported then the DC will initiate action as mentioned above. If individual is from Below Poverty Line (BPL) and holding land under lease, which is not more than 5 cents for the purpose of habitation, habitation, residence or livelihood and eligible to get renewal on the same lease, then concerned DC will recommend to the government for necessary order and this will be consider as urgent. But in such cases too, it needs to be ensured that such land shall not be a thodu, kulam, river, bund, kayal, sea, road or kavu puramboke.

A (ii) Land given under lease to Clubs/Institutions:

In this case, if land is given under lease to a club or an institution and lease holder complies with all the conditions stipulated, and there is no violation of conditions as mentioned above

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and in the case of educational institutions the land is used for functioning of an educational institution according to the state’s education rules or for public purposes, the lease shall be considered for renewal and forwarded to Government. In case of violation of conditions, the lease shall be cancelled and the Government Land shall be restored to the government by observing the statutory procedural formalities in a time bound manner. The renewal process is to be initiated with the following conditions stipulated:

• the land shall not be misused, misappropriated, sublet, alienated or subjected to encroachment;

• the land shall not be mortgaged or hypothecated to any financial institutions;

• the land shall not be used for any purpose other than for which it is given on lease;

• the land shall be put to use within one year from the date of assignment on lease;

• if the land is given on lease for any construction, the same shall be commenced within one year from the date of assignment of land on lease;

• any construction shall be done only with the prior sanction of the revenue authorities concerned;

• the lease rent arrears shall be remitted during the month of April of the corresponding financial year;

• the lease rent shall be revised once every three years;

• the trees on the land shall be retained as far as possible. They shall be cut only if necessitated and that too with the prior sanction along with the monitoring of the revenue authorities concerned;

In case of violation of any or all of the above conditions or such land is required by the government for public purposes then in the both cases allotted lease shall be terminated and the such land shall be resumed to the Revenue Department. No compensation will be paid in any form to the lessee.

A.2) Action to be taken when Land allotted under the Lease for Plantation to the Individual as well as Corporate Entities:In the case of land allotted under lease for plantation to the individual as well as corporate entities then concerned DC will ensure that lease dues are raised appropriately and demand notices will be issued in accordance the government instructions and revised rates according to the Grants and Licenses Act. In case of defaulted lease rent arrears or violation of the lease conditions of the land given for plantations, the lease shall be terminated and the land shall be resumed after observing statutory procedural formalities in a time bound manner.

A.3) Action to be taken when Land given on Assignment under Rules for Assignment of Government Land for Industrial Purposes:If the land given on assignment under rules for Assignment of Government Land for Industrial Purposes, in such case all the DCs after analysing each case as per the conditions laid down and will prepare an inventory with the Survey/Resurvey Nos. in case of violation any or all of stipulated conditions DC will take strigent, time bound action and will provide a copy of the inventory to the Revenue Department directly and a copy to Industries Department through the General Manager, DIC for further action & for the formulation of guidelines regarding the further utilisation of Government Land:

• Whether the land is used only for the purpose for which it is assigned and for no other purpose;

• Whether the land assigned has been alienated or encumbered without prior permission of the government in writing;

• Whether the industrialist has paid all tax, cess, land revenue and other dues which may be payable in respect of the land from time to time;

• Whether the industrialist has started the industry for the purpose for which the land is assigned to him within the period specified in the Assignment Order;

• Whether the company or the concerned of the industrialist is defunct/wound up;

• If the industrialist is an individual or group of individuals, whether the individual or individuals are alive;

The Action Taken Report is to be given within 10 days, for furnishing the same before the Supreme Court.

(B) Land under Encroachment:For this category of land, DCs were assigned the responsibility to prepare an inventory with the Survey/Resurvey Nos., after analysing each and every case of encroachment on the land. The inventory is to specify:

• Whether the encroachment that has been in place is highly objectionable;

• The extent of land subjected to encroachment;

• The date from which encroachment took place;

• The period for which encroachment was allowed to continue;

• The nature of land subjected to encroachment, as to whether Purambokes such as thodu, kulam, river, bund, kayal, sea, road, kavu or accreted land/unsurveyed land, etc;

• Whether revenue land or land vested with Local Self Government as per the Panchayti raj Act;

(B.1) Action to be taken In the case of Encroachment of Land:

Under the planed action to address the issue of encroachment, prepared inventory by DC as mentioned above will be sent to the government, along with a copy to the KSLB. After sending copy to the government and land bank concerned DCs without making any delay will initiate time-bound actions to removal of such encroachment from the Government Land by invoking the provisions of the Kerala Land Conversancy Act/ the Kerala Conservation of Paddy Land and Wetland Act.

In case an encroachment carried out by the individual of BPL category individual having no land elsewhere and same individual encroached not more than 2 cents and same land is assignable as per relevant statutes and with full eligibility for assignment and provided the land is not Puramboke such as thodu, kulam, river, bund, kayal, sea, road, kavu, then such cases with relevant details shall be recommended by the concerned DC to the government for giving orders urgently. The DC concerned himself/herself can recommend to the government for giving such orders..

State Government directed that an action taken report in the matter was to be submitted to the Government within 10 days from date of communication. State directed to comply with this time so that action report can be submitted before the Supreme Court.

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(C) Action to be taken for Land kept as Vacant or Idle:In the case of land kept as Vacant or Idle, all the DCs directed to demarcate the area with proper boundary protection and then put up sign boards notifying the land as “Government Land and Trespassers will be prosecuted”.

(C.1) Here there could be two cases, one for land in urban areas and other in rural areas.

In the case of land in urban areas

If such land is in urban area then immediate action need to be taken to protect the same by constructing fences, barded wire or compound wall along the perimeter for ensuring maximum protection.

In the case of Land in Rural Areas

If such land is part of rural area then need to demarcated immediately. The Beat System along with protection of land by introducing the Beat book as introduced by the Kerala State Land Bank shall be implemented. All the Tahasildars will carry out evaluation to ensuring measures implemented for protection of Government Land and this can be ensure when Tahasildars holding meeting with village officers in the their jurisdiction in every 15 days. Similarly, all the DCs while holding monthly conferences with the Tahasildars shall evaluate the measures implemented for the protection of the Government Land.

State Government directed that an action taken report in the matter will be submitted to the Government within 10 days from date of communication. State directed to comply with this time so that action report can be submitted before the Supreme Court.

(2) Land held by other Government Departments or Institutions:With regard to the land held by other Government Departments or Government Institutions same process was to be complied with as mentioned above under the case of land held by Revenue Department and process mentioned for land given under lease, lease for plantation to the individual as well as corporate entities and land given on assignment under rules for assignment of Government Land for industrial purposes. DCs were authorised to comply with procedure and report to the Government immediately. As per the Rules of Business it has been made clear that ownership of land will be vested with Revenue Departments despite possession of land by government departments or institutions. It was also made clear that government departments and institutions can not transfer any Government Land held by them. Any transfer of Government Land only can be made through the Revenue Department. The DC will not entertain any case if any transfer of such land carried out by Government Departments or Institutions without the mandate of the Revenue Department.

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The Disappearing Commons in Kerala

A Comment by Latha Anantha of River Research Centre, Kerala Illegal encroachments on common lands in villages in Kerala are not a new phenomenon. All over the State, every other bit of government land and puramboke land has been encroached upon as a result of the unholy nexus between real estate businessmen, land dealers, corrupt government officials, politicians and political parties. In fact, Idukki district in Kerala is the hub of such illegal encroachments and land transfers since many decades. (See Team finds massive encroachment in Idukki)

Rivers and connected ecosystems like river banks, flood plains, wetlands, mangroves and deltas have been used by communities since centuries for fulfilling their various cultural, livelihood and other basic needs. The rich ecosystems provided by the rivers have been the basis of this dependence. In India the dependence on rivers per capita is very high compared to other countries given the cultural significance and sentiments we attach to rivers. It is already part of Indian law as contained in the Constitution, that water as a natural resource is a state subject. The 44 short monsoon-fed rivers and the connected wetlands, estuaries, mangroves and lakes have been the mainstay of the people in Kerala since ages. The protection of rivers and the river banks which are classified as ‘puramboke’ (revenue land) was integrated into the ethics and culture of the society. Riverbanks have been used as grazing lands for domestic cattle, by dhobis, by fisher folk, as common space for recreation, etc. In fact riverbanks and flood plains in larger rivers like Bharathapuzha, Periyar, Pampa and Chalakudy are still used as community play grounds, festival grounds, for summer season cultivation, etc. The summer season vegetable/rice cultivation in the state is especially notable since it is wholly dependent on the silt and sediments brought down annually by the monsoon flows.

However, over years, especially since the real estate boom in the state in the 1990s, massive indiscriminate river sand mining has erased all such flood plains and river banks to oblivion destroying forever the common spaces used by river dependent communities. Encroachment into river bank and the river bed itself in many places in the name of river side apartments, tourism, infrastructure development to name a few has led to rivers turning into drains unable to perform their ecological functions. Though Kerala has a Kerala Protection of River Banks and Regulation of Removal of Sand Act (2001), which has been amended several times. [The full text of the 2013 amendment of the said law can be found both in Malayalam and English here] It is pertinent to note that nowhere in the Act is there a mention of need for protection of riverbanks and flood plains for the sake of the commons. There are several such river spaces that justify protection as commons; these have disappeared over the years to sand mining and riverbank encroachment.

The Supreme Court order of January 2011 (Jagpal Singh and others versus State of Punjab and others vide Civil Appeal No. 1132 of 2011) need to be used effectively in the context of protection of river banks from the impact of sand mining and encroachment, which is not the case presently. There is an urgent need to seek protection of remaining flood plains and riverbanks in the name of reclaiming commons especially in a common space shrunk state like Kerala. The local self governments (grama panchayaths) stand to benefit the most through revenue from sand mining and illegal encroachment. However, the grama panchayaths are yet to view riverbanks or the river and its flood plains as common spaces which can be effectively used and protected by the grama panchayath residents.

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The Kerala State Land Bank (KSLB) was initiated in 2007 to make an inventory of government lands (including kayal porambokes - lakeside), surplus lands, lands in the assignable list, bought in lands and escheated lands) and to curtail illegal encroachments on government lands. Through the KSLB, the State Government aimed at the rational use of government lands for meeting the developmental as well as social obligations of the State in future. The Revenue Department is to act as the custodian on behalf of themselves and on behalf of sister departments like PWD, LSGD and Department of Irrigation, etc.; the KSLB web site. Since its establishment the KSLB has inventorised more than 73,000 hectares of government land (See here).

It is significant that the Kerala Protection of River Banks and Regulation of Removal of Sand Act (2001) has not been included among the list of laws being invoked by the KSLB. Considerable river side ‘purambokes’ which serve as commons as mentioned above have thus been left out of the purview of inventorisation. The actual status of restoration of such Government lands classified as purambokes or nilams in illegal possession or with illegal leases is anybody’s guess. The KSLB web site claims that protection of government lands will be done by erecting Boards and by erecting live/non living fences around the sites. The cultivable lands will be given on rental basis to Kudumbashree units, self-help groups, etc. for undertaking cultivation activities. However, what is the actual field-level implementation of the same is not publicly revealed.

Large-scale reclamation of paddy lands and wetlands continues unabatedly across the length and breadth of Kerala violating the Kerala Paddy and Wetland (Conservation) Act of 2008. Among the significant ones there is a case pending in the High Court of Kerala to protect the ‘puramboke thode’ and ‘chaalu’ (paddy land drainage channels) in Aranmula in Pathanamthitta district which is to be reclaimed for the greenfield airport being planned by flattening 500 acres of land of which 80 per cent is prime paddy fields. The Supreme Court in November 2014 has upheld the National Green Tribunal (Southern Bench) decision of May 2014 nullifying the green clearance given to M/s KGS Aranmula International Airport Limited. The matter came to be filed at the NGT by the Aranmula Heritage Village Action Council.

The coastal areas too are not spared. Along the entire coastline and coastal regulation zone (CRZ) areas that include Vembanad lake - a Ramsar wetland, blatant violations of CRZ are taking place in the name of real estate development and tourism. The massive investment-oriented Kochi International Container Transhipment Terminal (ICTT) locally called the Vallarpadam Terminal Project in Kochi and the Vizhinjam Port Project in Thiruvananthapuram are classic instance of projects coming up CRZ areas. This leads to the loss of common lands by resident communities, especially fisher folk.

In the ever-burgeoning cities across the state’s ponds and streams are being rampantly reclaimed for urban expansion and encroached upon or converted to waste dumps. These were once the water lifelines of the cities and townships of Kerala connected to rivers and wetlands.

The siege over scarce common lands continues in Kerala. The fisher folk and riverside communities are ultimately losing their commons. A massive campaign to reclaim the remaining fragments of commons is yet to take shape in this land-starved state. However, the larger question remains, to what extent would the commons be protected as commons even if reclaimed through court cases or by the governments, given the changing psyche of the Kerala society which is losing its sense of belongingness to rivers and forests and such commons?

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Invoking Tamil Nadu’s Panchayat LegislationThe Supreme Court order of 28 January 2011 re-emphasises the responsibilities of state governments and union territories to protect the village commons under their jurisdiction. The said order has compelled the administration to relook their existing legal and administrative framework in the context of physical commons in villages. Some states have certain legislative Acts that already have provisions to regulate commons and some states considered these Acts to meet with the objectives set by the court order. The Government of Tamil Nadu considered Tamil Nadu Panchayats Act, 1994 to address the issue of encroachment of village commons across the state. This was how the State Directorate of Rural Development and Panchayat Raj (RD&PR) responded after the request was made under Right to Information Act, 2005. Assistant Director, Directorate of RD&PR through a letter no. 24611/2014/PRI#.3 dated 17 April 2014 responded that “Section 131 of the 1994 Tamil Nadu Panchayats Act relating to eviction of encroachments on properties vested in village Panchayat or Panchayat Union Councils in Tamil Nadu.” Section 131 prohibits against obstruction in or over the public roads, etc. It states that

1. No person shall, except as permitted by rules made under this Act and except in accordance with the conditions imposed by any license made requisite by such rules-

a) build any wall or erect any fence or other obstruction or projection or make any encroachment whatsoever whether permanent or temporary in or over any public road or any property vested in or belonging to or regulated or owned by a village Panchayat or Panchayat union council.

b) make any hole deposit any matter in or upon any public road or any property vested in or belonging to or regulated or owned by, a village Panchayat or Panchayat union council

c) work a quarry in or remove stone, earth or other material from any place within twenty metres of a public road or of other immovable property vesting in or belonging to a village Panchayat or Panchayat union council, provided that nothing in the clause shall be deemed to apply to any work which, in the opinion of the inspector, is done in connection with a bona fide agricultural operation;

d) erect any building over any drain or any part thereof;

e) plant any tree on any public road or other property vesting in or belonging to a village Panchayat or a Panchayat union council, or

f) fell, remove, destroy, lop or strip bark, leaves or fruits from, or otherwise damage, any tree which is growing on any such public road or other property or on any poramboke land, the use of which is regulated by a village Panchayat under section 134 or section 135 and the right to which has not been established by such person as vesting in or belonging to him.

2. It shall be the duty of the Village Administrative Officer of every revenue village to report on encroachments on properties vested in village councils to the executive authority or the commissioner concerned and to the officer of the Revenue Department and it shall be the duty of the executive authority or the commissioner concerned either suo motu or on obtaining a report from the Village Administrative Officer in this regard to institute proceedings under this Act and secure the removal of the encroachments within such time as may be specified by the Government by general or special order. If the removal of the encroachments has not been secured within the period specified in such order, the officers of the Revenue Department shall institute proceedings under the Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act III of 1905) and secure such removal.

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Information Status Under Right to Information Act1

The Hon’ble Supreme Court of India in its order dated 28 January 2011 directed the states to comply with its directions. To gather the information on states’ efforts to comply with the court order and address the issue of encroachment of commons, information was requested from the states by the team. States including that of Tamil Nadu had been approached with the following requests under the Right to Information Act, 2005 to provide the necessary information:

1. Kindly provide copies of all the submissions made to the Hon’ble Supreme Court of India by the State Government in accordance with the order of the said Court dated January 28, 2011 in the matter of Jagpal Singh & Ors. versus State of Punjab & Ors. (CIVIL APPEAL No.1132 of 2011).

2. Please give full details of schemes prepared for eviction of illegal/ unauthorised occupants of Gram Sabha/Gram Panchayat/ Poramboke/ Shamlat land and for the restoration of such common lands to the Gram Sabha/Gram Panchayat for the common use of villagers.

3. Kindly provide the list of actions taken in compliance of the order of the Hon’ble Supreme Court of India dated January 28, 2011 in the matter of Jagpal Singh & Ors. versus State of Punjab & Ors.(CIVIL APPEAL No.1132 of 2011).

In response to the above mentioned points, the Public Information Department (PIO)/Under Secretary to Government, Rural Development and Panchayati Raj (RD&PR) Department through Letter no. 8267/PR-2/2014-3 dated 7 April 2014 responded that information sought is not related to this department. Therefore, the application had been transferred to the PIO of the Law Department and to office of the Director of RD&PR to provide information.

In response to application transferred to the RD&PR Department, Under Secretary to Government through letter no. 8267/PR-2/2014-1 dated 7 April 2014 asked the PIO of the Law Department to provide information on points 1 and 3 of the original RTI application.

Reply from Revenue Dept.The PIO responded vide letter No. 15568/LD6(2)/2014-1 dated 16 May 2014 that the State Government in D.O. Letter dated 1 March 2011 had requested the Principal Secretary and Commissioner of Land Administration to instruct all the District Collectors for strict compliance of the order of the Supreme Court and to send action taken report to the Government and the report is still awaited.

Reply from Law Dept.The PIO responded vide letter No. 10346/RTI/2014-2 dated 21 April 2014 that the item No.s 1 & 3 of the RTI petition are administratively concerned with the Revenue Dept. and therefore had been transferred to the PIO, Revenue Dept.

Reply from RD&PR Dept.Assistant Director, Directorate of Rural Development and Panchayati Raj responded on point 2 of the application through Letter no. 24611/2014/PRI#.3 dated 17 April 2014 as copy of application transferred to the department by the Under Secretary to Government, RD&PR Department. Department responded that Section 131 of the Tamil Nadu Panchayats Act, 1994 deals with eviction of encroachments on properties vested in village Panchayat or Panchayat Union Councils in Tamil Nadu.

1Information in this section is based on the responses responded from Departments of Tamil Nadu state on an Right to Information application filed by the Team.

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Tamil Nadu LitigationThere is a history of litigation on the protection of commons in the state of Tamil Nadu, which predates the public interest litigation of Jagpal Singh & Others versus State of Punjab & Others. The Supreme Court in its order of 28 January 2011 in the Jagpal Singh case makes specific mention of the Madras High Court matter in which the High Court had likewise ordered the respondents to vacate the land they had illegally occupied.

This was the case of L. Krishnan versus State of Tamil Nadu, 2005(4) CTC (4) 1 Madras where a pond was not allowed to be encroached upon for any construction activity. The issue was addressed as much as it being an environmental issue, as it was treated as one of village commons.

The then Chief Justice of the High Court of Madras, Hon’ble Mr. Markandey Katju, alongwith Hon’ble Mr. Justice F.M.Ibrahim Kalifulla, had on 27 June 2005 in that order (in Writ Petition No. 20186 of 2000 and Writ Petition M.P. No. 29342 of 2000) stated that the Government, including the Revenue authorities…having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large.

The Court therein recalled the Fundamental Right in Article 21, the Directive Principles of State Policy in 47 and 48A that give clear instructions to the State, as well as the Fundamental Duty in 51A(g) of the Constitution of India, which imposes duties on citizens to protect and improve the environment. In the context of the water bodies in question in that case, the court had no hesitation in holding that in order to protect the two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes.

The full text of the Madras High Court order can be downloaded from the elaw web site from this link: www.elaw.org/system/files/in.water.law_0.doc

In 2011 the same Justice Katju along with Justice Gyan Sudha Misra was to later write the ‘commons order’ in the Jagpal Singh case.

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Editors: Shalini Bhutani & Kanchi Kohli

Research Associate: Vikal Samdariya

Contact: commonscase@gmail.com

Contribution and support by: Foundation for Ecological Security (FES), Anand, Gujarat

Shalini is a legal researcher and policy analyst. Kanchi is an independent researcher and writer.

Both are based in Delhi.

Photo credits: Kanchi Kohli & Shalini Bhutani

Credits