LAND LAWS NOTES

Concept of Land

Conceptually, the term 'land' signifies a tangible thing' and 'a relationship with that thing'. As a
tangible 'thing', land includes not only a delineable area within the earth's surface but also all
elements appurtenant to it, whether above or below it. Thus, 'land' may encompass forests,
wetlands, cultivable lands, barren lands, etc. 'Land' is also a political entity, in the sense that it is
one of four constituting elements of a State.

Land - Legal Concept

'Land' is also a legal concept, in the sense that it determines the relationship with that thing. To
acquire legal dimension, the 'land' should belong to someone. ['Res nullius', ie., things which do
not belong to anyone is unable to determine its relationship with others. 'Res communis', which,
contrary to 'res nullius' denotes 'things' which are in the public domain.] Normatively, this
constitutes the theoretical foundation for the doctrine of 'public trust'.

Property, which is derived from the Latin word proprius means things which is owned.
Ownership is often regarded as trinity of rights-jus utendi (right of using) jus fruendi (right of
profiting from); and jus abutendi (right of using up). Utendi means exclusive use of the thing.
Fruendi means enjoying the fruits of profit which may be taken by the owner. This also includes
rent from the tenant of a house, interest of a bank or building society account, dividends of
shares etc. Abutendi means 'using up'; to use up one's own ownership means not only the right to
use or to abuse it, but also mean right to alienate the thing owned.

Possession is the prima facie evidence of title or ownership. Transfer of possession is one of the
chief modes of transferring ownership. Legal rights are created by title. According to Salmond,
"Every legal right has a title, that is to say, certain facts or events by reason of which the right has
become vested in its owner". Salmond consider title as the 5th element of a legal right. From the
point of view of alienation of land, title demonstrate the vendor's right to possession of the land,
and enable the purchaser to gauge whether there is any significant risk that someone else will
turn up with a better claim of possession.

Other proprietary rights include

a) 'easement' which is a right over one piece of land (servient tenement) which attaches to and
benefits another piece of land (dominant tenement):
b) mortgage-giving of ownership as a security for loan, i.e., creation of a charge on land to secure
a debt:
Land Laws Notes by Lakshmi Priya, 4th Semester, BA LLB, CSI College for Legal Studies, Kanakkary, Kottayam
c) restrictive covenant-a covenant which restricts the use of land, i.e., the right to control the use
to which a neighbour may put his land:
d) profit a prendre-a right to enter another's land and take something from it.

Land can be both private property and public property. In this context 'doctrine of public domain'
assumes significance. "Eminent domain" may be defined as the right or power of a sovereign
state to take private property for public use without the owner's consent upon the payment of just
compensation. It means nothing more or less than an inherent political right, founded on a
common necessity and interest of appropriating the property of individual members of the
community to the great necessities and common good of the whole society. It embraces all cases
where, by the authority of the State and for the public good, the property of an individual is taken
without his consent to be devoted to some particular use, by the State itself, by a corporation,
public or private, or by a private citizen for the welfare of the public. The erstwhile Land
Acquisition Act, 1894 was a living embodiment of this doctrine.

Land is a real property. Land is also an area of ground with defined boundaries, including
minerals or resources below the surface and anything growing on or attached to the surface. Land
is a free gift of nature and source of living.

Land can be categorised as urban land, rural land, forest land and sea bed. It can be used for
residential purposes, agricultural purposes and non-agricultural purposes. There can be
waste lands for grazing animals.
There cannot be any land without an owner. In the absence of any individual owner, the state
becomes the owner. As a rule, ownership of the land vests in the person who enjoys it. Thus,
ownership means the right accompanied by title in land for the enjoyment of a person.
Ownership goes side by side with possession. At times ownership and possession may vest in
two different persons, as in the case of leasing.

In Babu Lal v. Bhawani Das and Ors, the court held that section 3(25) of the General Clauses
Act which defines immovable property can be applied to Transfer of Property Act 1882. Under
the General Clauses Act, immovable property is defined as one which includes land, benefits
arising out of the land, things attached to the land or things that are permanently fastened to
anything that is attached to the earth.

Benefits to arise out of the land

Under the General Clauses Act, the immovable property includes benefits arising out of the land.
Such benefits that arise out of the land in the form of rents, dues, fisheries, right to way, light are
regarded as immovable property. In Anand Behra v. State of Orissa, the Court referred to the
right to benefit arising out of the immovable property namely lake. The right granted to catch

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and carry away fish from such a lake was required to be executed through a registered
instrument as such a right is regarded as immovable property

Ownership of land

Land ownership is broadly defined by the access to a land title. Land title is a document that
determines the ownership of land or an immovable property. Having a clear land title protects the
rights of the title holder against other claims made by anyone else to the property. In India, land
ownership is determined through various records such as sale deeds that are registered, property
tax documents, government survey records, etc.

However, land titles in India are unclear due to various reasons such as legacy issues of the
zamindari system, gaps in the legal framework, and poor administration of land records.

This has led to several legal disputes related to land ownership, and State ownership and concept
of Eminent Domain:
India is one of the fastest developing economy in the world. In order to uplift its vast population
of 1.25 billion from the grab of poverty, the Government of India has come up with several large
infrastructure programs. It includes the creation of roadways, industrial corridors, and smart
cities. No development is possible without the availability of land. Therefore, India is undergoing
a massive change in the land management policy.

The state has sovereign power into three categories namely the power of taxation, the power of
eminent domain and the police powers.

-Power of taxation means power of the government to impose taxes on its inhabitants for the
purpose of enriching government treasury (public funds) for undertaking various socio-economic
activities and to reduce economic disparities between rich and poor.
-Police power is the power of the state/government exercised in maintaining law and order. It is
helpful in carrying on the day-to-day activities of the government.
-Eminent domain means the supreme power of the state/government to acquire private
immoveable property for public purpose in lieu of payment of compensation.

Concept of Eminent Domain

Every government has an inherent right to take and appropriate the private property belonging ti
individual citizen for public use. This power is known as Eminent Domain. It is the offspring of
political necessity. Thus, property may be needed and acquired under this power for Government
offices, libraries, slum clearance projects, public schools, colleges, and universities, public

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highways, public parks, railways, drainage and many other projects of public interest,
convenience and welfare.

Doctrine Of Eminent Domain

The doctrine of Eminent domain, in its general meaning, means the supreme power of the
government under which property of any individual can be taken over in the concern of the
general public. However, over the years such taking over the property by the government has
been made conceivable only after recompensing the land proprietor of such property. Thus
eminent domain clarified as the power of the government to take over the property of a secluded
person when it is wanted for a public purpose, an example would be if they were trying to build a
highway.

Eminent Domain is the power of the sovereign to acquire the property of an individual for public
use without the necessity of his consent. This power is based on the sovereignty of the State.
Payment of just compensation to the owner of the land which is acquired is part of the exercise
of this power.

Payment of compensation, though not an essential ingredient of the connotation of the term, is an
essential element of the valid exercise of such power as no person shall be deprived of his
property save by authority of law as per Article 300A of the constitution of India. An incidental
limitation of this power is that the property shall not be taken without just compensation.

Eminent domain is explained as the power of the king or the government to take over the
property of a private person when it is needed for a public purpose. Doctrine of ‘eminent
domain’ is based on two maxims namely,

1. salus populi est superema lex, which means that the welfare of the people is the
paramount law.

2. necessita public major est quan, which means that public necessity is greater than the
private necessity.

What Does The Constitution Say About Eminent Domain?

The Constitution of India first provided the right to property (which includes land) under Articles
19 and 31. Article 19 certain that all citizens have the right to obtain, hold and dispose of the
property. Article 31 stated that “no person shall be disadvantaged of his property save by
authority of law.” It also designated that recompense would be remunerated to a person whose
property has been taken for public drives.

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The Forty-Fourth Amendment of 1978 erased the right to property from the list of important
rights with an introduction of a new provision, Article 300-A, which provided that “no person
shall be deprived of his property save by authority of law”. The amendment safeguarded that the
right to property‟ is no more a fundamental right but somewhat a constitutional/legal right/as a
statutory right and in the event of violation, the remedy obtainable to an affected person is
through the High Court under Article 226 of the Indian Constitution and not the Supreme Court
under Article 32 of the Constitution.

Limitations

The exercise of such power has been recognised in the jurisprudence of all civilised countries as
ocnditioned by public necessity and payment of compensation. But the power is subject to
certain restrictions provided in the constitution.

In America there are limitationsOn the power of eminent domain

1. There must be a law authorising the taking of property
2. Property must betaken for public purpose
3. Just compensation should be paid

In India, Article 31 imposed similar limitation on this power of Eminent Domain but Article
300A imposes only one limitation on the power of Eminent Domain i.e. authority of law.

Compensation

The right to compensation is in-built in Article 300A.

In K. T. Plantation Pvt. Ltd. v. State of Karnataka, the Supreme Court has held that the
requirement of public purpose is invariably the rule when a person is deprived of his property.
Principle of "eminent domain" requiring compensation is not seen incorporated in Article 300A
as it is in Article 30 (1A) as well as in 2nd proviso to Article 31A (1) although it can be inferred
in Article 300-A. After deletion of Article 31 (2), the question is whether there is requirement of
compensation to be paid when a person is deprived of his property. The requirement of public
purpose is a pre-condition but 'no' compensation or 'nil' compensation or its 'illusiveness' has to
be justified by the State on judicially justiciable standards. Measures designed to achieve greater
social justice may call for lesser compensation. Such a limitation by itself will not make
legislation invalid. unconstitutional or confiscatory. The right to claim compensation or
obligation to pay though not expressly included in Article 300A, it can be inferred in it. The
State has to justify its stand on justifiable grounds which may depend upon the legislative policy.
object and purpose of the statute and host of other factors. The Parliament in enacting Article

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300A has only borrowed Article 31 (1) [The "Rule of law" doctrine] and not Article 31 (2)
[Doctrine of eminent domain]. The law providing deprivation of property under Article 300A
must be "just, fair and reasonable". The Court clarified difference between "no" compensation
and "nil" compensation. A law seeking to acquire private property for public purpose cannot say
that "no compensation" shall be paid but there may be law awarding "nil" compensation where
the State undertakes to discharge the liabilities charged on the property under acquisition and the
onus is on the government to establish its validity.

Constitutional Provisions Relating to Land

The Constitution of India being a supreme law of the country, every citizen should abide by it. It
lays down various principles through Fundamental Right and Directive Principle of State Policy
to provide basic amenities to its subjects. It is said to be the lengthiest written constitution in the
world. The said constitution was adopted from the Constituent Assembly of India.

At once the property right was considered to be a Fundamental Right under Part III of the
Constitution under Article 19(1) (f). But after 44th Constitution Amendment Act the property
right became a constitutional right.. The right to property can be differentiated as before and after
44th Constitution Amendment Act. This amendment removed Article 31 and replaced it under
300A.

Concept and definition of property:

Property is a description of an asset that can be owned by any person or entity. Property is of two
types tangible and intangible property which confer legal right on the person who owns it. Every
property has some kind of pecuniary interest over it so it is termed as asset. It usually confers
bundle of rights to the owner by excluding all the others from using or exploiting it.

The term property till now does not have a proper legal definition under any statute. The
important Act that deals with the property is Transfer of Property Act 1882 which does not have
a conventional legal definition for property. But there are some Acts that define the term property
are as follows:
· Property means property of any kind, whether movable or immovable, tangible or
intangible, and includes any right or interest in such property[1].
· Property means the general property in goods, and not merely a special property[2].
Right To Property:
The Constitution of India under the head “Right to Freedom” guarantees certain Fundamental
Right to citizens of India in the form of Article 19, 20, 21A and 22. Right to Property is one
among them. The property right can be viewed in two different perspectives that are before and
after 44th Amendment.

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The Constitution of India guarantees property right as a Fundamental Right under Part III of the
Constitution. Article 19(1) (f) confer this right to every citizens of India. Article 19(1) (f) was
repealed by 44th Constitutional (Amendment) Act, 1978. So right to property is not a
Fundamental Right after this amendment and Article 31 was also repealed and replaced by
Constitution 44th (Amendment) Act to Article 300A. Therefore the right to property became a
statutory right in India.

Right to Property as a Fundamental Right:

Scope of Article 19(1)(f):

Article 19(1) (f) guarantees fundamental right to property by ensuring that every citizen has a
right to acquire, hold and dispose of the property as they wish without any restriction because
property right is said to be most basic right available to every class of people without any
discrimination with respect to religion, race , caste and sex. It further provide that, if any
property has been acquired by the appropriate Government for any public purpose the said
Government is under an obligation to pay adequate compensation to the affected person for the
loss caused to them.

Though the Constitution guarantees property right to every citizen it also imposes certain
restriction under Article 19(5). By virtue of this Article the State has a power to impose
reasonable restrictions on the right confer to the citizen under Article 19 in the interest of general
public or in order to protect the rights of Schedule Caste and Schedule Tribe.

This was the situation followed till the Forty-Forth Constitution (Amendment) Act 1978.
After this amendment, Article 19(1) (f) was omitted and now Right to Property is not a
Fundamental Right it is merely a legal right in India.

Indian Handcrafts Emporium and others v. Union of India and others, the Court held that, the
right to acquire, hold and dispose of the property has ceased to be a fundamental right under the
Constitution of India, but it continues to be a legal or constitutional right that no person can be
deprived of his property save and except by and in accordance with law

Further the Supreme Court in the matter of Chairman, Indore Vikas Pradhikaran v. Pure
Industrial Coke & Chemicals Ltd. and others, it was held that right of property is now considered
to be not only a constitutional right but also a human as well as a legal right[6].

Scope of Article 31:

Article 31 of Indian Constitution deals with “Compulsory Acquisition of Property”, the said
Article has undergone various amendments and finally repealed and replaced to Article 300A.

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This amendment does not have a retrospective effect so the validity of this law made prior to the
amendment can be challenged only on ground of violation of Article 14, 19 and 31(2).

In Dwarkadas Srinivas v. Sholapur Spining and Weaving Co Ltd, the Chief Justice has laid down
certain postulates regarding acquisition under Article 31 of the Constitution, any deprivation of
the property should be:
(1) Authorized by law; (Article 31 clause 1)
(2) Necessitated by a public purpose; (Article 31 Clause 2)
(3) Subject to payment of compensation.

Article 31(2) of the Constitution provides that, a property can be acquired by the Appropriate
Government only if the property acquired is wholly used for any public purpose as may be
specified under the Act.

The State is responsible to pay compensation for the property acquired even though it is not used
for acquired purpose. So deprivation of property is enough to make the State liable to pay
compensation to the affected person but it must be a substantial deprivation. Article 31(1) and (2)
have to be read together while making acquisition.

State of West Bengal v. Subodh Gopal Bose, this case made it quite clear that the obligation of
paying compensation arose only where the state action resulted in the substantial deprivation of
private property of the individual. The Supreme Court held that the abridgment of right was not
amount to substantial deprivation of the right to property within the meaning of Article 31.

In famous R.C. Cooper’s case, popularly known as Bank Nationalization case, held that the
compensation under Article 31(2) implied full monetary equivalent of the property taken from
the owner that is its market value at the date of the acquisition. The Court observed: “Art 31(2)
before and after it was amended guaranteed a right to compensation for compulsory acquisition
of property and that by giving to the owner, for compulsory acquisition of his property,
compensation which was illusory or determined by the application of principles which were
irrelevant. The constitutional guarantee of compensation was not complied with”.

The Constitutional (Amendment) Act 1978 came up with important twists and turns in the area
of property right. After this amendment there were only four Articles that deal with the right to
property such as Article 31A, 31B, 31C and 300A. Though these four articles were placed under
Part III as fundamental right but they do not confer the fundamental right in real scenario.

The Constitution (1st Amendment) Act, 1951 inserted Article 31A and Article 31B with
retrospective effect and Article 31C was inserted through 25th Constitution Amendment
Act,

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1971. The purpose of these provisions is to provide immunity with regard to restriction on
property rights.

Article 300A

Art 300 A: “no person shall be deprived of his property save by authority of law”. This article is
not covered by the doctrine of basic structure of the constitution. No person can move the
supreme court under art 32 if there is any violation of art 300 A, but he can have a right to move
the High Court under art 226. ‘deprivation of property’ as per the art would not lead to
deprivation of life, liberty or livelihood. A law under art 300A must be valid law and is subject
to the provisions of art 14, 19 and 301 (freedom of trade, commerce and intercourse). At present,
right to property is no longer a fundamental right , but a constitutional right after 1978 (44th
amendment).The Right to Property became a Constitutional Right after the Forty-Forth
Constitution (Amendment) Act 1978. This amendment removed Article 31 and replaced it under
Article 300A. The Constitution assures that “No person shall be deprived of his property saved
by the authority of law”.

The 44th Constitution Amendment came up with two important implications: 1. After this
amendment Right to Property was considered as a Constitutional Right and it is no more a
Fundamental Right. Any legislation challenging the constitutional right to property can be
made only before the High Court and the issue cannot be challenged before the Supreme Court
directly under Article 32 of the Constitution.

2. The State is under an obligation to pay compensation for the land acquired by the
Government for any public purpose, but this position has been changed after 44th amendment by
deleting Article 31of the Constitution and the State is no longer liable to compensate the affected
family for such acquisition.

The Constitutional Right under Article 300A is not the basic feature or structure of the
Constitution[34]. In State of Maharashtra v. Chandrabhan, the Supreme held that, after the 44th
amendment property right is ceased to be a Fundamental Right under the Constitution and
considered as legal as well as human rights.

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LAND REFORMS

Principle of Land Reforms

The idea of land reforms was taken from communist countries to balance the structure of
landholdings. The term stands for the management of land distribution through various
institutional measures and policies. Large cultivators are entitled to very large acres of land and
this increases the gap between the rich and the poor.

The steps were taken to improve the agro-economic situation prevailing for a long time ago.
The two main objectives of land reform are:
(i) to change the agrarian structure in a way as not to obstruct but promote the
growth of agriculture; and
(ii) to replace the old land system by a new one, free from the exploitative features
which characterized the former.

Apart from these two basic aims, there are many others like:
● To achieve egalitarian outcomes from agricultural activities
● To eradicate the exploitation of the downtrodden section
● Improvement in the socio-economic status of the rural section
● More focus on productivity
● Special concentration on rural areas
● To gain a balanced socio-economic growth

Implementation of Land Reforms in India

Pre Independence

● Under the British Raj, the farmers did not have the ownership of the lands they
cultivated, the landlordship of the land lied with the Zamindars, Jagirdars etc. ● Several
 important issues confronted the government and stood as a challenge in front of
independent India.

● Land was concentrated in the hands of a few and there was a proliferation of
intermediaries who had no vested interest in self-cultivation.

● Leasing out land was a common practice.

● The tenancy contracts were expropriative in nature and tenant exploitation was almost
everywhere.
● Land records were in extremely bad shape giving rise to a mass of litigation. 10

● One problem of agriculture was that the land was fragmented into very small parts l
for commercial farming.

● It resulted in inefficient use of soil, capital, and labour in the form of boundary lands
and boundary disputes.

Post Independence

A committee, under the Chairmanship of J. C. Kumarappan was appointed to look into the
problem of land. The Kumarappa Committee's report recommended comprehensive agrarian
reform measures.

The Land Reforms of the independent India had four components:

1. The Abolition of the Intermediaries

2. Tenancy Reforms
3. Fixing Ceilings on Landholdings
4. Consolidation of Landholdings.

These were taken in phases because of the need to establish a political will for their wider
acceptance of these reforms.

1. Abolition of the Intermediaries

● Abolition of the zamindari system: The first important legislation was the abolition of
the zamindari system, which removed the layer of intermediaries who stood between
the cultivators and the state.

● The reform was relatively the most effective than the other reforms, for in most areas it
succeeded in taking away the superior rights of the zamindars over the land and
weakening their economic and political power.
The reform was made to strengthen the actual landholders, the cultivators.

2. Tenancy Reforms

● After passing the Zamindari Abolition Acts, the next major problem was of tenancy
regulation.

● The rent paid by the tenants during the pre-independence period was exorbitant;
between 35% and 75% of gross produce throughout India.
● Tenancy reforms introduced to regulate rent, provide security of tenure and confer
ownership to tenants.

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● With the enactment of legislation (early 1950s) for regulating the rent payable by the
cultivators, fair rent was fixed at 20% to 25% of the gross produce level in all the
states except Punjab, Haryana, Jammu and Kashmir, Tamil Nadu, and some parts of
Andhra Pradesh.

● The reform attempted either to outlaw tenancy altogether or to regulate rents to give
some security to the tenants.

● In West Bengal and Kerala, there was a radical restructuring of the agrarian structure
that gave land rights to the tenants.

● Few states in India have completely abolished tenancy while others states have given
clearly spelt out rights to recognized tenants and sharecroppers.

● Although the reforms reduced the areas under tenancy, they led to only a small
percentage of tenants acquiring ownership rights.

3. Ceilings on Landholdings

● The third major category of land reform laws were the Land Ceiling Acts. In simpler
terms, the ceilings on landholdings referred to legally stipulating the maximum size
beyond which no individual farmer or farm household could hold any land. The
imposition of such a ceiling was to deter the concentration of land in the hands of a few.

● In 1942 the Kumarappan Committee recommended the maximum size of lands a

landlord can retain. It was three times the economic holding i.e. sufficient livelihood for
a family.

● By 1961-62, all the state governments had passed the land ceiling acts. But the ceiling
 limits varied from state to state. To bring uniformity across states, a new land ceiling
policy was evolved in 1971.

● In 1972, national guidelines were issued with ceiling limits varying from region to
region, depending on the kind of land, its productivity, and other such factors.

● It was 10-18 acres for best land, 18-27 acres for second class land and for the rest with
27-54 acres of land with a slightly higher limit in the hill and desert areas.

● With the help of these reforms, the state was supposed to identify and take possession
of surplus land (above the ceiling limit) held by each household, and redistribute it to
landless families and households in other specified categories, such as SCs and STs. .

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4. Consolidation of Landholdings

● Consolidation referred to reorganization/redistribution of fragmented lands into one

plot.

○ The growing population and less work opportunities in non- agricultural

sectors, increased pressure on the land, leading to an increasing trend of
fragmentation of the landholdings.
○ This fragmentation of land made the irrigation management tasks and personal
supervision of the land plots very difficult.
● This led to the introduction of landholdings consolidation.

○ Under this act, If a farmer had a few plots of land in the village, those lands
were consolidated into one bigger piece of land which was done by either
purchasing or exchanging the land.

● Almost all states except Tamil Nadu, Kerala, Manipur, Nagaland, Tripura and parts of
Andhra Pradesh enacted laws for consolidation of Holdings.

● In Punjab and Haryana, there was compulsory consolidation of the lands, whereas in
other states law provided for consolidation on voluntary basis; if the majority of the
landowners agreed.
○ However, in these states there was a need for re-consolidation due to
subsequent fragmentation of land under the population pressure.

LAND TO THE TILLER POLICY

Constitution of India reflects the strong desire of the people to establish a socialistic pattern of
society and to achieve justice, social, economic and political. Article 39 (b) of the Constitution
requires the state to ensure that the ownership and control of the material resources of the
community are so distributed as best to subserve the common good. Article 39 (e) directs the
states that operation of the economic system does not result in the concentration of wealth an
means of production to the common detriment. The directive principles of state policy are
something unique as far as the Indian Constitution is concerned.

The slogan of ‘land to the tiller' is further upheld by the preamble though assuring social,
economic and political justice to the people. As far as the toiling masses in rural India are
concerned primarily it is a dream yet to be materialised. In that respect Zamindari abolition and
Agrarian reform legislations received priority in the national agenda, immediately after
independence. With this objective, various state legislations on land were passed for the
development of agricultural economy. The Kerala Land, Reforms Act 1963 also contains a large
number of provisions for distribution of excess land.

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The ‘policy of land to the tiller’ is absed on the idea that cultivators will take more interest.

● The policy proposes that the cultiavtors should be made the owner of the land that they
cultivate.
● It is because of the fact that the cultivators will have their own interest at their stake. ●
The incentive to earn more profits and ultimately earn more will motivate the cultivators to
take all the efforts required on the land.
● If the farmers are not made the owners, and it remains with the landlords then ther is no
incentive for the farmers to work efficiently.
● By conferring due rights of the land to the farmers it is actually motivating them to
produce more and earn more.

THE KERALA LAND REFORMS ACT, 1963

Land reforms are law that are intended to cut poverty and inequality in the distribution of land
holdings by raising poor’s share of land rights..

The Kerala Land Reforms Act, 1963 is considered as one of the most radical and most
successful legislation in South Asia.

It contained four major components:

 a) A rice levy on the largest owners, to be collected by the government and redistributed to
the poor through fair price shops;

b) A ceiling on absolute size of land holdings, with excess land to be distributed to the
landless;

c) The abolition of tenancy, and thus the abolition of rent from the operators to the
non-cultivating landlords;

d) The abolition of tenancy in house-compound land, and thus the abolition of rents to the
landlords who held titles to them

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Popular Struggles for Land Reform

Kerala's Land Reform law did not come about merely through a vote in the Legislative
Assembly. Quite the contrary, it was the outcome of decades of popular struggles. Nearly every
form of political activity except armed revolution took place in Kerala's land reform struggles.

Effects of Land Reforms

Kerala's "land to the tiller" land reform is widely regarded as one of the thorough and well
implemented law in South Asia. The abolition of tenancy transformed the parasitic landlord class
of mostly high caste Brahmin temple priests and rent recipients into school teachers, government
administrators, and medium sized farmers. Although some have suffered, most appear to have
adjusted successfully to the loss of their giant estates and now contribute to the development of
Kerala's economy.

Kerala's land reform also provided compensation to the landlord class. At the other end, 1.5
million former tenants became small land owners. These former tenants now have economic
interests opposed to the workers, whose wage gains are their loss. Despite all these dangers and
limitations, however, there can be little doubt that land reform has improved the lives of the vast
majority of people in Kerala's Country side. For tenants who received rice land, the land is often
the source of one-half to all their basic food needs. Now there is no rent to be paid. Now there is
no fear of eviction. For those who received only house-compound land, the threat of that eviction
is also lifted, and they have planted a few new coconut and other trees on what is now truly and
fully their own property. For those who have also benefited from construction of a new home in
the government housing scheme, life- while still below any reasonable standard for the modern
world-has improved greatly within the period of just one generation.

The Kerala Land Reforms Act, 1963- Scope

The Kerala Land Reforms Act, 1963 came into force on February 1961. The Kerala Agrarian
Relations Act 1961 which came into force on February 1961 repealed the Tenancy Act of 1929
and The Travancore Kerala Travancore-Kochi Prevention of eviction of Kudikidapukars Act,
1955. The constitutionality of Agrarian Relations Act was challenged in Karimbil Kunjikoman v.
State of Kerala, wherein it was held that the provisions of Agrarian Relations Act were
unconstitutional in its applications on Ryotwari lands in Kasargod and Hosdurg Taluks. The
Kerala Ryotwari Tenants and Kudkidappukaars Protection Act of 1962 was passed as a
temporary protective measure. The Kerala Tenants and Kudkidappukaars Protection Act of 1963
was enacted repealing the 2 former acts. All these acts were repealed by the Kerala Land
Reforms Act of 1963.

15
Kerala Land Reforms Act, 1963 - Main Objectives

1. To increase effective agriculture and production

2. To abolish intermediaries
3. To avoid exploitation of farmers
4. To avoid concentration of lands in few hands.
5. To give ownership rights to the tiller (fixity of tenure)
6. To prescribe uniform rates of rent or fair rent
7. To confer rights on land lords
8. To evict tenant in case of failure in payment of rent for 2 consecutive years
9. To prescribe rights and liabilities of kudikidappukaran
10. To impose ceiling on land
11. To provide compensation for persons who surrenders their land in excess of ceiling to the
government
12. To establish land tribunals and land boards for proper administration of the
act 13. To confer rights on tenant
14. To purchase interest and ownership of land from land lords and intermediaries The Kerala
Land Reforms Act, 1963 is a measure of agrarian reform The Act is included in the Ninth
Schedule of the Constitution and thus by virtue of Article 31A of the Constitution it is immune
from attack under Articles 14 and 19 of the Constitution.

In Madavan Vazunnavar v. Abdulla, it was held that the Act being a welfare legislation, the
benefit of doubt in its expression should be given to the tenants for whose benefit it is designed.

In Lakshmi v. Kunhipperachan, it was held that the Kerala Land Reforms Act, 1963 is a
Social Welfare Legislation. When such a social Legislation is to be construed, if it is capable
of two meanings, one which would preserve the benefit and another which would take it away,
the meaning which would preserve it should be adopted.

In Parameswaran Pillai v. Narayanan Nair, the court held that the Act applies not only to
agricultural but also to non agricultural land situates within the Corporations or Municipalities.

Various Tenancies

Tenancy, Deemed Tenancy, Presumed Tenancy and Exemptions

Kerala Land Reforms Act, 1963 was enacted to bring a fundamental change in the relationship
between landlord and tenant. It is also a fact that tenancy in its various nomenclatures existed in

16
various parts of Kerala. 'Tenant' is at the heart of Kerala Land Reforms Act. The Kerala Land
Reforms Act protects the rights and liabilities of tenant firstly by creating a broad class of tenants
infact and through legal fiction; secondly, by entitling them for fixity of tenure; thirdly by
entitling at cultivating tenant to purchase the right, title and interest from the landowner and the
intermediaries in respect of the land comprised in his holdings.

The term tenant includes an heir or legal representative of a person who has paid or agreed to pay
rent, an intermediary, holder or kudiyirippu, kanamdar, kuzhikanamdar, kanam-kuzhikanamdar,
otti kuzhikanamdar, a mulgenidar, a verum pattomdar of any description including a customary
verum-pattomdar, holder of karaima, holder of kuzhichuvaipum kudiyiruppum, holder of
chalgeni lease, holder of vaidageni lease, a deemed tenant under Sections 4,4A, 5, 6, 6A, 6B, 7,
7A, 7B, 7C,7D, 8, 9,10 and a presumed tenant under Section 11 of the Act. 7E is added by the
2005 Amendment Act.

TENANT [S 2(57)]

"Tenant' means any person who has paid or has agreed to pay rent or other consideration for his
being allowed to possess and to enjoy any land by a person entitled to lease that land and
includes the following:

(1) The heir, assignee or legal representative of or any person deriving rights through, any such
person who has paid or has agreed to pay rent or other consideration.
(2) An intermediary.

(3) A Kanamdar, a Kanam-Kuzhikanamdar and a kuzhikanamdar

(4) An Otti kuzhikanamdar, a mulgenidar and a verumpattamdar.

(5) The holder of a kudiyiruppu or karaima.

(6) A person holding lands under a kuzhichavaipum kudiyiruppum.

(7) A person who is deemed to be tenant under this Act.

There is no distinction between a tenant and lessee.

The circumstance that a kanamadar is in possession as of right and not by permission is not a
circumstance that can be depended upon to conten that he does not come within the body of the
definition, tenant.

17
DEEMED TENANTS [SECTION 4-12]

A number of different types of mortgagees, lessees and others having possession of land are
bought under the class of deemed tenants by the provisions in Ss.4 to 12.

(1) An odacharthudar or a person claiming under an odacharthudar, shall if he or his

predecessor-in-interest was actually cultivating on the 11th day of April, 1957, the land or any
portion of the land to which the odachartho relates and he was cultivating such land or portion at
the commencement of this Act, be deemed to be a tenant in respect of such land or portion as the
case may be. ( An odacharthudar is a person who has right under the agreement for cutting
bamboos in Malabar.)

(2) A mortgagee with possession of land, other than land principally planted with rubber,
coffee, tea or cardamom, or the lessee or a mortgagee of such land shall be deemed to be a
tenant if one of the following three conditions is satisfied. [Section 4A]

(a) The mortgagee or lessee was holding the land comprised in the mortgage for continuous
period of not less than 50 years immediately preceding the commencement of the Land Reforms
Act, 1969.

(b) The mortgagee or lessee has constructed a building for his own residence in the land
comprised in the mortgage and he was occupying such building for such purpose for a
continuous period of not less than 20 years immediately preceding such commencement of the
1969 Act

(c) The land was waste land or Private Forest at the time of the mortgage and

(d) the mortgagee or lessee was holding such land for a continuously period of not less than 30
years immediately preceding the commencement of the 1969 Amendment Act, and

(e) the mortgagee or lessee has effected substantial improvements. Improvement shall be deemed
to be "substantial improvement" if their value on the date of commencement of the Amendment
Act, 1969 is not less than 25 percent of the market value of land on that date.

(3) A mortgagee with possession of immovable property situated in Cochin shall be deemed
to be a tenant in the following circumstances. [Section 5]

(i) the property comprised in the mortgage consists of agricultural fand other than land planted
with rubber, coffee, tea or cashew, and

18
(ii) the interest on the mortgage amount is less than 4% of the total rent fixed in the mortgage
document

(4) Same will be the position in the case of mortgagees who were holding land on verumpattam
on or after Ist Chingam, 1111 and if property situated in Cochin. [Section 6]

(5) A mortgagee with possession of immovable properly at the commencement of the

Amendment Act, 1969 in places where the Malabar Tenancy Act (1929) was applicable shall be
deemed to be a tenant in the following situations. [Section 6B)

(i) He has to pay customary dues or any amount specified as michavaram.

(ii) There is a provision for renewal on the expiry of a specified period.

(6) So also certain persons who were holding agricultural land on or after 1st December 1930 as
a mortgagee with possession or otherwise till the commencement of this Act even though the
tenancy was terminated after 1-12-1930.

(7) Certain persons occupying land honestly believing to be tenants are also to be deemed tenens
if certain conditions are satisfied. The possession should be for two years within the 12 years
immediately preceding 11th April 1967. [Section 7]
(8) Certain persons continuously occupying land of another for not less than 10 years preceding
the commencement of the Amendment Act of 1969 are deemed to be tenants. The occupation
must have been under the belief that it was the property of the Government. [Section 7A)

(9) Certain persons occupying lands under lease granted by incompetent persons, and persons
who have paid amounts for occupation of land, under the conditions provided in Ss.7B and 7C
are also deemed to be tenants (10) 5.7D provides that persons occupying private forests in
Malabar area or unsurveyed lands shall be deemed to be tenants under that Section The
occupation must be for at least 2 years within 12 years preceding 11-4 1967.

(11) One entitled to cultivate any 'nilam' after 11.4.1957 and has been cultivating it at the
commencement of the Act under varam arrangement shall also be deemed to be a tenant though
the prescribed period has expired [Section 8].

(12) The following classes shall also be included as tenants [Section 10]

(i) Punam or Kumri cultivator,

19
(ii) a licensee
(iii) a Varamdar
(iv) a Vechupakuthidas
(v) persons holding special types of tenants in Hosdurg and Kasargode, and
(vi) Special types of tenants in places like Palaghat, Trichur or Kuttanad.

Presumed Tenants

Section 11 states that where in a document a person is described as sambalapattamdar,

sambalachittuder or coolipattamdar, in respect of a nilam situated in Palakkad or Thrichur
District or Kuttanad area, he shall be presumed to be the tenant for the purpose of the Act if the
other conditions are satisfied. Further, a holder of gobrachittu or fazilichittu in respect of land
situated in Hosdurg or Kasargod in Cannanore District shall also be presumed to a tenant under
section 11. Section 2(57)(j) of the Kerala Land Reforms Act recognizes persons presumed to be
tenants under section 1150.

FIXITY OF TENURE (SECTION 13]

Fixity of tenure means the right to possess land and right not to be evicted during tenure. This is
also called as 'security of tenure'. Fixity of tenure, which in essence confers permanent
occupancy right to tenants, achieves twin objectives- a) social justice; and b) maximization of
production.

While framing legislation pertaining to fixity of tenure three essential aims have to kept in mind
a) large scale ejection of tenants shall not take place;
b) resumption of land may be taken up by the owner only for personal cultivation; and
c) in the event of resumption a prescribed area is left to the tenants

The Kerala Land Reforms Act grants the right of fixity of tenure to 'tenant' and
'kudikidappukaran'. Every tenant as defined in section 2(57) of the Kerala Land Reforms Act
shall have the right to fixity of tenure in respect of his holding. "Holding" is defined under
section 2(17) as a parcel of land held under a single transaction by a tenant from a landlord. The
definition is indicative of the fact that there must be landlord-tenant relationship between the
parties to claim benefit under S.72B

Every tenant' shall have fixity of tenure in respect of his holding. This is the most important right
protected under the Land Reforms Act. No land from the holding shall be resumed except as
provided in Ss. 14 to 22 .

20
The benefit under S.13 is available to the tenant, notwithstanding anything to the contrary
contained in any law custom, usage or contract or "in any decree or order of court" The tenant
will have fixity of tenure of the holding if the landlord entitled to resume it is not effecting it
within six months from the commencement of the Amendment Act. (1969).

Exceptions

(1) Where the landlord is a member of the Armed Forces or is a seaman

(2) Where the landlord is the legal representative of such person as mentioned above

In Ouseph Lonan v. Kochunarayanan Pisharody, the Court held that even though a tenancy has
been determined by efflux of time or by notice to quit and a decree obtained by the landlord for
recovery of possession of the property the quondam tenant remaining in possession will get fixity
of tenure.

In Gopinatha Panikar v. Joseph, it was held that a decree for eviction of a tenant obtained before
commencement of the Act is not executable because of non-obstante clause in section 13(1) af
the Act.

Right to prove real nature of transaction

According to section 12, any person interested in any land may prove that a transaction
purporting to be a mortgage, otti karipanayam, panayam, nerpanayam or licence of that land is in
substance a transaction by way of kanam, kanam - kuzhikanam, kuzhikanam, verumpattam or
other lease, under which the transferee is entitled to fixity of tenure in accordance with the
provisions of S.13 and to the other rights of a tenant under this Act. It enables any person
interested in the land to prove that a transaction purporting to be a mortgage is, in substance, a
transaction by way of lease. What is saved thereby is "the transaction purporting to be a
mortgage". However, the saving clause is not a carte blanche for ignoring the transaction
altogether. S.12 of the Act does not permit the Court to supersede the findings made by the Court
to the effect that the earlier lease came to an end with the execution of the transaction which
purports to be a mortgage. What S.12 entitles a person is to prove the real substance of the
transaction covered by albeit the ostensible tenor of the document.

General Exemptions

Exemptions are dealt under section 3 of the Kerala Land Reforms Act. The provisions of
Chapter II which deals with various rights and liabilities of landlords, tenants and
kudikidappukars are not applicable for the following transactions:

21
1) Lease of any land or building under the ownership of Government of Kerala, governments of
any State in India, Central Government, local authorities, Cochin Port Trust, Corporation etc.
[Section 3(1)(i)]

2) Lease only of buildings, including a house, shop or warehouse and the site thereof with the
land if any appurtenant thereto, but a Kudikidappukaran's occupational right shall not be deemed
to be lease of building. [Section 3(1)(ii)]

3) Lease of building or land or both granted for industrial or commercial purposes. [Section
3(1)(iii)]

4) Tenancies of land or building or both created by Administrator General official trustee,

Official Receiver or an officer appointed by Court under any law or persons deriving title from
any of the aforesaid. [Section 3(1)(iv)]

5) Tenancies in respect of land or building or both created by mortgagees in possession or by

person deriving title from them. [Section 3(1)(v)]

6) Tenancies in respect of land or building or both created by persons having life interest or
limited interest. Life interest means interest payable to the life time of a person benefiting from
that. [Section 3(1)(vi)]

7) Lease of private forest. [Section 3(1)(vii)] 8) Plantation exceeding 30 acres. [Section

3(1)(viii)]

9) Tenancies in respect of sites, tanks or premises of any temple, mosque or church including
sites on which religious ceremonies are conducted or any other building attached. [Section
3(1)(x)]

10) Land transferred for felling of trees. [Section 3(1)(xi)] 11) Usufruct of trees or tapping
of rubber, coconut or palm trees. [Section 3(1)(xii)]

Cultivating Tenant
Section 2(8) defines a "cultivating tenant" to mean a tenant who is in actual possession of, and is
entitled to cultivate the land comprised in his holding. Section 72 provides that all right, title and
interest of the landowners and intermediaries in respect of holdings held by cultivating tenants
(including holders of kudiyiruppus and holders of Karaimas) entitled to fixity of tenure under
section 13.

22
Resumption of property by landlord

'Resumption' connotes the idea that the land resumed is not the property of the persons from
whom it is taken back by the rightful owner". Resumption of land is provided in sections 14-22
of the Kerala Land Reforms Act. The Kerala Land Reforms Act confers the right of resumption
in the following cases:

a) Section 14- Resumption for extension of public place of religious worship,

b) Section 15- Resumption for construction of residence, Owner shall be in possession only of
nilam less than 2 acres. Only 20 cents shall be resumed on behalf of himself. 50 cents. can be
resumed on behalf of himself and 2 or more. By resumption land of owner shall not exceed 2
acres and that of tenant shall not be reduced below 50 cents.

c) Section 16- Resumption for cultivation from a tenant holding land in excess of ceiling area.
By resumption of land in possession of land shall not exceed ceiling and that of tenant shall not
be reduced below ceiling.
d) Section 16A - Resumption by small holder from tenant holding in excess of ceiling area. Land
in possession of landlord shall not exceed 5 acres and land in possession of tenant shall not be
reduced below ceiling.

e) Section 17- Resumption by small holder exceeding ceiling area

f) Section 19- Resumption of lands interspersed within. plantations. If it is absolutely necessary

for the purpose of plantation a landlord may resume a land interspersed within plantations that
can be applied only at the end of an agricultural year.

g) Section 20- A compensation for improvements made by the tenant in the specific land
or solatium equivalent to the value of gross produce from the land for a period of 2 years,
whichever is greater shall be given to the tenant on resumption. In case of plantations an
aggregate of these two shall be given.

Procedure for Resumption

By virtue of section 22 of the Act, the application for resumption is to be given to the Land
Tribunal within whose jurisdiction the land is situated. The Land Tribunal shall duly enquire into
the applica tion and pass appropriate order thereon. If the order allows resump tion, it shall
specify the extent and location of the land allowed to be resumed, the rent payable in respect of
the portion that would be left after resumption and directing the landlord to make pay ments to

23
extinguish the rights of the cultivating tenant and the in termediaries, if any, who would be
affected by such resumption. If the landlord deposits the amounts in accordance with the direc
tions of the Land Tribunal, the Land Tribunal shall put the landlord in possession of the land
allowed to be resumed by removing any person who refuses to vacate the same. If the landlord
fails to de posit the amount in accordance with the directions of the Land Tri bunal, the order of
resumption shall be treated as cancelled and the landlord shall have no further right for
resumption.

In Sara Umma v. Adam, it was held that the mere fact that husband of applicant for resumption is
having other lands to construct a building is no ground to reject an application for resumption.

Option of Cultivating Tenant

By virtue of section 22 (4) of the Act, the cultivating tenant shall be entitled to opt for the
location of the portion of the holding which may be allowed to be resumed, if the tenant has not
so opted, the location of the portion to be resumed shall be decided by the Land Tribunal having
re gard to the nature, fertility and other conditions of the portion of the land which may be
allowed to be resumed and the portion left with the cultivating tonant.

Tenants right to sue for Restoration of possession of land which was Resumed

By virtue of section 23 of the Act, a cultivating tenant can apply to Land Tribunal for the
restoration to him of the possession of the land which was resumed. In order to claim restoration,
the resumed land should not be used for the purpose within three years of such resump tion. The
application for restoration of resumed land shall be made within one year from the expiry of
three years after the resumption.

Fair Rent

Fair rent shall be the rent payable by the cultivating tenant to his landlord with respect to the
holding. The fair rent is something that attaches itself to the holding under the provisions of the
Act. It is not a creature of the determination by the Tribunal under S.31 or S.33.

Section 27 says that the rent payable by the tenant to his landlord shall be the fair rent and
proceeds to specify bow it is to be determined. This means that what the landlord is entitled to
collect and the tenant is liable to pay is the fair rent, nothing more and nothing less. The
respective rights and liabilities that flow from this are conferred and imposed upon the landlord
on the one hand and the tenant on the other by the Act itself.

24
The fair rent shall be:

a) In case of nilam 50% of contract rent or 75% of rent determined by any law in force before 1"
January 1960 or the rent specified in Schedule 3 whichever is less;

b) In case of other land 75% of contract or rent fixed by any law in force before 1st January 1960
or rent specified by Schedule 3 of the act.

This does not preclude, however, the landlord and tenant to enter into an agreement with respect
to the rent payable as to be determined by the Land Tribunal. But, such an agreement as to
fixation of rent shall not exceed the 'fair rent; as laid down in section 27. All that the Tribunal
does under S.31 or S.33 is to determine the quantum of the fair rent, either on the evidence
placed before it or on the agreement of the parties although, in the latter case, it has to see that
the rent agreed upon does not exceed the fair rent under S.274. The point to note is that the
determination as such confers no right. It is only an investigation as to the measure of the right,
not an investigation as to whether the right should or should not be given. The tenant has the
option to pay rent either in cash or kind. The tenant has the right to receive receipt for the rent
paid by him to the landlord76. All rights which a tenant has in his holdings are heritable and
alienable".

Purchase of Landlord's Right by Cultivating Tenant

Sections 53 to 64 of the Act enact provisions for purchase of landlord's rights by cultivating
tenants.

A cultivating tenant has a right to purchase the right, title and interest not only of the land owner
but also of the intermediary in respect of the land comprised in his holding. A cultivating tenant
so entitled to purchase the right, title and interest of the land owner and the intermediaries may
apply to the land tribunal for enforcement of such right".

The cultivating tenant is required to pay the price for the purchase of the right, title and interest
not only of the land owner but also of the intermediaries calculated in accordance with section 55
of the Act. The cultivating tenant who is now the purchaser shall pay the purchase price. The
price so paid has to be apportioned among the land owner and the intermediaries. In other words,
the intermediary who loses his interest in the land by the statutory purchase is entitled to receive
the price of his interest in the land. The remaining part goes to the land owner.

The apportionment of the price between the land owner and the intermediaries is made in
proportion to the profits derived by them from the holding". The profits derived from the holding
by the intermediary have been explained by the explanation to be the difference between the rent

25
due to him from his tenant and the rent which the intermediary is liable to pay the landlord. The
substance of the whole matter is that upon purchase of the land by the cultivating tenant, the
intermediary is divested of his interest in the land. The price is determined according to section
55 of the Act. Out of the total price, the intermediary is entitled to receive an amount
proportionate to the value of the interest lost to him due to the statutory purchase.

After receiving the application under section 54 of the Act, the land tribunal "shall give notice to
the land owner, the intermediaries and all other persons interested in the holding"; calling upon
them to prefer claims or objections with regard to the application by the cultivating tenants. The
land tribunal is then required to consider the claims and objections received. It is also required to
hear any person appearing in pursuance of the notice and finally pass orders but only "after
making due enquiries".

The order allowing the application for purchase of the land is required to set out the purchase
price payable by the tenant, the amount due to the land owner and to each of the intermediaries
and other matters. Where the application is allowed and purchase price determined, the
cultivating tenant is required to deposit the purchase price with the land tribunal in accordance
with section 59 of the Act. It is only "on the deposit of purchase price in a lump sum or of the
first installment of such price", that the land board issues certificate of purchase to the cultivating
tenant.

The consequences of the issue of certificate of purchase are these:

a) the right, title and interest of the land owner and the intermediaries, vest in the cultivating
tenant free from all encumbrances with effect from the date of application under section 54 of the
Act;

b) the land-owner and intermediary are divested of their interest in the land and such interest
vests in the tenant free from all encumbrances;

c) the certificate of purchase so granted, becomes "conclusive proof" of the purchase by the
tenant of the right, title and interest of the land owner and the intermediary over the holding
comprised therein; and

d) the land owner or the intermediary cease to have any right in the land comprised in the
holding and all their rights stand extinguished.

As per section 72 of the Act, from 17th December 1969 onwards right, interest, title of holding
vests with government.

26
Section 72 of the Land Reforms Act provides for statutory vesting of the right title and interest of
the land owners and intermediaries in respect of holdings held by cultivating tenants. The term
cultivating tenant as occurring in section 72 of the Act should. naturally derive its meaning from
the said word as defined under section 2(8) of the Act.

Every landowner and intermediary, whose right, title and interest in respect of any holding have
vested in the Government under section 72, shall be entitled to compensation as provided for by
section 72A.

Under section 72B the cultivating tenant of any holding or part of a holding in respect of which,
the right, title and interest have vested in the Government under section 72 shall be entitled to
assignment of such right, title and interest provided that the tenanted land together with the land
owned by him or his family does not exceed the ceiling area. Not only that, subject to the
payment of purchase price determine, the cultivating tenant is entitled under section72A to
obtain a certificate or purchase from the Land Tribunal. Landlord or intermediary can apply for
assignment of land to the tenant and for getting compensation due to him.

Kudikidappukaran

Under section 2 (25) of the Act "kudikidappukaran" means

● a person who has neither a homestead nor any land exceeding in extent three cents in any
city or major municipality or five cents in any other municipality or ten cents in any
panchayat area or township in possession either as owner or as tenant on which he could
erect a homestead and

● who has been permitted with or without an obligation to pay rent by a person in lawful
possession of any land to have the use and occupation of a portion of such land for the
purpose of erecting a homestead; or

● who has been permitted by a person in lawful possession of any land to occupy, with or
without an obligation. to pay rent, a but belonging to such person and situate in the said
land; and 'kudikidappu' means the land and the homestead or the hut so permitted to be
erected or occupied together with the easements attached thereto:

Provided that a person who, on the 16th August, 1968, was in occupation of any land and the
homestead thereon, or in occupation of a hut belonging to any other person, and who continued
to be in such occupation at the commencement of the Kerala Land Reforms (Amendment) Act,
1969, shall be deemed to be in occupation of such land and homestead, or hut, as the case may
be, with permission as required under this clause.

27
The Kerala Land Reforms Act intended to ameliorate the conditions of kudikidappukars by
conferring on them certain benefits like prevention of indiscriminate eviction, making the
kudikidappu right heritable and also to a certain extent, alienable and enabling the
kudikidappukaran to purchase the kudikidappu and some land appurtenant to it.

Thus, generally speaking kudikidappukaran is a hutment. dweller in permissive occupation of the

land on which his hut stands and who holds no land on which he could erect a homestead.

Three cents of land in a city or major municipality, five cents in any other municipality and ten
cents in any panchayat area or township is regarded as the minimum land required for the
purpose of erecting a homestead and it is only if the person concerned holds lands in excess of
these limits that he is disqualified".
Kudikidappus are mainly a feature of the coconut gardens in the coastal areas of the State and are
largely confined to the Cochin and Travancore areas. The occupation originates in permission,
and, although in most cases the permission might, in some measure, be prompted by charitable
considerations, it is never wholly so. Some benefit in return, other than spiritual, is always
expected.

In some cases, the Kudikidappukars are agricultural labourers who were in the earlier days,
expected to work for the holder of the land for a lower wage than the prevailing wage, and in all
cases they are expected to keep watch over the land and prevent theft or trespass. In the case of
coconut gardens, the very existence of these dwelling houses in the midst of the gardens is
beneficial to the trees in the immediate vicinity of the houses and increases their yield. So far as
agricultural land is concerned, there is in all cases some connection between the existence of a
kudikidappu therein and the cultivation of that land so that the conferment of benefits on
kudikidappukars must prima facie be regarded as a measure of agrarian reform.

Caselaws

In Gopalan v. Chellamma, a trespasser forcibly en tering into the land of another and putting up a
homestead cannot claim to be a kudikidappukaran. In order to be a kudikidappukaran either the
creation of the homestead or the occupation of the hut must commence with the permission of the
landlord.

In Mariam v. Ouseph Xavie, it was held that an unlawful trespasser does not acquire any right
under section 2(25). One who has come in by leave and licence but continues without the
consent of the landlord is protected by the Act. The initial leave to occupy is obligatory to make
the dweller a kudikidappukaran.

28
In Achuthan V. Sulochana, it was held that a per son does not lose his right as a
Kudikidappukaran if his wife or tarwad is possessed of properties.

In Thankappan Asari v. Ammukutty Bai, the court held that in order to claim Kudikidappu right
she should establish that her initial occupation was with permission. If the occupation is by tres
pass, a person is not a kudikidappukaran.

In Sankaran v. Kumaran, the court held that only a person who is in lawful occupation can claim
the Kudikidappu right and a trespasser is not entitled to claim the benefit.

In Balan Menon v. Omana, a shop building was let out in 1959 for conducting Tea Shop. Later
the Lessee set up her residence in the shop. The court held that the lessee is not entitled to claim
Kudikidappu.

In Parvathy V. State of Kerala, the Kudikidappukaran was holding 8 cents in one survey number
and 2 (1/2) cents in another survey number lying separate and away from each other. The court
held that he is not holding land exceeding 10 cents to attract the disqualification.

Rights and Liabilities of Kudikidappukars

1. Right to Fixity

A kudikidappukaran will have the right to fixity of tenure. He cannot be evicted by the landlord
except under certain conditions.
They are:

a) If he alienates kudikidappu to any person other than his family members, but he may not be
evicted if the transferee is a homeless person or is having an annual income not exceeding Rs.
2000/- or is having no land fit for constructing a homestead; or

b) If the tenant rents such property to another for a period not less than 2 years, he can be
evicted; or

c) If the tenant owns and possess any other kudikidappu or land which is fit for the same within 5
kilometers from the existing kudikidappu, he can be evicted, but if he possess land not exceeding
3 cents in the city or major municipality, 5 cents in any other municipalities or 10 cents in the
Panchayat area he may not be evicted; or d) If he owns and possess land exceeding 25 cents he
can be evicted; or

29
e) If the kudikidappukaran or his near relatives fails to occupy the kudikidappu for 2 years, he
can be evicted.

A kudikidappukaran shall not be evicted by the mere fact that he has ceased to reside in a
kudikidappu, and if any of his relatives who was residing with him in the kudikidappu continues
to reside there in, and such person is liable for rent. Near relative includes husband, wife,
children, grandchildren, father, mother, brother, sister or their children.

2. Shifting of Kudikidappu

A person in possession of land where there is kudikidappu may if he bonafide requires the land
● For constructing a building for his own residence or any family member or, ● For the
 purpose of town planning scheme approved by the competent authority or ● For any
industrial purpose

he shall require the kudikidapukaan to shift to a new site belonging to him.

Provided that;
● the new site is fit for erecting a homestead
● within a distance of one mile from existing kudikidappu and
● the landholder shall transfer ownership and possesson of the new site in favour of
kudikidapukaran and
● pay him the price of homestead erected by kudikidappukaran, and also cost of shifting to
new place, the kudikidappukaran is bound by it.

In Ayyappan v. State of Kerala, the court held that before directing a shifting of the kudikidappu,
the Land Tribunal has to investigate and find that the applicant requires the land bona fide for the
purpose of construction of house.

In Vasudeva Shenoy v. Kochappan, it was held that running of cinema is an industry and the
requirement of prop arty for construction of car park and canteen for the purpose of cinema is
also an industrial purpose and shifting can be demanded.

In Janaki v. Land Tribunal, it was hold that an application for shifting the Kudikidappu for
putting up a residential bulld ing for a married daughter is sustainable.

3. Right of Kudikidappukaran is heritable

The heritable right means the rights of the heir; rights to land or whatever may be intimately
connected with land. The rights of a kudikidappukaran in his kudikidappu is a heritable one but

30
not alienable except to any person who is his family member, or a homeless person having an
annual income not exceeding Rs. 2000/- or is having no land fit for constructing a homestead
either as owner or tenant.

Section 78 only defines, declares and delimits the restricted right of alienation conferred on the
kudikidappukaran". If he had died before the Kerala Land Reforms Act came into force, he was a
kudikidappukaran in the nature of the permission granted to him under the general law and under
the general law the position of the kudikidappukaran is more or less in the nature of a licencee
who in pursuance of the licence had put up a building on a land. It is well settled that the right of
such a licensee is heritable though not alienable 100.
 4. Right to maintain, repair and reconstruct the hut

The kudikidappukkaran has the right to maintain repair and reconstruct the hut belonging to the
person who permitted occupation by the kudikidappukaran or homestead. He can do it with the
same or different materials, but without increasing the plinth area by more than fifty percent, at
the commencement of amendment act 1969. Such repairs shall be at his own cost.

5. Customary Rights

The customary rights and certain other rights of a kudikidappukaaran which is mentioned in
section 79A is not affected by anything contained in any law, contract, judgment, order or decree
of court. He shall be entitled to all rights accrued to him by custom, usage or agreement and
which he was enjoying immediately before the commencement of this Act. The enjoyment of
any benefit or concession for a continuous period of three years immediately preceding the
commencement of this Act shall be deemed to be such a right.

Thus his customary rights are protected under this Act.

6. Rights like easement rights and right to place any electric supply and lay pipes

Besides these kudikidappukaran also have other rights like easement rights and right to lay
electrical lines and pipes in the land where kudikidappu is situated. kudikidappukaran will get all
the easement rights and privileges as that of an owner of a land under the Indian easement act
1882. He will be treated like an owner since the day the hut or homestead was erected or
occupied. Kudikidappukaran will get all the easement rights and privileges as that of an owner of
a land under the Indian easement act 1882. He will be treated like an owner since the day the hut
or homestead was erected or occupied. Kudikidappukaaran can even lay down electric lines or
pipes in the land where the kudikidappu is situated without the consent of the owner or occupier
of such land for the purpose of the supply of electricity and water to his kudikidappu for

31
domestic consumption and use. Through the above provisions the Act of 1961 protects some
of the important rights which is necessitous for a kudikidappukaaran and his kudikidappu

7. Right to purchase kudikidappu

A kudikidappukaran is entitled to another land fit for constructing of a kudikidappu or a

kudikidappu itself in case he is evicted by the landlord who is in bonafide need of existing
kudikidappu. The landowner had to meet the expenses of constructing new kudikidappu if land is
not provided to the tenant. This right exists notwithstanding anything contrary contains in any
law in force. The extend of land that the kudikidappukaran is entitled to purchase is a maximum
of three cents in a city or major municipality or five cents in any other Muncipality or ten cents
in a panchayat area or township if his kudikidappu is less than this he will only be entitled to that
particular extend.

Small Holder

According to S.2(52) of the Act Small Holder' means a landlord who does not have interest in
land exceeding 8 standard acres or 10 acres in extent whichever is less, as owner, intermediary or
cultivating tenant, or in two or more of the above capacitories so however that the extent of non
resumable land in his possession as owner or as cultivating tenant, or partly as owner and partly
as cultivating tenant does not exceed -

(i) two and a half standard acres or -

(ii) four acres in extent, whichever is greater

Right of Resumption:

By S.16A a small holder is entitled to resume from tenants holding more than the ceiling area.
He can resume the whole or a portion of the holding subject to the condition that by such
resumption the total extent of land in the possession of the cultivating tenant is not reduced
below the ceiling area and the total extent of land in the possession of the small holder is not
raised above 5 acres.

No small holder is entitled to resume any land in the possession of a tenant who is member of a
Scheduled Caste or a Scheduled Tribe.

The application for resumption is to be made within 6 months from the commencement of the
Amendment Act 1969. Delay in filing the application cannot be condoned..

32
A small holder other than a sthanee or the trustee or owner of a place of public religious worship
may resume from his tenant a portion of the holding not exceeding one half. By such resumption
the total extent of land in the possession of the small holder should not be raised above two and a
half standard acres or five acres in extent, which ever is greater.

No land shall be resumed from a tenant who was entitled to fixity of tenure in respect of his
holding immediately before 21.1.1961 under any law in force at that time.
Ceiling Area - Chapter III - Section 81 -98A

Ceiling area/limit means upper limit of land or holdings as is allowed to be held by the law.

According to the section 83 - No person shall be entitled to own or hold or to possess under a
mortgage lands in the aggregate in excess of the ceiling area.

The ceiling area of land shall be:

● In case of adult unmarried person (includes divorced wife or divorced husband who has
not remarried) or a family consisting of sole surviving member, 5 standard acres so
however that ceiling area shall not be less than 6 and more than 72 acres.

● In case of a family with 2 or more members but not more than 5, 10 standard acres,
however that ceiling area shall not be less than 12 or more than 15 acres.

● Family with more than 5 members, 10 standard acres increased by one standard acre for
each member in excess of five. So however that ceiling area shall not be less than 12 or
more than 15.

● In the case of any other person not being a joint family, 10 standard acres, so however that
ceiling area shall not be less than 12 and more than 15 acres in extent. All the lands held
by individually by the members of a family or jointly by some or all of the members
shall be deemed to be owned or held by the family.

In calculating the extend of land held by a family or an adult unmarried person, the shares in the
lands held by them jointly with another person(not belonging to that family) and shares by a co
operative society or a joint family shall be taken in to account.

The lands owned or held by a private trust or a private institution shall be deemed to be lands
owned or held by a person creating the trust or establishing the institution, or if he is not alive, by
his successors-in-interest

33
All transfers which are deemed to defeat the provisions of this Act is held to be invalid under the
section for the purpose of this section. voluntary transfer effected after the date of publication of
Kerala Land Reforms Bill, 1963, in the Gazette shall be deemed invalid. However, it is open to
court to look into relevant circumstances, including nature of rights executants, relation between
parties, intention and attending circumstances in determining the effect of partition deed. Further,
transfer in favour of a person who was a tenant of the holding before 27 July 1960 and continued
to be so till the date of transfer and Transfer effected by means of a gift deed executed in favour
of son or daughter or children of predeceased son and daughte during the period from 1" January
1970 and 5 November 1974, by a person owning land in excess of the ceiling area if is in the
limit prescribed such limit is given in section 82 as exempted from the purview of section 84.

Exemptions

Land Exempted from Ceiling Area under section 81

In computing the ceiling area the following shall be exempted they are:

i) Government land - Kerala or any other States, but if it is given to any person under a lease
exemption shall not be applicable. Central government, Local authorities Or other authority
which the government may, exempt by notification in Gazette. It shall include a corporation
owned or controlled by the government.

ii) Lands taken under management of Court of wards (a Court of Record established during
feudal system, its function is to deal with matter regarding estates under the Crown)

iii) Land comprised of mill, factories, workshop.

iv)Private forests

v)Plantations

vi) Cashew estates

vii) Omitted pepper gardens and areca nut gardens in 1969

viii) Land mortgaged to government co-operative societies, Financial Corporation, Industrial

Development Corporation

ix) Land purchased by Kerala Co-operative Central Land Mortgage Bank, 34

x) Land purchased by Kerala Financial Corporation

xi) Land held by Industrial or Commercial undertaking

xii) Kayal Paadashekharam (Backwaters) of Kuttanad is omitted in 1969

xiii) Sites of temples, churches, mosques, cemetery, burial and burning grounds.

xiv) Sites of buildings including warehouses

xv) Commercial sites

xvi) Land occupied by educational institutions.

xvii) Land vested with Boodhan Yagana Committee

xviii) Land held by universities, religious or charitable institutions, educational institutions or a

trust of public natureLand granted for gallantry to defense personnel.

According to section 84 no person shall hold land in excess of the ceiling area. Excess of ceiling
shall be surrendered to government and the person who surrenders land will be entitled to
compensation this is provided in sections 85 to 88. Any person holding land in excess of ceiling
area shall be surrendered to government.

This shall be done within three months from the date specified in section 83, he shall file a
statement before the land tribunal intimating the location the land, the extent and such other
particulars as prescribed indicating the lands proposed to be surrendered the case of an unmarried
person he shall himself file statement, in the case of a minor, lunatic, idiot or disabled, the
guardian, manager or other person in charge of such person o property of such person shall file
for any other person, a person competent to act for such person in his behalf shall file it. any may
be the

Any person fails to file statement, the Taluk Land Board shall intimate that fact to the land board
and it shall after conducting enquiries determine the extent of land which is to be surrendered.
On the receipt of statement of surrender the land board shall transfer the statement to such Taluk
board and it shall verify the statements given by the person, ascertain whether such person hold
any other land, and determine the extent and identity of the land to be surrendered. In such
determination of identity board shall accept the land indicated in the statement.

35
Taluk land board shall not be bound to accept such of land indicated by the person. If it has
reason to believe that the person has no good title to the land indicated by him or that land is not
accessible, or any other reasons like it is not practicable o accept the choice, and it is to be
recorded in writing. Where the land becomes vested in government by way of ceiling the person
who surrenders them shall be entitled to compensation it is as per the rates in Schedule IV.
However a lessee of a land owned by Government of Kerala is not entitled to such
compensation.

Authorities under the Kerala Land Reforms Act

The authorities envisaged and constituted under the Kerala Land Reforms Act

are: 1. Land Tribunal

Government by notification may constitute one or more land tribunal for any area. It shall
consists of sole member who is either a judicial officer of the rank of a Munsiff or an officer not
below the rank of Tahsildar appointed by the government.

Powers of Land Tribunal

● It can summon and enforce the attendance of any person and examine him an oath.
● It can require the discovery and production of any document
● It can receive evidence on affidavit
● It can issue commission for the examination of witnesses or for local investigation

2. Appellate Authorities

Government may by notification constitute many appellate authorities. It shall consists of sole
member who is either a judicial officer not below rank of a subordinate judge c officer not below
the rank of a deputy collector.

3. Land Board

Government shall constitute a land board for the whole state. It shall consist of either a member
or three members. Where the board consists of sole member it shall be a member of the board of
revenue or an officer not bellow the rank of secretary to government appointed by the
government.

Where the board consists of three members the members shall be

a) Chairperson who is a member of the board of revenue or an officer not below the rank of
secretary to government appointed by the government

36
b) a judicial member who is an officer not below the rank of district judge nominated by the
government in consultation with the high court; and
c) an officer of the government nominated by the government. or an
 4. Taluk Land Board

Government shall constitute a Taluk Land Board in each taluk in the state. It shall consist of
Chairman- an officer not below the rank of deputy collector appointed by the government and
not more than 6 members nominated by the government.

The term of office of the Taluk Land Board and the manner of filling vacancies among the
non-official members of the board shall be such as may be prescribed. Any member nominated
to fill the vacancy shall hold the remaining period. Any member except chairman shall cease to
hold the office if he is absent from 3 consecutive meetings and also government can remove any
member from such office after giving reasonable opportunity of show cause against the proposed
removal. A person shall be disqualified for being nominated as a member of taluk board if he has
been convicted for an offence involving moral turpitude and sentenced to imprisonment for not
less than 6 months, unless a 5 year has lapsed from the date of expiry of sentence.

5. Land Review Board

Land Review Board is constituted for the purpose of reviewing the progress of implementation of
the land reforms act. It shall consists of a chairman-the minister of a state in charge of land
reforms; members of land board and 6 non official members nominated by the government. The
Board shall lay down guidelines as may be necessary for the effective implementation of this act.
It also has the power to call for returns from any authority or officer exercising any power or
performing any function under this act or rules. The land board and the land tribunal shall have
all the powers of a civil court in performing its functions under this Act, they are: Summoning,
examining. production of evidences and examination of same receiving evidence in affidavit, and
appointment of Commissions for local investigation and any other matter which may be
prescribed. The land board has superintendence over all the land tribunals, appellate authorities
and the Taluk land boards.

6. High Court

Appeal from land board and Land Tribunal goes to appellate authority. An order by any
subordinate can be reviewed by High Court. Land Board will have superintendence over all other
authorities except High Court.

37
THE KERALA LAND ASSIGNMENT ACT, 1971
'Assignment' signifies the transfer between living persons of right or claim or interest in a
property. It means transfer of land by way of registry and includes a lease and a grant of license
for the use of the land'.

Assignment and lease of land in Kerala are regulated by the Kerala Government Land
Assignment Act 1960 (herein after 'The Act') and are governed by various rules made
thereunder. As the name of the statute indicates, the Act regulates assignment of government
lands Further, the Act removes doubts as to the validity of the limitations and restrictions
imposed in assignments of land by the Government.

The Kerala Private Forests (Vesting and Assignment) Act, 1971 provide for the vesting of
private forests in Government and further empowers the Government to assign such land thereof
to agriculturalists and agricultural labourers for cultivation.

Government Land

'Government land' is synonymous with public property. It encompass all public roads, streets,
tans, lanes paths, bridges all canals, tanks, lakes, back waters, water course, the bed a the sea,
and of harbours and creek below high water mark, the beds and banks of rivers, streams,
irrigation and drainag channels. Land registered in the name of a person but subsequently
abandoned or relinquished are governmental. Similarly all lands held by the right of escheat,
purchas resumption, reversion or acquisition under the Land Acquisition Act are also
government land.

B. Govinda Rao v. District Collector -The construction of a bunk, being a fixture on a concrete
foundation permanently affixed on Government land, the arrangement falls within the definition
of an assignment as defined in the Assignment Act.

However, certain properties do not fall within the purview of 'Government land'. They are:

a) Jenmi's or holders of inams (or any person claiming through or holding through him);

b) Holders of land in any way subject to the payment of land revenue (or any person claiming
through or holding through him);

c) Any other registered holder of land in proprietary right (or any person claiming through
or holding through him):

38
d) Any person holding land under grant from the Government otherwise than by way of lease
or licence. (or any person claiming through or holding through him).

Assignment of Land

Section 3(1) of the Kerala Land Assignment Act, 1960 empowers the Government or any
authority empowered by the Act to assign any 'Government land'. Such assignment can be
absolute or subject to such restrictions, limitations and conditions prescribed by the Act.

According to section 8, "All the provisions, restrictions, conditions and limitations contained in
any Patta or other document evidencing the assignment of Government land or of any interest
therein shall be valid and take effect according to their tenor, notwithstanding any law for the
time being in force or any custom or contract to the contrary'.

Exemptions:

The Kerala Land Assignment Rules, 1964 shall not apply to following assignments namely:

a) Assignment of government land situated within the limit of a Corporation, Municipality

or Cantonment or such other areas that the Government may specify;

b) Assignment of government land for specific purpose of cultivating tea, coffee, rubber,
cinchona and cardamom;

c) Assignment of government land under any rules other than the Kuthakapattom Rules 1947;

d) Assignment of government lands under any special tenures like Kandukrichi Viruthi, etc; e)

Assignment of government lands held under any specified agreement with the Government; f)

Assignment of government lands transferred and vested in the Panchayats. Purpose of

Assignment

Rule 4 of the Land Assignment Rules, 1964 enumerates the purposes for which the Government
land may be assigned. Government land may be assigned on registry for personal cultivation,
houses sites and beneficial enjoyment of adjoining registered holdings.

Thus the government land can be assigned only for three purposes vis-à-vis for personal
cultivation, for constructing houses and beneficial enjoyment of adjoining registered holdings.
 39
Beneficial enjoyment means the enjoyment of land for purposes like providing approach road to
assignees registered holding and protection of his water course, standing crops and buildings".
Beneficial enjoyment is an easement right.

Further, Rule 24 of the Kerala Land Assignment Rules, 1964 empowers the government to
assign land if it considers it necessary to do in 'public interest. What is contemplated under Rule
24 is to give a grant in public interest.( Parent Teacher Association, Maharaja College v. State)

Public interest is interest of the people at large. The purpose for which land is to be assigned
invoking Rule 24 should be one for the benefit the public in any sense of the term.

Private interest of an individual to acquire more property could never be termed as public
interest. This assignment may or may not contain any condition.(Varkey Abraham v. Secretary,
Revenue Department) The statutory limitation that has been incorporated in R.24 is that the
assignment should be in public interest and if that public interest is established, then the
assignment will not be open to challenge.

Extent of Assignment

The Kerala Land Assignment Rules lays down the extent of land which can be assigned for
personal cultivation, housing and for beneficial enjoyment. However, the Kerala Land
Assignment Act and Rules relate to only assignment of land to individuals and not to any entities
like a recreation club.

The extent of land that shall be registered in favour of a single family for personal cultivation by
members of the family shall not ordinarily exceed fifty cents in plain and one acre in hilly trac in
the case of unoccupied lands and also in the case of land held on lease current or time expired or
by way of encroachment not considered objectionable.

Thus an individual's application to assign 33 cent pond was rejected on the ground that he
already owned about 1.37 acres of property which was well excess of assignable limit of 50 cents
(Abdul Rahim C A v. District Collector, Ernakulam). In later cases, the land, any, held in excess
of this limit shall be surrendered Government and no compensation shall be payable for the land
so surrendered. When a family owns or holds any land over which it has proprietary right or has
security of tenure, only the balance to make up the extent admissible under such rule (1) shall be
granted on registry.

The definition of 'family' unde Rule 2(d), Kerala Land Assignment Rules, includes children and
even parents. Children who have attained majority als come within the definition of 'family'. The
only requirementis that the children should be either living with the parents dependent on them.

40
So far as parents are concerned, they must be solely dependent on the person concerned. The
definition of 'family' is wider than the family as contemplated in Section 82 of the Kerala Land
Reforms Act which provides for ceiling area.

The extent of Government land that shall be registered in favour of a family as house site shall
not exceed fifteen cents (6.072 ares). The assignee shall be liable to pay land value for house
sites at the rate of Rs 200 per cent. The extent of Government land that may be granted on
registry when the same is indispensably required for the beneficial enjoyment of adjoining
registered holdings shall not exceed, in the case of one registered holding fifteen cents (6.072
ares). Rule 6(2) was amended in 2005 and before amendment the extent that could be assigned
was twenty five cents. Assignment for 'beneficial enjoyment' is different from assignment for
cultivation. The authority competent to assign land for beneficial enjoyment shall be the Revenue
Divisional Officer.

Land Assignment Procedure

By virtue of section 3 of the Land Assignment Act, 1960 the Government Land may be assigned
by the Government or by any prescribed authority either absolutely or subject to restrictions,
limitations or condi tions.

The word Assignment means transfer of land by way of registry and includes a transfer of land
by way of lease and grant of licence for the use of land (section 2(a).

In Govind Rao v. District Collector, the court held that a bunk constructed on a concrete
foundation on government lands and allotted to a person with stipulations to pay rent falls within
the definition of assignment.

Procedure

Section 4 of the Land Assignment Act, 1960 prescribes the procedure to be followed before
the Government lands are assigned. The following are the rules;

1) If any Government Land is proposed to be assigned, otherwise than by way of lease or

licence, the Tahsildar of the Taluk in which the land is situate shall notify that such land will be
assigned by public auction and call upon those who have got any claim to such land to prefer
their objections to him in writing within the specified period.
 41
2) If any objection is preferred within the time specified in the noti lication, the Tahsildar shall
enquire into the same and pass an order in writing either accepting or rejecting the claim and
intimate in writing the tact of such disposal to the claimant.

In Parameswaran Pillai v. State of Kerala, the court held that the assignment of Government
Land without notification and inviting claim is without observance of the-mandatory rules and
hence invalid.

3) If the time fixed in the notification has elapsed and no objection has been preferred or the
objection preferred is rejected and the time for preferring appeal (30 days from the date of receipt
of the order of the Tahsildar) has lapsed and no appeal has been preferred or if the appeal is
rejected by the Appellate Authority, the land may be assigned.

4) The Government Lands may be assigned on registry for the purpose of personal cultivation,
house sites and beneficial enjoyment of adjoining registered holdings.

5) The extent of land that shall be registered in favour of a single family for cultivation by the
members of the family shall not exceed more than one acre of land whether wet or dry in the
plains and more than one acre of wet land or three acres of dry land in hilly tracts.

6) The extent of Government Land that shall be registered in favour of a family as house sites
shall not exceed twenty five cents (10 ares). The assignee shall be liable to pay land value for
house sites at the rate of Rs. 200/- per acre

7) Lands granted on registry shall be heritable and allenable.

8) If any person is in occupation of government land under lease or by way of encroachment not
considered objectionable shall be assigned to him on registry if such occupation is before of the
first day of August 1971.

In State of Kerala v. Bhaskaran Pillai, the Supreme Court held that if the land is acquired by the
Government for public purpose, after the public purpose was achieved, the rest of the land could
be used for any other public purpose. In case there is n public purpose for which the land is
needed, then instead of disposal b way of sale to the erstwhile owner, the land should be put to
public aus tion and the amount fetched in the public auction can be better utilised for the public
purpose envisaged in the Directive Principles of the Com stitution.
In Pushpavally v. State, it was held that if the Government consider it is necessary to assign the
land in public inter est, the order of the Government assigning the land is not open to cha lenge.

42
In Thadathil Varghese Chaco v. Government of Kerala, it was held that when the Government
land is likely to be needed for a public purpose, the authorities should desist from assign ing
away such land only to acquire the same later.
 43
THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND
ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013
The Land Acquisition Act, 1894 has been repealed by section 114 of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,2013
(for short New Act of 2013). The new Act of 2013 came into force with effect from 1-1-2014, as
notified by the Central Government. The new Act of 2013 replaced the Land Acquisition Act,
1894, a nearly 120-year-old law enacted during British rule and lays emphasis on Rehabilitation
& Resettlement in cases of land acquisition.

Aims and Objectives

The main aims and objectives of the Act can be identified from the long title of the Act. It
is fairly a lengthy long title. The aims and objectives are:

(1) To ensure, in consultation with institutions of local self-government and Gram Sabhas
established under the Constitution of India, a humane, participative, informed and transparent
process for land acquisition for industrialisation, development of essential infrastructural
facilities and urbanisation with the least disturbance to the owners of the land and other affected
families.

(ii) To provide just and fair compensation to the affected families whose land has been acquired
or proposed to be acquired or are affected by such acquisition.

(iii) To Make adequate provisions for such affected persons for their rehabilitation and
resettlement.

(iv) To ensure that the cumulative outcome of compulsory acquisition should be that the affected
persons become partners in development leading to an improvement in their post acquisition
social and economic status.

Application of the Act of 2013

By section 2(1) of the Act, the provisions of the Act relating to land acquisition,
compensation, rehabilitation and resettlement, shall apply.
(i) when the appropriate Government acquires land for its own use, hold and control.
(ii) when the appropriate Government acquires land for Public Sector Undertakings
(iii) when the appropriate Government acquires land for "public" purposes.

44
By section 2(2) of the Act, the provisions of this Act relating to land acquisition,
CONSENT, compensation, rehabilitation and resettlement, shall also apply, when the
appropriate Government acquires land for the following purposes:

(1) For Public Private Partnership Projects, where the ownership of the land continues to
vest with the Government, for public purpose as defined in sub-section (1)

(2) For Private Companies for public purpose, as defined in sub section(1).

In the case of acquisition for private companies, the prior consent of at least eighty per cent, of
those affected families shall be obtained.

(3) The provisions relating to rehabilitation and resettlement under this Act shall apply -

(a) in cases where a private company purchases land, equal to or more than such limits in rural
areas or urban areas, as may be prescribed by the appropriate Government, through private
negotiations with the owners of the land in accordance with the provisions of section 46.

(b) In cases where a private company requests the appropriate Government for acquisition of a
part of an area so prescribed for a public purpose.

If a private company requests the appropriate Government for partial acquisition of land for
public purpose, then, the rehabilitation and resettlement entitlements under the Second Schedule
shall be applicable for the entire area which includes the land purchased by the private company
and acquired by the Government for the project as a whole.

Principle of Public Purpose

Article 31(2) categorically states that a land can be acquired by the state only for Public Purpose.
Broadly speaking, public purpose would include a purpose, in which the general interest of the
community, as opposed to a particular interest of the individual, in generally and vitally
concerned . In a generic sense the expression public purpose would include a purpose in which
where even a fraction of the community would be involved. It has been identified as a work from
which public in general would derive benefit or be benefited. Anything which is useful to the
public, in the sense that it confers some public benefit, or conduces to some public advantage, is
a public purpose . It is the requirement of public purpose that is determining factor on the
question weather or not a particular land should be acquired, and the considerations of hardships
to the individuals cannot outweigh the question of public demand.

The following are public purposes under the Act:

45
(a) Strategic purposes relating to naval, military, air force, and armed forces of the Union,
Including central paramilitary forces or any work vital to national security or defence of India or
State police, safety of the people.

(b) Infrastructure Projects, which include the following:

(i) All activities or items listed in the notification of the Government of India in the
Department of Economic Affairs (Infrastructure Section) number 13/6/2009-INF, dated the
27th March, 2012, excluding private hospitals, private educational institutions and private
hotels

(ii) Projects Involving agro-processing, supply of inputs to agriculture,warehousing, cold storage

facilities, marketing infrastructure for agriculture and allied activities such as dairy, fisheries, and
meat processing. set up or owned by the appropriateovernment or by a farmers' co-operative or
by an institution set up under a statute.

(iii) Project for industrial corridors or mining activities, nationa investment and manufacturing
zones, as designated in the National Manufacturing Policy.

(iv) Project for water harvesting and water conservation structures,sanitation.

(v) Project for Government administered, Government aided educational and research schemes
or institutions

(vi) Project for sports, heath care, tourism, transportation or space programme.

(vii) Any infrastructure facility as may be notified in this regard by the Central Governmentand
after tabling of such notification in Parliament

(c) Project for project affected families.

(d) Project for housing for such income groups, as may be specified from time to time by the
appropriate Government.

(e) Project for Planned Development or the improvement of village sites or any site in the urban
areas or provision of land for residential purposes for the weaker sections in rural and urban
areas,

(j) Project for residential purposes to the poor or landless or to persons residing in areas affected
by natural calamities, or to persons displaced or affected by reason of the implementation of any
 46
scheme undertaken by the Government, any local authority or a corporation owned or controlled
by the State.

In Habib Ahmed v. State of Uttar Pradesh, the Court held that neither the notification nor the
declaration can be quashed on the ground that there was no necessity for acquiring the land for a
public purpose. Whether the land is required for a public purpose or not has to be decided solely
by the State Government. The Court observed that it is duty of Court to determine whenever
question is raised whether acquisition is or not for public purpose. However, prima facie
Government is the best judge as to whether acquisition is for public purpose. But it is not sole
judge.

In Hamabai Framjee Petit v. Secretary of State, the Government gave certain land on lease in
Bombay and they also have power to take over the possession of the land under the term of lease
but only after paying compensation to its subjects. After a point of time the Government send a
notice for resuming the possession over the land and to use the said land for providing residential
accommodation to the public servant. The court held that possession resumes by the Government
is valid on the basis that the property resumed is for public welfare.

The most recent judgments given by the Supreme Court on public purpose is State of Karnataka
v. All India Manufacturers Organization, in this case land far away from the actual alignment of
the road and periphery had been acquired for constructing highway and, therefore, even if the
implementation of the Highway Project was assumed to be for the public purpose, the acquisition
of the land far away therefrom would not amount to a public purpose nor would it be covered by
the provisions of the Karnataka Industrial Areas Development Act, 1966 (the KIAD Act).

Land Acquisition Procedure

(Proceedure for Acquisition)

Chapter IV (sections 11 to 30) of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 deals with publication of notification,
hearing of objections, preparation of rehabilitation and resettlement scheme, land acquisition
award by collector, determination of compensation, award of solatium etc.

Publication of Preliminary Notification

By section11 (1) whenever, it appears to the appropriate Government that land in any area is
required or likely to be required for any public purpose. a notification (hereinafter referred to as
 47
preliminary notification) to that effect along with details of the land to be acquired in rural and
urban areas shall be published in the following manner, namely:

(a) in the Official Gazette;

(b) in two daily newspapers circulating in the locality of such area of which one shall be in the
regional language;

(c) in the local language in the Panchayat, Municipality or Municipal Corporation, as the case
may be and in the offices of the District Collector, the Sub-divisional Magistrate and the Tehsil;

(d) uploaded on the website of the appropriate Government;

(e) in the affected areas, in such manner as may be prescribed.

By section 11 (2) of the Act, immediately after issuance of the notification, the concerned Gram
Sabha or Sabhas at the village level, municipalities in case of municipal areas shall be informed
of the contents of the notification issued in all cases of land acquisition at a meeting called
especially for this purpose.

The notification issued shall also contain a statement on the nature of the public purpose
involved, reasons necessitating the displacement of affected persons, summary of the Social
Impact Assessment Report and particulars of the Administrator appointed for the purposes of
rehabilitation and resettlement.

By section 11 (4) of the Act, no person shall make any transaction or cause any transaction of
land specified in the preliminary notification or create any encumbrances on such land from the
date of publication of such notification till such time as the proceedings under the Chapter are
completed.

However the Collector may, on the application made by the owner of the land so notified,
exempt in special circumstances to be recorded in writing, such owner from the operation of this
sub-section.

Any loss or injury suffered by any person due to his wilful violation of this provision shall not be
made up by the Collector.

After issuance of preliminary notice, the Collector shall undertake and complete the exercise of
updating of land records as prescribed within a period of two months.

48
Preliminary Survey of Land

For the purposes of enabling the appropriate Government to determine the extent of land to be
acquired, it shall be lawful for any authorised officer

(a) to enter upon and survey and take levels of any land in such locality;

(b) to dig or bore into the sub-soil;

(c) to do all other acts necessary to ascertain whether the land is adapted for such purpose;

(d) to set out the boundaries of the land proposed to be taken and the intended line of the work (if
any) proposed to be made thereon; and

(e) to mark such levels, boundaries and line by placing marks and cutting trenches and where
otherwise the survey cannot be completed and the levels taken and the boundaries and line
marked, to cut down and clear away any part of any standing crop, fence or jungle.

No act under clauses (a) to (e) in respect of land shall be conducted in the absence of the owner
of the land or in the absence of any person authorised in writing by the owner.

The acts specified above may be undertaken in the stisence of the owner, if the owner has been
afforded a reasonable opportunity to be present during the survey, by giving a notice of at least
sixty days prior to such survey.

No person shall enter into any building or upon any enclosed court or garden attached to a
dwelling-house (unless with the consent of the occupier thereto) without previously giving such
occupier at least seven days' notice in writing of his intention to do so.

The authorised officer shall at the time of entry pay or tender payment for any damage caused,
and, in case of dispute as to the sufficiency of the amount so paid or tendered, he shall at once
refer the dispute to the decision of the Collector or other chief revenue officer of the district, and
such decision shall be final.

Lapse of Social Impact Assessment Report

By section 14 of the Act, where a preliminary notification is not issued within twelve months
from the date of appraisal of the Social Impact Assessment report submitted by the Expert
Group, then, such report shall be deemed to have lapsed and a fresh Social Impact
Assessment shall be required to be undertaken prior to acquisition proceedings under section
11.

49
However the appropriate Government, shall have the power to extend the period of twelve
months, if in its opinion circumstances exist justifying the same. Any such decision to extend the
period shall be recorded in writing and the same shall be notified and be uploaded on the website
of the authority concerned.

Hearing of Objections

By section 15 (1) of the Act, any person interested in any land which has been notified as being
required or likely to be required for a public purpose may within sixty days from the date of the
publication of the preliminary notification, object to -

(a) the area and suitability of land proposed to be acquired:

(b) justification offered for public purpose;

(c) the findings of the Social Impact Assessment report.

Every objection shall be made to the Collector in writing, and the Collector shall give the
objector an opportunity of being heard in person or by any person authorised by him in this
behalf or by an Advocate and shall. after hearing all such objections and after making such
further inquiry, if any, as he thinks necessary, make a report to the appropriate Government,
containing his recommendations on the objections, together with the record of the proceedings
held by him. A separate report giving therein the approximate cost of land acquisition,
particulars as to the number of affected families likely to be resettled is also to be made for the
decision of the Government.

The decision of the appropriate Government on the objections shall be final.

Preparation of Rehabilitation and Resettlement Scheme By section16(1) of the Act, upon the
publication of the preliminary notification, the Administrator for Rehabilitation and Resettlement
shall conduct a survey and undertake a census of the affected families which shall include

(a) particulars of lands and immovable properties being acquired of each affected family:

(b) livelihoods lost in respect of land losers and landless whose livelihoods are primarily
dependent on the lands being acquired;

50
(c) a list of public utilities and Government buildings which are affected or likely to be affected,
where resettlement of affected families is involved; details of the amenities and infrastructural
facilities which are

(d) affected or likely to be affected, where resettlement of affected families is involved; and

(e) details of any common property resources being acquired.

The Administrator shall, based on the survey and census, prepare a draft Rehabilitation and
Resettlement Scheme, as prescribed which shall include particulars of the rehabilitation and
resettlement entitlements of each land owner and landless whose livelihoods are primarily
dependent on the lands being acquired and where resettlement of affected families is involved.

(i) a list of Government buildings to be provided in the Resettlement Area:

(ii) details of the public amenities and infrastructural facilities which are to be provided in the
Resettlement Area. The draft Rehabilitation and Resettlement scheme shall include time limit for
implementing Rehabilitation and Resettlement Scheme.

The draft Rehabilitation and Resettlement scheme shall be made known locally by wide publicity
in the affected area and discussed in the concerned Gram Sabhas or Municipalities.

A public hearing shall be conducted after giving adequate publicity about the date, time and
venue for the public hearing at the affected area.

If an affected area involves more than one Gram Panchayat or Municipality, public hearings shall
be conducted in every Gram Sabha and Municipality where more than twenty-five per cent. of
land belonging to that Gram Sabha or Municipality is being acquired. the administrator shall, on
completion of the public hearing, submit the draft Scheme for Rehabilitation and Resettlement
along with a specific report on the claims and objections raised in the public hearing to the
Collector.

Review of the Rehabilitation and Resettlement Scheme

By section 17 (1), the collector shall review the draft Scheme submitted by the Administrator
with the Rehabilitation and Resettlement Committee at the project level.

The Collector shall submit the draft Rehabilitation and Resettlement Scheme with his
suggestions to the Commissioner Rehabilitation and Resettlement for approval of the Scheme.

51
Publication of Approved Scheme

By section 18 of the Act, the commissioner shall cause the approved Rehabilitation and
Resettlement Scheme to be made available in the local language to the Panchayat, Municipality
or Municipal Corporation, as the case may be, and the offices of the District Collector, the
Sub-Divisional Magistrate and the Tehsil, and shall be published in the affected areas and
uploaded on the website of the appropriate Government.

Publication of Declaration and summary of Rehabilitation and Resettlement

By section 19(1) of the Act, when the appropriate Government is satisfied, after considering the
report of the Collector, that any particular land is needed for a public purpose, a declaration shall
be made to that effect, along with a declaration of an area identified as the"resettlement area" for
the purposes of rehabilitation and resettlement of the affected families, under the hand and seal of
a Secretary to such Government or of any other officer duly authorised to certify its orders and
different declarations may be made from time to time in respect of different parcels of any land
covered by the same preliminary notification irrespective of whether one report or different
reports has or have been made (wherever required).

The Collector shall publish a summary of the Rehabilitation and Resettlement Scheme along
with declaration of the Government. No declaration shall be made unless the summary of the
Rehabilitation and Resettlement Scheme is published along with such declaration. Further no
declaration shall be made unless the Requiring Body deposits an amount, in full or part, as may
be prescribed by the appropriate Government toward the cost of acquisition of the land.

Every declaration shall be published in the following manner, namely:

(a) in the Official Gazette;

(b) in two daily newspapers being circulated in the locality of such area, which one shall be in
the regional language:

(c) in the local language in the Panchayat. Municipality or Municipal Corporation, as the case
may be, and in the offices of the District Collector. the Sub-Divisional Magistrate and the Tehsil;
(d) uploaded on the website of the appropriate Government:

(e) in the affected areas, in such manneras may be prescribed.

Every declaration shall indicate,

52
(a) the district or other territorial division in which the land is situated;
(b) the purpose for which it is needed. its approximate area; and
(c) where a plan shall have been made for the land, the place at which such plan may be
inspected without any cost.

The declaration shall be conclusive evidence that the land is required for a public purpose and,
after making such declaration, the appropriate Government may acquire the land in such manner
as specified under the Act.

If no declaration is made within twelve months from the date of preliminary notification, then
such notification shall be deemed to have been rescinded.

In computing the period of twelve months any period or periods during which the proceedings
for the acquisition of the land were held up on account of any stay or injunction by the order of
any Court shall be excluded.

The appropriate Government shall have the power to extend the period of twelve months, if in its
opinion circumstances exist justifying the same. Any such decision to extend the period shall be
recorded in writing and the same shall be notified and be uploaded on the website of the
authority concerned.

Further Proceedings of Collector By section 20 of the Act, after publication of the declaration of
the Government, the Collector shall cause the land, unless it has been already marked out under
section 12, to be marked out and measured, and if no plan has been made thereof, a plan to be
made of the same,

Notice to persons interested

By section 21 (1), the Collector shall publish the public notice on his website and cause public
notice to be given at convenient places on or near the land to be taken, stating that the
Government intends to take possession of the land, and that claims to compensations and
rehabilitation and resettlement for all interests in such land may be made to him.
The public notice shall state the particulars of the land so needed, and require all persons
interested in the land to appear personally or by agent or advocate before the Collector at a time
and place mentioned in the public notice not being less than thirty days and not more than six
months after the date of publication of the notice, and to state the nature of their respective
interests in the land and the amount and particulars of their claims to compensation for such

53
interests, their claims to rehabilitation and resettlement along with their objections, if any, to the
measurements made under section 20.

The Collector may in any case require such statement to be made in writing and signed by the
party or his agent.

The Collector shall also serve notice to the same effect on the occupier. if any, of such land and
on all such persons known or believed to be interested therein. be entitled to act for persons so
interested, as reside or have agents. authorised to receive service on their behalf. within the
revenue district in which the land is situated.

In case any person so interested resides elsewhere, and has no such agent, the Collector shall
ensure that the notice shall be sent to him by post in letter addressed to him at his last known
residence, address of place or business and also publish the same in at least two national daily
newspapers and also on his website.

By section 22 (1) of the Act, the Collector may also require any such person to make or deliver
to him, at a time and place mentioned (such time not being less than thirty days after the date of
the requisition), a statement containing, so far as may be practicable, the name of every other
person possessing any interest in the land or any part there of as co-proprietor. sub proprietor,
mortgagee, tenant or otherwise, and of the nature of such interest, and of the rents and profits, if
any, received or receivable on account thereof for three years next preceding the date of the
statement.

Award by Collector (Section 23)

On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector
shall proceed to enquire into the objections(if any) which any person interested has stated
pursuant to a notice given under section 21, to the measurements made under section 20, and into
the value of the land at the date of the publication of the notification, and into the respective
interests of the persons claiming the compensation and rehabilitation and resettlement, shall
make an award under his hand of

(a) the true area of the land:

(b) the compensation as determined under section 27 along with Rehabilitation and Resettlement
Award as determined under section 31 and which in his opinion should be allowed for the land;
and

54
(c) the apportionment of the said compensation among all the persons known or believed to be
interested in the land,or whom,or of whose claims, he has information, whether or not they have
respectively appeared before him.

By section 25 of the Act, the Collector shall make an award within a period of twelve months
from the date of publication of the declaration under section 19 and if no award is made within
that period, the entire proceedings for the acquisition of the land shall lapse.

However the appropriate Government shall have the power to extend the period of twelve
months if in its opinion, circumstances exist justifying the same. Any such decision to extend the
period shall be recorded in writing and the same shall be notified and be uploaded on the website
of the authority concerned.

Final Award of Solatium

By section 30 (1) of the Act, the Collector having determined the total compensation to be paid,
shall, to arrive at the final award, impose a "Solatium" amount equivalent to one hundred per
cent. the compensation amount.

Solatium amount shall be in addition to the compensation payable to any person whose land has
been acquired. The Collector shall issue individual awards detailing the particulars of
compensation payable and the details of payment of the compensation as specified in the First
Schedule..

In addition to the market value of the land provided under section 26, the Collector shall, in
every case, award an amount calculated at the rate of twelve percent. per annum on such market
value for the period commencing on and from the date of the publication of the notification of
the Social Impact Assessment study, in respect of such land, till the date of the award of the
Collector or the date of taking possession of the land, whichever is earlier.
 55
THE KERALA LAND CONSERVANCY ACT, 1957

Introduction

The law relating to the prevention of unauthorised occupation of Government lands in the State
was contained in the Travancore-Cochin Land Conservancy Act, 1951 and the Madras Land
Encroachment Act, 1905. It was considered necessary to have a uniform law on the subject,
applicable to the whole State and inorder to achieve this purpose, Act 8 of 1958 was passed and
enacted and was called the Kerala Land Conservancy Act, 1957. This Act underwent
amendments for its effective and speedy implementation and to meet the requirements of time,
by way of Act 11 of 1971, Act 16 of 2001 and Act 29 of 2009.

Scope

The land value in the State showed tremendous increase, which had a direct impact on the
tendency to encroach Revenue lands. Lands were also encroached on the strength of forged
documents. Such circumstances catalysed the need for conservation of Revenue lands. Mass
encroachment of Government lands were witnessed which called for immediate eviction.
Deterrent penalties had to be imposed to curb continuing offences.

Government lands also include land obtained through attachment, through surrender of excess
land under Kerala Land Reforms Act, 1963, those evicted for unauthorised occupation of land
etc. These lands ought to be protected from encroachment simply because they ought to be
utilised for development activities of the Government, for distribution among landless and also
for increasing State revenue.

Thus, the Act exists to fulfil all the above and with that view, it lays down the
following: a) Defines Government land and Poramboke;

b) Rules governing lawful occupation of Government land;

c) Prescribes measures to be taken in matters of unauthorised occupation of Government land;

destruction, removal or appropriation of articles of value and useful trees on such land:

d) Prescribes punishments to be imposed for all unauthorised activities on such land;

e) Procedure and mode of eviction of unauthorised occupants;

56
f) Lays down powers of the Government and Collector, or such officer, in connection to this
Act;

g) Jurisdiction and nature of offences pertaining to this Act;

h) Addresses the grievances of the persons aggrieved by the orders under this Act by providing
for appeals and revisions;

Conservation of Government Land and Procedure of Conservation

Property of Government

The Land Conservancy Act, 1957 was enacted primarily to check un-authorised occupation
of government land. In otherwords, the Land Conservancy Act can be invoked only if the
land belongs to the Government.

Section 3 - defines ‘property of government’

● All public roads, streets, lanes and paths, the bridges, ditches, dykes and fences on or
beside the same
● the bed of the sea an of harbours and creeks below high water mark,
● the beds a banks of rivers, streams, irrigation and drainage channe canals, tanks, lakes,
backwaters and water courses, and standing and flowing water, and
● all lands wheresoever situated are property of the government.

Section 4(1) lays down that 'Poramboke' shall mean and include un-assessed lands which are the
property Government used or reserved for public purposes communal use of villagers.
Further, escheat property, property purchased or resumed or reverted or acquired by virtue of
Land Acquisition Act are properties of government. Land once vested with the government
cannot be alienated without the concurrence of the government. Excess land surrendered under
section 85 of the Land Reforms Act which gets vested in the government and excess land
obtained as gift under section 87 are properties of the government.

Lands belonging to the Government of any other State in India or the Kerala Slate Electricity
Board or to a University established by law or to any Panchayat as defined in the Kerala
Panchayat Raj Act, 1994 or any Municipality as defined in the Kerala Municipality Act, 1994
owned or controlled by the Government of Kerala or to a Municipal Corporation shall be deemed
to be the property of Government.

57
Similarly, all un assessed lands within the limits of private estates used or reserved for public
purposes or for the communal use of villagers, and all public roads and streets vested in any loca
authority shall, for the purpose of this Act, shall be deemed to be the property of Government.

Following are not the properties of government:

● Properties belonging to jenmies, Wargdars or holders of Inams

'Wargadars' were proprietors of land in South Kanara. Janman' right is a freehold interest in
property and the landlord is called 'jenmi". Land allotted to temple managers and revenue record
keepers for their sustenance is known as 'Inam Lands'.

● Land belonging to persons registered in the revenue records as holders of lands in any way
subject to the payment of land revenue to the Government are not the property of the
government. But, even a land once registered in the name of a person may become
property of the government, if land is abandoned or relinquished by the holder of that
land.

● Property belonging to any other registered holder land in proprietary right or those
holding land under grant from the Government otherwise than by way of a lease of
licence are also not properties of the government.

Unauthorised Occupation of Government Property- Eviction and Punishment

The nomenclature for a person who is actual possession or occupation of government property is
occupant. It shall be unlawful for any person to occupy a land which is the property of
Government, whether a Poramboku or not, without permission from the Government. It is further
clarified in the explanation that the erection of any wall, fence or building the putting up of any
overhanging structure or projection (whether on a temporary or permanent basis) on or over any
land aforesaid shall be deemed to be occupation of such land

In Govinda Rao v. District Collector and others wherein a bunk was constructed on Government
land allotted to a private party it was held that Government cannot permit occupation of
Government land otherwise than in terms of the Act.

Exception - Section 5(2)

It empowers the Government to issue license to any person desirous to occupy land which is
Government property, upon receipt of an application for an appropriate license in the form

58
accompanied by such fees prescribed by rules under this Act. The Licensee can occupy such land
in accordance with the terms and conditions of the license.

In Kerala High Court Advocates Association v. State of Kerala and others, the construction of
Advocates Association Chamber Complex carried out by the association was held not to be
unauthorised as it was carried out in the area which was under permissive occupation of the
association and is in terms of permission granted by the Government and Court.

Similarly in Parseur District Court Bar Association v. State of Kerala, the government who
sought to evict the petitioner for having constructed a building in government land was directed
to consider the claim of assignment of property in a realistic manner especially since it is
bounden duty of the state to provide all paraphernalia for dispensation of justice. A strong and
effective bar will aid the state in dispensation of justice.

Punishment for unauthorised occupation of land which is the property of Government

An occupant who un-authorisedly occupies government property is liable for

a) removal of encroachment;
b) eviction and forfeiture of crops etc;
c) penalty for destruction or appropriation of trees etc; and
d) imprisonment and fine.

a) Removal of Encroachment

One of the rights of Government under the Land Conservancy Act is to set in motion the
machinery provided by that Act for removal of encroachment over or un-authorised occupation
of public roads and streets vested in a local authority, deeming such roads and streets to be
Government.

b) Eviction and Forfeiture of Crops - Section 11

Any person un-authorisedly occupying Government land may be summarily evicted by the
Collector. Any crop or other product raised on Government land shall be liable to forfeiture. Any
building or structure erected or anything deposited thereon shall be liable to forfeiture. Such
forfeiture shall be adjudged by the Collector. The property so forfeited shall be disposed off as
the Collector may direct. Article 51 A (i) of the Constitution cast the Fundamental Duty of every
citizen 'to safeguard public property.

Procedure
The manner of eviction is prescribed in section 11 (2).

59
● A notice shall be served on the occupant or his agent requiring him to vacate the land
within such time as the Collector may seem reasonable.
● If such notice is not obeyed, the occupant shall be removed or a subordinate may be
deputed to remove such person.
● If such Officer shall be restricted or obstructed, the Collector shall hold a summary into
the facts of the case.
● If the Collector is satisfied that the resistance or obstruction still continues, he may issue
a warrant for the arrest of the said person.
● On appearance of the person, the Collector may send him for imprisonment in District
Civil Jail for a period not exceeding 30days.

Section 11(3) embodies the provisions of urgent eviction in public interest, without following the
procedure laid down in sub section (2).
Here, the Collector may, after recording his reasons for doing so, issue a notice to the occupant
calling upon him to vacate the land within the specified period. Non compliance of this
empowers the Collector to authorise any Officer who may enter upon the land and take
possession of the same. He may, if necessary, use such force as the circumstances may justify.
This being a provision which can be abused by the Collector inbuilt safeguards are made in the
sub section itself. Firstly, the Collector has to form an opinion as to whether it is expedient in the
public interest to take urgent action without following the procedure laid down in sub-s.(2) and
secondly, he has to record his reasons for forming such opinion. The aforesaid two aspects are
condition precedent for invoking sub-s.(3) of S.11. It is only thereafter the Collector can 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 on failure to comply with the notice any officer authorised by the
Collector can enter upon the land and take possession of the same even by using such force as
the situation may justify. Non-compliance with the procedure under section 11(3) for summary
eviction is illegal, arbitrary and high handed and is liable to be set aside.

Before passing an order under this Act, the Collector shall give notice, in writing to the occupant
or other person likely affected by the order. However, when the Collector takes, under Section
11(3), i.e., urgent eviction in public interest, for eviction of a previously evicted occupant or an
occupan who had voluntarily vacated after receipt of notice, within two years prior to the date of
such occupation, the compliance with section 12 is not needed.

But in Vathsan v. Razack, it was held that Collector has a duty under Section 12 to give notice to
the occupant, record their statement, allow them to adduce evidence and pass an order in writing
considering all matters.
In Nachimuthu Gounder v. State of Kerala, it was held that unauthorised occupant of
Government land cannot claim value of trees planted by him when evicted.

60
c) Penalty for destruction or appropriation of trees

Section 6(1) says that it shall be unlawful for any person to destroy, remove or appropriate for
himself, earth, sand, metal, laterite, lime-shell or such other articles of value as may be notified
by the Government, from any Government land except in pursuance of a permit issued by the
Government or on payment of compensation at the rate prescribed by the Government under sub
section 2.

Whoever violates the aforementioned provision shall be liable to pay fine not exceeding fifty
rupees as imposed by the Collector along with damages which shall be an amount equivalent to
compensation.

Section 6(3A) and 6(3B) specifically imposes punishments on the unauthorised destruction,
removal or appropriation of earth or sand from any Government land and the abetment of
commission of such offence. Section 6(4) says that the Government may remit the compensation,
fine or damages received, in while or in part to any agricultural labourer if auch article of value
was for bonafide agricultural purpose, or to a Co-operative Society. An agricultural laborer
means a person whose principal means of lively hood is the income he gets as wages in
connection with the agricultural operations he performs.

Section 10 penalises any person who destroys or appropriates any useful tree belonging to the
Government with damages not exceeding three times the value of the tree as adjudged by the
Collector. Upon conviction, he shall also be liable for punishment of imprisonment for a term
extending to six months or with fine not exceeding five hundred rupees or both. In State of
Kerala v. Sreedharan Nair, it was observed that proceedings under Section 10 are
quasi-criminal and there must be strict proof before any person is convicted under it.

d) Imprisonment and Fine

If a person unlawfully enters or occupies any land which is the property of Government, whether
poramboke or not, for any non Governmental purpose, with the intention of using or holding it,
he/she shall be with imprisonment of either description for a term not less than three years but
which may extend to five years along with a fine not less than fifty thousand rupees and may
extend up to two lakhs rupees.

Proviso to this section lays down its exceptions i.e., situations where an unlawful occupant shall
not be considered as unlawful for the purpose of imposing punishment. They are:

a) He should be occupying Government land not exceeding five cents as on the date of
commencement of this Act.

61
b) He shall not have any other land in his name or in the name of his family members. c) He

shall have any of the following documents inorder to prove that he was residing therein:

i. Record of rights-record of rights are the main records which shows how rights on land derived
for the occupant or landholders and also contain record of transactions made therein from time to
time.; or

ii. Ration card, or

iii. Electoral Identity Card, issued in the number to a building in such property, or iv. An Electric
connection or a Water connection issued by the competent authorities.

If a person commits the offence of cheating by fraudulently or dishonestly creating documents or

creates a forged document for the purpose of effecting transfer of any Government land or
claiming title to such land then he/she shall be punished with imprisonment of either description
for a term not less that five years but which may extend to seven years along with a fine not less
than fifty thousand rupees and may extend up to two lakhs rupees

If an officer entrusted with the responsibility of reporting and initiating action to remove any
unlawful occupation of any Government land, fails to do so then he shall be punished with
imprisonment of either description for a term not less than three years but which may extend to
five years along with a fine not less than fifty thousand rupees and may extend up to two lakhs
rupees.

Whoever contravenes the provision of Section 5(2) shall be punishable with imprisonment of
either description for a term not less than one year but which may extend to two years along with
a fine not less than ten thousand rupees and may extend up to twenty thousand rupees.

By virtue of section 11(1), an unauthorised may be summarily evicted by the Collector and any
crop or other product raised on the land shall be liable to forfeiture. Abetment of commission of
an offence punishable under this Act is made punishable with the same punishment provided
herein for its commission, had such offence been committed or attempted to be committed in
consequence of such abetment. The offence under this Act shall exclusively be triable by a
Court of Chief Judicial Magistrate

Section 20A expressly bars jurisdiction of Civil Courts to entertain any suit, prosecution or
other legal proceeding against the Government or any Officer of the Government for anything
done in good faith in pursuance of this Act like eviction, recovery of fine and the like, provided,
the

62
subject land shall be Government land and such suit shall be instituted within one year from the
date on which the cause of action arose.

What is meant by the prohibition in S.20A is that the rights vested in the Government for
eviction, recovery of fine, assessment, prohibitory assessment etc and provided under the Act
and the Rules cannot be made the subject matter of suits or proceedings before civil courts.
However, it does not operate t bar suits by persons in occupation of Government lands for
recovery of lost possession under S.6 of the Specific Relief Act any land

The Government is empowered to make rules or orders either generally or in particular, as,
declaring any land as Government land, regulating service of notice, powers of the Collector etc.
by publication in the Gazette.

The Government may authorise any officer to exercise all or any of the powers conferred on a
Collector under this Act, by notification in the Gazette. All fines, value of trees destroyed or
appropriated compensation or damages, costs of eviction, removal of encroachments shall be
recovered as arrears of land revenue under the provisions of the Revenue Recovery Act. Any
person aggrieved by an decision or order under this Act has right to appeal and revision governed
by the provisions laid down in sections 16, 17 and 18 of this Act.
 63
THE WASTE LAND DEVELOPMENT SCHEMES

The Kerala Land Development Act, 1964 (herein after the Act, was brought about to bring a
coherent legal framework respect to development of land in Kerala. The Act aims to achieve its
principal object of development of land through preparation and execution of elaborate schemes
called 'Land Development Schemes' pertaining to various aspects. Land development schemes,
as envisaged under this Act, have agrarian, ecological and environmental dimensions. As per
section 8 of the Act, land development schemes can be and executed for these matters. They
broadly fall into five categories. They are:

1) Soil-development schemes must be directed to control and prevent soil erosion. In addition to
this schemes aime towards preservation and improvement of soil can also be prepared and
executed.

2) Waste land- reclamation of waste land and putting it to proper use is one of the stated aims of
the Act. Desalination and reclamation of water-logged areas which lay wastes also a priority.
Constructing bunds in water logged areas to improve agricultural production can be done
towards meeting this objective.

3) Trees-development schemes should be framed prohibiting and regulating cutting down or

setting ablaze of trees and other plant growth. Schemes shall also be framed to promote
afforestation in uncultivable areas or for providing shelter belts (or windbreak) against winds or
sands. Shelter belts or windbreak is a plantation of trees or shrubs which are planted in a manner
to provide shelter against wind or to prevent soil erosion. Maintenance and control of tree growth
shall be considered under land development scheme.

4) Water- addressing the issue of water-logging in land so as to reclaim it for development is one
of the stated aims of land development scheme. Schemes can also be framed to improve water
supply.

5) Cultivation- schemes can be framed to improve the methods of cultivation. For the better use
of land, land development scheme which consolidate land holdings of cultivators in a specified
area can be framed.

Land Development Board

The apex body envisioned to for the purpose of carrying out the objectives of the Kerala Land
Development Act, 1964 is the Land Development Board' (herein after the Board"). It is multi
disciplined and a multi-departmental body accommodating Minister for Agriculture as the

64
Chairman and Minister for Local Self Government as its Co-chairman. In addition to this
several bureaucrats from departments like agriculture, environment & forest, local self
government, irrigation, earth science etc'.

The Land Development Board is constituted by the Government. The Board performs various
functions which are advisory, supervisory and directory in nature. The Board shall be responsible
for directing the preparation of draft schemes prepared by the District Land Development
Committee' which shall be considered, approved and implemented under general supervision of
the Board. The development scheme formulated by the District Committee should be with respe
to development within that district". the

Padasekharam Committee

'Padasekharam', or collection of fields (padam in Malayalam means field), means a collection of

fields or other areas of lands which is suitable for the adoption of a common cultivation
programme or common agricultural operations including dewatering and irrigation?. According
to the Act, the District Committee wherever necessary or if directed by the Board or the
Government shall constitute a committee called 'Padasekharam Committee".

The Padasekharam Committe shall consist of members who are owners of the padasekharam The
owners of the padasekharam, who constitute padasekharam committee, shall be in a better
position to understand and appreciate the nature and composition of their land. Together with
'watershed committee', 'padasekharam committee' symbolizes participatory planning in land
development in a sustainable manner. Their main duties are the following:

i. To evolve area development programmes most suitable for respective padasekharam. This
includes preparation of production plane and credit worthiness of individual person owning lands
in respective padasekharam.

ii. To prepare draft plans and scheme together with maps and estimates for each items of
work". iii. To function as agents of District Committee or as agents of Government

iv. To avail itself of loans, grants and guarantees from financing agencies of from the
Government including the District Land Development Committees or State Land Development
Board","

V. To organize or effectively utilize the existing service cooperatives or other bodies if any, and
to route the finance available from any of the financing agencies or the Government to the
individual cultivation.

65
vi. To decide on the nature and extent of work to be done by each individual cultivator and to
finance the member executing the work and watch the progress and proper utilization of loans or
grants so advanced.

vii. To apportion the proportionate cost to be horned by each individual beneficiary, for common
items of work, intended to benefit the entire padasekharam.

viii. To realise the amounts due from each beneficiary promptly and periodically and effect
repayment in time.

Padasekharam Committee shall frame byelaws to govern the preparation, education, aftercare
maintenance, realization and period of repayment of loans in installments for the varied items of
work contemplated for each area. The byelaws should provide for all or any of the items of work
in each padasekharam and also make provisions for nominating the executing agent for the
proposed work. The President shall be responsible in the ut by out the framing of byelaws suited
for each padasekharam and the byelaws framed should be approved by the government. The
Government may also direct, by order or by notification in Gazette that any work under the
scheme to be carried the owners of the lands shall be carried out by the Government, with such
alterations and modifications and the cost of such work shall be recovered in whole or in part
from the owners of the lands included in the scheme".

Government shall make grant or advance loan to the District Committee for carrying out work
under any scheme sanctioned under this Act Padasekharam Committee shall be responsible for
all the amount so advanced to the beneficiaries under the scheme and on no account, shall the
committee permit misuse or non utlization of amount so advanced. The Executing officer
including the padasekharam committee shall be competent to stop grant of further loans to such
land owners and may ge the work, if required, to be executed directly. The Government shall, by
notification in the Gazette declare an area which is desirable to provide for conservation of
subsoil water or prevention or mitigation of erosion of land as a notified area and can have the
power to regulate, restrict and prohibit certain things within the notified area.

66
THE KERALA LAND UTILISATION ORDER, 1967

Government of Kerala passed Kerala Land Utilization Order 1967 in exercise of the powers
conferred by sub-section (1) and clause (b) of sub-section (2) of section 3 of the Essential
Commodities Act, 1955. This order was made in order to prevent the shortage of food in future.
If state government is satisfied that it is necessary to increase the production of food crops in any
area it may by order publish in Gazette, direct that every holder of land in that area shall grow
over such portion of land the food crops specified in the order within the specified period.

The Collector can call upon the holder of any occupied waste or arable land which is not under
cultivation or likely to be left fallow during the current cultivation season to cultivate with paddy
or other food crops mentioned in this order. Notice shall be served by delivering it to the holder
of land. If the lands are paddy or wet land it should consider the application in accordance with
Conservation of Paddy Land and Wetland Act, 2008 (Kerala). If the lands are not paddy lands or
wet lands it should consider the application under the provisions of Land Utilization Order. If the
competent authority finds that the application is to be considered under the Kerala Land
Utilization Order, then the competent authority is bound to conduct an effective enquiry into the
details given by the applicant.

Salient Provisions of the Land Utilisation Order

1. Power of State Government to Require Holder of Land to Grow Specified Crops

By virtue of Clause 3 of the Land Utilisation Order, 1967, if the State Government are satisfied
that it is necessary or expedient to in crease the production of food crops in any area, they may,
by order published in the Gazette, direct that every holder of land in that area shall grow, over
such portion of his land and within such period as may be specified in the order, such food crop
or food crops as may be so specified, in addition to any crop he may have grown over such land.

2. Power of Collector to give Notice to Cultivate Land

By virtue of Clause 4 of the Land Utilisation Order, 1967, the Collector of the District may, by
notice in writing,call upon the holder of any Occupied waste land situated within the Collector's
jurisdiction, which is not under cultivation and which, in the opinion of the Collector, is likely be
left fallow during the current cultivation season, to cultivate it with paddy or other food crops,
either personally son, within such period as may be specified in the notice. or through any other
per

3. Power of Collector to Sell the Right to Cultivate Land

67
By virtue of Clause 5 of the Land Utilisation Order, 1967, if a direc tion is made by the
Government under clause 3 or notice is given by the Collector under clause 4, the holder of the
land shall comply with the direction or notice within the time allowed. If the holder fails to
comply with the direction or notice, the Collector may, by order direct and ar range for the sale
by public auction, of his right to cultivate the land for three years.

Out of the amount realised by sale, the revenue due on the land and other dues to the
Government, if any, shall first be adjusted and the balance made over to the holder of the land by
way of compensation

4. Power of the Collector to direct cultivation of land with the food crop which was being
cultivated

By virtue of Clause 6 of the Land Utilisation Order, 1967 a holder of land which has been under
cultivation with any food crop for a continu ous period of three years shall not convert or attempt
to convert or utilise or attempt to utilise such land for cultivation of any other food crop or for
any other purpose except under and in accordance with the terms of a written permission given
by the collector.

If it appears to the collector that a person is attempting to contra vene the above stated provision,
the collector may by notice call upon such person to cultivate such land with those food crops
which were under cultivation in the land either personally or through any other per son within the
period specified in the notice.

If the person to whom a notice has been served does not comply with the notice within the time
specified in the notice the collector may by order direct and arrange for the sale by public auction
of the right to cultivate the land.
Out of the amount realised by sale the revenue due on the land and other dues to the government
shall be first adjusted and the balance made over to the holder of land by way compensation.

If the purchaser fails to cultivate the paddy or other food crops the right to cultivate shall be
liable to be terminated before the expiry of the period for which such right was sold. In such a
case the purchaser shall also be responsible for any loss arising out of the termination of the right
to cultivate.

If at a publication for sale of right to cultivate the land no person comes forward to bid or the
amount of the highest bid is low the collector may make arrangement for the cultivation of the
land for a period not exceeding three years.

68
Out of the sale proceeds of the produce of such cultivation the ex penses of the cultivation, the
revenue due on the land and other dues to the government shall be adjusted and the balance shall
be made over to the holder of the land.

5. Appeals

Any person aggrieved by an order of the Collector under the Land Utilisation Order, 1967 may
prefer an appeal to the Land Revenue Commissioner within 30 days from the date of receipt of
the order.
 69
THE KERALA CONSERVATION OF PADDY LAND AND WETLAND ACT, 2008

Kerala is renowned for its rich biodiversity. The monsoon climate and abundant water resources
favour Kerala to grow crop like paddy in three seasons a year. Green Revolution significantly
enhanced paddy cultivation both in area and yield. But the present scenario is that agricultural
lands are turned into sites for multipurpose projects, residential flats and commercial ventures.
The cultivable lands are becoming barren while Kerala has to depend upon the neighbouring
states for food crops and vegetables?. tropical
The main factor that makes farmers to stop the cultivation of rice here in Kerala is the less return
compared to high cost of cultivation and the risk of unexpected droughts hitting the country.
High wages that resulted from increase in bargaining capacity of workers through the formation
of strong labour unions, non-remunerative returns owing to high costs of labour combined with
poor productivity and insufficient incentive, non availability of quality seeds, imbalanced use of
fertilizers improper plant protection measures and weed menace etc are other contributing factors
for decline of rice cultivation in Kerala. Inorder to overcome these problems and to improve the
production of rice the government of Kerala introduced the Kerala Land Utilization Order, 1967
in exercise of its powers conferred by the essential commodities Act 1955. But the government
order never served fruitful. The Kerala conservation of paddy land and wetland Act, 2008 is the
latest enactment in Kerala for conservation and prevention of conversion of land to other use.
The Act puts forth provisions for the compulsory acquisition of paddy land by the government
for a specific period with an objective of enhancing cultivation of paddy.

The Kerala Conservation of Paddy Land And Wetland Act, 2008

The Kerala conservation of paddy land and wetland act, 2008 (herein after 'the Act') envisages
provisions for conservation of paddy land and wetland. It focuses on the conservation of the
paddy land and wetland and restricts their conversion or reclamation thereof, inorder to promote
growth in the agricultural sector and to sustain the ecological system in the state of Kerala.

This Act is the result of a grim realization by the State that indiscriminate and uncontrolled
reclamation and massive conversion of paddy land and wetland are taking place in the state; and
that there is no existing law to restrict effectively the conversion or reclamation of paddy land in
the State.

Hence it is in public interest that a law should be enacted to for the conservation of paddy land
and wetland and to restric the conservation or reclamation of such land and further to promote
agricultural growth, to ensure food security and to sustain the ecological system in the State of
Kerala.

70
Paddy Land and Wet Land- Meaning of

A paddy land under this Act is defined as all types of land situated in the State where paddy is
cultivated atleast once in a year or suitable for paddy cultivation but uncultivated and left fallow,
and includes its allied constructions like bunds, drainage channels, ponds and canals. This is a
vast definition and includes not only paddy which are cultivated in the present bu also lands
which are suitable for the cultivation of paddy but left fallow.
Wetland under this Act 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 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. Wetlands are indispensable for the countless benefits
or "ecosystem services" that they provide humanity, ranging from freshwater supply, food and
building materials, and biodiversity, to flood control, groundwater recharge, and climate change
mitigation. It is to be noted that the Ramsar Convention's definition of wetlands include 'rice
paddies', but the Conservation of Paddy land and Wetland Act excludes paddy lands from the
purview of wetland.

Prohibition on reclamation or Conversion of Paddy Land

The Act received the assent of the Governor on 11th August, 2008 and was published in the
official Gazette with effect from 12th August, 2008. Hence the date of commencement of the
Act is 12th August, 2008. The Act prohibits any conservation or reclamation of paddy land on
and from the date of its commencement, i.e. 12th August, 2008. Thus the owner, occupier or the
person in custody of any paddy land shall not undertake any activity for the conversion or
reclamation of such paddy land except in accordance with the provisions of this Act.

In Secretary, Aruvikkara Grama Panchayat v. Anandakumar, Where the paddy land was
converted a decade ago into 'coconut cultivation, the Grama Panchayat's action denying
occupancy certificate for the reason that the land is a converted land under the Act was held
unsustainable.

The exception includes the cultivation of any intermediary crops that are cultivated without
changing the ecological nature of that paddy land or the strengthening of the outer bunds for
protecting the cultivation. In order to augment paddy cultivation the State, the State government
shall take suitable measures to assist farmers.

71
Committees

Under section 5(1) a Local Level Monitoring Committee (LMC is constituted for implementing
the provisions of the Act in Panchayat or Muncipality.

The LLMC shall consist of:

i) The President or Chairperson/Mayor of the Grama Panchayat or the Municipality or the
Corporation, as the case may be as the Chairman;

(ii) The Agricultural Officer/Officers having jurisdiction in the Grama Panchayat

or Municipality/Corporation as Member/ Members;

(iii) Village Officer/Officers having jurisdiction in the said area as Member/Members;

(iv) Three representatives of farmers in the Panchayat Municipality / Corporation to be

nominated in such manner, as may be prescribed.

Powers and Functions of Local Level Monitoring Committee (LLMC)

The Local Level Monitoring Committee shall have the following powers:

a) To recommend to the State Level Committee or District Level Authorised Committee for the
reclamation of paddy land, for public purpose or for construction of residential building for the
owner of the paddy land. However, the Committee shall not recommend for filling of paddy land
of more than 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. Oncthe recommendation is
made by the LLMC, the State Level Committee shall scrutinise and examine in detail whether
any alternate land, other than paddy land, is available in that area and also to report about the
changes that may occur due to such filling up of paddy land, but it have no power to sit upon the
recommendation nor shall it have the power to make any recommendation so as to nullify the
recommendation made by LLMC;

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, if any, of the provisions of this Act;

c) To examine the 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;

72
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) The Committee shall be responsible for preparing 'data bank' containing details of paddy lands
and wetlands within their jurisdiction. Besides, the Committee also get the said 'data bank'
notified by the concerned local self bodies. The Act bans any conversion or reclamation of paddy
land and wetland, as notified under section 5(4) from the date of its commencement. Any
contravention of the shall be punishable with imprisonment with a of six months which is
extended upto two years and also fine with a minimum of fifty thousand rupees upto one lakh
rupees. For any successful prosecution proceedings there should be a notification under Section
5(4) of the Act and the alleged violation of the provisions of the Act by converting or reclaiming
any such land notified, will lead to a conviction". minimum

f) The Committee shall have the power to make alternative arrangements under section 16 of the
Act, where a paddy land is left fallow without taking steps in spite of the instructions given by
the committee;

g) The Committee shall also prepare detailed guidelines for the protection of paddy land and
wet lands in the under its jurisdiction of the committee;

h) The Committee shall also have the power to collect details of paddy lands reclaimed in
contravention of provisions of any for the time being in force, before the commencement of the
Act and report it to the revenue district office.

A committee when constituted will have a term of office for three years. Report regarding any
act in violation of the provisions of the Act shall be given to the RDO by the Agricultural
Officer. For this purpose he or she is considered as the Reporting Officer under section 7 of the
Act and any willful omission to make such a report should be deemed to be an offence under
section 23 of the Act¹³.

Under section 8 of the Act the government has to constitute State Level Committee for
furnishing report to the government after detailed scrutiny of applications recommended by the
committee regarding filling of paddy lands for public purposes The Committee shall scrutinize
each application and shall examine in detail whether any alternative land, other than paddy land
is available in that area and the ecological changes that may occur due to such filling up and
submit a report to the Government¹

The District Collector has to constitute in the district a District Level Authorized Committee
(DLAC) for considering the application for reclamation of paddy land or construction of

73
residential building to the owner of paddy land and it shall take suitable decision within one
month. Any person aggrieved by the decision of DLAC may prefer an appeal before the collector
within 30 days from the receipt of the decision. The DLAC shall not consider an application
unless the Local level Monitoring Committee recommends that such reclamation shall not
adversely affect the ecological balance and cultivation in the adjoining paddy land and that the
owner of paddy land or his family do not own a suitable land for the purpose in the district. The
DLAC has no jurisdiction either to consider whether land is a paddy land or to make or modify
entry in the data bank (LLMC, Malappuram v. Ali Akbar)

Power to Exempt

Exemptions may be granted from the provisions of this Act, by the government, if such a
conversion or reclamation is essential for any public purpose.

Public purpose means purposes for the schemes undertaken or financed by the Centre- Stat
Governments, Government-Quasi-Government Institutions, Local Self Government Institutions,
Statutory Bodies and schemes as may be specified by the Government from time to time"

But this provision has its limitation that the exemption shall be granted only if Local Level
Monitoring Committee has recommended the conversion and reclamation and government is
satisfied by report of state level committee that no alternative land is available and such
conversion shall not adversely affect the cultivation of paddy in the adjoining paddy land and
also the ecological balance in that area.

However, exemption can be granted only in the public interest to sub serve the interest of the
public at large. Education is one of the state functions and under the Right of Children to Free
and Compulsory Education Act, 2009 every students in the age group of 6 to 14 years, have the
fundamental rights to the education. If the education is identifiable as one which normal course
the State would have discharged or undertaken, necessarily, this would fall within the meaning of
the public purpose and is entitled to exemption under section 10 of the Act20 the a other

The Act also prohibits the conversion of paddy land by companies under section 24 of the Act
as there are huge conversions made by companies for pure private interests which completely
destroy the ecological balance of the area Conversions are made by the companies for the
construction of flats, buildings or industries. Apart from individual conversions massive
conversions also have to be banned under section 24.

74
Measures to Promote Cultivation

Section 4, 15 and 16 can be collectively used for promoting cultivation. An important problem
faced by farmers is regarding the investment; for helping this situation government provides
incentives to those who are in need of it.

To increase revenue from paddy fields, after two cropping in every year, short-term crops can be
cultivated in paddy field. Short term plants suitable for Kerala includes vegetables, groundnut
(Nila-kadala), Sesame seeds (Ellu), Cowpea (Payar), Chinese Potatoes (Koorka) etc. Rice fields
are slowly diminishing from Kerala, creating threat to food security of the State. There are
provisions in the Act to direct the holder of paddy land which is not cultivated and left fallow, to
cultivate it by himself or through any other person of his choice, with paddy or any other
intermediary crops.

When the holder of land furnishes that he could not comply with the direction under the Act due
to practical difficulties, the Committee formulated by the Act may request him to grant
permission in writing to cause to cultivate the said land. The Committee may execute an
agreement between the panchayat and holder of paddy land, entrusting the said land to the
panchayat either to cultivate or to get it cultivated for a fixed period. If the panchayat is not
cultivating the land directly, it may make an order entrusting the right to cultivate the land, by
auction or otherwise, not inconsistent with conditions for the agreement for a minimum period of
2 years and make agreement for the same, as Section 16 of the Act say.

75
THE KERALA SCHEDULED TRIBES (RESTRICTION ON TRANSFER BY AND
RESTORATION OF LANDS TO SCHEDULED TRIBES) ACT, 1999
The Kerala Scheduled Tribes (Restriction on Transfer of Land and Restoration of Alienated
Lands) Act, 1975 was passed by the object of providing restriction on transfer of land by
members of Scheduled Tribes in the State of Kerala and for restoration of possession of lands
alienated by such member and for matters connected therewith.

The Act was intended to ameliorate the lot of the underprivileged Tribes who despite "paper
plans and multi-point programmes, are the victim's end of barbarity and injustice, privation and
sharp practice inflicted on them by the civilised gentry". It received the assent of the President of
India and was included in the Ninth Schedule of the Constitution of India. However, only on
24th January, 1986 a Notification was issued bringing the said Act into force with retrospective
effect from 1st January, 1982 obviously.

Clash of Interests- Unintended Consequence of the Act

However, the enforcement of the Act led to unforeseen legal consequences. The Act caused an
avalanche of proceeding before the RDO for the restoration of possession of tribal land from
non-tribal alienees. Consequently, this led to the eviction of current occupants of tribal lands
leaving them landless. This caused serious social problems. However, discussions with tribal
representatives revealed that a majority of the tribals do not want to impact the present social
dynamics which would further worsen social tensions. They also wanted this matter to be
resolved amicably by accepting a alternative lands.

There was also a proposal to provide land not exceeding 40 ares to each of the landless tribal
families in the district they reside. It was felt that there was an urgent need to protect the small
and marginal non-tribal transferees and to re-convey the extend of land in excess of two hectres
back to tribal families. In addition to this an urgent need was also felt to provide houses and other
welfare measures to the tribals. To safeguard the interests of the members of scheduled tribes as
well as the transferees a bill called 'The Kerala Scheduled Tribes (Restriction on Transfer and
Restoration of Alienated Lands) Amendment Bill, 1996 was passed by the Kerala legislature on
23-09-1996. The bill was sent to the President of India for assent. But the President returned the
bill withholding assent thereof.

The New Act of 1999

The Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999
therein after the 1999 Act') was enacted to restrict transter of land by members of Scheduled
Tribes in the State of Kerala and for restoration of land alienated by such members.

76
The 1999 Act was also enacted to defuse and to avert the growing tension and a potential
conflict between tribals and non-tribals. It received the assent of the Governor repealing the
Kerala Scheduled Tribes (Restriction on of Land) Act 1975. The 1999 Act is not included in
ninth schedule of the Constitution.

Scope of 1999 Act

The Kerala Restriction on Transfer by and Restoration of Land to Scheduled Tribes Act, 1999
and its predecessor the Scheduled Tribes (Restriction on Transfer of Lands a Restoration of
Alienated Lands) Act, 1975 were enacted predominantly to restrict the transfer of ownership
from the scheduled tribes to non-scheduled tribes and to restore their previously alienated land, if
any, from the non-tribals. The scope of the 1999 Act can be analyzed and evaluated under the
following heads. They are:

a) Restrictions on transfer of land owned by the tribals

According to section 4 of the 1999 Act notwithstanding anything to the contrary contained in any
other law, or in any contract, custom or usage or in any judgment, decree, or order of any Court,
any transfer effected by a member of scheduled tribe, of land possessed, enjoyed or owned by
him on or after the commencement of this Act, to a person other than a member of a scheduled
tribe, without the previous consent in writing of the Authority, shall be invalid. The term 'land'
means agricultural land¹.

'Agricultural land is a species of land and must be a land which could said to be either actually
used or ordinarily used or meant to be used for agricultural purposes.

b) Invalid Transfers

Any transfer of land possessed, enjoyed or owned by a member of scheduled tribe to a person
other than a member of scheduled tribe effected between 1 January, 1960 to 24th January, 1986
shall be deemed invalid; however, if the land transferred does not exceed two hectares (about
4.94 acres), such transfer shall not be rendered invalid.

In cases where the land involved in such transfer is used for 'agricultural purposes', the transferee
shall be entitled to retain his possession of the land upto two hectares. If the land in question is
less than 2 hectares, the impugned transfer falls outside the purview of the 1999 Act (Prakashan
v. Damodaran).

Nature of the land-Criteria for application of 1999 Act or 1975 Act

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The 1999 Act did not contain any non obstante clause requiring it to be validation Statute under
Art.31B to be placed under the Ninth Schedule of the Constitution. Although S.4 of the 1975 Act
imposes restrictions on transfer of land by providing a non obstante clause, in terms of 5.2(b) and
S.5 of 1999 Act, the term land' would mean, "only agricultural land" and the application for
restoration shall lie only in case where the extent of the land: two hectares.

The 1975 Act was implemented both in respect of those who had two hectares of land and also
those who had more than t hectares. The 1999 Act was enacted repealing the 1975 Act only for
certain purposes. Section 22(2) of the 1999 Act upheld certain actions taken under the 1975
Act
as if they had been taken in terms thereof. The procedure for determining the rights and
obligations of the parties by the Revenue Officers, under both the Acts, are more or less the
same.

In the case of 1999 Act repealing clause is clear and unambiguous. The State has admittedly no
legislative competence to enact legislation in exercise of its power of Entry No. 49, List II of the
Seventh Schedule of the Constitution of India in relation to non agricultural land. Once they have
made an enactment, the legislative intent is clear and unambiguous, viz., such exploitation was
possible also insofar as no agricultural lands are concerned. Such a right conferred on the owners
of the non agricultural land, therefore, could not have taken away without payment of
compensation. We, therefore are of the opinion that to that extent the 1975 Act would continue to
be applied. The State has no legislative competence to repeal that portion of the 1975 Act". (State
of Kerala v. Peoples’s Union for Civil Liberties)

c) Allotment of Land

One of the highlights of the 1999 Act has been allotment of lands to the tribals by the
Government. This provision is compensatory in nature. Accordingly, a member of the schedule
tribe becomes entitled to restoration of equal extent of the land by way of allotment from the
government, where:

i. A transfer has been effected by the member of the scheduled tribe to a non scheduled
tribe between 1-07-1960 and 24-1-1986; and

ii. An application for restoration of rights under Section 6 of the Kerala Scheduled Tribe
(Restriction of Transfer of Land and Restoration of Alienated Land) Act, 1975. (Act 31 of 1975)
has been filed before publication of the Act in the Gazette.
Section 6 of the 1975 Act entitles a member of the scheduled tribe for restoration of possession
or enjoyment of his property which he was ceased of possession or enjoyment; but

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iii. The restoration did not take place and such transfer has been validated by section 5(1),
or retention under 5(2) of 1999 Act; and

iv. where the extent of land eligible for restoration is less than 40 ares, the Government shall allot
the rest of the land required to make the total extent equal to 40 ares (1 acre)¹0.

d) Reconveyance of Land

Any person entitled for restoration may make an application, either orally or in writing to the
RDO within a period of 1 year from the publication of the 1999 Act for the:

i. for restoration of such land if such transfer had been made before the date of commencement
of this Act; or

ii. for the restoration of such land and for prosecution of the person who has procured such
transfers, if such transfer was made on or after the date of publication of this Act in the Gazette"

If such an application is received by the RDO, he may, if satisfied that the applicant is entitled
for restoration, shall after hearing the other side, direct the delivery of possession¹?.

Whether the 1999 Act is more beneficial to ST's than the 1975 Act ?

In State of Kerala v. Peoples Union for Civil Liberties, According to the Supreme Court in
addition to the allotment of the land by the government, the provisions of the 1999 Act are more
beneficial to the members of the Scheduled Tribe.

For determining the said question, a holistic view has to be taken. They are:

a) The 1975 Act postulates grant of compensation to the alienees, the amount wherefore
was required to be determined by a competent authority.

b) The members of the Scheduled Tribe were further to get one acre of land from the State
although they might have transferred even 5 or 10 cents of land.
 79
Conservation of Special Areas -Ecologically Fragile Land - Forest Lands

One of the essentials for forest management is the conservation of total biological diversity, the
network of national parks, sanctuaries, biosphere reserves and other protected areas to be
strengthened and extended adequately. The principal aim of forest policy must be to ensure
environmental stability and maintenance of ecological balance including atmospheric
equilibrium which is vital for sustenance of all life forms, human, animal and plant. State, being
the trustee of such lands, has a duty to take them over and manage scientifically for public good.

To maintain forest cover as far as possible to support lives on the earth is an eminent necessity.
Forest protects the water, streams and the ground water is an accepted phenomena. The
Constitution of India has mandated the State to make every endeavour to protect and improve the
environment and to safeguard forest and wildlife of the country.

In M.C. Mehta v. Kamal Nath, Supreme Court held that 'Our legal system based on English
Common Law - includes the public trust doctrine as part of its jurisprudence. The State is the
trustee of all natural resources which are by nature meant for public use and enjoyment. Public at
large is beneficiary of the sea shore, running waters, airs, forests and ecologically fragile lands.
The State as a trustee is under a legal duty to protect the natural resources. These resources
meant for public use cannot be converted in to private ownership".

In view of the pronouncements of the Supreme Court and the constitutional obligation no one
can dispute that it is becoming the necessity of the day to maintain forest in its pristine form.

After formation of the Kerala State, The Kerala Forest Act, 1961 was enacted to consolidate the
law contained in the Travancore Forest Act 1901 and the Madras Forest Act 1882.

Kerala Land Reforms Act, 1963 was enacted which provided inter alia for ceiling of holdings of
agricultural lands and redetermination of plantation holdings.

The Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act, 2003
The Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act, 2003 (herein
after '2003 Act') was enacted to provide for the vesting in the Government of ecologically fragile
lands in the State of Kerala and also for the management of such lands with a view to
maintaining ecological balance and conserving the bio-diversity.

According to the Preamble to the 2003 Act, "The earth's biological resources with their intrinsic
ecological, genetic, economic, social, cultural, scientific, educational, recreational and aesthetic
values are global assets and public trust vital to the sustained economic and social development,

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