Kerala Land Consevancy Act - Bhoosamraklshana niyamam-Kayyettam ozhippikkal ppt from James Joseph Adhikarathil

1. T.J Joseph
Deputy Tahsildar,Kottayam.
KERALA LAND CONSERVANCY
ACT:
THE WAY AHEAD

2. .
Land Conservancy Act-1957.
Land Conservancy Rules-1958.
The Kerala Land Conservancy (Amendment Act-2009

3. LAND
1. Government Land.
2. Registered Land.

4. Role of Revenue Officers.
1. Protect Government Land.
2.Prevent Encroachment.
3.Eviction.

5. Report to tahsildar
regarding encroachment
of property.
1. Report in A form
2.SKETCH
3.Mahazar.
AA

6. Report to tahsildar
regarding
Transfer of materials.Rule-4
1.Report in AA form
2.SKETCH.
3.Mahazar.
AAAA

7. TAHSILDAR ISSUES
NOTICE FOR
HEARING..Rule-9
1. Notice in B form
2.If the party appears,
3.A statement of the person may be
recorded.Evidence may be marked, initialed
with date and filed.
BB

8. TAHSILDAR ISSUES
FINAL ORDER..Rule-11
1. Order in C form
2.The final order of
The tahsildar shall be in his own hand
writing and contain the reason for the
decision.The occupant is directed to vacate
within a specific period.
cc

9. Summary eviction
–Rule 13 A
When the tahsildar is
opinion that it is expedient
in the public interest
to remove an unauthorised occupation
notice in form CC is issued.
If the land is not vacated, tahsildar may
enter upon the land and take possession.
cccc

10. Warrant and arrest.
–Rule 12
When the eviction is
resisted, Tahsildar may
summarily enquire the
Matter and issue a warrant in form D.
DD

11. Permit for the removal of
materials/quarrying.
–Rule 17
.
EE

12. Register Of Permits.
–Rule 28
.
FF

13. Application for license for
erection of
wall/fence/building –Rule 28
GG

14. License for
erection of
wall/fence/building –Rule 28
.
HH

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

17. The Kerala Land Conservancy
(Amendment )Act-2009
7b, Who ever for the purpose of
transfering govt land makes or create any
forged document is punishable with
imprisonment for a term
5 to 7 years
with fine Rs.50000 to Rs 2 lakhs.
Punishment is same for abetment.

18. The Kerala Land Conservancy
(Amendment )Act-2009
7c, An officer who is bound to protect govt.
land fails to take action to remove the
unlawful occupation shall punishable with
imprisonment for a term
3 to 5 years
with fine
Rs.50000 to Rs 2 lakhs.

19. The Kerala Land Conservancy
(Amendment )Act-2009
7d, who ever erects unlawfully any
wall /fence /building are punishable with
imprisonment for a term
1 to 2 years
with fine
Rs.10000 to Rs.25000.

20. Appeal
&
Revision
Building Tax

21. The easy way
Summary eviction:How easy and fast
is it..?

22. Section11(3) KLC Act
• “Notwithstanding anything contained in sub-section (2),
where the Collector is of opinion in any case falling under
sub-section (1) that it is expedient in the public interest to
take urgent action without following the procedure laid
down in sub-section (2) he may, after recording his
reasons for so doing issue a notice to the person in
occupation calling upon him to vacate the land within such
period as may be specified in the notice, and if the land is
not vacated within the said period, any officer authorised
by the Collector may enter upon the land and take
possession of the same, if necessary by using such force as
the circumstances may justify”

23. Rule 13A of KLC Rules
• “Notwithstanding anything contained in the foregoing
rules,where the Collector is of opinion that it is expedient
in the public interest to remove an unauthorised
occupation, he may,after recording the reasons therefore,
serve or cause to serve a notice in Form ‘CC’ appended to
these rules on the person in occupation directing him to
vacate the land within such period as may be specified
therein, and if the land is not so vacated within the said
period, any officer authorised by the Collector may enter
upon the land and take possession of the same, if necessary
by using such force as the circumstances of the case may
justify.”

24. • “serve a notice in Form ‘CC’”
• “expedient in the public interest”
• “recording the reasons”
(This space is the form is always left blank!)
• “take possession”
(Sometimes not done. Procedure completed on paper
alone)
• ………any missing link renders it vulnerable.
The vital legal ingredients

25. Why the easy way out?
• This route provides ‘single’ step action.
• There is perceived ‘fast’ action on the field.
• Administration looks ‘responsive’, sounds
‘energetic’.
• Public ‘sees’ results in a matter of days.
• Very impressive….but

26. Easy,but invalid!
• Repeatedly, the High Court has held such a summary
eviction without giving an opportunity for hearing as
‘violation of Principles of Natural Justice’
• Fast action under Form ‘CC’ seems administratively
easy,or rather too simplistic a solution; but in a Court of
law it simply does not survive.
• Often the High Court has remitted the case back directing
that Form ‘CC’ should be treated as a Notice. This would
render Form ‘CC’ as Form ‘C’ itself!
• Effectively, there is nothing called ‘summary eviction!

27. The Judicial blunders
……………….……..with due respect.
• The Munsiff Courts seem to be unaware of ousting of their
jurisdiction u/s.20A.
• Often they seem to be even unaware of the perpetual caveat
for the Government u/s.80 of CPC which reads:
“
(1)Save as otherwise provided in sub-section (2), no suits
[shall be instituted] against the Government or against a
public officer in respect of any act purporting to be done by
such officer in his official capacity, until the expiration of
two months next after notice in writing has been
[delivered to, or left at the office of]-
…………. c) in the case of a suit against [any other State
Government], a Secretary to that Government or the Collector
of the district;

28. • ……(2) A suit to obtain an urgent or immediate relief against the
Government (including the Government of the State of Jammu &
Kashmir) or any public officer in respect of any act purporting to
be done by such public officer in his official capacity, may be
instituted, with the leave of the Court, without serving any notice
as required by sub-section (1); but the Court shall not grant relief
in the suit, whether interim or otherwise, except after giving to the
Government or public officer, as the case may be, a reasonable
opportunity of showing cause in respect of the relief prayed for in
the suit”
• No reasonable opportunity/any opportunity is given!
• A casual survey can verify that Section 80 Notice has
become a rarity, while it is the mandated rule!
• Officers are forced to file caveats.
• And when the officers file a caveat, they become
villains….??!!

29. • The High Court has on one occasion passed
strictures against a Tahsildar for filing such a
caveat while the law of the land mandates a caveat
automatically!
• The Hon’ble High Court observed:
– “ I am not happy with the conduct of the Tahsildar. I
also note the contention of the petitioner that the
Tahsildar has even filed a caveat application before the
Subordinate Court, Quilandy, against the petitioner
anticipating that the petitioner may file a suit.”
• Maybe,the Government side is often not well
represented.
• Besides,the encroachers have the services of the
legal eagles.

30. Slow and steady vs ‘summary eviction’
Form B Notice
Form C Notice
Hearing
STAYEviction
Form CC Notice
Form AA
Tahsildar
Village Officer
ENCROACHMENT
Village Officer
Form AA
Tahsildar
High Court

31. To rejuvenate summary eviction
• Section 11(3) is for use in emergent situations which
should necessarily be protected.
• It may be suitably amended to provide for hearing
opportunity, but after the summary eviction.
• Post facto hearing will satisfy ‘natural justice’ requirement
(Maneka Gandhi case says - ‘post facto hearing also
satisfies the requirement of natural justice’). If upon
hearing, it is found that the eviction was not necessary, the
land could be handed back. Till then no property shall be
demolished
• Such an amendment alone will make this section valid in
Court.

32. To effectively oust Civil Court
Jurisdiction
Section 20A of KLC Act: “Bar of jurisdiction of civil
courts-1) No civil court shall have jurisdiction to entertain
any suit or proceeding for the eviction of any person who
is in unauthorised occupation of any land which is the
property of Government….”
• So, an encroacher can still approach a Civil Court for relief
with a contention that the land does not belong to the
Government at all or that he is not in ‘unauthorised’
occupation citing some lease deed etc.

33. • For the ‘bar of jurisdiction’ to be in operation, as per the
present Act, it has become the onus of the Government to
prove in the Munsiff Court that the land indeed is
Government Property and that the occupation is
unauthorised. Injunctions are plenty! (In violation of s.80 of
C.P.C)
The Bar of jurisdiction of Civil Court should be of a blanket
nature concerning all procedures under this Act. Judicial
Review is not lost as the High Court can anytime intervene.
It may now read, “No civil court shall have jurisdiction to
entertain any suit or proceeding for the eviction under this
Act….”

34. 1. The fine imposable u/s.7 of KLC Act should be hiked and
should have a band varying with extent of occupation and
the land value etc .
2. Prohibitory assessment as provided for u/s.8 should be
revised and made truly prohibitory by amending the rules
made there under. If the Collector is satisfied, the rates
imposable should be in lakhs.
3. A specific provision should be introduced to provide for
removing a tenant who is unauthorisedly holding over
even after the expiry of his term of lease over government
land.
Number of People refusing to vacate government land
after expiry of lease is rising.They find litigation easier.
Other amendments badly in need…

35. Of Panchayats and Municipalities
• Largescale encroachment of LSG body owned
land (eg. Puzha puramboke) is taking place.
• Places like Municipal bus-stands have illegal
encroachment and largescale unauthorised shops.
• Unfortunately,LSGs due to vested interests or due
to other reasons do not remove them.Corruption is
also a factor.
• Even law & order issues have resulted of late.
• Undoubtedly, Revenue Department is bound to
protect Government land.The KLC Act also says
the same.

36. .….Panchayats & Municipalities
• However, in the Court of law, an eviction of such an
encroachment is often annulled solely because the LSG Body
had not asked the Revenue authorities to remove the
encroachment in writing.
• Though the Act nowhere says of such a requirement, the
Courts have interpreted that the ‘owner’ should raise a
complaint. This has to be rectified with an amendment.
• Specific provision should be incorporated stating that unless
the local body has on record regularised and legally
authorised any occupation, the Revenue authorities are
empowered to evict such encroachments without receiving
any written complaint from the LSG.
• Any occupier of Government land should necessarily be
having a legal document authorising him. Or else, he is liable
to be evicted by Revenue authorities.

37. To act…enact
• The Act needs timely ‘fine tuning’ so as to enable
it to be in action.
• The legal support apparatus in the form of
Government Pleaders need to have better liaison.
• Proper & timely communication of Orders and
judgments in writing to be made mandatory.( Non-
existent ‘stays’ have been many a time orally
passed on by the encroachers’ lawyers, thus
paralysing the whole effort.)

38. THANK YOU

44. .
• T.J Joseph.
• Adhikarathil.
• S H Mount.
• Kottayam.

45. .
• .