LAND LAWS INCLUDING TENURE AND TENANCY SYSTEM

Land is precious for any country and used by people for productivity and as a source of
food, for place to live, for wood, for place to work. In India, before colonial rule the land
used to be in the hands of the community as a whole. However, during the British Raj,
this was changed.

Lord Carnwallies had introduced Permanent Land Settlement for Bengal, Bihar and
Orissa in 1793. According to this the tax farmers appointed by the British rulers was
converted as various Land Lords. Under this rule they had to pay fixed commission to
East India Company. Thus, these intermediaries were formed and called as Jagirdar /
Jamindar.

Emergence of Tenants: Following the Land Settlement Act, 1793, the farmers purchase
lands from the Land Lords and hire it for their agricultural use. These people who hired
the land were called tenants.

Variations in Tenency:
1.Cash Tenents: They pay a fixed tax for the use and occupy of the land.
2.Share - cash Tenants: They pay part of their rent in cash and other part as share of
the crop.
3.Crop - share Tenants: They pay a share of crops only.
4.Croppers: They pay crop of the share. But they were not independent and work
under the landlord.

Other unspecified tenants:

1.Land Lord – Tenant Relationships
2.Land lord – Tenant
3.Landlord – Agricultural Labour

Land reforms and Land distribution:

In India, there was a practice of land holdings from historic times and it was distributed
in a highly unequal manner and have always been used as a source of social power. To
get secure access to land for the poor and landless, policies of land reform were
implemented to benefit poorer section of society since independence. After that a
number of land reforms have been done by the government such as abolition of
'Zamindari' or middlemen as revenue collectors, imposing ceiling on landholdings and
awarding of the surplus land's rights to landless, and tenancy reforms (Mearns, 1998).
Land reform is described as redistribution of land from the rich to the poor. More
broadly, it comprises of regulation of ownership, operation, leasing, sales, and
inheritance of land (indeed, the redistribution of land itself requires legal changes). In an
agricultural economy such as India with great dearth, and an unequal distribution, of
land, coupled with a large mass of the rural population below the poverty line, there are
enthralling financial and political opinions for land reform. Purpose of land reforms is
efficient use of scarce land resource, redistributing agricultural land in favour of the less
privileged class in general & cultivating class in particular.

Historical review of Land Reforms in India:

Land program in post-Independence India has evolved through different phases. During
the Mughal period, before the arrival of the British there were numerous changes in the
system of land taxation or revenue. Peasants continued to enjoy customary rights over
land they occupied and generally could not be evicted unless they failed to pay the
required land revenue (land tax) to the state. The task of collecting land revenue was
assigned to a class of agents called zamindars.

When the East India Company (EIC) established in the Seventeenth Century, the
agricultural structure underwent fundamental change. The EIC first purchased the right
to receive the collected land revenue and later, under the Permanent Settlement
introduced in 1793, declared the Zamindars to be proprietors of land in exchange for the
payment of land revenue fixed in perpetuity. Zamindars, or those to whom they sold
their proprietary rights, typically delegated revenue collection to a series of middlemen.
The increasing layers of intermediaries meant that there was considerable increase in
rent extracted from the tillers and failure to pay this increased amount resulted in large-
scale evictions, widespread disturbance, and declining agricultural production. The
British sought to stabilize the situation through legislated tenancy reform.
The Bengal Rent Act of 1859 placed restrictions on the power of landlords to increase
rent or evict tenants. However, the Act only protected fixed-rent tenants and did not
protect bargadars or agricultural labourers. But it only protected those fixed-rent
tenants who could prove they had cultivated the land for 12 consecutive years. Constant
cultivation was difficult to prove due to poor records and the Act resulted in an increase
in evictions by Zamindars to prevent tenants from possessing land for the required time
period. The 1885 Bengal Tenancy Act also sought to protect long-standing tenants, and
was similarly ineffective. During this period, another form of landholder emerged in
Bengal. The Jotedars were a rich class of peasants who reclaimed and gained control of
large quantities of uncultivated forests and wetlands outside the territory governed by
the Permanent Settlement. The Jotedars refined some of this land through the direct
supervision of hired labour or servants. Nevertheless, the bulk of the Jotedars' land, like
much of the land in Bengal, was cultivated by Bargadars.

Rural tensions over the dilemma of Bargadars were common in the decades prior to and
after Independence. In the 1940s, the Tebhaga movement called for a smaller crop share
payment and also created the slogan, "He who tills the land, owns the land." The
movement is given credit for shaping post-Independence land reform legislation in West
Bengal. At the time of Independence, this matter was of great significance. In the
decades following independence India passed a significant body of land reform
legislation. The 1949 Constitution left the adoption and implementation of land and
tenancy reforms to state governments. This led to a lot of dissimilarity in the
implementation of these reforms across states and over time. After India Independence,
the government took major step to eradicate the systems of Jamindaris and Jagirdari, to
remove intermediaries between state and peasant. This was the first legislature taken by
almost all the states called as Abolition of Jamindari / Jagirdari systems Act.

The main objectives of the Land Reforms:

These are as follows:

• To make redistribution of Land to make a socialistic pattern of society. Such an effort

will reduce the inequalities in ownership of land.
• To ensure land ceiling and take away the surplus land to be distributed among the
small and marginal farmers.
• To legitimize tenancy with the ceiling limit.
• To register all the tenancy with the village Panchayats.
• To establish relation between tenancy and ceiling.
• To remove rural poverty.
• Proliferating socialist development to lessen social inequality

• To increase productivity of agriculture.

• To see that everyone can have a right on a piece of land.
• Protection of tribal by not allowing outsiders to take their land.

Land reform legislation in India is categorized in to four main sections that include
abolition of intermediaries who were rent collectors under the pre-Independence land
revenue system, tenancy regulation that attempts to improve the contractual terms
faced by tenants, including crop shares and security of tenure, a ceiling on landholdings
with a view to redistributing surplus land to the landless and lastly, attempts to
consolidate disparate landholdings.

Abolition of intermediaries is generally established to be effective land reforms that has

been relatively successful. The record in terms of the other components is mixed and
varies across states and over time. Landowners naturally resisted the implementation of
these reforms by directly using their political influence and also by using various
methods of evasion and coercion, which included registering their own land under
names of different relatives to bypass the ceiling, and shuffling tenants around different
plots of land, so that they would not acquire incumbency rights as stipulated in the
tenancy law. The success of land reform was driven by the political will of particular
state administrations, the prominent achievers being the left-wing administrations in
Kerala and West Bengal.

Table: Land policy formulation through planning period

Tenancy systems of Land:

At the time of independence, there existed many types of proprietary land tenures in
the country.

1. Ryotwari: It was started in Madras since 1772 and was later extended to other
states. Under this system, the responsibility of paying land revenue to the
 Government was of the cultivator himself and there was no intermediary between
him and the state. The Ryot had full right regarding sale, transfer and leasing of land
and could not be evicted from the land as long as he pays the land revenue. But the
settlement of land revenue under Ryotwari system was done on temporary basis and
was periodic after 20, 30 or 40 years. It was extended Mahalwari: This system was
initiated by William Bentinck in Agra and Oudh and was later extended to Madhya
Pradesh and Punjab. Under this system, the village communities held the village
lands commonly and it was joint responsibility of these communities to make
payments of the land revenue. The land ownership is held as joint ownership with
the village body. The land can be cultivated by tenants who can pay cash / kind /
share.

2. Jamindari: Lord Cornwallis gave birth to Zamindari system in India. He introduced this
system for the first time in 1793 in West Bengal and was later adopted in other states as
well. Under this system, the land was held by a person who was responsible for the
payment of land revenue. They could obtain the land mostly free of charge from the
government during the British rule and it is called estate. Landlords never cultivated the
land they owned and rented them out to the cultivators. The amount of land revenue
may either be fixed once one for all when it was called permanent settlement or
settlement with regard to land revenue may only be temporary and may, therefore, be
revised after every 30-40 years, as the practice may be. The Zamindari system is known
as absentee landlordism. Under this system the whole village was under one landlord.
The persons interested can work in the Jamindar's land as tenant / labourer based on
the agreement with the jamindar. The jamindari system was known to be more
exploitive, as the jaminder used to fix / hike the prices of land according to his desire.

3.Jagirdari: It is similar to Jamindari system. The jagirdar is powered to control the

unproductive masses of village by engaging them in agricultural activities. Because
land is controlled by state in India and the relationship between production and land
tenure varies from state to state, the national policy recommendations resulted in
differing tenancy reform laws in each state.
Tenancy is completely banned in some states but completely free in others. Punjab
and Haryana have not forbidden tenancy whereas Karnataka has a near complete
 ban on tenancy. Some states have discussed ownership rights on tenant cultivators
except for sharecroppers, whereas West Bengal chose to provide owner-like rights
only to the sharecroppers. Tenancy reforms may have indirect effects in the form of
reduced tenancy shares if poorly implemented. Most tenancy reform laws also
contained provisions concerning the ability of tenants to surrender the land back to
the landlord voluntarily. These provisions were used by landlords to wane the impact
of the laws. In most states the surrender of land falls under the jurisdiction of the
revenue authorities.

Impact of Land Reform in India

Following are the outcomes of Land Reforms in India.

1. Abolition of jamindars and jagirdars.

• The powerful Jamindars and Jagirdars have become inexistent.

• The abolition of intermediaries has stopped exploitation.
• Transfer of land to peasants from intermediaries has reduced disparities.
• The new proprietorship has given scope for innovation in Land Reforms.
• The ex-jagirdars and ex-Jamindars have engaged themselves actively in other work
thus contributing for National Growth.
• The abolishment of these systems has increased to the new land owners thus adding
revenue to the state governments

2. Land Ceiling:

Land is a source of Income in rural India land and it provides employment opportunities.
Therefore, it is important for the marginal farmers, agricultural labourers, and small
farmers. The concept 'ceiling on land holdings' denotes to the legally stipulated
maximum size beyond which no individual farmer or farm household can hold any land.
The objective of such ceiling is to promote economic growth with social justice. Land
Ceiling should be imposed on all kinds of lands such as Fallow, Uncultivable, irrigated
and Cultivable land. All the mentioned are inclusive of ceiling Act. The ceiling act varies
from state to state on ceiling on two crops a year land. However, in most of the places
the ceiling is 18 Acres.
3. Land possession and social power:

It is observed that the land is not only the source of production but also for generating
power in the community. In the Indian system, the land is often transferred from one
generation to another generation. However, all this lack the documentation of
possession of land. In this framework, the government had made it mandatory to
register all tenancy arrangements.

To summarize, Land reform is the major step of government to assist people living under
adverse conditions. It is basically redistribution of land from those who have excess of
land to those who do not possess with the objective of increasing the income and
bargaining power of the rural poor. The purpose of land reform is to help weaker section
of society and do justice in land distribution. Government land policies are implemented
to make more rational use of the scarce land resources by affecting conditions of
holdings, imposing ceilings and grounds on holdings so that cultivation can be done in
the most economical manner.

LAND REFORMS IN KERALA

Due to the ancient land relations and taxation and regulation under the British Raj, at the
time of independence, India inherited a semi-feudal agrarian system, with ownership of land
concentrated in the hands of a few individual landlords. Since independence, there has been
voluntary and state initiated/mediated land reforms in several states. The most notable and
successful example of land reforms are in the states of West Bengal and Kerala.

The popular slogan for the radical socialists was "the land for tillers", which sent shock-
waves through the landlord classes in the country. The ordinance set an absolute ceiling on
the amount of land a family could own. The tenants and hut dwellers received a claim in the
excess land, on which they had worked for centuries under the feudal system. In addition,
the law ensured fixity of tenure and protection from eviction. The land reforms in Kerala
imparted drastic changes to the political, economic and social outlook. Different types
of feudal relations existed in Travancore -cochin and Malabar at the time of the formation
of the state. The landless farmers and those who were evicted from their land wanted to get
their grievances redressed. The clamour for changes gathered strength. The government
which came to power in 1957 introduced the Land Reforms Bill in the Legislative assembly.
The Agrarian Relations Bill introduced in 1958 was passed with minor amendments. The
legislature passed subsequent land reform bills in 1960, 1963, and 1964. But the historical
land reform act, Kerala Land Reforms (Amendment) Act, 1969 by C. Achutha menon
government which put an end to the feudal system and ensured the rights of the tenants on
land, came into force on 1 January 1970. However, cash crop plantations had been
exempted from its purview. There have been many amendments to the act since, the latest
having been in 2012.

MAIN OBJECTIVES

• To bestow on tenants’ ownership of a minimum of ten cents of land

• To end the old feudal relations by legitimizing the right of real peasants to own
the land they cultivate
• To introduce land ceiling and distribute excess land among the landless
agricultural labourers
• To abolish exploitation and inequalities in the agrarian sector
• To ensure the consistent progress and transformation of society
• To achieve economic development and modernisation
• To end the era of feudalism

IMPACT

• Leasing of land became unlawful.

• The Jenmis who lived by collecting lease became extinct.
• The lease holders were given ownership of the land.
• A few big farmers who had cultivated on the leased lands also became owners of
that land.
• Land owners sold their excess land.
• Hundreds of thousands of people got dwelling places of their own.
• The labour market was enlarged as former serfs entered it.
DEEMED TENANTS
 Sec 4 to 11 of the Kerala Land Reforms Act, 1963 contain provisions detailing the
different categories of persons to be treated as deemed tenants.

4. Certain odacharthudars and person claiming under odacharthudars to be deemed

tenants. - Notwithstanding anything to the contrary contained in any law or in any
contract, custom or usage, or in any judgement, decree or order of court:
(i) an odacharthudar; or

(ii) 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
to which the odacharthu 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.]

[4A. Certain mortgagees and lessees of mortgagees to be deemed tenants. - (1)

Notwithstanding anything to the contrary contained in any law or in any contract
custom or usage, or in any judgement, degree or order of court, a mortgagee with
possession of land, other than land principally planted with rubber, coffee, tea or
cardamom, or the lessee of a mortgagee of such land shall be deemed to be tenant
if-

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

(b) the mortgagee of lessee has constructed a building for his own, evidence in the land
comprised in the mortgage and he was occupying such building for such purpose tor
a continuous period of not less than twenty years immediately preceding such
commencement:

Provided that a mortgagee or lessee falling under this cause shall not he deemed to be a
tenant if he, or, where he is a member of a family, such family was holding any other
hand exceeding two acres in extent on the date of publication of the Kerala Land
Reforms Amendment Bill, 1968, in the Gazette; or
(c) the land comprised in the mortgage was waste land at the time of mortgage or land
to which the Madras Preservation of Private Forests Act, 1949, would have applied if
that Act had been in force at the time of mortgage, and:

(i) the mortgagee or lessee was holding such land for a period of not less than thirty
years immediately preceding the commencement of the Kerala Land Reforms
(Amendment) Act, 1969; and

(ii) the mortgagee or lessee has affected substantial improvements on such land before
such commencement.

Explanation I. - For the purposes of this Sub-section, in computing the period of

continuous possession or occupation by a lessee, the period during which the
mortgagee was in possession or occupation, as the case may be, shall also be taken
into account.

Explanation II. - in computing the period of fifty years referred to in clause (a) or the
period of thirty years referred to in clause (c), the period during which the
predecessor-in-interest or predecessors-in-interest of the mortgagee or lessee was
or were holding the property shad also be taken into account.

Explanation III. - For the purposes of clause (b),:

(i) "mortgagee" or "lessee" shall include a predecessor-in-interest of the mortgagee or

lessee, as the case may be;

(ii) "building" includes a hut.

Explanation IV. - In computing the period of twenty years referred to in clause (b),
occupation of the building by any member of the family of the mortgagee or lessee
for residential purpose shall be deemed to be occupation by the mortgagee or
lessee, as the case may be, for such purpose.

Explanation V. - In calculating the extent of land held by a family for the purposes of
clause (b), all the lands held individually by the members of the family or jointly by
 some or all of the members of such family shall be deemed to be deemed to be held
by the family.

Explanation VI. - For the purposes of sub-clause (ii) of clause (c):

(i) improvements made by the mortgagee shall be deemed to be improvements made by

the lesser:

(ii) "mortgagee" or "lessee" shall include a predecessor-in-interest of the mortgagee or

lessee, as the case may be.

Explanation VII. - For the purposes of clause (c):

(i) improvements shall be deemed to be substantial improvements if the value thereof

on the date of commencement of the Kerala Land Reforms (Amendment) Act, 1969.
is not less than twenty-five per cent of the market value of the land on that date;

(ii) a land shall be deemed to be waste land notwithstanding the existence of scattered
trees thereon.

(2) Nothing contained in Sub-section (1) shall apply to a lessee if the lease was granted
on or after the commencement of this Act.]

5. Certain mortgagees with possession to be deemed tenants. - (1) Notwithstanding

anything to the contrary contained in any law or in any contract, custom or usage, or
in any judgement, decree or order of court, a mortgagee with possession of
immovable property situate in Cochin shall be deemed to be a tenant, if :

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

(b) the interest on the mortgage amount is less than forty per cent of the total rent fixed
in the mortgage document.

[(2) ***]

6. Certain mortgagees who were holding land on verumpattam on or after 1st Chingam,
1111 to be deemed tenants. - (1) Notwithstanding anything to the contrary
 contained in any law or in any con-tract, custom or usage, or in any judgment,
decree or order of court, a mortgagee with possession of immovable property
situate in Cochin shall be deemed to be a tenant, if:

(a) the property comprised in the mortgage consists of agricultural land;

(b) he or his predecessor-in-interest was holding the property comprised in the

mortgage as verumpattamdar on or after the first day of Chingam, 1111; and

(c) the verumpattam was terminated after the first day of Chingam, 1111 and before the
commencement of this Act, but he or his predecessor-in-interest continued in
possession of the property without interruption, as mortgagee with possession from
the date of such termination till commencement of this Act.

[6A. Certain persons who were holding land on or after 1st December, 1930, to be
deemed tenants. - Notwithstanding anything to the contrary contained in any law, or
in any contract, custom or usage, or in any judgement, decree or order of court, a
person in possession of immovable property in any area in the State to which the
Malabar Tenancy Act, 1929, extended, whether as mortgagee or otherwise, shall be
deemed to be a tenant if:

(a) the property in his possession consists of agricultural land;

(b) he or any of his predecessors-in-interest was holding the property as a tenant on or

after the 1st day of December 1930: and

(c) the tenancy was terminated after the 1st day of December, 1930 and before the
commencement of this Act, but his predecessors-in-interest or himself continued in
possession of the property, without interruption, whether as a mortgagee with
possession or otherwise, from the date of such termination till the commencement
of this Act.

Explanation I. - For the purposes of clause (b), "tenant" means a tenant as defined in the
Malabar Tenancy Act, 1929, as in force on the 1st day of November, 1956.
Explanation II. - An interruption for a period not exceeding an agricultural year
immediately following the termination of the tenancy shall not deemed to be an
interruption for the purpose of clause (c).

6B. Certain mortgagees in areas to which Malabar Tenancy Act ex-tended to be deemed
tenants. - Notwithstanding anything to the contrary contained in any law, or in any
contract, custom or usage, or in any judgment, decree or order of court, a mortgagee
with possession of immovable property at the commencement of the Kerala Land
Re-forms (Amendment) Act, 1969, in any area in the State to which the Malabar
Tenancy Act, 1929, extended, shall be deemed to be a tenant, if:

(a) he was holding such property in consideration of payment of customary dues, or any
amount specified as michavaram in the document evidencing the transaction; or

(b) there is a provision in such document for renewal on the expiry of a specified period.]

[6C. Certain lessees who have made substantial improvements etc. to be deemed
tenants. - Notwithstanding anything contained in section 74, or in any contract, or in
any judgment, decree or order of any court or other authority, any person in
occupation at the commencement of the Kerala Land Reforms (Amendment) Act,
1969, of the land of another person on the basis of a lease deed executed after the
1st day of April, 1964, shall be deemed to be a tenant if-

(a) he (including any member of his family) did not own or hold land in excess of four
acres in extent on the date of execution of the lease deed; and

(b) he or any member of his family has made substantial improvements on the land.

Explanation. - For the purposes of this section, improvements shall be deemed to be

substantial improvements if the value of such improvements is more than fifty per
cent of the value of the land on the date of execution of the lease deed.]

[7. Certain persons occupying land honestly believing to be tenants, to be deemed

tenants. - Notwithstanding anything to the contrary contained in Section 52 or any
other provision of the Transfer of Property Act, 1882, or any other law, or in any
contract, custom or usage, or in any judgement, decree or order of court, any person
 in occupation at the commencement of the Kerala Land Reforms (Amendment) Act,
1969, of the land of another situate in Malabar shall be deemed to be a tenant if he
or his predecessor-in-interest was continuously in occupation of such land honestly
believing himself to be a tenant for not less than two years within a period of twelve
years immediately preceding the 11th day of April, 1967.

Explanation. - Notwithstanding anything contained in the Indian Evidence Act 1872,

where a person has been continuously in occupation of any such land for two years
within the said period of twelve years, it shall be presumed until the contrary is
provided that he has been in such occupation honestly believing himself to be a
tenant.]

[7A. Certain persons occupying land for not less than ten years, to be deemed tenants. -
Notwithstanding anything to the contrary contained in Section 52 or any other
provision of the Transfer of property Act, 1882, or in any other law, or in any
contract, custom or usage, or in any judgment, decree or order of court, a person
shall be deemed to be a tenant in respect of the land of another in his occupation if :

(a) he or his predecessor-in-interest occupied such land believing it to be the property of

the Government;

(b) subsequent to such occupation such land has become the property of such other
person as a consequence of any judgement, decree or order of any civil court; and

(c) such land has been in the continuous occupation of such person for a period of not
less than ten years preceding the commencement of the Kerala Land Reforms
(Amendment) Act, 1969,

Explanation I. - In computing the period of occupation of a per-son for the purposes of

clause (c), the period during which the predecessor-in-interest or predecessors -in- interest
of such person was or were in occupation shall also be taken into account.
Explanation II. - For the purposes of this Section, a person shall be deemed to be in
continuous occupation notwithstanding any order of court for delivery of possession to
another person or any court record of dispossession.]
[7B. Certain persons occupying lands under leases granted by in-competent persons to
be deemed tenants. - (1) Notwithstanding any-thing to the contrary contained in any
 law, or in any contract, custom or usage, or in any judgment, decree or order of
court, any person in occupation of the land of another at the commencement of the
Kerala Land Reforms (Amendment) Act, 1969, on the basis of a registered deed
purporting to be a lease deed, shall be deemed to be a tenant if he or his
predecessor-in-interest was in occupation of such land on the 11th of April, 1957, on
the basis of that deed, notwithstanding the fact that the lease was granted by a
person who had no right over the land or who was not competent to lease the rand.

(2) Notwithstanding anything to the contrary contained in any law or in any contract,
custom or usage, or in any judgement, decree or order of court, any person who on the 11th
day of April, 1957, was in occupation of the land of another and continued to be in
occupation of such land till the commencement of the Kerala Land Reforms (Amendment)
Act, 1969, shall be deemed to be a tenant if the court has delivered a judgment or passed an
order before the date of publication of the Kerala Lands Reforms (Amendment) Bill, 1968, in
the Gazette that the occupation by such person was on the basis of an oral permission or an
unregistered deed purporting to be a lease deed granted by a person who had no right over
the land or who was not competent to lease the land.]
[(3) Notwithstanding anything to the contrary contained in this Act or in any other law or
in any contract, custom or usage or in any judgment, decree or order of any court,
any person in occupation of land on the basis of an oral permission or a deed
purporting to be lease deed, granted by a person governed by the Madras
Aliasanthana Act, 1949 shall be deemed to be a tenant, if he or his predecessor-in-
interest was in occupation of such land at the commencement of the Kerala Land
Reforms (Amendment) Act, 1969.]

[7C. Certain persons who have paid amounts for occupation of land shall be deemed to
be tenants. - Notwithstanding anything to the contrary contained in any law, or in
any contract, custom or usage, or in any judgement, decree or order of court, any
person who is in occupation of the land of another at the commencement of the
Kerala Land Reforms (Amendment) Act, 1969, shall be deemed to be a tenant if he or
his predecessor-in-interest has paid within a period of ten years immediately
preceding such commencement any amount in consideration of such occupation or
for the use and occupation of such land and has obtained a receipt for such payment
 from any per-son entitled to lease that land or his authorised agent or a receiver
appointed by a court describing the payment as modavaram or nashtavaram or
modanashtavaram or a receipt described as M.R. receipt.]

[7D. Certain persons occupying private forests or unsurveyed lands to be deemed

tenants. - Notwithstanding anything to the contrary contained in Section 52 or any other
provision of the Transfer of Property Act, 1882, or any other law, or in any contract, custom
or usage, or in any judgement, decree or order of court, any person in occupation at the
commencement of the Kerala Land Reforms (Amendment) Act, 1969, of the land of another
situate in Malabar, to which the provisions of the Madras Preservation of Private Forests
Act, 1949 (XXVII of 1949), were applicable on the 11th day of April, 1955 or which was
unsurveyed on that date, shall be deemed to be a tenant if he or his predecessor-in-interest
was continuously in occupation of such land for not less than two years within a period of
twelve years immediately preceding the 11th day of April, 1967.]
[7E. Certain persons who acquired lands to be deemed tenants. - Notwithstanding
anything to the contrary contained in section 74 or section 84 or in any other provisions of
this Act, or in any other law for the time being in force or in any contract, custom or usage,
or in any judgment decree or order of any court, tribunal or other authority, a person who
at the commencement of the Kerala Land Reforms (Amendment) Act, 2005, is in possession
of any land, not exceeding [1 hectare 61 Ares and 87 square metres] in extent acquired by
him or his predecessor in interest by way of purchase or otherwise on payment of
consideration from any persons holding land in excess of the ceiling area, during the period
between the date of the commencement of the Kerala Land Reforms Act, 1963 (1 of 1964),
and the date of commencement of the Kerala Land Reforms (Amendment) Act, 2005, shall
be deemed to be a tenant.]
8. Certain persons who were cultivating land on Aram arrangement to be deemed
tenants. - Notwithstanding anything to the contrary contained in any law, or in any contract,
custom or usage, or in any judgement, decree or order of court, any person who, by virtue
of the provisions of Section 6 of the Kerala Stay of Eviction Proceedings Act, 1957, was
entitled to cultivating any nilam after the 11th day of April, 1957, and was cultivating the
nilam at the commencement of this Act, shall be deemed to be a tenant, notwithstanding
the expiry of the term fixed under the varam arrangement.
9. Certain persons who surrendered leasehold rights but continued in possession to he
deemed tenants. - Notwithstanding anything to the contrary contained in any law, or in any
contract, custom or usage, or in any judgment, degree or order of court, where, on or after
the 11th day of April, 1957, a tenant holding lands less in extent than the ceiling area, had
executed a deed surrendering his leasehold right to the landlord, but had not actually
transferred possession of the land to the landlord before the commencement of this Act,
such deed shall be deemed to be invalid and such person shall be deemed to be a tenant.
9A. Certain surrender documents to he inadmissible in evidence. - Where any tenant has
executed before the 19th day of May, 1967, a deed surrendering or purporting to surrender
to his landlord his lease-hold rights in any land situate in the Taluk of Hosdurg or Kasargode
in the Cannanore District, such deed if unregistered shall, notwithstanding anything
contained in the Indian Evidence Act, 1872, be inadmissible in evidence in any dispute
regarding possession of such land between such tenant or any person claiming under or
through him and such landlord or any person claiming under or through him.]
10. Certain other persons to be deemed tenants. - Notwithstanding anything to the
contrary contained in any law, or in any contract, custom or usage, or in any judgment,
decree.or order of court, the following classes of persons shall be deemed to be a tenants

(i) a punam or kumri cultivator;

(ii) a licensee, [***]

(iii) a varamdar;

(iv) a vechupakuthidar; and

(v) a person holding land situated in any part of the Taluk of Hosdrug or Kasaragode to
which the Malabar Tenancy Act, 1929, did not extent, under a transaction described
in the document evidencing it as bhogya, otti, nattotti, arwar, illidarwar or
krithasartha illirlarwar, but not being a usufructuary mortgage as defined in the
Transfer or Property Act, 1882.

KUDIKIDAPPUKARAN
The term ‘kudikidappukaran’ is defined in sec 2(25) of the Kerala Land Reforms Act, 1963.
If the following conditions are satisfied, a person becomes a kudikidappukaran
• He should not have a homestead or 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 are or township in possession either as owner or as tenant on which he
could erect a homestead and
• He should be permitted, with or without an obligation to pay rent, by a person in
lawful possession of any land to erect a homestead upon the land; or
• He should be permitted by a person in lawful possession of any land to occupy with
or without obligation to pay rent, a hut belonging to such person and situate in the
land.
The following persons are not kudikidappukaran
• If he has a building or he is in possession of any land exceeding three cents in any
city or municipality or five cents in any other municipality or ten cents in any
panchayat area or township either as owner or as tenant on which he could erect a
building.
• If he was permitted to occupy a hut and the construction cost of such dwelling house
exceeded seven hundred and fifty rupees at the time of construction.
If a mortgagee with possession erects for his residence a homestead or resides in a hut
already in existence, on the land to which the mortgage relates, he shall be deemed to
be a kudikidappukaran in respect of such homestead or hut. Thus, the mortgagor cannot
exercise his right of redemption with respect to such homestead or hut. A mortgagee
who claims ‘kudikidappu’ should establish the following facts;
• He is in possession of the mortgaged property
• He should have erected for his residence a homestead on the land or he should
be residing in a hut already in existence on the mortgaged property.
• He has no other kudikidappu or residential building belonging to him or any land
exceeding three cents in any city or major municipality or five cents in any other
municipality or ten cents in any panchayat area in possession either as owner or
as tenant on which he could erect a homestead.
• His annual income does not exceed two thousand rupees.
RIGHTS AND DUTIES OF KUDIKIDAPPUKARAN
• Right to fixity
A kudikidappukaran shall not be evicted from his kudikidappu(sec.75). However,
kudikidappukaran is liable to be evicted from the kudikidappu on the following.
1. He has alienated his right of kudikidappu to another person. However, if he has
alienated his right of kudikidappu to (1). A member of his family or (2).to a
person who has no other homestead or any land in possession, either as owner
or as tenant, on which he could erect a homestead and whose annual income
does not exceed two thousand rupees, he is not liable to be evicted.
2. He has rented or leased out his entire kudikidappu to another person for a period
of not less than two years.
3. He or his near relatives ceased to reside in the kudikidappu continuously for a
period of two years.
4. He has another kudikidappu or has obtained ownership ans possession of land
which is fit for erecting a homestead within a distance of 5KM from the
kudikidappu. If the extent of land obtained by him is not more than three cents,
in a city or major municipality, or five cents, in any other municipality or ten
cents, in a panchayat area or township, he is not liable to be evicted.
5. He has obtained ownership and possession of not less than twenty-five cents in
extent of land situate beyond a distance of five kilometers.
• Shifting of kudikidappu
A kudikidappukaran is liable to be shifted to a new site. The person in possession
of the land on which there is kudikidappu may require the kudikidappukaran to
shift to a new site belonging to him on the following grounds;
1. He bonafide requires the land for constructing a building for his own residence
or for the residence of any member of his family including major sons and
daughter
2. He bonafide requires the land for purpose in connection with a town planning
scheme approved by the competent authority.
3. He bonafide requires the land for any industrial purpose. The shifting will be
subject to the following conditions;
(i) The landholder shall pay to the kudikidappukaran the price of the
homestead erected by the kudikidappukaran.
(ii) The new site shall be fit for creating a homestead.
 (iii) It shall be within a distance of one mile from the existing kudikidappu
(iv) The extent of new site shall not be less than three cents if it is within
the limits of a city or a major municipality, five cents if it is within the
limits of any other municipality and 10 cents if it is within any
panchayat area.
(v) The landholder shall transfer ownership and possession of the new site
to the kudikidappukaran.
(vi) The landholder shall pay to the kudikidappukaran the reasonable cost
of shifting the kudikidappu to the new site.
If all the above conditions are satisfied, the kudikiappukaran shall be bound to
shift to the new site.
• Right of kudikidappukaran is heritable
By virtue of sec. 78 of the Act the rights of kudikidappukaran in his kudikidappu is
heritable.
• Right to maintain, repair and reconstruct the hut
The kudikidappukaran shall have the right to maintain, repair and reconstruct
with the same or different materials the hut belonging to the person who
permitted occupation by the kudikidappukaran at his cost. However, the plinth
area shall not be increased by more than fifty percent.
• Right to place any electric supply
A kudikidappukaran is entitled to place any electric supply line on the land for the
supply of electrical energy to the kudikidappu for domestic consumption without
consent of the owner of the land.
• Right to lay down any pipe for the purpose of supply of water
A kudikidappukaran is entitled to lay down any pipe over or under the land for
the purpose of supply of water to the kudikidappu for domestic consumption
without consent of the owner of the land.
• Right to purchase kudikidappu
By virtue of section 80A of the Act, a kudikidappukaran shall have the right to
purchase the kudikidappu occupied by him and land adjoining thereto.
 The extent of land which the kudikidappukaran is entitled to purchase shall be
three cents in a city or major municipality or five cents in any other municipality
or ten cents in a panchayat area or township.

DEFINITION OF CEILING AREA

Chapter III (sec 81 to 98A) of the Kerala Land Reforms Act deals with restriction on
ownership and possession of land in excess of ceiling area and disposal of such lands.
Section 83 of the Kerala land reforms Act says that no person shall be entitled to own, or to
hold, or to possess under a mortgage, lands in the aggregate in excess of the ceiling area.
Section 82(1) defines ‘ceiling area’. The ceiling area of land shall be
• In case of an adult unmarried person or a family consisting of a sole surviving
member, five standard acres, so however that the ceiling area shall not be less
than six and more than seven and a half acres in extent;
• In the case of a family consisting of two or more but not more than four
members, ten thousand acres, so however that the ceiling area shall not be less
than twelve and more than fifteen acres in extent.
• In the case of a family consisting of more than five members, ten standards acres
increased by one standard acre for each member in excess of five, so however
that the ceiling area shall not be less than twelve and more than twenty acres in
extent; and
• In the case of any other person, other than a joint family, ten standard acres, so
however that the ceiling area shall not be less than twelve and more than fifteen
acres in extent.
EXEMPTIONS:
• Lands owned or held by the govt of Kerala or the govt of any other state in India
or the govt of India or any other local authority or the cochin port trust.
• Land taken under the management of the court of wards
• Lands comprised in mills, factories or workshops and which are necessary for the
use of such mills, factories or workshop.
• Private forests, the word ‘private forests’ means a forest which is not owned by
the govt, but does not include
1. Areas which are waste
2. Areas which are garden or nilams
3. Areas which are planted with tea, coffee, coco, rubber, cardamom or cinnamon
4. Areas which are cultivated with pepper, coconut, cashew or other fruit bearing
trees or are cultivated with any other agricultural crops.
• Plantations. The word ‘plantation’ means any land used by a person principally
for cultivation of tea, coffee, coco, rubber, cardamon or cinnamon
• Lands mortgaged to the govt or to a co-operative society or to the Kerala
financial corporation or to the Kerala industrial development corporation or to
the state small industries corporation as security for any loan advanced by the
govt or by such society or corporation.
• Land purchased by the Kerala financial corporation
• Land belonging to or held by an industrial or commercial undertaking and set
apart for use of the industrial or commercial purpose of the undertaking.
• House sites, that is to say, sites occupied by dwelling houses and land, wells,
tanks and other structure, for the convenient enjoyment of the dwelling houses
• Sites of temples, churches, mosque and cemeteries and burial and burning
grounds.

• Sites of buildings including warehouse

• Commercial sites

• Land vested in the Bhoodan Yanga committee

• Land owned or held by universities.

• Land owned or held by religious, charitable or educational institutions of a public

nature.

• Land owned or held by a public trust including a wakf

• Land granted to defence personal for gallantry.

ASSIGNMENT OF LAND VESTED IN GOVERNMENT

 By virtue of section 95 of the Act, any person who does not possess any land or
possesses only less than one acre of land in extent may apply to the land board for
assignment on registry of lands vested in govt.
The land board shall assign on registry the lands vested in the govt as specified below;
• The lands in which there are. Kudikidappukars shall be assigned to such
kudikidappukars.
• The remaining lands shall be assigned to
1. Landless agricultural labourers; and
2. Small-holders and other landlords who are not entitled to resume any land.
The person to whom land is assigned has to pay purchase price.

AUTHORITIES UNDER THE KERALA LAND REFORMS ACT AND THEIR POWERS

The following authorities are established under the Kerala land reforms Act in order to
implement various provisions of this Act
1. Land tribunal
Sec 99 of the Act empowers the govt to constitute one or more land tribunal or land
tribunals for any area for performing the functions of a land tribunal under this Act.
The land tribunal shall consist of a sole member. He shall be a judicial officer of the
rank of a munsiff or an officer not below the rank of a tahasildar. He shall be
appointed by the govt.
POWERS;
(i) It can summon and enforce the attendance of any person and examine him on
oath.
(ii) It can require the discovery and production of any document.
(iii) It can receive evidence on affidavit
(iv) It can issue commission for the examination of witness or for local investigation.
2. Appellate authority
Sec 99A empowers the govt to constitute as many appellate authorities as may be
necessary for the purpose of the Act. It shall consist of a sole member who shall be a
judicial officer not below the rank of a subordinate judge or an officer not below the
rank of a deputy collector.
 The govt or any person aggrieved by any order of the land tribunal may appeal
against such order to the appellate authority. In deciding the appeals, the appellate
authority shall exercise all the powers of a civil court which a court follows in
deciding appeals against the decree of an original court under the code of civil
procedure.
3. Taluk land board
Sec 100A directs the govt to constitute a taluk land board for each taluk in the state
for performing the functions of the taluk land board under the Act.
It shall consist of the following members;
(i) An officer not below the rank of deputy collector appointed by the govt who
shall be the chairman of the board.
(ii) Six members nominated by the govt.
4. Land board
By virtue of sec 100, the govt shall constitute a land board for the whole state for
performing the functions of the land board under this Act. The land board shall
consist of a sole member or of three members. If it is a sole member board, he shall
be a member of the board of revenue or an officer not below the rank of secretary
to the govt. he shall be appointed by the govt.
If the board is of three members, it shall consist of the following persons-
(i) A member of the board of revenue or an officer not below the rank of
secretary to govt, appointed by the govt, who shall be the chairman.
(ii) A judicial officer not below the rank of a district judge nominated by the govt
in consultation with the HC.
(iii) An officer of the govt nominated by the govt
The land board shall have all the powers of a civil court while trying a suit under the
code of civil procedure,1908.
It shall have superintendence over all the land tribunals, appellate authorities and
the taluk land boards.
REVISION BY HIGH COURT
A person aggrieved by the decision of a land tribunal or by the land board may file a
revision petition to the High court on the ground that the authority issued the final
order has committed any error or has failed to decide any question of law.
 LAND ACQUISITION
PUBLIC PURPOSE

The definition of public purpose is inclusive and widest amplitude should be given to its
definition. Giving exclusive, precise or rigid definition to the public purpose is not
possible because the definition of public purpose varies according to the prevalent
condition and needs of a particular locality and time. The definition of public purpose
should be elastic and it can be said that any work which provides benefit or advantage to
the public can be termed as the public purpose. It was held in the State of Bihar vs. shri
kameshwar singh that "Whatever furthers the general interests of the community as
opposed to the particular interests of the individual must be regarded as a public
purpose. The Onward March of civilization our notions as to the scope of the general
interest of the community are fast changing and widening with the result that our old
and narrower notions as to the sanctity of the private interest of the individual can no
longer stem the forward flowing tide of time and must necessarily give way to the
broader notions of the general interest of the community. The emphasis is unmistakable
shifting from the individual to the community". In Thambiran vs. state of Madras it was
further held that “It is not essential that the entire community or even a considerable
portion should directly enjoy or participate in an improvement in order to constitute a
public use. The modern and more liberal view is that it is not an essential condition of
public use that the property should be transferred to public ownership or for the public
use and that it is sufficient that the public derives advantage from the scheme.
According to this view, it is no objection to the validity of an acquisition that it is in
favour of a private corporation or of individuals provided it results in the public
advantage.

PUBLIC PURPOSE AS PER STATUTE

The RFCTLARR came into force on January 1, 2014 which integrated rehabilitation and
resettlement and social impact assessment with the Land acquisition. The 2013 Act
overrode the old colonial land acquisition Act, 1894 which was criticized for providing
absolute power to the government for acquiring land in the name of public purpose. In
May 2014 NDA government came into power and amended the RFCTLAR, 2013 because
of the concerns raised by the industry mainly regarding the delays faced due to the
compulsory requirement of SIA, consent requirement and increased project cost
because of R&R, increase in the amount of compensation but this bill still pending in the
Rajya Sabha. The RFCTLARR, 2013 is applicable to all the land acquisition whether done
by the state or central governments except the state of Jammu & Kashmir. The
provisions like SIA, R&R, and compensation cannot be applied to the land acquired
under the 13 central Acts which including the Special Economic Zones Act, 2005, the
Atomic Energy Act, 1962, The National Highways Act, 1956, the Railways Act, 1989, The
Coal Bearing Areas Acquisition and Development Act, 1957, etc.

The Act is applicable when:

• The land is acquire by the government for its own use, including land acquired for
public sector undertaking.

• The land is acquired by the land with the intention of transferring it for the use of
private company for the specific stated public purpose.

• Acquisition of land by the government for immediate and declared use by private
companies for public purpose.

The justification for the exemption of these Acts can be found in the statement made by
the standing committee according to which, “There is a slight difference in mass
acquisition and row acquisition. The row acquisition is like roads, railways, power supply
and all where a very little land is being acquired. The reservation of these concerned
Ministries is that if we are to apply R & R to them, then they will have to provide that
infrastructure which we have mentioned in Schedule III which is extensive. For
rehabilitation, they will have to set up a school, community centres and other facilities
like post offices, roads, etc. Now, for a small chunk of land they say that if we have to be
governed by R & R facilities as per the Bill, then it will not serve the purpose. That is why,
these Acts were actually considered and we thought that row acquisition should not
 actually form part. Nevertheless, the government has kept the powers with itself that in
case it is required that under Section 98, we can make these R & R facilities applicable to
these Acts.” National Alliance of people’s movement (NAPM) advisor Medha patkar said
that, “We are at a new point today, there are mixed feelings regarding the new law. On
the one hand, it’s a good thing that an old law by British is being replaced by a new one
due to numerous urban and rural movements, on the other hand there is a lot to be
done." The National Alliance Of People's Movement (NAPM) has been demanding
changes in new land act, The Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 are:-The definition of the public
purpose should be restrictively defined, provisions of 2013 land acquisition act should be
applicable to the exempted 13 central Act, no forcible acquisition of land which is being
used for agriculture, consent and direct involvement of people through various agencies
and majority of gram sabhas in every project.Social activist Medha Patkar criticized the
move to amend key provisions of the Land Acquisition, Resettlement and Rehabilitation
Act, 2013. Ms Patkar said, “The consent and ‘social impact assessment’ (SIA) provision of
Right to Fair Compensation and Transparency was introduced to do away with the
anomalies in the colonial Act, since farmers and those dependent on the land were
never consulted or made a participant in the process of development planning. Huge
tracts of fertile land were acquired at throw away prices and given to private and public
corporations in the name public purposes. It will be a retrograde step if we were to go to
back to the colonial process of forced land acquisition with no regard for impact of land
acquisition on the people, environment and democratic institutions that need to be
consulted and their consent taken in the process of SIA.

Table below provides the comparison between the land acquisition Act 1894 and the
LARR 2013 on the definition of public purpose.

RFCTLARR Act, 2013 Land Acquisition Act, 1894

• for strategic purposes relating to naval, • Absent. Land acquired for any such
purpose would be considered as
military, air force, and armed forces of the Union, public purpose.
including central paramilitary forces or any work

vital to national security or defence of India or

State police, safety of the people.
• for infrastructure projects: excluding
private hospitals, private educational
institutions and private hotels
• projects related to agriculture and allied
activities set up or owned by the
appropriate Government or by a farmers'
cooperative or by an institution set up
under a statute
• project for industrial corridors or mining
activities, national investment and
manufacturing zones.
• project for water conservation
structures, sanitation, Government aided
educational and research schemes or
institutions, sports, health care, tourism,
transportation or space programme or
any infrastructure facility as may be
notified in this regard by the Central
Government and after tabling of such
notification in Parliament.
• project for project affected families, for
• housing for such income groups, as may
be specified from time to time by the
appropriate Government, 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 scheme
undertaken by the Government, any local
authority or a corporation owned or
controlled by the State.
• 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.
PUBLIC UTILITY VS. PUBLIC PURPOSE
• for a corporation owned or
controlled by the State.
• for any other scheme of
development sponsored by
Government or with the prior
approval of the appropriate
Government, by a local authority.
• for planned development of land
from public funds in pursuance of
any scheme or policy of Government
and subsequent disposal thereof in
whole or in part by lease, assignment
or outright sale with the object of
securing further development as
planned.
• The provision of land for carrying out
any educational, housing, health or
slum clearance scheme sponsored by
Government or by any authority
• established by Government for
carrying out any such scheme.
• 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
scheme undertaken by Government,
any local authority or a corporation
owned or controlled by the State.
• the provision of village-sites, or the
• extension, planned development or
improvement of existing village-
sites53 the provision of land for town
or rural planning.
Public utility means the work or project like telephone, railway, telegraph, etc., which is
useful and available to all the sections of the public irrespective of the creed, cast, colour
or community and not merely to a section of the community. But when the public
purpose serves even a section of the public it is public purpose as stated in the Bombay
v. Ali gulshan. If a project is carried out say for Harijans, it is going to be not going to be
available to all, but it is a public purpose. Therefore, every work of public utility will be
for public purpose, but public purpose is not covered by the public utility. According to
the earlier view any purpose relating to functions of government would be a public use
provided public have the direct benefit from the property acquired thereof. According to
the newer view point there is a public use if the thing taken is useful to the public. In
case of acquisition of land for manufacture of salt has been held to be an acquisition for
a public purpose. There is no public purpose where the land is acquired for an industrial
concern working purely for its own gain, even though the goods produced by the
concern may be of use to the general public.
In Kelo v. New London, it was held that the public use requirement so long as the
ultimate use of the property serves some public purpose or provides a public benefit.
The decision of this can been criticized for widening the scope of takings clause under
the First Amendment beyond the natural meaning of public use. The result would be
that even private homes may be condemned by the government and turned over to
private parties for development if such development produces tax revenue. Kelo case
reveals a subtle but vital difference between the invocations of public use as opposed to
a public benefit test, with the phrase public purpose somewhere in the middle. Public
use is interpreted broadly by most courts therefore taking must only have public
purpose or public benefit.

PUBLIC PURPOSE: JUSTIFIABILITY

Where the land acquisition proceeding are challenged by a writ under Article 266 of the
constitution of India, The only question for consideration is whether it is required for
public purpose.
If the essential element that is the public purpose in the declaration is unreal then in
such a case Article 266 can be invoked.68 Justifiability of public purpose is questioned
only when:-
Mala fides is suggested to the government that is acting in fraud of its power, the
acquisition being colorable, that it was a mere cloak to acquire under the guise of public
purpose.
That the purpose stated in the declaration is not in the eye of law a public purpose. To
establish the above the claimant has to resort to suit and in an appropriate case, a writ
may be available.
In the State of Bihar vs. kameshwar, it was posited that it would be unconstitutional if
the impugned law sought to make the executive determination of the existence of a
public purpose ‘final’ and non-justiciable. But the court should respect the legislative
declaration of a public purpose.
The scheme should be examined as a whole instead of picking one particular item to
denote that they are not supported by any public purpose. The Acquisition of the land
will be invalid and ultra vires if the government while exercising its power does not
comply with the mandatory provisions of the L.A Act. The conclusiveness of declaration
is based upon complying with the mandatory provisions of this Act otherwise the
declaration is without justification. It is not within the province of the court to hold that
the electronic declaration is bad unless, the land acquisition proceedings are mala fide
and made under the guise of public purpose.
JUSTICIABILITY AND HOW IT IS CHALLENGED
The justifiability as to public purpose may be challenged by a writ petition on the
following grounds: -
• There is colourable exercise of power by the government
• That it is intended to benefit particular firm, company or individual.
• That the purpose disclosed in the notification is not really public purpose and the
acquisition is mala fide.
PUBLIC PURPOSE IN GENERAL
The following acquisitions comes with the purview of public purpose with the objective of
provide public services:
• For providing suitable accommodation to the public servant.
• For providing road facilities in municipal areas.
• Providing housing accommodation for homeless.
• Establishment of slaughter house for maintaining supplies of food in locality.
COMPARATIVE APPROACH OF LAND ACQUISITION BY UK AND USA
In English Law the concept is known as the Law of Compulsory Purchase and under the
United States Law it is known as the Power of Eminent Domain. This law empowers the
state, (as an exception to the general rule) to compel an owner of the property to
submit the property to the state or any agency or an entity authorised by the state
because the same is required for the use of the state or such an agency or entity of the
state. The concept that underlines such an act and the rationale behind such an act lies
in the concept of Utilitarianism which emphasis on the fact that community good is
paramount to the right of individual to hold property. The underlining principle of Land
Acquisition, Power of Eminent Domain or the Law of Compulsory Acquisition whatever it
may be called can be summarised by the legal maxim salus propuli est suprema lex,
meaning welfare of the people is paramount in law. Compulsory acquisition of property
involves expropriation of private rights in the property, it is a restraint on the right of
private owners to be able to dispose of property according to their wish. The Law of
Land Acquisition is intended to legalise the taking up, for public purposes, or for a
company, of land which is private property of individuals the owners and occupiers, and
pay equitable compensation therefore calculated at market value of land acquired, plus
an additional sum on account of compulsory character of acquisition.

LAND ACQUISITION PROCEDURE UNDER THE LAND ACQUISITION ACT, 1894

For the purposes of Land Acquisition Act of proceedings are carried on by an officer
appointed by the government known as Land Acquisition Collector. The proceeding
under the Land Acquisition Collector is of an administrative nature and not of a judicial
or quasi-judicial character. When a government intends to occupy a land in any locality
is has to issue a notification under Section 4 in the official gazette, newspaper and give a
public notice which entitles anyone on behalf of the government to enter the land for
the purposes of digging, taking level, set out boundaries etc. The notification puts
forward the intention of the government to acquire and entitles government officials to
investigate and ascertain whether the land is suitable for the purpose. The section also
makes it mandatory for the officer or person authorised by the government to give a
notice of seven days signifying his intention to enter any or building or enclosed court in
any locality. This is a mandatory provision of the process of land acquisition
An officer or authorised person of the government has to tender payment for all
necessary damage, and dispute all disputes to insufficiency of amount lie to the
collector. Under Section 5(a) any person interested in land which is notified under
section 4 (who is entitled to claim an interest in compensation) can raise an objection, in
writing and in person. The collector after making inquiry to such objections has to
forward the report to the government whose decision in this respect would be final.
After considering such report made by the collector under section 5(a) the government
may issue a declaration within one year of the notification under section 4 to acquire
land for public purposes or company, this declaration is a mandatory requirement of the
acquisition.

After the declaration under Section 6, collector has to take order from the appropriate
government weather state or central for the acquisition of land under section 7. The
next step in the process of acquisition is that collector has to cause land to be marked
out, measured and appropriate plan to be made accurately, unless it is already done.
Requirement of this section deals only with approximation and does not require exact
measurement. An important process that takes place under this section is demarcation
which consists of marking out boundaries of land to be acquired, either by cutting
trenches or fixing marks as posts. Object is to facilitate measurement and preparation of
acquisition plan, but also let the private persons know what land is being taken. It is to
be done by requiring body that is the government department or company whichever be
the case. Obstruction under Section 8 and Section 4 are offence punishable with an
imprisonment not exceeding one year and with fine not exceeding fifty rupees.

Section 9 requires the collector to cause a public notice at convenient places expressing
government's intention to take possession of the land and requiring all persons
interested in the land to appear before him personally and make claims for
compensation before him. In affect this section requires collector to issue two notices
one to the locality of acquisition and other to occupants or people interested in lands to
be acquired, and it is a mandatory requirement. Next step in the process of acquisition
requires a person to deliver names or information regarding any other person
possessing interest in the land to be acquired and the profits out of the land for the last
3 years. It also binds the person by requiring him to deliver such information to the
collector my making him liable under sections 175 and 176 of the Indian Penal Code. The
object of this step is to enable the collector to ascertain the compensation by giving him
a vague idea.

The Final set of collector's proceedings involve an enquiry by the collector into the
objections made by the interested persons regarding the proceedings under section 8
and 9 and making an award to persons claiming compensation as to the value of land on
the date of notification under section 4. The enquiry involves hearing parties who
appear with respect to the notices, investigate their claims, consider the objections and
take all the information necessary for ascertain the value of the land, and such an
enquiry can be adjourned from time to time as the collector thinks fit and award is to be
made at the end of the enquiry. The award made must be under the following three
heads:

• correct area of land

• amount of compensation he thinks should be given
• apportionment of compensation

Section 11 makes it obligatory on the part of the collector to safeguard the interests of
all persons interested, even though they might not have appeared before him. In
awarding compensation, the Land Acquisition Collector should look into estimate value
of land, give due considerations to the other specific factors. Value of the property in the
neighbourhood can be used as a criterion. The award should be made within 2 years.

INTEGRATED WASTELAND DEVELOPMENT PROGRAAMME

BACKGROUND

India shares 16% of the world population, while its land is only 2% of the total
geographical area of the world. Naturally, the pressure on the land is often beyond its
carrying capacity. Therefore, the productive lands, especially the farmlands in the India
are in the constant process of various degrees of degradation and are fast turning into
wastelands. At present, approximately 68.35-million-hectare area of the land is lying as
wastelands in India. Out of these lands, approximately 50% lands are such non-forest
lands, which can be made fertile again if treated properly. It was unprotected non-
forestlands, which suffered the maximum degradation mainly due to the tremendous
biotic pressure on it. In the last 50 years it is India’s lush green village forests and
woodlots have been deforested to the maximum. It is precisely to restore this ecological
imbalance by developing the degraded non-forest wastelands, Govt. of India had
created the Department of Wasteland Development during July,1992 under the Ministry
of Rural Development, which has been subsequently reorganized and renamed
Department of Land Resources, with a broader mandate.

A degraded Wasteland

National Wasteland Development Board was established in 1985 under the Ministry of
Forests and Environment mainly to tackle the problem of degradation of lands,
restoration of ecology and to meet the growing demands of fuel wood and fodder at the
national level. During the Seventh Five Year Plan, the strategy adopted by the National
Wasteland Development Board emphasised more on tree planting activities rather than
Community Participation for wasteland development, In the year 1992, the new
Department under the Ministry of Rural Development (now Ministry of Rural Areas and
Employment) was created and the National Wasteland Development Board was placed
under it. The Board was reconstituted in August 1992 and was made responsible for
mainly development of wastelands in non-forest areas in totality by involving local
people at every stage of development. It aims at creating a scenario where the
Government acts as a facilitator and the people at the grass root level become the real
executioner of the programme. Major programme implemented for improving the
productivity of waste & degraded lands keeping in view the poverty, backwardness,
gender & equity is Integrated Wasteland Development Programme.

INTEGRATED WASTELAND DEVELOPMENT PROGRAMME (IWDP).

The problem
The degradation of environment in the fragile Indian sub-topical eco-system is basically
attributed to:-

• Increasing biotic pressure

• Absence of adequate investments and appropriate management practices.
• High rate of Population growth and high incidence poverty in rural areas.
• Over-exploitation of National Resources.
• The break-down of traditional institutions for managing common property
resources and failure of new institutions to fill the vacuum.
• Faulty land use practices.

CONSEQUENCES

• Soil Erosion Land Degradation

• Depletion of natural resources
• Lower productivity
• Ground Water Depletion
• Shortage of Drinking Water
• Reduction in Species Diversity
• Increase in the extent of Wastelands

The strategy

Development of wastelands mainly in non-forest areas aimed at checking land

degradation, putting such wastelands of the country to SUSTAINABLE use & increasing
bio-mass availability especially that of fuelwood, fodder, fruits, fibre & small timber.
Government of India is taking up this colossal task through its INTEGRATED WASTELAND
DEVELOPMENT PROJECT SCHEME (IWDP) by revitalizing & reviving village level
institutions & enlisting people's participation. It is people's own programme which aims
at giving them actual decision-making powers in terms of project implementation & fund
disbursal.

It is one programme which is making sincere efforts towards the empowerment of the
people so that a sense of collective responsibility can be evolved among them. The new
guidelines for watershed development provide a paradigm shift in the traditional
approach where the role of the Government is changed from that of governance to
facilitation. The institutional arrangements envisaged in the Guidelines can be seen as a
true reflection of the agenda 21 where the sustainability comes through the
involvement of people & the local bodies. The approach of watershed development in a
holistic manner automatically strikes a prudent balance between environmental
concerns & developmental aspirations. The efforts being made under the guidelines can
be termed as sincere & honest as here the survival of life itself is at stake with the
watershed development rather than the quality of life itself as compared to similar
situations in the developed countries. In fact, the effective community control has been
an integral part of the Indian social fabric which was fragmented by the colonial rule.
This programme is an effort towards its restoration & a small step in the achievement of
this goal which might turn into a big leap with the support from the people.

WHAT IS WATERSHED DEVELOPMENT?

Watershed development refers to the conservation regeneration and the judicious use
of all the resources – natural (like land, water plants, animals) and human – within the
watershed area. Watershed Management tries to bring about the best possible balance
in the environment between natural resources on the one side and man and animals on
the other. Since it is the man which is primarily responsible for degradation of
environment, regeneration and conservation can only be possible by promoting
awakening and participation among the people who inhabit the watersheds.

WHY WATERSHED DEVELOPMENT?

Man, and his environment are interdependent. The changes in the environment directly
affect the lives of the people depending on it. A degraded environment means a
degraded quality of life of the people. Environmental degradation can be tackled
effectively through the holistic development of the watershed. A watershed provides a
natural geo-hydrological unit for planning any developmental initiative.

WHAT ARE WASTELANDS?

Degraded land which can be brought under vegetative cover, with reasonable effort,
and which is currently underutilised and land which is deteriorating for lack of
appropriate water and soil management or on account of natural causes.

The programme does not focus solely on uncultivable wastelands because such lands
are:

• Too degraded to recouped in isolation

• Cost of treatment is very expensive and economical
• Such lands are too remote from the village through protection of vegetative
measures and participation of local people is not possible

Integrated Wastelands Development Project (IWDP) Scheme

Background: - This scheme is under implementation since 1989-90, and has come to this
Department along with the National Wastelands Development Board. The
development of non-forest wastelands is taken up under this Scheme. The scheme
provides for the development of an entire micro watershed in a holistic manner
rather than piecemeal treatment in sporadic patches. The thrust of the scheme
continues to be on development of wastelands.

Objectives: The basic objective of this scheme is an integrated wastelands development

based on village/micro watershed plans. These plans are prepared after taking into
consideration the land capability, site condition and local needs of the people.

The scheme also aims at rural employment besides enhancing the contents of people's
participation in the wastelands development programmes at all stages, which is ensured
by providing modalities for equitable and sustainable sharing of benefits and usufructs
arising from such projects.

Activities:

The major activities taken up under the scheme are:

 • In situ soil and moisture conservation measures like terracing, bunding,
trenching, vegetative barriers and drainage line treatment.
• Planting and sowing of multi-purpose trees, shrubs, grasses, legumes and pasture
land development.
• Encouraging natural regeneration.
• Promotion of agro-forestry & horticulture.
• Wood substitution and fuel wood conservation measures.
• Awareness raising, training & extension.
• Encouraging people's participation through community organization and capacity
building.
• Drainage Line treatment by vegetative and engineering structures
• Development of small water Harvesting Structures.
• Afforestation of degraded forest and non-forest wasteland.
• Development and conservation of common Property Resources.

THE NEW GUIDELINES FOR WATERSHED DEVELOPMENT

• The IWDP scheme is being implemented on the basis of new Guidelines for
Watershed Development from 1.4.1995. The new common Guidelines envisage
the bottom-up approach whereby the Users’ Group themselves decide their
work programme.
• The strength of the Guidelines lies in the decentralization of decision-making
process by involving local Panchayati Raj Institutions, NGOs, Government
Departments and the watershed community at the grass root level It is an effort
on the part of the Govt. to remove the stumbling blocks that have delayed the
process of development. In fact, the initiatives taken by the watershed
development aim at establishing a system under which village people can
actually involve themselves in planning, implementation and monitoring of
watershed development programmes. In preparation of the Watershed
Development Plan, Users and Self-Help Groups and other people directly
depending on the watershed are actually involved.
Another strength of these guidelines lies on the flexible approach followed in the
method of release of funds, the area to be covered in each watershed as well as choice
of components.

• The new guidelines attempt to make the projects sustainable by establishing

Watershed Development Fund and involving people in deciding equity issues and
usufruct sharing mechanism.

MAIN FEATURES OF GUIDELINES FOR WATERSHED DEVELOPMENT

• Recommended by Hanumantha Rao Committee Report.

• Applicable to All Area Development Schemes.

DPAP/DDP/IWDP/EAS

• Came into effect from 1st April, 1995.

AIMS AT

• Decentralized Decision making.

• Involvement of local people at Grass-root level.
• Promotion of locally available low-cost Technology.
• Involvement of Panchayat Raj Institutions
• Upliftment of landless persons and others belonging to weaker sections
• Special programme for social and economic upliftment of women

Institutional Arrangements

To make the programme successful, proper Institutional arrangement has been provided
in the Guidelines from state level to village level. These institutions help in making the
programme broad based, sustainable and equitable. These institutions are given below:

• STATE WATERSHED PROGRAMME AND REVIEW COMMITTEE

• ZILA PARISHADAS/DRDAs
• WATERSHED DEVELOPMENT ADVISORY COMMITTEES
• PROJECT IMPLEMENTATION AGENCIES (PIA)
• WATERSHED DEVELOPMENT TEAM (WDT)
• WATERSHED COMMITTEE (WC)
 • USER GROUPS
• SELF HELP GROUPS

State Watershed Programme Implementation and Review Committee

This is an apex organisation at a state level under the chairmanship of Chief

Secretary/Addl.Chief Secretary/APC. Representatives of prominent NGOs, SIRDs, Heads
of Department of related Departments are also member of the Committee. The
Committee undertakes monitoring, review and evaluation of Watershed Development
projects. It is an important link between DRDAs and Department of Wastelands
Development. Success of programme depend on functioning of State Watershed
Programme Implementation and Review Committee.

i. District Rural Development Agency/ZP: - DRDA/ZP is a key institution in the

programme execution. The project is sanctioned in favour of the DRDA and funds are
released to it directly from Government of India. The DRDA is responsible for
successful implementation of the project as per guidelines and submission of various
reports and returns to WD as well as State Government.

ii. Project Implementing Agency: - The PIA is an organisation having sufficient exposure
and experience in the field of community organisation as well as watershed
development activities. These organisations can be reputed NGOs having proven
credibility or technical officers like DFO, Soil Conservation Officer, Horticulture
Officer, etc. The PIA is an important link between the villagers and the DRDA. It
imparts technical know-how to the villagers with the help of Watershed
Development Team and ensures that programme is executed as per Guidelines and
funds are spent judiciously. It compiles information from Watershed Committees
and send to DRDA.

iii. Watershed Development Team: -The Watershed Development Team is a multi-

disciplinary team responsible for technical and financial supervision of the project
activities. The team consists of field level officials drawn from various disciplines like
forestry, soil conservation, horticulture, social sciences etc. These officials are key
functionaries in sensitisation of Self-help Groups/User Groups and villagers at large.
iv. Watershed Development Association: - Watershed Development Association (WA)
consists of all members of the village whose land is situated in the watershed area
called user group (UG) and all those members who drive sustenance from the
watershed area called self-help group (SHG).

v. Watershed Committee: - Watershed Committee (WC) is the key institution at

Watershed level consisting of about 2-3 representatives, each of UG, SHG, Panchayat
and women etc. Committee also appoints a Watershed Secretary preferably a local
man graduates from the same area.

PROPERTY OF GOVERNMENT

Sec 3 of the Act defines the expression ‘property of Government’.

By sec 3(1), the following are the 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 and of harbours and creeks below highwater mark.
• The beds and banks of rivers, stream, irrigation and drainage channels, canals,
tanks, backwater and water courses and all standing and flowing water.
• All lands wheresoever situated.
However, the following are not property of Government
• The property of Jenmies, wargdars or holders of Inams
• The property of persons registered in the revenue records as holders of lands in
any way subject the payment of land revenue to the government.
• The property of any other registered holder of land in proprietary right
• The property of any person holding land under grant from the government
otherwise than by way of lease or licence.

Lands once registered in the name of a person but subsequently abandoned or

relinquished and all lands held by right of escheat, purchase, resumption, reversion
or acquisition under the Land Acquisition Act for the time being in force, are the
property of government.
 Where the ownership and possession, or the possession of any land, are or is vested
in the government under sec 86 or sec 87 of the Kerala Land Reforms Act, 1964, such
land shall, so long as it is in the possession of the government, be the property of
government.

Lands belonging to the government of any other state in India or the Kerala State
Electricity Board or to a University established by law or to any Panchayat or any
Municipality or to a Municipal Corporation shall be deemed to be the property of
government.

By sec 3(2) of the Act, all unassessed 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 local authority shall be deemed to be the property of
government.

The property of government shall be subject to all rights of way and other public
rights and to the natural and easement rights of other land owners and to all
customary rights legally subsisting.

By sec 5(1) of the Act provides that it shall not be lawful for any person to occupy a
land which is the property of government, whether a poramboke or not, without
permission from the government.

The explanation to sec 5(1) makes it clear that erection of any wall, fence or building
or 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.

By sec 5(2) of the Act, it shall not be lawful for any person to erect or cause to erect any
wall, fence or building or put up any overhanging structure or projection (whether on a
temporary or permanent basis) on or over any land referred to in sub-section (1) except
under and in accordance with the terms and conditions of a licence issued by the
government or such officer of the government as may be empowered by them in this
behalf.
By sec 7(1)(a) whoever with intention of using or holding any land which is the property
of government, whether poramboke or not, for any non- governmental purpose,
unlawfully enters or occupies such land and shall be punishable with imprisonment of
either description for a term which shall not be less than three years but which may
extend to five years and shall also be liable to pay a fine which shall not be less than fifty
thousand rupees, but which may extend to two lakhs rupees.

By sec 7(1)(d) whoever erects or causes to erect any wall, fence or building or puts up or
causes to put up any overhanging structure or projection, whether on a temporary or
permanent basis in contravention of section 5(2) shall be punishable with imprisonment
of either description for a term which shall not be less than one year but which may
extend to two years and shall also be liable to pay a fine which shall not be less than ten
thousand rupees and in the case of a continuing contravention, such additional fine
which may extend to five hundred rupees for each day during which the contravention
continues after conviction for the first such contravention.

The offences specified under sec 7 shall be cognizable and non- bailable. The offences
shall exclusively be triable by a court of Chief Judicial Magistrate.

By sec 10 of the Act any person who destroys or appropriates any useful tree belonging
to the government shall be liable for damages not exceeding three times the value of
the trees as adjudged by the collector, and shall also be liable on convention by a
Magistrate to be punished with imprisonment for a term extending to six months or
with fine not exceeding five hundred rupees or with both.

By sec 11(1) of the Act, any person unauthorisedly occupying any land for which he is
liable to punishment under sec 7 may be summarily evicted by the collector and any
crop or other product raised on the land shall be liable to forfeiture.

By sec 11(2) an eviction shall be made by serving a notice on a person reputed to be in

occupation requiring him to vacate the land within the time stipulated in the notice.

If the person in unauthorised occupation does not vacate in terms of the notice, he may
be removed. If there is resistance, the collector may issue a warrant for the arrest of the
said person, and he may be sent to Civil Jail for a period of 30 days to prevent the
continuance of obstruction.

By sec 12 of the Act, the collector shall, before passing an order under this Act, give
notice to the occupant and record any statement which such occupant may make and
any evidence which he may adduce within a reasonable time. All orders passed by the
collector shall be in writing and under his hand.

ECOLOGICALLY FRAGILE LAND

The concept originated in common law. It denotes the right of the people at large over
the land of another. A person who uses another person’s land over a long number of
years uninterruptedly has easement right over the land by way of easement. It is called
easement by prescription. The former has no title to the land. He right is only to use the
land of the latter. The latter’s title to his land does not prevent the use of his land by the
former, by way of prescription. Right to way over the land of another is an example.
Similarly, the right of the people in the ecologically fragile land though they do not have
title to the land is an easementary right. It is called public trust easement. Originally the
concept of public trust easement had applied in the matter of navigable waters like
rivers. Originated in Roman Law the concept found its way to English Law and then to
American Law. The concept is now followed in almost all democratic countries in the
world and is now part of Customary International Law.

In T.N.G. Tirumulpad v. Union of India ((2002) 10 SCC 606) the Supreme Court of India
categorically held that ‘public at large is the beneficiary of ecologically fragile land’.
Supreme Court used the word ‘ecologically fragile land’ to denote a land which supports
natural resources, that is a potential of the land to sustain natural resources like bio-
diversity. Supreme Court also held that state has a duty to protect the right of the
people to benefit from ecologically fragile land under ‘Public Trust Doctrine’.

In India our Supreme Court read the right of the people to benefit from ecologically
fragile land into fundamental right under Article 21 of the Constitution of India and held
that the State has a duty to prevent user of the land to protect ecology and environment
under Article 48A of the Constitution of India. The Court also held that the people of the
country also have a fundamental duty under Article 51A of the Constitution of India to
protect environment and ecology and therefore could not contend that regulation of
user of ecologically fragile land could not be resorted since they have absolute right to
use their land in whatever manner they wanted. The right of the people to be benefited
out of ecologically fragile land is protected under Article 21 of the Constitution of India
and the duty and power of the Government to protect such land flows from Articles 48A
and 51 A of the Constitution of India.

The most important international conventions regarding ecologically fragile lands are:

1. Ramsar Convention on Wet Lands

2. Convention on Biological Diversity

3. Man Biodiversity Programme

4. Convention Concerning the Protection of the World Cultural & Natural Heritage

5. UNESCO’s Man & Biosphere (MAB) Programme

India is a signatory to these conventions and programme and is duty bound to

implement the provisions of these conventions. Moreover, most of these conventions
have been read into our domestic law by our Supreme Court. For example, the Supreme
Court in T.N.G. Tirumulpad v. Union of India ((2002) 10 SCC 606) has held that
Convention on Bio Diversity is now part of our domestic law. It can thus be seen that the
States have a duty to implement the international conventions not only under the
Customary International Law but also under the Jud made law of the Supreme Court
which in view of Article 141 of the Constitution of India is law of the land.

The Kerala Forest (Vesting & Management of Ecologically Fragile Land) Act, 2003 On
27th July 2000, the Governor of Kerala promulgated The Kerala Forest (Vesting &
Management of Ecologically Fragile Lands) Ordinance, 2000 providing that ecologically
fragile land shall vest in the Government. The Ordinance was repopulated on 27.1.2001
with effect from 2nd June 2000 and was subsequently replaced by The Kerala Forest
(Vesting & Management of Ecologically Fragile Land) Act, 2003.
Section 3 of the EFL Act provides for automatic vesting of ecologically fragile land. By
operation of law. Ecologically fragile land as defined under Section 2(b) as

i) any portion of forest land held by any person and lying contiguous to or
encircled by a reserved forest or a vested forest or any other forest land owned
by the Government and predominantly supporting natural vegetation; and
ii) any land declared to be an ecologically fragile land by the Government by
notification in the official Gazette under Section 4.

It is significant to note that the word ‘forest land’ is not defined in the EFL Act. However,
the Supreme Court in T.N.G Tirumulpad vs. Union of India ((1997) 2 SCC 267) and in
T.N.G Tirumulpad vs. Union of India ((2006) 1 SCC 1) interpreting Section 2 of the Forest
Conservation Act 1982 held that forest for the purpose of the Act would include –

-area recorded as forest in the Government records

- areas which were forest and had denuded, degraded or cleared.

Any area which was forest and had been cleared, denuded or degraded would also be
forest land for the purpose of Section 2(b). In order to find out whether any land had
automatically vested under Section 3 of the Act only the following facts are relevant.

1. Is the land in question a forest land, in the sense that it was a forest and had
subsequently been denuded, degraded or cleared;

2. Is the land in question lying contiguously or encircled by a natural forest

3. Does the land in question support natural vegetation?

If all these criteria are satisfied the land is a forest land which vests under Section 3
automatically.