The Honourable Supreme Court of India gave a historic judgement paving the way for protection of the commons across the country on 28th January 2011. This came in connection to the hearing on the Civil Appeal No. 1132/2011 @SLP(C) No. 3109/2011. This blog is aimed to collate all possible information related to the judgement. For views and comments write to firstname.lastname@example.org
Thursday, March 22, 2012
Govt. Responds : Task Force for Recovery of Public land and its Protection
In the Chapters above many recommendations have been made to effectively control encroachments. Out of them the following are high-lighted in addition to the recommendation of forming a Permanent Legislature Committee as Government-appointed Committee or Task Forces are ineffective.
1. PERMANENT LEGISLATURE COMMITTEE ON PROTECTION OF PUBLIC LANDS.
The problem of encroachment of public lands - Gomal, Lakes and Tanks, Gunduthopes, Smashana, etc. - is extremely serious. The Supreme Court in a Haryana case was constrained to observe that these Commons are precious lands for public use and therefore should be protected by all means and directed the Chief Secretaries of all States to file quarterly reports regarding action taken by them to remove the encroachments in them. In Karnataka this problem is especially alarming as at least 12 lakhs acres already indentified including 104,000 acres deciduous forests in Western Ghat districts are under encroachment and absolutely no action has been taken to recover these lands from big encroachers. The Task Force being an informal Committee without any legal powers or authority over the officers has been able to persuade the Deputy Commissioners to recover only less than 50,000 acres of gomal and tank bed encroachments. This is less than 5% of the total government lands under encroachment.
HENCE, IF THESE PRECIOUS COMMON LANDS HAVE TO BE PROTECTED, THERE SHOULD BE A PERMANENT JOINT COMMITTEE OF THE LEGISLATURE LIKE THE PUBLIC ACCOUNTS COMMITTEE, PUBLIC UNDERTAKINGS COMMITTEE, SC/ST WELFARE COMMITTEE, TO PROTECT THE PUBLIC LANDS. THE JLC FOR PROTECTION OF PUBLIC LANDS SHOULD HAVE JURISDICTION TO DEAL WITH COMPLAINTS REGARDNG ALL GOVERNMENT AND PUBLIC LANDS. THE KPLC HEADED BY THE REVENUE SECRETARY AND MANAGING DIRECTOR SHOULD BE THE PERMANENT SECRETARIAT TO THIS LEGISLATURE COMMITTEE. UNDER THE JLC, THE KPLC SHOULD HAVE POWERS TO REMOVE ENCROACHMENTS AND ALSO TO PROTECT SUCH LANDS AFTER RECOVERY. TO GIVE SUFFICIENT AUTHORITY TO THE KPLC, IT SHOULD BE HEADED BY THE UPGRADED POST OF PRINCIPAL SECRETARY WHO SHOULD ALSO BE THE CHAIRMAN AND MANAGING DIRECTOR.
2. REGULAR REVIEW OF PROTECTION OF PUBLC LANDS BY SECRETARIES TO GOVERNMENT.
At present the Deputy Commissioners and Heads of Departments and Chief Executive Officers of Statutory Bodies and Local Municipal Bodies have no priority of attention to public lands in their custody. After the giving up of the traditional Jamabandi the Revenue Department does not keep watch of government lands and the encroachments on them. The Municipal Corporations, City Municipal Councils, Town Municipal Councils, Town Panchayats and other statutory bodies do not even have updated Property Registers and do not know the extent of encroachment of their lands and property. The Forest Department has been strangely shy of protecting forest lands apart from making periodical, ritual recitation of the landmark Godavarman Tirumalpad verdict by the Supreme Court. The Muzrai Department has lost most of the lands belonging to the institutions under it to encroachers and the Department does not have any staff to protect its property.
THEREFORE, IN ADDITION TO THE FORMATION OF A PERMANENT LEGISLATURE COMMITTEE, THE GOVERNMENT HAVE TO INSTRUCT THE REIGIONAL COMMISSIONERS, DEPUY COMMISSIONERS AND THE REVENUE OFFICERS, HEADS OF DEPARTMENTS AND CEOs OF STATUTORY AND LOCAL BODIES TO IDENTIFY, PROSECUTE THE ENCROACHERS IN EXERCISE OF THE LEGAL POWERS VESTED IN THEM AND PROTECT THE RECOVERED LANDS BY FENCING THEM. THE SECRETARIES TO GOVERNMENT SHOULD REVIEW THE POSITION EVERY MONTH. THE WORK DONE BY THEM IN THIS REGARD SHOULD FIND A PLACE WHILE THEIR ANNUAL CONFIDENTIAL REPORTS ARE WRITTEN.
3. IMPLEMENTATION OF THE LAND GRABBING (PROHIBITION) ACT, 2007 AFTER OBTAINING PRESIDEN’S ASSENT
This Bill, passed by both Houses of the Karnataka Legislature in 2007 unanimously, is languishing for four years without any action being taken by the nodal Revenue Department to pursue with the Home Ministry and obtain President’s assent. In contrast, Andhra Pradesh has passed the Andhra Pradesh Land Grabbing (Prohibition) Act in 1984 itself (after which the Karnataka Bill has been prepared) and has established Special Court to try all land encroachment cases which has prevented multiple litigations by encroachers tying up government in various courts.
THEREFORE, THE CHIEF SECRETARY SHOULD DIRECT THE CONCERNED SECRETARIES TO GOVERNMENT TO MEET THE OFFICERS IN THE GOVERNMENT OF INDIA AND OBTAIN THE PRESIDENT’S ASSENT AND TAKE STEPS TO ESTABLISH THE SPECIAL COURT IN KARNATAKA.
4. CREATING A LEGAL SECTION IN REVENUE, FOREST AND MUZRAI, WAKF DEPARTMENTS ON THE MODEL OF THE COMMERCIAL TAXES DEPARTMENT TO DEFEND GOVERNMENT LAND CASES.
The existing one-person (shared) Legal Cells in the Secretariat Departments have not been able to effectively defend land cases in the civil courts and higher courts. Important Departments such as theRevenue, Forest, Muzrai and Wakf Departments which have in their custody large extent of land should constitute Legal Sections at their Heads of Department level (in the case of Revenue Department at the Regional Commissioners level) on the model of the Commercial Taxes Department. It does not require any new staff for this purpose. Within the staff of every Department such Legal Sections can be established. Most of government’s cases fail because the Government Advocates do not get the draft replies of para-wise remarks, factual position, appearance of the concerned officers to file affidavits, etc. which is entirely administrative work.
HENCE, LEGAL SECTIONS SHOULD BE ORGANIZED IN IMPORTANT DEPARTMENTS OWNING LANDS AND BENCHES SHOULD BE EXCLUSIVELY CREATED IN THE KAT AND HIGH COURT FOR LAND MATTERS AS IN THE CASE OF COMMERCIAL TAXES DEPARTMENT.
5. POSTING OF YOUNGER OFFICERS OF INDIAN ADMINISTRATIVE SERVICE AS SPECIAL DEPUTY COMMISSIONERS IN BANGALORE URBAN DISTRICT UNDER THE REVENUE DEPARTMENT.
As mentioned in para 11 of Chapter 10-D above, officers with little competency and less integrity are getting posted to Bangalore Urban district on extraneous consideration. With the land value being very high in Bangalore Urban areas the harm done by these officers is immense and difficult to be undone. A Special Deputy Commissioner and a Special Tahsildar have been arrested under the Prevention of Corruption Act by the Lok Ayukat and are under prosecution. In para 20 in section on ILLEGL ORDERS PASSED u/s 136(3) OF KLR ACT of Chapter 5 no less than 428 orders passed by the Special Deputy Commissioner involving 1,400 acres and valued at Rs.1,500 crores, had to be scrutinized and having been found illegal, had to be appealed against in the High Court.
The High Court has in many cases in recent times have passed strictures. In one case the Hon’ble Judge was constrained to observe that the very post of Special Deputy Commissioner should be abolished and officers from the Indian Administrative Service should be posted in dealing with quasi-judicial matters, as shown in Annexure 14.
IT IS THEREFORE NECESSARY THAT GOVERNMENT TREAT THE OBSERVATIONS OF THE HIGH COURT SERIOUSLY AND POST OFFICERS OF PROVEN COMPETENCY AND INTEGRITY AS SPECIAL DEPUTY COMMISSIONERS OR ABOLISH THE DISREPUTED POST OF SPECIAL DEPUTY COMMISSIONER AND, INSTEAD, POST YOUNGER COMPETENET OF THE CADRE OF INDIAN ADMINISTRATIVE SERVICE AS ADDITIONAL DEPUTY COMMISSIONERS TO DEAL WITH REVENUE LAW MATTERS. THEY CAN ALSO BE DESIGNATED AS ADDITIONAL DISTRICT MAGISTRATES SO THAT THEY CAN ALSO TAKE ACTION TO PROTECT GOVERNMENT AND PUBLIC LAND UNDER THE PROVISIONS OF THE CODE OF CRIMINAL PROCEDURE IN ADDITION TO THE VARIOUS PROVISIONS OF THE LAND REVENUE ACT. THIS ALONE CAN PREVENT ILLEGAL DISPOSAL OF VALUABLE GOVERNMENT LAND BY ABUSE OF PUBLIC OFFICE FOR PRIVATE GAIN.
6. URGENT NEED FOR TAKING UP CITY SURVEY IN BANGALORE METROPOLITAN REGION DEVELOPMENT AREA
Government have not realized the extent of rot and corruption that has set in the system of Revenue Department, BBMP, BDA, KIADB and the Muzrai Department in making entries in favour of encroachers and land-sharks in the form of Pahanis, Khathas, Illegal Layouts, Building Plans and Real Estate Proposals masquerading as Industrial Projects. In the BMRDA area of Bangalore Urban, Bangalore Rural and Ramanagaram districts, still about 5 lakhs acres of public land is available. In Bangalore Urban district, most of this land has been encroached or claimed by unauthorized and ineligible persons. It is necessary to survey and protect these lands and prepare a Master Plan for future public purposes.
HENCE, IT IS OVER DUE THAT THE GOVERNMENT TAKES UP CITY SURVEY OF BANGALORE METROPOLITAN AREA UNDER THE URBAN PROPERTY OWNERSHIP RECORDS (UPOR) PROJECT, WHICH IS ALREADY UNDER WAY IN FIVE CITIES OF KARNATAKA. TO START WITH GOVERNMENT AND PUBLIC LANDS SHOULD BE SURVEYED IN THE BMRDA AREA.
7. RESTORATION OF LAKES NOT JUST FOR ECOLOGICAL REASONS BUT FOR SUPPLY OF DRINKING WATER ITSELF TO BANGALORE CITY
The impending water famine of Bangalore before 2020 is not realized by the Government, BWSSB or the citizens yet. With the 19 tmc feet of allocation of Cauvery Tribunal having been exhausted and the huge Conractors’ dream plans of bringing water from Almatti, from West-flowing rivers digging more borewells not being practical or cost-effective, the obvious solution of restoring lakes in the district requires immediate execution. The Action Plan prepared under the direction of the High Court does not address the problem and cost of removing encroachments in the 840 km length of Storm Water Drains which act as Sewage Drains taking sewage to the lakes and making the lakes Sewage Tanks. This is a mammoth problem and involves removal of encroachments, diverting sewage, constructing STPs, Tertiary Plants, installing Reverse Osmosis system, etc. and cannot be done in three years time as the hasty Action Plan stipulates and certainly not within the budgets of the participating bodies such as BBMP, BWSSB, BDA, Minor Irrigation Dept etc. The Bill to create an effective Lake Development Authority with legal powers has to passed and the LDA should be formed to implement Restoration of Lakes as
the multifarious agencies are incapable of acting in a unified manner and their efforts will be fissiparous.
THEREFORE, AN APEX BODY IN THE FORM OF LAKE DEVELOPMENT AUTHORITY SHOULD BE FORMED AND A COMPREHENSIVE ACTION PLAN SHOULD BE PREPARED WITH EXTERNAL ASSISTANCE WHICH WILL BE IN THE RANGE OF Rs.10,000 CRORES IN TEN YEARS OF EXECUTION.
8. PROSECUTION OF ENCROACHERS AND PUBLIC OFFICIALS ABETTING
THE OFFENCE AS PROVIDED UNDER THE LAW.
Even though the Forest Act, Land Revenue Act, the BDA, and Corporations Act (for BBMP), besides the Indian Penal Code provide for prosecution of encroachers and their abettors (both government officials and the public officials such as the elected representatives), practically no prosecution of government and public officials has been done inspite of the Task Force insisting on the Departments and Deputy Commissioners to initiate action.
The JLC had strongly recommended this in 2007, as shown below:
“The duty of the Administration is to uphold rule of law. The purpose of the Fence is to protect the Crops; to act as the Guardian, Trustee and a Sentinel. But the few examples in the above paragraphs show that the Fence itself is eating the Crops, the Guardian himself is molesting the Ward, the Trustee is robbing the Beneficiary and the Sentinel is looting the Citizens. If these Illegal, anti-social and Unethical acts go unpunished, honest citizens will lose all faith in Government and the very Social Contract on which the State is founded will crumble as castles built on foundations of sand.
It is therefore necessary to proscribe and prosecute public servants -both officials and non-officials - wherever they are involved in land grabbing, under the Indian Penal Code. Recently, on the recommendations of this Committee, the Karnataka Land-Grabbing (Prohibition) Act has been passed. It contains provisions to prosecute 80 public servants committing or abetting land-grabbing. These must be vigorously implemented. Till the Rules and administrative machinery under this Act come into force, the existing provisions in the Indian Penal Code for creation of false documents, false evidence and abetting such violations should be invoked.” (p12 of the JLC Report II)
IT IS THEREFORE ESSENTIAL THAT GOVERNMENT TAKES THIS MATTER SERIOUSLY AND INSTRUCTS THE OFFICERS EMPOWERED TO LAUNCH PROSECUTIONS AGAINST BOTH OFFENDERS AND THE ABETTORS UNDER THE VARIOUS PROVISIONS OF LAW.