Thursday, June 30, 2011

News article: States warned on land grab


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The Telegraph
Tuesday, February 1, 2011
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OUR LEGAL CORRESPONDENT 

New Delhi, Jan. 31: The country’s top court has warned states against allotting gram sabha land to private persons and commercial enterprises and then “regularising” such illegal encroachment in return for money.
In a ruling last week, the Supreme Court said such land was for the common use of villagers and directed chief secretaries to prepare schemes to evict “unscrupulous” trespassers who had grabbed land using muscle power or political clout.

“In many states, government orders have been issued permitting allotment of gram sabha land to private persons and commercial enterprises on payment of some money. In our opinion all such government orders are illegal, and should be ignored,” a bench of Justices Markandey Katju and Gyan Sudha Mishra said in its order on Friday.

The ruling came on a case of encroachment on a Punjab village pond. The trespassers had filled up the pond and built houses on the land. The high court had ordered their eviction, prompting them to move the apex court.

In its order, the apex court said even if the trespasser had occupied the encroached land for a long time or invested huge amounts of money in constructions, that couldn’t be a justification for condoning the land-grab.

Regularisation, the bench added, should only be permitted in exceptional cases, such as where lease had been granted under some government notification to landless labourers or members of the Scheduled Castes and Scheduled Tribes, or where there was already a school, dispensary or other public utilities. 

The court said illegal encroachments had become common in post-Independent India, and “… in large parts of the country common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout”. 

This appeal, the court added, “is a glaring example of this lamentable state of affairs”.

In the Punjab case, the gram panchayat of Rohar Jagir had filed an application under the Punjab Village Common Lands (Regulation) Act, 1961, to evict the trespassers. 

An FIR was also filed but it didn’t help as the unauthorised occupants had the backing of officials and panchayat members. Instead of telling them to pack up and leave, the Patiala collector had held that eviction wouldn’t be in the public interest and asked the gram panchayat to recover the cost of the land from the trespassers. 

“Thus, the collector colluded in regularising this illegality on the ground that they had spent huge money on constructing houses on the land,” the court said. 

After the collector’s directive, some residents had appealed to the commissioner, who said regularising such illegal encroachment was not in the panchayat’s interest. 

The trespassers then filed a petition in the high court, which threw out the plea on February 10, 2010. A division bench also took the same view. The trespassers then appealed to the top court. 

In its January 28 verdict, the apex court said the appellants were “trespassers” who had illegally encroached on the gram panchayat land by using muscle power/money power and in collusion with the officials and even with the gram panchayat”.

The court ordered them to return the land to the gram panchayat. “We cannot allow the common interest of the villagers to suffer merely because the unauthorised occupation has subsisted for many years.”
The case will be listed on May 3, 2011, for court monitoring of compliance by states. 

http://www.telegraphindia.com/1110201/jsp/nation/story_13519485.jsp#

Wednesday, June 29, 2011

News Article: Land sharks in net


The Tribune
Thursday, February 3, 2011, Chandigarh, India 
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Supreme Court must monitor states’ action
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IN a landmark judgement the Supreme Court has declared as illegal the state orders allotting village common land to private persons or commercial enterprises. There is a nexus of politicians, officials, builders, property dealers and criminals that grabs public land wherever available in cities, towns and villages. Representatives of panchayats and municipalities too sometimes share the loot. The opponents are silenced by “orders from above” since the land mafia enjoys political patronage. 

The rules are bent or changed as the guardians of public property turn robbers of public trust. Precious pieces of land are passed on to private persons on token payments. In such a scenario the judiciary is the only institution that can stop the proliferation of gangsters. In the given case it is the illegal occupants of a village pond who had the temerity to approach the apex court for “justice”. They had challenged the move to evict them from the village common land. The court also took note of the role of the Patiala Collector, who instead of helping the village get back its land, directed the panchayat to recover the cost of the land based on the Collector’s rates. 

This is just one small example of land grab in Punjab. If a survey is done by a competent authority, there would hardly be a village, town or city in Punjab where the land mafia has not captured or encroached upon public land. NRIs are an easy target. Though the Bench comprising Justices Markandey Katju and Gyan Sudha Mishra has directed the Chief Secretaries to ensure speedy eviction of all illegal occupants, the bureaucrats’ efforts might be scuttled by their political bosses. The court will have to monitor such cases regularly — a formidable challenge in itself — and launch contempt proceedings, where necessary. Otherwise, the land-grab issue would meet the fate of police reforms, which states like Punjab have failed to implement despite instructions from the Supreme Court. 


Associated story
Govt wants transparency in auction of village common land
Prabhjot Singh/Tribune News Service

Chandigarh, April 26
Bowing to criticism over malpractices in allowing the tilling of village common land or renting out such land to influential groups much below the market prices, the Punjab Rural Development and Panchayats Department now wants detailed records of all such common land at the village level collected till June 30. 

Rural Development and Panchayats Minister Ranjit Singh Brahmpura says the state government is categorically opposed to the illegal disposition of village common land to unscrupulous tillers or persons in connivance with officials, as such lands were revenue-generating sources and lifelines for the development of villages. 

All field officials of the Rural Development Department have been instructed to submit detailed records, including annual jamabandis of village shamlats and mushtarka-malkaan land at the earliest, he added.

Complaints have been galore over malpractices, nepotism, favoritism and circumvention of the provisions of the Village Common Lands Act in allowing certain influential and powerful groups and individuals over nominal increase in re-allotment or even at the time of auction.

In many areas, panchayats were getting far less than the average prevailing price for such common village land. To generate more revenue from annual auctions for agricultural purposes of village shamlats, the minister has also directed development officials to enhance per acre auction rates from the previous year auctions (bolis) and asked to complete the auction process by May 31 in a fair and transparent manner after announcing fixed dates publicly to farmers. 

“The auctioneer official will be responsible to deposit the full amount after the successful completion of the auction of land. The bid money has to be deposited in the bank on the same day, else the erring official would have to face the disciplinary action,” warned Brahmpura.

The rural development minister also directed officials to dispose of all pending cases under Sections 7 and 11 of the Panchayats Act within two months so that litigants should not suffer. 

“Strict instructions have also been issued to employees to properly monitor and supervise court cases pending in various subordinate courts, including the HC and the Supreme Court. No leniency will be tolerated in dishonestly delaying the cases,” the minister said.

Suggesting the optimal utilisation of surplus land under the village focal points, Brahmpura said out of total 6,434 acres of land earmarked for various rural focal points, about 1,185 acres of land were still laying unutilised. He asked field officials to prepare cases for the restoration of such unutilised common lands to the village panchayats concerned so that they could fetch revenues for their village development.


Tuesday, June 28, 2011

News Article: Village common land leased to not-so-common people


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SC orders restoration but states still wary
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Ruchika M. Khanna/TNS
The Tribune
Chandigarh, February 2
 

Common village land worth hundreds of crores in Punjab and Haryana, presently under possession of the rich and the politically influential, may soon be restored back to the respective gram panchayats. With the Supreme Court putting its foot down on land deals where land is taken from gram panchayats by private persons on lease, or bought from the khewatdars on a GPA (General Power of Attorney), there is consternation in both Punjab and Haryana.

The village common land or shamlat land is meant to be kept aside for use for common purpose of villagers. The control of this land rests with the village panchayat, which can lease it out (for purposes like education, agriculture, public utility and professional use) to get revenue for carrying out development works in the village. However, over the years, shrinking land near the big cities has led to an unholy nexus between land sharks and government officials. 

Inquiries made by The Tribune reveal how this shamlat land, especially near the periphery of big cities (Mohali, Patiala, Panipat and Sonepat) in Punjab and Haryana, is now under ownership of private person/enterprise. A top official in Rural Development and Panchayats Department said that even in those villages where the consolidation of land did not take place, the share of the khewatdars is decided following ratification by the government. These khewatdars then get together and the General Power of Attorney of these shares is executed in favour of one person after taking consideration for the land shown under their share. This done, the land is then sold off to a private person, mostly on GPA. 

No wonder that the influential persons in the region have been usurping the village common land. A realtor, who is also in the liquor business, is taking village common land in the name of getting contiguous land for his project (in exchange for private land in Mohali). In Haryana, a top cricketer has been allotted common land in the name of setting up a sports academy in Jhajjar. In another case, a top corporate house of the country, too, had been eyeing the village common land “for the purpose of land contiguity,” while setting up of a Special Economic Zone (in the national capital region of Haryana). 

The Supreme Court judgement clearly says that all orders issued by any state government permitting the allotment of gram sabha land to private persons and enterprises on the payment of money, are illegal and should be ignored. This could mean that all such land deals will have to be re-examined in the context of the Punjab Village Common Lands Act and Public Premises Act, and such land could be given back to the respective villagers. “Though village common land is allowed to be given on lease for agriculture, professional and educational purposes to private persons, we need to study the new SC judgement,” said a top Punjab official. 

Since the SC judgement also calls for the state governments to formulate a policy for speedy eviction of such illegal occupants, officials in Punjab and Haryana say that they will soon come out with a policy, and step up efforts to get the village common land freed from illegal occupation. Top officials in Punjab estimate that one-third of the total land with various gram panchayats in the state is under illegal occupation. Officials in the Rural Development and Panchayats Department informed TNS that almost 2000 cases were reported where the common land was under illegal occupation. The maximum cases of illegal occupation of land are in the districts of Patiala, Fatehgarh Sahib and Nawanshahr. 

In Haryana, over 25,000 acres of land is presently under illegal occupation, with over 8000 acres of gram panchayat land under illegal occupation being located in Panipat, followed by Kaithal (4500 acres) and Sonepat (4000 acres).

http://www.tribuneindia.com/2011/20110203/main4.htm

Monday, June 27, 2011

Govt. Responds: Letter from Deputy Commissioner, Pakur, Jharkhand

Attached below is  a letter from Deputy Commissioner, Pakur for collection of information on the status of common lands in the district. Based on the letter from the Chief Secretary, Jharkhand  no. 1039, dated 19.04.2011 we hope the process has been initiated in all the districts. We look forward to the actions being taken up be the State Government for protecting the common lands in the state.
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Office of the
Deputy Commissioner cum District Magistrate, Pakur
(District Revenue Branch)
Letter No. 336/R


From,
Deputy Commissioner,
Pakur


To,
Sub Divisional Officer, Pakur
Range officer, Pakur/Amlapada
Block Development Officer/Joint Divisional Officer,
Maheshpur/Pakudiya/Littipara/Hiranpur
Pakud, Dated: 21st April, 2011

Sub: With regards to the preparation of an eviction plan for the unjustified users of the Gram Panchayat/Gram Sabha land in light of the Hon’ble Supreme Court’s recent directive

Re: Chief Secretary, Jharkhand Letter no. 1039, dated 19.04.2011

Dear All,
This is to inform you that in light of the Hon’ble Supreme Court’s decision on the Civil appeal No. 1132/2011, dated 28th January 2011, the Chief Secretary, Jharkhand has issued an order to evict the unjustified/illegal users of the Gram Sabha/Gram Panchayat land, after issuing a show cause notice and undertaking proper hearing. A plan is required to be prepared to implement this order, the format of which is being provided as Annexure. Hon’ble Supreme Court has also issued a directive that in exceptional cases, like the land arrangements made for the Scheduled Caste/Scheduled Tribes/ Landless Labour, or the land having a running Hospital/School/Public Utility Facility, regularization of such categories of land would be acceptable.

The extract of the Hon’ble Supreme Court’s decision is being provided with this letter for an easy reference.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1132 /2011 @ SLP(C) No.3109/2011
(Arising out of Special Leave Petition (Civil) CC No. 19869 of 2010)
Jagpal Singh & Ors. .. Appellant (s)
-versus-
State of Punjab & Ors. .. Respondent (s)

……….. “Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.”

It is directed to ensure sending the applications in the provided format by the afternoon of 25th April 2011, so an affidavit in this regard may be submitted by the Chief Secretary, Jharkhand in the Hon’ble Supreme Court.

Yours Faithfully,

Deputy Commissioner, Pakud

Note: This is an free hand translation copy for information/reference. For authentic copy please refer to http://pakur.nic.in/Office_Order/Circular_2011/MISC/letter336.pdf

Sunday, June 26, 2011

News Article: Planners welcome SC order on village land

TNN Feb 1, 2011, 01.41am IST

NEW DELHI: The Supreme Court's order terming the sale of village common land for private or commercial use as illegal could be a shot in the arm for the city. Delhi, say urban planners, is slowly losing not only its green land to commercial use but also facing an increasing threat of water shortage - thanks mainly to disappearing water bodies.

The land in question is the gram sabha land. This land, say experts, is the common land in villages, which mainly comprise fields of play or water bodies that replenish water table. Over the past decades though, the lack of proper guidelines has meant that village land - whether agricultural or common - has been encroached upon rampantly. Places like Shahpur Jat, Hauz Khas, Zamrudpur, Kotla Mubarakpur, Mehrauli and many others have seen unauthorized residential and commercial activity, which were ultimately regularized by the government.

Says AK Jain, former commissioner (planning), Delhi Development Authority (DDA), "Traditionally, buildings in lal dora areas (village land) are exempted from approval of building plans. The MCD, which manages this land, has allowed buildings for bonafide residential use to be built without seeking plans from planning bodies like the MCD or DDA."

The reality though is that unauthorized construction, commercial in use as well, has become rampant in these areas. Over 1,600 colonies have sprung up - which are now headed for regularization by the government. Political pressure as well as complex law and order situation has meant that existing constructions in these areas get a stamp of authenticity. With Delhi having 360 villages - 135 urban and over 200 rural villages, the pressure is intense in these areas for more constructions. This has led to the government declaring an "extended" lal dora area: ostensibly to accommodate the increasing population in the villages. On the other hand, the government has maintained that loss of farming land is justification for selling the land to non-farmers.

Planners say the conversion of village land into private or commercial havens has turned the city into an unplanned ghetto. Says Jain, "But how practical it is to make the SC order retrospective cannot be answered now. There's a huge amount of gram sabha land that has been subverted into private or commercial use."

http://articles.timesofindia.indiatimes.com/2011-02-01/delhi/28380006_1_lal-dora-common-land-water-bodies

Associated Article

Clear public lands, Supreme Court tells states

Monday, May 2, 2011
By Rakesh Bhatnagar | Place: New Delhi | Agency: DNA

The Supreme Court has directed all state governments, the Centre and Union Territories to evict illegal encroachers from public lands in villages across the country and restore them to village bodies.

It said the land mafia, in connivance with the political leadership and revenue officials, has deprived the poor of land meant for schools, ponds, dispensaries and community services. A bench of justices Markandey Katju and Gyan Sudha Misra directed chief secretaries of all the states to file their responses by first week of May of steps they had taken to implement its directive. Expressing concern over the “blatant illegalities” perpetrated in the villages, the judges directed the authorities to raze all constructions, including private houses, built on illegally occupied public land.

Declaring Gram Sabha as the owner of the land, the judges refused to regularise the “illegalities’’ because it was Gram Sabha land for the common use of villagers. It lambasted the Punjab government for its letter of September 2007 that permitted regularization of massive chunks of land in different villages. In case such orders were passed by any other state government, they must be “ignored” as they are illegal, the judges ruled.

Giving the genesis of the concept of village land, the bench said “We wish to say that our ancestors were not fools. They knew there might be droughts or water shortages in some years for some or the other reason, and water was also required for cattle to drink and bathe in,’’ the court said, adding that making landfills of ponds and erecting buildings on vacant public land, villagers facemany problems including water shortage.“The time has come when these malpractices must stop,’’ the bench said.

http://www.dnaindia.com/india/report_clear-public-lands-supreme-court-tells-states_1538403

Saturday, June 25, 2011

News Article: SC check on land acquisition a blow to government, private developers

Tanushree Roy Chowdhury, TNN Feb 2, 2011,

GURGAON: The recent Supreme Court order directing state governments to evict encroachers from land belonging to village community which have been transferred for private and commercial use in retrospective effect, might come as a big blow to several ambitious projects of Haryana government and private developers.

There have been several instances in the past in Gurgaon where the state government has been accused of acquiring panchayat land under public utilities for paltry sums and later selling or leasing it out to private players.

Private players are keeping their finger crossed in this case. Most of us dont know whether several housing blocks have come up on panchayat land. Those who have such knowledge or documents can now create bigger problem for both government and private developers, and even residents, said a Gurgaon-based property consultant.

The latest incident that has hit the government hard is the case where the government bodies HUDA and HSIIDC had acquired 350 acres of the primarily panchayat land in Wazirabad village under public utilities and then sold it off for Rs 1,700 crores to a private developer for residential commercial development, said an ex-Sarpanch of the village.

Activists have welcomed the court order. The government must release a map or a tentative plan while acquiring land for public utility purposes. This will not only ensure that villagers are convinced about the proposed development but can also keep a tab on the changes in plans made by the government, later, said Amina Sherwani, a filmmaker and social activist, associated with the farmers movement.
She added that villages are slowly shirking and being left without any breathing space and are being cramped into the Lal Dora areas.

Villagers also said that rural areas are dying a slow death because of increasing urbanization around villages and also because the government is selling off panchayat land to private developers and builders.

The apex court order says that all land meant for common use of villagers should be restored to the village panchayats. It has also directed the chief secretaries of state governments to prepare schemes to evict unscrupulous trespassers who had grabbed land using muscle power or political clout.


http://articles.timesofindia.indiatimes.com/2011-02-02/gurgaon/28359133_1_private-developers-panchayat-land-village-panchayats

Associated Story

Why panchayat land is a favorite target of developers

TNN Feb 2, 2011

GURGAON: Panchayat land is seen as the easiest and cheapest to acquire by the government as well as the private developers in the city. While in the cases of government acquisition, Panchayats usually dont file objections; private players have to take help of local administration if they plan to buy a patch of village land.

Those familiar with such deals say that private developers first identify a patch of Panchayat land and then they approach the village Panchayat through local administration. They also try to get a resolution passed by the local body that the land can be sold. Once the decision is taken on this, the issue is referred to a committee constituted by the local deputy commissioner (DC).

Since DC is aware of all this and plays a key role in the entire deal, he usually gets only those members on the board who are unlikely to object a panchayat resolution, said a former member of a village panchayat in Gurgaon. Once the resolution is vetted by the committee, the land can be sold to a private party. Such land is often cheaper in comparison to the market rate, he added.

Sources in the revenue department said that in some other cases, private developers approach panchayat members to pass a resolution for fragmentation of common land into private land.

In such a case, with each family in the village getting its share, the developer approaches each of the land owners. Once this is done, the developer consolidates them for development project, said a real estate consultant.

Revenue department officials in Gurgaon said that many panchayats still own chunks of land outside villages and till recently there was a fear among the village bodies that Municipal Corporation might take over their land. Private players were seeing this as an opportunity


http://articles.timesofindia.indiatimes.com/2011-02-02/gurgaon/28367267_1_panchayat-private-developers-local-administration

Friday, June 24, 2011

Views: Nitin Desai - Public land for private ends

Nitin Desai / February 17, 2011, 0:32 IST
Business Standard
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Efficient land markets require rational management of public land
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The role of the government in the operation of land transactions has once again hit the headlines. If earlier the focus was on the processes of acquisition of private land by the government, attention has shifted now to the complementary process of transferring land under public control to private parties.

Some big land transfers that have recently been in the news, like the Vedanta University case in Orissa and the land for the Nano factory in Gujarat, have involved lands that were under public control, directly or indirectly. Some of these lands were acquired earlier for some other announced public purposes, in the case of the Nano factory land, for an agricultural university. Should the state be free to take land acquired for one purpose and transfer it for a different purpose?

But there are signs of change. Stung by the Adarsh housing society scam, which implicated the Congress government in Maharashtra, Sonia Gandhi has asked all Congress chief ministers to forgo discretionary authority over the transfer of lands under public control. More recently, at the end of January, honourable Justices Katju and Mishra of the Supreme Court have given a major judgment dealing with the issue of common lands which will require radical changes in the way in which state governments deal with the common lands under their control.

The Supreme Court judgment is far-reaching. The case arose because some influential locals had trespassed and occupied a village pond, filled it and built on it.

The judgment limits the powers of the government to authorise or regularise the privatisation of village ponds and common lands. It instructs the state governments to prepare schemes for the eviction of illegal/unauthorised occupants of such lands, with only a few exceptions, even if such occupation has subsisted for a long time and has involved a huge expenditure in construction.

Another category of common land that is under pressure is the area classified as wasteland, a misleading term as it creates the impression that the land is not used for anything. But that is not correct. These so-called wastelands are used by locals for grazing, firewood or water supply. State governments are handing over these common lands to private parties for biofuels or for compensatory forestry undertaken by enterprises as a requirement for the environmental clearance of their projects. Once these common lands are re-forested, they pass out of the control of the local community into the hands of the forest department.

Forest lands are also under pressure from mining interests as a large proportion of the unexploited mineral wealth of India is under forests. The present struggle about the no-go areas for coal mining is a manifestation of this pressure. A different type of pressure comes from bio-conservationists who want to protect areas excluding locals. Even though the forest lands are owned by the government, its freedom to transfer them is limited by the Forest Rights Act that requires the consent of locals who have traditional rights to forest products.

The scope for mala fide transfers of public lands is greatest in urban areas. For a variety of reasons, state governments control large tracts of vacant land in urban areas, including ecologically fragile lands reclaimed from marshes or shallow coastal waters. Large areas of land were acquired and placed in the hands of urban development authorities like the DDA. The central government also is a major urban landlord particularly in metro areas where land costs have gone through the roof. The cantonment areas of the defence services extend to some 1.8 million hectares and the Railways, the Post Office and port trusts also own valuable urban properties.

The large areas of urban land controlled by the state would have helped contain land speculation and promote affordable housing development. But in practice, the urban development authorities operated like land speculators. Their stranglehold on urban land led private property developers to leapfrog beyond urban limits into peri-urban areas thus leading to urban sprawl and thereby imposing huge infrastructure costs on the public sector.

How can one get to grips with the challenge of ensuring honest, transparent and efficient management of the vast tracts of land that are under public control?

As a first step, the government must prepare a complete inventory of the lands under its control and the agency that can decide how this land should be used and that has the power to transfer this land to private parties. An annual audit of land transactions undertaken by these agencies should be mandatory. In urban areas, the probity of the transactions can be assessed by comparing them with similar private transactions.

The management of the urban lands under public control can be vested in a professionally run land management corporation. This corporation can be accountable to the legislature and should observe high standards of transparency. But it must be situated at an arms length from the political executive. These publicly owned urban lands must be subject to the same planning controls as privately owned lands.

Transfers of land at concessionary prices should be avoided altogether and all transactions must take place at market prices. If a particular activity, say a school or a hospital or a cultural centre, provides free or low-cost services to the general public, the cost of acquisition at market prices should be subsidised directly by the government department concerned rather than through discretionary provision of urban land at a concessional price.

The transfer of large tracts of public lands in rural areas to private parties should be done only in exceptional cases. Forests and the so-called wastelands are under public control for ecological rather than commercial reasons. Local communities depend on these lands for many services. Hence the primary control on such transfers has to be the environmental clearance. Since local communities are affected, they must be consulted and their interests protected before any such transfer takes place. The area of land transferred must bear some reasonable relationship with need and that terms of the transfer should be consistent with the best available information on nearby commercial transactions.

Rational management of public land, particularly in urban areas, is absolutely necessary not just to avoid scams but to move towards a more efficient land market. Let us hope that the current turmoil brings us closer to this.

nitin-desai@hotmail.com

http://www.business-standard.com/india/news/nitin-desai-public-land-for-private-ends/425382/

Thursday, June 23, 2011

Views: M J Antony - Undoing fait accompli

Business Standard
M J Antony | 09-02-2011

One stratagem to ward off judicial intervention while bending rules is to confront the courts with a fait accompli. If a multi-storeyed building is raised quietly and swiftly, the authorities and the courts will find it difficult to order its demolition. The illegality is most often compounded with a fine. It is harder to get permission than to obtain a gentleman’s pardon.

Sometimes, the courts do strike back. In a few judgments delivered in recent weeks, the Supreme Court took drastic steps to correct the wrongs. In the case, Krishnadevi vs Bombay Environmental Action Group, the court faced a situation in which a bund was raised obstructing the flow of water threatening to damage the eco-sensitive mangroves in a Mumbai suburban district. The court passed detailed orders to restore status quo ante.

In another case, Jagpal Singh vs State of Punjab, the government regularised possession of common village land by unauthorised occupants. The court reversed it, observing that "we are of the opinion that such blatant illegalities must not be condoned. Even if they have built houses on the land they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularising such illegalities must not be permitted."

The court recalled two of its earlier judgments that restored the damage done by such illegalities. In the case, M I Builders vs Radhey Shyam (1999), the court ordered reconstruction of a park after demolition of a shopping complex constructed at the cost of over Rs 100 crore. In the case, Friends Colony Development Committee vs State of Orissa (2004), the court held that even where the law permits compounding of unsanctioned constructions, such compounding should be only by way of an exception.

There have been several other instances in which the court took a tough stand. It ordered the demolition of a building meant for tourists since it violated environmental laws in the case, Piedade Filomena vs State of Goa (2004). No building was permissible within 200 metres of the high-tide line. The Bombay High Court allowed the writ petitions and ordered the demolition of the construction. The owner appealed to the Supreme Court, which upheld the high court order.

The Supreme Court ordered time-bound demolition of fish tanks illegally set up by encroachers in the Godavari-Krishna river delta in the judgment, T N Godavarman vs Union of India (2006). Encroachers had blocked the free flow of water. Farmers whose lands were ruined by chemicals opposed the building of fish tanks. The Andhra High Court and the Supreme Court ordered protection of the region.

The Jammu and Kashmir High Court, in its judgment, Om Prakash vs Administrator (2001), dealt with unauthorised constructions in Jammu city. A builder raised a five-storey tower despite being told to stop the construction. Later, he was allowed to compound the act. However, the court directed that the building be demolished.

One ingenious argument, put forward very often in such cases, is that others had also built unauthorised structures earlier, and they were allowed to compound, without demolition. The high court said, "Mistakes committed by the authorities are not enforceable in the court to seek parity or similar treatment." The concept of equality is a positive, not a negative, concept. If an illegality is permitted in one instance, others cannot invoke the court's jurisdiction to permit them to commit the same illegality.

Sometimes the passage of time and long-winding litigative process help eclipse the irregularities and make a judicial remedy impractical. Such was the case of Joydeep Mukharjee vs State of West Bengal, decided by the Supreme Court last week. There were strong protests in 1985 against allotment of plots from the discretionary quota of the chief minister. He had allotted 276 plots from his quota of 290, starting a series of litigation in the Calcutta High Court and the Supreme Court.

In the last 25 years, a full-blown township has already come up. Therefore, the Supreme Court administered a coup de grace to the litigation, remarking that there should be some finality to it and dismissed the last remaining petition. The judiciary often faces such dilemma with one horn urging it to compound the illegality and the other urging demolition.

What perpetrates and perpetuates the wrong is the collusion between the authorities and the builders, the helplessness of those affected by the wrongs and the snail-pace of court proceedings. There is an initial fight over an injunction against the illegal act; but once it is over, the matter lies there for years. By then the ground situation changes so much that it is difficult to reverse the state of affairs.

Disclaimer: Any resemblance of the above cases to the the Adarsh Housing Society and Lavasa affairs, in which the Union environment ministry has offered to compound the irregularities, is purely coincidental.


http://www.sify.com/finance/m-j-antony-undoing-fait-accompli-news-analysis-lcjb5racbei.html

Wednesday, June 22, 2011

News Article: SC asks states to evict encroachers from panchayat lands

http://netindian.in/news/2011/02/01/00010601/sc-asks-states-evict-encroachers-panchayat-lands

United News of India
New Delhi, February 1, 2011

Cracking the whip on the criminal-politician-administration nexus and to free the Gram Sabha (GS) and Gram Panchayat (GP) lands from encroachers and land grabbers across the country, the Supreme Court has directed the Chief Secretaries (CS) of all the States and Union Territories (UTs) to prepare comprehensive schemes for eviction of illegal occupants.

A bench comprising Justices Markandey Katju and Gyan Sudha Misra in their 12-page judgement ruled, "Before parting with this case we give directions to all the state governments in the country that they should prepare schemes for eviction of illegal/unauthorised occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat lands and these must be restored to the Sabha/Panchayats for the common use of villagers of the villages."

"For this purpose the CS of all state governments/UTs in India are directed to do the needful, taking the help of other senior officers of the governments," they said.

"The said scheme should provide for the speedy eviction of such illegal occupant after giving him a show-cause notice and a brief hearing," the order said.
"Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularising the illegal postion," it said.

The court said regularisation should only be permitted in exceptional cases, where, for example, lease has been granted under some government notification to landless labourers or members of SCs/STs or where there is already a school, dispensary or other public utility on the land.

The court directed the Court Registry to send the copy of the order to all CS of all states/UTs in India, who will submit compliance report to this court from time to time and ensure strict and prompt compliance of the order.

The apex court dismissed the appeals of Jagpal Singh and others, who had encroached a village pond in Patiala district of Punjab and raised constructions on the encroached land.

The court also held, while fixing May 3 as the next date of hearing for the case, all government orders permitting the Sabha lands to private people and commercial enterprises on payment of some money are illegal and should be ignored.
NNN

News Article: Gram sabha land can’t be given to pvt persons: SC

R Sedhuraman/Legal Correspondent
http://www.tribuneindia.com/2011/20110201/punjab.htm#1

New Delhi, January 31

In a far-reaching order, the Supreme Court today enlarged the scope of a petition filed from Punjab to direct all the state governments to take immediate steps to restore gram sabha land allotted to private persons to the respective village panchayats.

“In many states, orders have been issued by the state governments permitting the allotment of gram sabha land to private persons and commercial enterprises on the payment of some money. In our opinion, all such government orders are illegal and should be ignored,” a Bench comprising Justices Markandey Katju and Gyan Sudha Mishra ruled. All the state governments “should prepare schemes for the eviction of illegal/unauthorised occupants of gram sabha/gram panchayat/poramboke/shamlat land and these must be restored to the gram sabha/gram panchayat for the common use of villagers of the village”.

“For this purpose, the Chief Secretaries of all state governments/UTs are directed to do the needful taking the help of other senior officers of the governments. The said scheme should provide for the speedy eviction of such illegal occupant after giving him a show-cause notice and a brief hearing,” the Bench said.

The apex court clarified that “the long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularising the illegal possession.”

Regularisation should only be permitted in exceptional cases where lease was granted under some government notification to landless labourers or members of the Scheduled Castes/Scheduled Tribes, or where there was already a school, dispensary or other public utility on the land, the Bench ruled.

The Bench passed the order while dismissing an appeal filed by Jagpal Singh and others who had challenged a move to evict them under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961, from a pond in Rohar Jagir village in Patiala taluk as well as district.

“Instead of ordering the eviction of these unauthorised occupants, the Collector, Patiala, surprisingly held that it would not be in the public interest to dispossess them and instead directed the gram panchayat, Rohat, to recover the cost of the land as per the Collector’s rates…Thus, the Collector colluded in regularising this illegality on the ground” that they had spent “huge money on constructing houses on the said land,” the SC observed.

However, the Commissioner set aside the Collector’s order and the occupants came to the SC after losing their case in the High Court. The apex court said though it had dismissed the appeal, this would be listed for hearing time and again to monitor the implementation of its orders to the state governments.

The Bench regretted that in large parts of the country, common village land had been grabbed since Independence by “unscrupulous persons using muscle power, money power or political clout, and in many states now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper.”

Tuesday, June 21, 2011

News Article: Court asks States to restore land meant for common use

http://www.hindu.com/2011/02/04/stories/2011020462440900.htm

Friday, Feb 04, 2011
J. Venkatesan

__________________________________________________________________________________
Allotment of gram sabha land to private persons illegal
Ponds, tanks which served communities for years encroached upon
__________________________________________________________________________________

New Delhi: Taking a serious view of illegal and unauthorised encroachments on government poromboke land, the Supreme Court has directed all the State governments to prepare schemes for eviction of such occupants of gram sabha/panchayat/poromboke/shamlat land and restore them to the gram sabha/panchayat for the common use of villagers.

A Bench of Justices Markandey Katju and Gyan Sudha Misra directed Chief Secretaries to do the needful, with the help of other senior government officials. The Bench said the scheme should provide for the speedy eviction of such illegal occupants, after giving him a show cause notice and a brief hearing.

It said: “Long duration of such illegal occupation or huge expenditure in making constructions thereon, or political connections, must not be treated as a justification for condoning this illegal act or for regularising the illegal possession. Regularisation should only be permitted in exceptional cases, e.g. where lease has been granted under some government notification to landless labourers or members of scheduled castes/scheduled tribes, or where there is already a school, dispensary or other public utility on the land.”

Writing the judgment, Justice Katju said: “We are of the opinion that such kind of blatant illegalities must not be condoned. We cannot allow the common interest of the villagers to suffer merely because the unauthorised occupation has subsisted for many years. In many States, orders have been issued by the State government permitting allotment of gram sabha land to private persons and commercial enterprises on payment of some money. In our opinion, all such government orders are illegal, and should be ignored.”

The Bench said: “What we have witnessed since Independence is that in large parts of the country, this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power systematically encroached upon communal land and put them to uses totally inconsistent with its original character, for personal aggrandisement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas.

“Our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water was also required for cattle to drink and bathe in. Hence they built a pond attached to every village, a tank attached to every temple. These were their traditional rain water harvesting methods, which served them for thousands of years. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country. Also, many ponds are auctioned off at throwaway prices to businessmen for fisheries in collusion with authorities/gram panchayat officials, and even this money collected from these so-called auctions are not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop.”

The Bench was dismissing an appeal filed by Jagpal Singh and others against a judgment of the Punjab and Haryana High Court, rejecting their plea for regularisation of constructions made in a pond.

Friday, June 17, 2011

Claim for Commons: Delhi (Removal of Encroachments in village Kera Kalan, Alipur Block, Delhi )


http://rti.india.gov.in/cic_decisions/CIC_SS_A_2010_000778_M_52228.pdf

Central Information Commission
Room No. 5, Club Building, Near Post Office
Old J.N.U. Campus, New Delhi – 110067
Tel No: 26161997

Case No. CIC/SS/A/2010/000778


Name of Appellant :                                         Sh. Sudhir Singh Rana
(The Appellant was present along with
Sh. V. S. Rana and Sh. Azad Singh)

Name of Respondent :                                     Delhi Police, Outer Dist., Pushpanjali
(Represented by Sh. Rajesh Kumar,
ACP, Sh. Dilip Kumar, Insp. Sh. Madan
Lal, S.I., Sh. Dharmvir Singh and sh.
Rajender Singh, ACP)

The matter was heard on : 2.02.2011


ORDER

Sh. Sudhir Singh Rana, the Appellant, vide application dated 7.06.2010, sought to know the action taken by the Police on references received from the BDO, Alipur Block, Delhi regarding unauthorized construction on Gram Sabha land near Samshan Ghat of Khera Garhi in village Kera Kalan. The BDO had, though the following letter requested the police to stop the construction work and to take action against the encroachers.

S.
No
Particulars
Letter No.
Date

1
Unauthorized Construction upon Gram Sabha land near Samshan Ghat of Khera Garhi in village Khera Kalan.
F.2823(90)/2005/BDO
NW/9596
11.04.2008
2.
Unauthorized Encroachment upon Gram Sabha land bearing Kh. No. 50/17, 50/18 in village Khera Garhi in Khera Kalan near Cremation Ground of Khera Garhi Colony.
23(90)/2009/BDO(NW)
/Part/96869

2.09.2009
3.
Unauthorized Construction upon Gram Sabha land bearing Kh. No. 50/16, 17, 18 and 25 in Khera Garhi Colony near shamshan (Ghat 20point Colony) in village Khera Kalan.
144648

4.01.2010

4.
Unauthorized construction upon Gram Sabha land bearing Kh. No. 50/16, 17, 18 and 25 in Khera Garhi Colony near Shamshan (Ghat 20 points Colony) in village Khera Kalan.
F.23(90)/2005/BDO(N
W)/Part/1730031
24.02.2010

The PIO, replied to the Appellant that the complaints were pending enquiry with the local police, due to the fact that necessary reply / information has not been received from the BDO, Alipur, Delhi to the letter sent by SHO / Samaypur Badli.

Not satisfied with the reply of the PIO, the Appellant filed an appeal before the First Appellate Authority (FAA). Not getting information to his satisfaction even after filling the first appeal, the Appellant has filed the present appeal before the Commission.

During the hearing the Appellant submits that he has been requesting for information with regard to the unauthorized encroachment on Gram Sabha Land in his village Kheda Kalan and action taken by the police in reference to various letters regarding the illegal encroachment of Gram Sabha land sent to the police by the BDO, Alipur. The Respondent, on the other hand, though they admit that several references have been received by them from the BDO, Alipur, Delhi, state that the concerned SHO could not take any action because the BDO, Alipur, Delhi did not provide necessary information like encroachment removal programme, the name and address of the persons who have encroached the Grand Sabha land, measurement of the plot which has been encroached and the area, the time and date on which the Gram Sabha Land was encroached, separate complaint for each plot, ownership of land encroached, etc.

After hearing the parties and on perusal of the relevant documents on file and having regard to the facts and circumstances of the present case, the Commission is surprised at the attitude of the concerned SHO. The Commission finds that the BDO, the concerned officer dealing with the village panchayat land, had informed the police about the illegal encroachment of village land. Instead of seeking details like the name of the encroacher, date on which Gram Sabha Land, encroached property, measurement of plot encroached and separate complaint for encroachment of which plot etc., the SHO, should have effectively coordinated with the concerned BDO and taken action for removing the illegal encroachment from the Gram Sabha Land, as per the law. The Commission observes that the SHO unnecessarily tried to cause delay in the matter.

Though literally the Respondent have tried to show to the Commission that necessary information has been furnished to the Appellant, the Commission cannot lose sight of the basic purpose of the RTI Act, i.e. transparency and accountability in the administration.

Here, the observations of the Hon’ble Supreme Court regarding encroachment on Gram Sabha Land in Sh. Jagpal Singh & Ors. Vs State of Punjab & Ors., Civil Appeal NO. 1132 of 2011 are relevant: 

“Since time immemorial there have been common lands inhering in the village communities in India, variously called gram sabha land, gram panchayat land, (in many North Indian States), shamlat deh (in Punjab etc.), mandaveli and poramboke land (in South India), Kalam, Maidan, etc., depending on the nature of user. These public utility lands in the villages were for centuries used for the common benefit of the villagers of the village such as ponds for various purposes e.g. for their cattle to drink and bathe, for storing their harvested grain, as grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, ramlila, cart stands, water bodies, passages, cremation ground or graveyards, etc. These lands stood vested through local laws in the State, which handed over their management to Gram Sabhas/Gram Panchayats. They were generally treated as inalienable in order that their status as community land be preserved. There were no doubt some exceptions to this rule which permitted the Gram Sabha/Gram Panchayat to lease out some of this land to landless labourers and members of the scheduled castes/tribes, but this was only to be done in exceptional cases.

The protection of commons rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. 

What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and self operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with its original character, for personal aggrandizement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas. This appeal is a glaring example of this lamentable state of affairs.

The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village.

Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.” 

In view of the above the Commission deems it fit to bring the matter to the notice of Ms. Chhaya Sharma, Dy. Commissioner of Police / FAA. She may depute some senior officer to take appropriate action on the several complaints of illegal encroachment on the Gram Sabha Land and provide complete action taken report / enquiry report to the Appellant, within 30 days of receipt of this order.  With these directions the matter is disposed of on the part of the Commission.

(Sushma Singh)
Information Commissioner
4.02.2011
Authenticated true copy

(S. Padmanabha)
Under Secretary & Dy. Registrar

Copy to:
1. Sh. Suidhir Singh Rana
President Yuva Chetna Samaj Sudhar Sangthan
Khera Kalan
Delhi110082

2. Ms. Chhaya Sharma
Dy. Commissioner of Police & FAA
Police Headquarters,
M.S.O. Building,
New Delhi110002

3. The Public Information Officer
Addl. Dy. Commissioner of PoliceI
Outer Dist., Pushpanjali
Road No. 43
Delhi - 34

4. The Appellate Authority
Dy. Commissioner of Police
Outer Dist., Pushpanjali
Road No. 43
Delhi - 34

Thursday, June 16, 2011

Karnataka: Campaign against Lake Privatisation in Bangalore

The submission of wise use practices for the protection, management and rehabilitation of lakes in Karnataka with special emphasis on Bangalore and other urban areas by Leo Saldanha, ESG in Point-8 states -

The Hon'ble Supreme Court has also been watching with anguish the terrible state of affairs in protecting lakes and other public commons across India. The Hon'ble Supreme Court has consistently held that lakes and such other commons must be protected for the benefit of current and future generations, to build water security for all and also in supporting traditional livelihoods and the conservation of biodiversity. To effectively ensure that statutory authorities take their responsibilities with all the seriousness that it deserves, the Hon'ble Court has reaffirmed the importance of being guided with several cardinal principles that have a strong bearing on building ecological security for humanity: the Public Trust Doctrine, the Doctrine of Intergenerational Equity, Polluter Pays Principle and the Precautionary Principle. Relying on these doctrines, the Hon'ble Court in a most recent decision of 28 January 2011 in Jagpal Singh and Ors. vs. State of Punjab and Ors. (Civil Appeal No. 1132/2011 @ SLP © No. 3109/2011, arising out of SLP (Civil) CC No. 19869 of 2010), has laid down fundamentally the interpretation of law and practice with regard to management and conservation of lakes as public commons. Further, considering the task of protecting such water bodies for the benefit of current and future generations, the Hon'ble Supreme Court has directed as follows: 

"Let a copy of this order be sent to all Chief Secretaries of all States and Union Territories in India who will ensure strict and prompt compliance of this order and submit compliance reports to this Court from time to time.” The Court clarifying its intent to ensure no dereliction of its orders has further directed that the matter “...be listed before this Court from time to time (on dates fixed by us), so that we can monitor implementation of our directions herein. List again before us on 3.5.2011 on which date all Chief Secretaries in India will submit their reports.”

This order of the Hon'ble Supreme Court has a direct bearing on the current cause of action relating to developing a management plan for the protection and conservation of lakes in Karnataka, and thus the order is extensively excerpted in the submission.

3 March, 2011 

http://www.esgindia.org/campaigns/lakes/press/campaign-against-lake-privatisation-bang.html

Landmark initiative of Karnataka High Court stops the destruction and degeneration of lakes of Bangalore Over 400 lakes to be immediately protected and rehabilitated in an ecologically wise and socially just manner spread over 1200 sq. kms. of Bangalore urban region


In a landmark ruling today, the Hon'ble High Court of Karnataka accepted the Report of a committee it constituted to examine the ground realities and prepare an Action plan for the preservation of lakes in the city of Bangalore. This report was sought by an interim direction of Chief Justice Mr. J. S. Khehar and Justice A. S. Bopanna of the Principal Bench of the HonĂ¢€™ble High Court on the basis of the Public Interest Litigation filed by Environment Support Group and Leo Saldanha (party in person) (WP No. 817/2008) challenging the privatisation of lakes in Bangalore by Lake Development Authority.

Entitled "Preservation of Lakes in the City of Bangalore", the report was prepared by a committee headed by Hon'ble Shri Justice N. K. Patil, Judge, High Court of Karnatataka and Chairman, Karnataka High Court Legal Services Committee and involved the Chiefs of of Dept. of Revenue, Karnataka State Pollution Control Board, Bangalore Water Supply and Sewerage Board, Karnataka Forest Department, Bangalore Development Authority, Bruhat Bengaluru Mahanagara Palike, Minor Irrigation Department, Lake Development Authority and Dept of Town Planning. The Committee accepted many of the submissions made by ESG and also enlisted petitioner Saldanha and Dr. S. Subramanya, Professor, University of Agricultural Sciences (Blore) in formulating recommendations for ecologically sensitive restoration of the lakes.

The report has been prepared based on a framework that has evolved out of two key prayers in the PIL. One was seeking "necessary directions directing (the Government) to frame a scheme for the effective administration of lakes and tanks in consonance with the Principle of Intergenerational Equity and Public Trust Doctrine, in terms of the recommendations of the Lakshman Rau Committee and also in conformance with principles for wetland conservation and management as laid down by the Union Ministry of Environment and Forests". The Petition also sought "necessary directions (to the State) to ensure that any scheme regarding the preservation and conservation of tanks, lakes and such other water bodies protects free Right of Access to all publics in exercise of traditional and customary rights, and of enjoyment of nature and its resources in a responsible manner".

In the preface to the report, Justice Mr. N. K. Patil records the anguish of the Court over the state of Bangalore's lakes as follows:

Bangalore is on a course of rapid expansion, transforming itself from a metro to a Mega city. During this process, the worst hit (sector) are the lakes of the region, which are put to misuse, threatening the water security, ecology and environment of the region. The estimated population of Bangalore by the year 2020 would be around 120 lakhs (12 million) and it demands a very proactive regulation, planning and execution system in place, to face the challenges of water scarcity and to keep the City habitable.

Honest appraisal exposes precarious state of Bangalore's lakes:
In a rare departure from the past, the 137 page report accounts that the Bangalore region under intense urbanisation (BDA planning area, including BBMP and BMICAPA areas) has about 386 lakes left, and that the status of 121 lakes is unknown. The report also acknowledges that upto 100 lakes have disappeared as they have been converted to various urban uses including bus stations, roads, layouts, garbage dumps, truck stands, etc. Providing an overview of the status of the existing lakes, the report indicates the extent to which they have been encroached, polluted, and protected, and the agency which is the custodian of the lake. Such information is being made available in the public domain for the very first time. Each of the agencies which participated in the preparation of the report has listed out its specific responsibilities in ensuring the lakes are protected as prescribed in the report.

The report observes with concern that "were it not for tanks (lakes) providing water security in an otherwise semi-arid area, it is more than likely that the journey (of Bangalore) towards a successful metropolis would have been truncated centuries ago. The critical importance of tanks to the success of this emerging urban area has been recognised by every ruler from Kempegowda, Hyder Ali, Tipu Sultan and the British as well". It also observes that evidence of such creative crafting of landscape into a water terrain is evident in any toposheet prepared by the Survey of India, with its last most authoritative account of 1972 revealing not one valley or depression being left uncared for; instead they are all sites to harvest rain and runoff, thus significantly enhancing water security and productivity of agriculture and horticulture.".
Comprehensive effort to protect and rehabilitate lakes proposed:
Key recommendations include immediate action to remove encroachments from lake area and also the Raja Kaluves (canals interconnecting lakes). This is sought to be done by conducting a thorough survey of legal limits of all lake and canal areas, and thus protecting the entire watershed. The strategy proposed is "survey, removal of encroachments, fencing, watch and ward, clearing of blocked and encroached raja kaluves and drains, waste-weir repairs, and de-silting to the extent absolutely required". The report recommends that "lake restoration is to be taken up based on lake series/sub-series and not in isolation" and that "lake preservation is not limited to lake area itself, but very much dependant on catchment area and the drains that bring rainwater into the lake". There is significant thrust in the report to ensure that entry of raw sewage into lakes becomes a thing of the past, and to strictly penalise offenders.

One of the key action items is to select lakes that are relatively undisturbed and rehabilitate them into drinking water reservoirs by blocking off sewage entry altogether. Similarly, lakes which has very high biodiversity, especially of migratory waterfowl, will be notified for conservation under the Wetland (Conservation and Management Rules), 2010, per the Environment Protection Act.
Local community involvement promoted in protecting lakes:
Promoting the involvement of local communities in lake preservation and restoration, the report recommends constitution of lake management committees involving local residents and voluntary organisations. Further, the report highlights the need to protect the interest of traditional users of the lakes such as dhobis (washerpeople), fisherpeople, etc.
Legality of Privatisation of Lakes still open to Court review:
The main contention now remaining in the PIL is the validity of the lease agreements entered into by Lake Development Authority to privatise control and management of four lakes in Bangalore: Hebbal lake (Oberoi Hotel group), Nagavara (Lumbini group), Vengaiahkere (Par-C group) and Agara (Biota). Reviewing this pending issue the Hon'ble Court observed that the submission of the report "satisfies all the prayers .. except one pertaining to lease holders who have made construction in the periphery of the lake or are in the process of making such constructions. The limited issue that remains in furtherance of the instant and connected writ petition pertains to rights and obligations of lease holders". Based on this observation the Court granted two weeks time to the lease holders to peruse the report and posted the final hearing on the remaining matter to 7th April 2011.

As a consequence of this unprecedented initiative by the High Court, Karnataka is leading the exercise of conservation of lakes and wetlands in a metropolitan area with the pro-active participation of all connected agencies. This could serve as a model for the country in building water security in a climate challenged scenario, in protecting commons and conserving biodiversity.

Leo F. Saldanha
Coordinator

Sunil Dutt Yadav
Counsel
Environment Suport Group
Environment, Social Justice and Governance Initiatives
1572, 36th Cross, 100 Feet Ring Road
Banashankari II Stage,
Bangalore 560070.
Tel: 91-80-26713559-61
Email: esg@esgindia.org
Web: www.esgindia.org



Wednesday, June 15, 2011

Claim for Commons: Goa-II (COMUNIDADE OF MAPUSA)


Date: February 7, 2011

To,
The Chief Secretary,
Government of Goa,
Secretariat,
Porvorim- GOA.

Sir,

Sub: Supreme Court Judgment - Civil Appeal No. 1132/2011 @ SLP(C)  No. 3109/2011 (Arising out of Special Leave Petition (Civil) CC No. 19869 of 2010)  

Attached herewith, please find the copy of the above Judgment of the Hon. Supreme Court of India with special reference being made to para 23 of the  said Judgment to invite your kind attention to the following for immediate and prompt action:

The case in point is a commercial development taking place at Morod,  Mapusa. The attached 'Property Card' of the Mapusa City (copy) shows that the concerned property under  PT Sheet No. 163; Chalta No. 5/4 has an area of 4100 square meters with the ORIGINAL OWNER being shown as 'COMUNIDADE OF MAPUSA', TENANTED  to Shri. GOVIND RAMA NAIK, and in POSSESSION of Shri. Raojee S. Rane. COMUNIDADES OF GOA were earlier known as 'GAONKARIES' meaning COMMUNITY AS LANDS OWNERS.

The said property is an agricultural field which came into the possession of Shri. Govind Rama Naik as a Tenant under the 'land to the tiller' -  THE GOA AGRICULTURAL TENANCY ACT, 1964 - G D D Act No. 7 of 1964 [16th December, 1964] whereby Shri. Govind Rama Naik was  only authorized to cultivate the agricultural field in his possession as a tenant, not authorized to  transfer the land to any other THIRD PARTY nor have it CONVERTED to any other purpose  other than agriculture. With reference to the Conversions of Agricultural lands, the Hon. Chief Minister has given undertaking in the recently concluded Assembly Session that no such  tenanted agricultural lands shall be converted.

All these things have been done as are apparent through the attached 'property card' as well as the attached photographs where the agricultural field is being developed for commercial purposes by unauthorized person or persons.

Permit me to draw your kind attention to para 14 of the said Judgment where this particular development does not fall in any of the categories mentioned in the said Judgment i.e.  rehabilitation of landless labourers or members of Scheduled Castes/Scheduled Tribes or the land  actually being used for a public purpose. In fact, the collective of Mapusa citizens under the banner of Mapusa Nagrikancho Ekvott [MNE] has objected to the present Mapusa ODP (Outline Development Plan) planning  to commercialize  this surrounding agricultural area and has instead asked for public garden/park to be developed in this area as there is no free space around for the people to relax and unwind and for the children to play.

Kindly, therefore,  not only stop all construction activity in this property,  but also order for the demolition of whatever that has been constructed already, to restore the property back to it's original form and the ownership reverted back to the COMUNIDADE OF MAPUSA, striking off the name of the Tenant Shri. Govind Rama Naik, as a penalty for passing on his ill-gotten rights to the said 'community land'  vide the above mentioned Tenancy Act of 1964, and for un-authorizedly passing this parcel of land to a third party.
Let this set the PRECEDENT  to give teeth to the above Judgment of the Hon. Supreme Court so that all such already converted and developed agricultural lands  belonging to the Comunidades of Goa are restored back to the original form. Reference is made to para 14 of the said Judgment.

In anticipation of your speedy and just action,

I remain,
Yours faithfully,
FLORIANO C. LOBO
383A  Pirazona Moira Bardez Goa - 403 507 -  Phone: (0832) 2470223  (M) 9890470896

Attached:  
Copy: Supreme Court Order dated 28 Jan., 2011
Copy:  Property Card
Copy:  Survey Plan
Copy: Colour  Photographs x 4    
Copy: To the Registrar, High Court of Bombay at Panjim-GOA, for kind information. 

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