The Kerala statute for conservation of paddy land and wetland is rich in its environmental wisdom and comprehensive in content. It came into force on August 12, 2008.
It is a two-in-one piece of legislation meant for food security and conservation of habitats. In the statement of objects, the statute says about the drastic decline of area of paddy cultivation from eight lakh hectors in 1970s to approximately two lakh in 2000.
Also it defines paddy land by way of Section 2(xii), as not only one where paddy is cultivated but also inclusive of the land suitable for cultivation. Section 3 of the enactment creates a prohibition against conversion and reclamation of paddy land.
As regarding the wetlands there is total prohibition against conversion vide Section 11. Any conversion in violation of the Act would invite penal consequences under Section 23 of the Act. Imprisonment up to two years and fine up to Rs 1 lakh is provided.
However, it is fallacious to think that unauthorized conversion of paddy land became illegal only with the advent of this enactment. Even before the statute of 2008, the Land Utilization Order ‘governed the field’. It is subordinate legislation based on Section 3 of the Essential Commodities Act, 1955.
It was meant for preservation of lands growing paddy or other specified crops. Section 3 of the order vested power on the Government to require holder of the land to grant specified crops including paddy. Section 6 of the Land Utilization Order says that the ‘land cultivated with any food crop should not be cultivated with any other food crop.
The Kerala High Court has repeatedly held that despite the promulgation of the statute in 2008, the Land Utilization Order, 1967 survives. Therefore, it follows that an unlawful act of conversion viewed in the light of the Land Utilization Order would remain so even after the advent of the statute.
A reclamation which is sought to be prohibited by the Act cannot be legalized or legitimized by way of a cabinet decision or executive order for two reasons. One is that an unlawful act as per the provision of subordinate legislation cannot be legalized by relaxing the provisions of subsequent legislation which is more stringent.
Secondly, at the time when the government takes a decision to regularize, it is the statute that governs the field and therefore without following the requirements of the statute including clearance from the monitoring committees, even the cabinet cannot take a different decision.
The mischief of the cabinet decision is that it tries to legitimize hundreds of unlawful reclamations that occurred prior to 2005 by taking them away from the purview of the Act of 2008 as well as the Land Utilization Order, 1967.
Kerala High Court has taken a rather consistent view that orders issued as per the provisions of the Land Utilization Order are not affected by the statute of 2008. (See for example, Kaipadath Property Development Company v State of Kerala 2011(1) Kerala High Court Cases 291). Thus directions issued under the Land Utilization Order are still operative, ruled the High Court. The cabinet decision does violence to these rulings.
The High Court has held that when an application claiming exemption on the ground that the land was lying without agricultural operation for more than 20 years, an enquiry regarding the nature of land under the Act No.28 of 2008 should be conducted.
If the lands are paddy lands, the statute would operate and if not, the Land Utilization Order should be resorted to. In that case the provisions of the Land Utilization Order should be “implemented with seriousness” - held the High Court (See, Jayakrishnan v. District Collector 2008(4) Kerala High Court Cases 514).
The cabinet decision would definitely set out a wrong precedent. It would also convey a wrong message that unlawful activities may get legitimized by subsequent executive decisions, prompting further violations.
Likewise, even the subsequent violations, including those after the promulgation of the Act in 2008 would be pictured as previous violations by the wrongdoers in a clandestine manner in order to get them regularized. It will also lead to resultant corruption and malpractice.
Thus, the cabinet decision is antithetical to the rule of law in the context of environmental protection and paddy conservation.
The failures in proper implementation of the Act should have motivated the Government to improve the operational devices rather than attempting to nullify the radical environmental legislation.
What is required is not a further ordinance, but strict adherence and implementation of the existing statute.
(The writer is a lawyer. The views in the article are the author’s own).