Change for the worse?

Environmentalists in Kerala are up in arms against amendments to an Act that envisaged protection of paddy land and wetlands, but the LDF government claims that the changes only provide clarity to the Act and there has been no dilution of it.

Huge concrete structures are coming up in Kozhikode even as the low-lying area and wetlands are being illegally filled by real estate lobbies despite resistance from environmentalists. Debris of buildings and waste materials are dumped into a section of the wetlands adjacent to the city.

One of the most stringent environmental protection laws introduced in recent decades in Kerala has been the Kerala Conservation of Paddy Land and Wetland Act, 2008, drafted by the then Left Democratic Front (LDF) government.

The law, brought forth during the chief ministership of V.S. Achuthanandan, a leader with a long record of environmental activism, was chiefly aimed at curbing the indiscriminate and uncontrolled reclamation of wetlands and the alarming conversion of paddy fields that were taking place in the State.

But now, amendments to this very law, introduced on June 25 by another LDF government, have led to widespread concern about their potential for misuse and that they may actually start yet another phase of unbridled reclamation and conversion of the scarce paddy land and wetland resources in the State, leading to irreversible environmental damage.

In Kerala, which has a total geographical area of 38.86 lakh hectares and a very high population density, land for development has been at a premium, especially after the trend of migration for employment to West Asian nations began in the mid 1970s and NRI (non-resident Indian) remittances began to play a significant role in the State’s economic development.

Fall in paddy cultivation

Year after year, Kerala was witness to a drastic reduction in the area under food crops, especially rice, the staple food of the people. People began to lose interest in paddy cultivation and shifted to cash crops or preferred to develop their land as real estate. The State’s development needs also began to increase and demand for land for non-agricultural and commercial needs soared.

As a result, the area under paddy cultivation, which was around 8.8 lakh hectares in 1970-71, went down to 5.6 lakh hectares in 1990-91. It fell further to 3.2 lakh hectares in 2001-02 and to 2.3 lakh hectares in 2007-08. As paddy cultivation became unremunerative, the trend of leaving the land fallow or converting it into dry land too began. According to the State Planning Board, the area under paddy was a mere 1.96 lakh hectares in 2015-16 and 1.71 lakh hectares 2016-17.

The most visible impact has been in the decline in rice production—from 12.9 lakh tonnes in the 1980s to 4.37 lakh tonnes in 2016-17. But the environmental damage caused by the destruction of paddy fields and wetlands has been huge, as the conversion and reclamation of paddy fields and wetlands impacts groundwater recharge and flood and erosion control and damages delicate ecosystems and habitats of a variety of birds, fishes and other organisms. The signs were everywhere: for example, hills were being destroyed and used to reclaim vast tracts of wetlands and paddy fields for residential and commercial development.

It was in that context that the 2008 Act was introduced by the Achuthanandan government. Among other things, the new law prohibited all conversion or reclamation of paddy land except under its strict provisions.

The remaining wetlands in the State were to be maintained as such, and a total prohibition on the reclamation of such wetland or removal of sand from them was introduced.

Paddy land could be still be reclaimed but only for a “public purpose” or for the construction of a house for the owner of the land, and that too only on the recommendation of local-level monitoring committees in that particular panchayat or municipality. This local committee included nominated representatives of local farmers, chairpersons of local bodies and agricultural and village officials.

Not more than 10 cents of land (one cent is 0.004 hectare) in panchayats and five cents in municipality/corporation areas could be reclaimed for building houses. “Public purpose” for which reclamation was allowed included only “schemes undertaken or financed by Centre/State governments, government including local self-government institutions, statutory bodies and schemes otherwise specified by the government”.

Recommendations made by local monitoring committees for reclaiming paddy land for building houses needed further approval from district committees appointed by District Collectors. These district committees too had representatives of farmers and district officials on it. If the reclamation was for a public purpose, the applications recommended by the local committees had to be scrutinised by a State-level committee consisting of the Agricultural Production Commissioner, the Commissioner for Land Revenue, an environmental expert and an agricultural scientist.

The State committee could recommend to the government reclamation of paddy land for public purposes based on a local committee’s recommendation, but only after ensuring that no land other than that paddy land was available in that area and examining the ecological changes that may result because of the reclamation of a particular stretch of paddy land.

Role of local committees

Another important facet of the 2008 Act was the provision in it preventing paddy land from being left uncultivated or fallow by their owners, with the district committees being given the power to direct the owners to cultivate it or entrust the cultivation to the respective panchayat for a period, based on a specified agreement.

The local-level monitoring committees were also expected to monitor and report violations of the provisions of the Act and intervene and prevent such violations from taking place. They were also entrusted with the task of preparing a databank with the help of maps from authorised agencies and satellite imagery, giving details, including survey numbers and extent of the cultivable paddy land and wetland within their respective area of jurisdiction, and get them notified by the respective local body.

They were also tasked with finding out details of land reclaimed in contravention of any law before the commencement of the 2008 Act and report it to the district administration.

Widespread conversions

Until the the Achutanandan government introduced the Act, it was quite easy for anybody to reclaim or convert paddy land and wetlands and, after a while, get such conversions regularised by corrupt officials. Throughout the 1990s, Kerala also saw the unbridled growth of its real estate sector, which increased the demand for cheaper land manifold. The easiest solution was the conversion of paddy fields and wetlands. The trend of buying paddy lands and wetlands cheap and converting them into high-value real estate caught on and became a surefire way of boosting profits in the name of development.

Many saw the conversion of such land for cultivating other crops or for other development purposes as a progressive idea. There was hardly any awareness about the impact of such large-scale land conversions on the environment or its implications for the State’s food security.

It is crucial for Kerala’s survival that the State protects its remaining paddy land (which is just a tenth of what it was at the time of Independence). The 2008 Act was thus an important step and was widely welcomed, especially by environmentalists. But those who had bought paddy land and wetlands for making easy profits suddenly found themselves in a crisis as there were several agitations across the State demanding reconversion of converted paddy fields and wetlands to their original state.

The new law also caused some genuine problems. It became extremely difficult for governments to take over any land, even for what appeared to be essential developmental needs. A prominent example was the objections raised by local-level monitoring committees in several places against the laying of gas pipelines as part of a GAIL project linking Kochi to parts of Tamil Nadu through paddy fields in their area.

Similarly, even the stretches of paddy land where cultivation was no longer possible could not be legally used for any other purpose. In urban areas of the State, where land is at a premium, the common grievance was that even essential development activities were being hindered.

Simultaneously, there were persistent attempts by vested interests to undermine the provisions of the law or to scuttle it altogether. In 2015, the Congress-led United Democratic Front (UDF) government introduced a key amendment to this law—indirectly through a provision in the Kerala Finance Act, 2015—which allowed regularisation of conversion or reclamation made before the commencement of the 2008 Act if the owner paid a fee “equal to 25 per cent of the fair value of the land”.

The amendment was brought forth as a revenue-generating measure in the Finance Act, but it led to widespread criticism in the State because it allowed the regularisation of large-scale conversion of paddy fields and wetlands by the real estate lobby.

It was also criticised as a measure that would allow regularisation of wetland whose fair value was very low—and the revenue that would accrue to the State would also be low—but whose market value would appreciate manifold as a result of reclamation or conversion.

Moreover, although the 2008 Act had aimed at the creation of an authentic databank of paddy fields and wetlands by the local-level monitoring committees, the government as yet has no authentic data on such land in the State.

The amendments (Section 3A) brought in through the Finance Act could, therefore, also lead to large-scale misuse so that even recent reclamations could, in the absence of a databank, be portrayed as land converted before the commencement of the Act and thus become a gold mine for land grabbers.

The present LDF government decided to omit Section 3A introduced by the UDF . It came to power on the election promise of (a) implementing the 2008 Act in letter and spirit; (b) reviewing all anti-environment orders of the UDF government; (c) publishing databanks as required in the 2008 Act within six months; (d) taking strict action against all attempts to dilute the provisions of the Act; and (e) preventing violation of the land reforms Act through benami transactions.

Curiously, today the same government finds itself in the dock for introducing a series of amendments to the principal Act of 2008 through the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, which was passed by the State Assembly on June 25.

In contrast to the principal Act, it has severely limited the role of the local-level monitoring committees. The amended Act, for instance, omits the provision that the local committees should take stock and report to the RDO (Revenue Divisional Officer) all land reclamations in a locality in contravention of any law before the 2008 Act came into force.

The new Act has withdrawn the specification in the 2008 Act that the government could allow reclamation for a public purpose only if the local committee recommended it and only with the State-level committee’s report that no alternative land was available and that it would not affect the ecological conditions in that area.

Instead, it merely says that the government may grant such exemption “after considering the report of the State-level Committee, if in its opinion such conversion or reclamation will not adversely affect the cultivation of paddy in the adjoining paddy lands, if any, and free flow of water thereto”.

It also allows the government to call for a report from “any such authority as may be specified” if the report of the State-level committees is not received within the specified time, and rely on such a fresh report for granting or denying such exemption.

The amended Act describes a new category of land, different from paddy land and wetlands, called “unnotified land”. It is defined as “land within the jurisdiction of a local-level committee which have been included as paddy land/wetland in the basic tax register maintained in village offices, but are not notified as paddy land or wetland under the Act of 2008”.

However, the extent of such “unnotified land”, or details of the cultivable paddy land or wetland for that manner, is unknown now as the proposed preparation of the databank with such details and their notification by the local bodies as required in the Act is nowhere near completion.

But the amended Act goes on to say that if the owner of such unnotified land wishes to “utilise such land for residential or commercial or for any other purpose”, he needs only the RDO’s sanction and can effect changes in the revenue records on payment of a fee amounting to 50 per cent of the fair value of such land.

Thus, an official, and not the local committees, is empowered to sanction such reclassification in the official records. The only condition is that there should be no disruption to the free flow of water to neighbouring paddy lands and that if the extent of such land is beyond a certain area, sufficient water conservancy measures will have to be undertaken there by the owner.

Also, according to the amended Act, no permission is required at all in the case of construction of residential buildings with a maximum area of 120 square metres situated in a maximum extent of 4.04 ares (about 10 cents) of land or for a commercial building having a maximum area of 40 square metres situated in a maximum extent of 2.02 ares (about five cents) of land.

Wherever conversion of unnotified land is sought for “any public purpose”, the government can issue permission on its own, on the basis of RDO’s report outlining the measures to be adopted to ensure that the reclamation does not disrupt the free flow of water to neighbouring paddy land, if any, and after sufficient water conservancy measures are undertaken.

These provisions have given rise to the concern that large extents of remaining paddy land, which are as yet not included in the databanks and remain unnotified in the gazette, could also be easily converted under Section 27A of the amended Act on payment of a fee.

Moreover, the new Act allows conversion for a “public purpose” but modifies the definition of “public purpose” to include “other schemes and projects as may be specified by the government, from time to time”.

Given the experience in Kerala, this may be construed to mean even private projects such as shopping malls if a government, if not now but at a later stage, categorises them as needed for a “public purpose”.

In sum, the concern is that the power earlier vested in local-level committees to recommend reclamation of paddy land or wetland for a public purpose or for construction of houses, has been, in the case of unnotified land, transferred to RDOs “to issue orders for their utilisation for residential or commercial or for other purpose”, which is a major dilution. People who have a grievance against the RDO’s orders are allowed to appeal to the District Collector but only on payment of an appeal fee of Rs.5,000.

There was high drama in the State Assembly when the controversial Amendment Bill was passed on June 25, during which opposition members described it as a “black law” and tore copies of the Bill and walked out at the end of a seven-hour-long session. They held out notices asking “Plunder for whose benefit?” and alleged huge corruption behind the introduction of the Bill.

Differences within the ruling Front, between the Communist Party of India (M) and the Communist Party of India, whose leader, Revenue Minister E. Chandrasekharan, piloted the Bill, were also much in the open, with several CPI members initially moving amendments seeking to confine “public purpose” to mean government projects alone.

However, eventually they too voted in favour of the Bill being passed without their key amendments, with the opposition supporting their proposals and seeking a vote on them.

Government assurances

Chandrasekharan told the Assembly that the amendments were being introduced without any dilution of the original purpose of the 2008 Act but only with a view to bringing in more clarity and as a solution to several genuine problems that arose in the State in the wake of that Act.

Chief Minister Pinarayi Vijayan said the government would allow the conversion of paddy fields only for genuine projects approved by it. As an example, he referred to the case of an industrial project by the Taurus group inside Technopark in Thiruvananthapuram, the MoU for which was signed by the previous UDF government in 2013.

The proposal was stuck in legal hurdles linked to the 21 acres sanctioned inside Technopark for it five years ago, as the land included 14 cents that continued to be described in the databank as “paddy land” even though it had not been cultivated since the 1980s.

The Chief Minister said the land could finally be transferred to the industrial group only after the amendments included in the current Bill were brought in through an ordinance issued by the LDF government in 2017. But for these amendments introduced through the ordinance, Kerala would have lost a project that provided employment to 15,000 people, he added.

Despite such assurances, and claims that the new changes actually strengthen the original Act, there remains widespread concern that the new Act and many of its vague provisions leave the door open for misuse and easy, large-scale conversion of the remaining paddy land and wetlands in the State.

The absence of a databank, the fact that large tracts now described as unnotified land are actually paddy lands or wetlands in village records, the lack of a clear definition of the term “public purpose” for which conversions are allowed, the dilution of the role of local-level committees and experts and scientists in the State-level committee, and the importance given to the decisions of individual officials such as RDOs in making changes regarding the status of land in the records do not augur well for the State, according to environmentalists and opposition UDF leaders.