1. BRIEF INTRODUCTION
The focal
theme of the conference is "Modern Cartography for Ocean and Land
Management".
The subject is as vast as an Ocean. The theme, however,
is not confined to the Ocean but is inclusive of land management. It
will, therefore, be necessary to deal with aspects of land management to
a limited extent. It may, therefore, reasonable to assume that Land Ocean
Interactions are required also to be kept in view, while dealing with the
land management.
In this regard statistic data furnished by Richard F.
Burns, Associate Editor of periodical "Sea Technology" (June
1997 issue, page 27), under the title "Global Coastal Zone" and
sub-title "Land-Ocean Interactions in Coastal Zone (LOICZ) - Project
of International Geosphere - Biosphere Program
(IGBP) Outlined" may be worth being noticed.
At the
forefront he comments:
"The overall aim of LOICZ Land-Ocean Interactions in
Coastal Zone is "to describe and understand the interactive
physical, chemical, and biological processes that regulate the total
Earth system, the unique environment that provides for life, the changes
that are occurring in the system, and the manner in which they are
influenced by human actions". LOICZ contributes to that ambitious
goal by focusing on one of the most complex and dynamic of the global
environmental components - the interface where land, ocean and atmosphere
meet and interact."
He further
adds :
"The world coastal zone is a ribbon that is
heterogeneous in composition, some 600,000 kilometers long, with a width
varying irregularly between hundreds of meters and a thousand kilometers,
wrapped in a convoluted fashion around the Earth through its varied
climatic, biotic, and geological environments."
The relevant
statistical data, supplied by him read thus:
"The
coastal domain (sea level + 200 meters) is :
* 18 percent
of the Earth's surface.
* Accounts for about one-forth of the global primary productivity.
* Is where about 60 percent of the human population lives.
* Has two thirds of the world's cities with greater than 1.6 million
people.
* Supplies about 90 percent of the world's fish catch."
The belt covered in the same article is 200 meters on the land and 200
meters in the sea. The subject, therefore, is of great magnitude and wide
ramifications.
While dealing with Law of the Sea, 4 distinct zones are
required to be considered : a) Territorial
Waters Zone, b) Contiguous Zone and c) Exclusive Economic Zone. d)
Continental Shelf.
After Geneva convention on territorial sea and contiguous
Zone (1958), these 4 zones find clear recognition in our statutory
enactment, Territorial waters, Continental Shelf, Exclusive Economic Zone
and other marine zones Act 1976. The importance of these zones is also
relevant in connection with 2 more Acts of the Parliament namely the
Marine Products Export Development Authority Act, 1972 and the maritime
zones of India
(Regulation of Fishing by Foreign vessels) Act 1987.
They have to be distinctly marked as the United Nations
of Law of Sea requires all signatory nations to chart and map all of
their coastal and offshore regions (Exclusive Economic Zone). There is
also similar mandate in section 10 of 1976 Act Starting point for the
demarcation of those zones is the appropriate base line-Low Tide Line
(LTL), as defined in the Convention 1976 Act and fixed by the Government.
With the advent of Environmental Protection Act 1986, and
1991 notification issued thereunder a new Zone
came into being that is known as "Coastal Zone" covering many
meters of stretch of land and for the purpose, demarcation of the High
Tide Line (HTL) became pre-eminent.
For the purposes and turning now to the law of land
coastal stretch of 500 meters landward side requires to be demarcated as
per Coastal Regulation Zone (CRZ). Starting point for such demarcation
will be the High Tide Line (HTL). The strip remaining in between LTL and
HTL is also part of Coastal Zone Regulation. The latter strip in common
parlance is called shore and beach where such feature is found, and more
prone to geomorphological changes, gets
impliedly demarcated.
Within 500 mtrs stretch there
are two sub zones to be demarcated, 200 mtrs
from HTL known as "No Development Zone (NOC)" beyond and
adjacent to their 300 mtrs, called prohibited
and regulated development zone. Hence need to provide for consequential
land management for sustainable development.
In the guidelines issued under CRZ 1991 to mark the High
Tide Line, there is an attempt to mark one more zone, i.e. no development
zone of 100 meters alongside the bank of river, even beyond 500 meters
belt, wherever tidal influence is felt. Such a new zone had no legal
backing. Much to the contrary it is in conflict with clause of CRZ.
The coastal zone regulation was issued with intent to
preserve the ecology in the coastal and maintain the ecological balance.
While permitting, therefore, the sustainable development in that zone,
several aspects of environmental laws have to be gone into always
maintaining the balance i.e. economic progress should not be halted but without
causing destruction to the ecological assets.
For that
purpose, the geographic and geomorphological
study of the region of the topography of the site, and proper survey of
the site is absolutely necessary.
Mere survey and mapping may not serve useful purpose, as
far as land is concerned, unless it is a cadastral survey with cadastral
map, which implies definition of the title to the land.
While making this presentation, it will not be possible
for me to confine only to the State of Goa. My
endeavor will be to present the subject for its general application. All
the same, it will not be possible for me to ignore totally the facets of
legislation which our State has inherited from erstwhile regime. In this
regard, comparative study of the erstwhile Portuguese Law and Indian Laws
has been made.
The old methods of ground survey with triangulation,
based on trigonometry and always measuring all 3 angles should never be
ignored. Use of aerial photography whenever cost
permits, with use of rectifier on account of overlapping of the pictures,
is one of the necessity. But always it should be remembered that a
map is much better than a photograph in as much as the use of
conventional signs and contour lines, the map can furnish datas with much clarity and simplicity than in
photograph.
Assistance from satellites imageries obtained from global
position system can be made use of in order to improve the efficiency of
the sources.
The computerisation which has
made progress now a days can certainly be used
for collection of data and preparation of registers with back up systems.
Hard copy and digital maps certainly can be made use of, but with note of
caution that even in the preparation of map, the basic principles of cartography
must always be kept in mind.
When during the childhood we were learning mathematic
calculations, i.e. use of tables, by heart, the new generation goes in
search of a calculator to make such operations. Recently I was sitting
with a architect. There was
almost 10 figures, some in thousands and others in hundreds. I wanted
quickly the total of the same. The architect could not give me the same,
as he had not brought his calculator. Not because he had not learnt the
mathematical operations, but he had lost the practice. While he was
frantically searching for the calculator, I did the sum using the manual
and the old method. Such a stage should never be allowed to reach.
I remember having read recently in one of the periodicals
that in some country abroad, one person received a
Electricity bill of $0.0000/-. The consumer laughed at it and threw it in
the basket. After few days fresh notice was received with a warning that
if the bill of $0.0000 is not paid the meter is liable to be
disconnected. This time the consumer did not laugh, but issued a cheque of 0.0000. The meter was not disconnected and
he continued to receive a regular supply as before. It was finally found
that it was a computer error.
Ultimately, the human being must always be in control of
machine and not be permitted to be controlled by the machine.
2. CARTOGRAPHY
2.1 Cartography is a science, technology or art of
drawing or compiling, maps or charts. Indeed the cartography comes from latin word "Charta" and greek
"Chart". It is, therefore, necessary to know what the chart
means. The word chart has different meanings. With reference to sea, it
means a map for the use of navigation, a delineation of portion of sea
indication outline, position and rocks, sand banks, channels, anchorages,
etc. One of the purposes of the cartography is to detect and indicate the
possible hazards to the navigation.
2.2 In wider sense it applies also the mapping of the
land. The Cartography implies study of Geography, collection of datas from the site through survey and finally
drawing the map. Topography at the site, study of the geology to know
geological features of a place cannot be lost sight of. While doing so
and particularly dealing with coastal zone, the branch of geology that is
connected with the structure, origin, and development of the
topographical features of earth's crust or surface have to be kept in
view. It is called geomorphology. Indeed the sea coast is more prone to
waves' action. A beach is said to be one of the most land form which is subject
to geomorphological process. In the rocks the
effect may be seen after long duration, but in a case of beach, if not
proper safeguards are taken there may be beach on one day and it may go
next day. These effects are noticed when the sea coast is fragile. Study
of geomorphology of the coast is therefore of paramount importance for
the purpose of land management and sustainable development.
2.3 Reference to survey therefore is indispensable. The
old method of based on triangulation, though lengthy in duration, could
be made use of, to have all particulars and details on accurate basis.
Mere collection of datas from the site after
the proper survey, is not enough. The proper
presentation by way of map is of cardinal importance. Only then reader
can know what features are found at the site. The preparation of map
alone by itself is not enough. Intimately, connected is the preservation
of the map which implies the use of the appropriate paper on which the
map is prepared and steps to be taken to preserve those maps.
2.4 Due to the new devices with the presence of
satellite, the efficiency is increased, though many a times the coast is
prohibitive. There is a new method of Global Positioning System (GPS)
receivers which help to prepare the survey with more accuracy and with
sophisticated instruments. From there one gets the satellite imageries.
But when the land is hilly with forest and there are urban center with
high rise building the system may not be so effective.
2.5 The aerial photography facilitates the job, when the
land is plain. Wherever the terrain is hilly, the accuracy through aerial
photography is not guaranteed. Besides in Photogrammetry
suitable overlapping aerial photography is necessary.
2.6 From our Indian States, States of Madhya Pradesh
started Cadastral Survey through Photogrammetry
using a rectifier. This was done few years back. In Madhya Pradesh such a
task was easier, because the land was plain but this method cannot be
adopted where the slope is excessive. Presently, the use of satellite
imagery is used in Goa
for the classification of forests for the purposes of Forest Conservation
Act, 1980.
2.7 As a
rule, for the purposes of cadastral survey planimetric
maps are used, which do not indicate the topographic reliefs.
But for the purposes of Coastal Zone Regulation, the topographical
features are required to be depicted.
2.8 But whatever may be the advancement made, a map is
much better that photograph, provided, the cartographer uses his art and
ability to make proper use of conventional signs, showing the
topographical features, contour lines and other features like
distribution of rain fall, geological foundation temperature depth and so
on.
2.9 The conference will be useful for geographers and
cartographers. But considering the present day circumstances the use can
be made for different purposes by the foresters for the purpose of Forest
Conservation Act 1980, by the geologists for mining purpose by the
planners for the development purpose and the environmental scientist for
the purpose of environmental laws. Moreover different activities of the
Government depend always on accurate and detailed mapping and knowledge
of the accurate wealth and resources.
3. LAW OF SEA
3.1 It is not possible to conceive the cartography in its
original sense without ocean. The study of the Law of Sea therefore is
imperative. This study can be primarily made based on Geneva convention
on territorial Sea and contiguous zone of 1958.
3.2 Different zones envisaged in the same Convention get
recognition in the statutory enactment passed by the Parliament known as
TERRITORIAL WATERS, CONTINENTAL SHELF, EXCLUSIVE ECONOMIC ZONE and OTHER
MARITIME ZONES 1976. Immediately thereafter Maritime zones of Indian
(Regulation of Fishing by Foreign Vessels) Act 1981 was enacted and
before that one more Act relevant to the subject was promulgated, namely
Marine Products Export Development Authority Act, 1972.
3.3 Prior to Geneva convention 1958 the territorial
waters till March 1956 and before that one more Act relevant to the
subject was promulgated, namely marine Products export Development
Authority Act, 1972 were extending upto 3
nautical miles, which limits was subsequently extended to 6 nautical
miles measured from the appropriate base line. As per 1976 Act they now
extend up to 12 nautical miles.
3.4 On internal waters of the rivers, channels, and all
inland waters it is the state which exercises its sovereignty. Similarly
the State exercises sovereignty on territorial waters also.
3.5 Reference to "Indian customs waters" is
found in Section 2 (28) of the Customs Act 1962. It defines "Indian
Customs waters" as:
"The waters extending into the sea
to a distance of 12 nautical miles measured from the appropriate base
line on the coast of India
and includes any bays, gulf, harbour,
creek or tidal river".
(see also definition on "Indian Customs
waters" in section 3 (gg) introduced into
"Sea Customs Act 1878" in the year 1956 by Act of 10 of 1956.
3.6 As per 1976 Act there are distinctly 4 zones : 1) territorial waters; 2) contiguous zone; 3)
exclusive economic zone, 4) Continental Shelf of India.
As per 1976 Act, the limit of the territorial waters is
12 nautical miles from the nearest point of the appropriate base line,
contiguous zone of India is an area beyond and adjacent to the
territorial waters and the limits of contiguous zone lies at a distance
of 24 nautical miles from nearest point of the appropriate base line and
EXCLUSIVE ECONOMIC ZONE is an area beyond and adjacent to territorial
waters and the limits of such zone is 200 nautical miles from the base
line.
3.7 The starting point of all these zones envisaged in
1976 Act is from the nearest point of "appropriate base line".
The "base line" is defined in section 2 of the Geneval Convention of territorial sea and contiguous
zone 1958. As per the convention the normal base line for measuring the
limits of the territorial waters is the low water line along the coast as
marked on large scale chart officially recognised
by the coastal state.
The continental shelf of India comprises seabed and
subsoil of the sub marine areas that extend beyond the limit of its
territorial waters through the natural promulgation of its land territory
to the outer edge of continental margin or to a distance of 200 nautical
miles from the appropriate base line where the outer edge of the
continental margin does not extend up to that distance.
3.8 Relevancy to those zones lie in the fact that 1976
Act was passed pursuant to amendment introduced in art. 297 by 1976 amendment
of the constitution.
Art 297
reads :
"Things of value within territorial waters or
continental shelf and resources of the exclusive economic zone to vest in
the union :
(1) All lands, minerals and other things of value
underlying the ocean within the territorial waters, or the continental
shelf, or the exclusive zone, of India
shall vest in the Union and be held for the purpose of the Union.
(2) All other resources of the exclusive economic zone of
India shall also vest in the Union and be held for the purpose of the Union.
(3) The limits of the territorial waters, the continental
shelf, the exclusive economic zone, and other maritime zones, of India
shall be such as may be specified, from time to time, by or under any law
made by Parliament.
As the preamble to 1976 reads this is first comprehensive
legislation on the law of sea which India has, the 1976 Act was passed to
safeguard the interests of the nation, to provide for a general legal
framework specifying the nature scope and extent of India's rights,
jurisdiction and control in relation to various maritime zones, the
maritime boundaries between India and other states whose coasts are
opposite or adjacent to those of India, and for the exploration and
protection of the resources of our continental shelf and exclusive
economic zone.
3.9 Dealing with continental shelf, it is pertinent to
note that besides India
having in generality exclusive sovereign rights in respect of continental
shelf, it has over the continental shelf :
a) Sovereign rights for the purposes of explorations,
exploitation, conservation and management of all resources.
b) Exclusive rights and jurisdiction for the maintenance
or operation of artificial islands, off-shore terminals, installation and
other structures and devices necessary for the exploration and
exploitation of the resources of the continental shelf or the convenience
of shipping or for any purpose.
c) Exclusive jurisdiction to authorise,
regulate and control scientific research, and
d) Exclusive jurisdiction to preserve and protect the
marine environment and to prevent and control marine pollution.
The maritime boundaries between Indian and states having
coasts opposite or adjacent to those of India, are to be fixed as per agreement (section 9).
3.10 Relevance of all these zones therefore, cannot be
underestimated. The role of modern cartography for oceans thus is attains
great significance. It is of utmost necessity that all these zones are
distinctly indicated on all cartographic maps. This is required, not only
because the United Nations Law of Sea stipulates that all nations which
are signatories thereto shall chart and map all their coastal and
offshore regions (Exclusive Economic Zones) but, also because Section 10
of the 1976 Act provides that the Central Government may cause to be
published the limits of all these zones in the charts mapped.
4. LAW OF ENVIRONMENT
4.1 In the Constitution of India, the environmental
aspect was brought in for the first time by introducing Article 15A to
include fundamental duties. Clause (g) of Article 51A in that regard is
material. Article 51A (g) :
"To protect and improve the natural environment including forests,
lakes, rivers and wild life, and to have compassion for living
creatures".
4.2 India
participated in the International Conference at Stockholm in 1970. Whenever there is an
international conference and decisions arrived at, it is permissible to
the Parliament to enact a legislation to implement a decision arrived at
the conference. Article 253 of the Constitution is clear to that effect
and the legislative entry in List I Clause (13) corroborates this.
It is in pursuance of the same international for the
first time, the Forest Conservation Act, 1980 was passed, and immediately
thereafter the Air (Prevention and Control of Pollution) Act 1981. After
some years Environment Protection Act, 1986 was passed. This position has
been noticed by the Supreme Court in the case of S. Jaganath v. Union of India 1997 (2) SCC,
87. But Water (Prevention and Control of Pollution) Act 1974 stands on
different footing. In that case, Parliament had to get concurrence from
other States.
The
Environment had been defined in Environment Protection Act, 1986. thus :
Sec.2(a). "Environment
includes water, air and land and the inter-relationship which exists,
among and between water, air and land and human beings, other living
creatures, plants, micro-organisms and property."
Therefore
the impact of the Environment in the coastal Zone requires serious
consideration.
There are rules framed under the 1986 Act and there are
powers given to the Central Government to indicate the zone where
industries, processes and operations can be prohibited or regulated.
4.3 The CRZ notification of 19/02/1991 has been issued
under Rule 5(3). This clause (3) is very wide in its import. It does not
confine to the industries alone but any processes and operations thereby
any activity including that of building or manufacture or other process
can be prohibited or regulated.
4.4 At this stage, one point may be required to be
settled first. Whenever there is a power in the Government to do
particular thing, it is necessary that there should be a
legislation on the subject passed by the competent legislature or
the executive power of the State shall extend to the matters with respect
to which the legislature has power to make the laws.
Once there is a fundamental duty enshrined in the
Constitution under Article 51 (A) (g) the (which means Centre as well as
State) has powers by way of affirmative action to take all steps in that
regard.
As per Article 162 of the Constitution referring to
States, the executive powers of the State reach upto
where the local legislature can pass a legislation.
Similar provision is found in Article 73. Dealing with the union, it has
been well settled by the decisions of the Supreme Court that executive
power is not meant simply to carry out the laws. Until proper law is
framed, the executive has power to frame policies same way as legislature
could have framed them. Following judgements
may be noticed. (Rai
Sahib Ram
Jawayya V/s. State of Punjab AIR 1955 SC 549, Maganbhai V/s. Union AIR 1969 SC 783, Dishamber Dayal V/s. State
of Uttar Pradesh
AIR 1982 SC PG. 33 at 41. Para 20 of the
last judgement reads
thus: "....The executive power of a modern state is not capable of
any precise definition. In Ram Jawayya Kapur V/s. State of Punjab, (1955) 2 SCR 225: equivalent
(AIR 1955 SC. 549), Mukherjea, C.J., dealt with
the scope of Arts. 73 and 162 of the Constitution. The learned Chief Justice
observes that neither of the two Articles contain
any definitions as to what the executive function is or gives an
exhaustive enumeration of the activities which would legitimately come
within its scope. It was observed: "Ordinarily the executive power
connotes the residue of governmental functions that remain after
legislative and judicial functions are taken away. ...."
4.5 The above point has been touched because prior to
passing of the CRZ notification 1991 and even thereafter, for the purpose
of clearing the projects in coastal regions the State of Goa had appointed a committee known as Goa State & Environment Committee (GSEC) in the
year 1990 which was replaced on September 23, 1993 by the Goa State Committee on Coastal Environment (GSCCE).
Have such committees any legal backing? This question requires an answer.
4.6 By reading the provisions quoted above namely Article
52 (A) clause (g) of the Constitution, provisions of the Environment Protection
Act, 1986 and the judgements of the Supreme
Court noted above, one can say that there was power in the executive to
appoint such committee for clearance of the projects and therefore such
acts of the Committee appointed by the Executive are valid.
Only if the action of the State was in conflict with the
Environment Protection Act, 1986, the same would be bad. This view has
been taken by the Supreme Court in the matter of S. Jaganath v. Union of India 1997(2) SCC
p.87. In the same judgement the Supreme Court
noticed that the 1986 Act has been passed in pursuance of International
Convention (Entry 13 of List I of the Constitution).
5. LAW OF LAND - CADASTRAL SURVEY AND LAW OF
REGISTRATION
I. Land
Revenue Code - Under Indian Law
5.1 In the former Union Territory of Goa,
Daman and Diu (now State of Goa from
30/05/1987) Land Revenue Code was passed in the year 1968. It is more or
less in the pattern of Land Revenue Codes in force in other States.
Generally speaking it is said that the object of the Land Revenue Code is
three fold : administrative, fiscal and legal.
The
administrative object is to provide an accurate map with topographical
details.
The fiscal object is not only to assess the Land Revenue
dues and recover the same, but also to protect public land against
encroachment and recovery of such land.
The legal object is many a time said to clear titles or
to protect the possession of the holder. This principle of clearance of
title may be true as far as Government property, but not as far as
private property. For private property the entry in the record is having
merely presumptive value and it never constitutes title for Civil
purpose.
5.2 It is in
this context in the sixth five year plan it was proposed :
a) A systematic programme would
be taken up for the compilation/updating of land records to be phased for
completion within a period of 5 years, i.e., 1980 - 1985.
b) In States where the backing is heavy, aerial survey
techniques may be employed for expeditions
survey operations.
c) Each cultivator would be given a pass book indicating
his status/title to the land , description of
the land (areas, class, etc.,) alongwith a copy
of Khasra map and such other details as are
considered necessary.
d) Appropriate provisions will be made in the revenue
laws to confer legal status on this document as proof of title and land
rights in hand.
All these three purposes are embraced generally speaking
in any Land Revenue Code. But that is not the sole object. There are some
other object which are required to be noticed.
They are : title of the Government to the lands.
Enquiry into title of the Government lands.
5.3 The Government had appointed one man committee namely
Wadhwa Committee, under the Chairmanship of
Prof. D. C. Wadhwa, Gokhle
Institute of Politics and Economics, Pune-41 004, on the subject:
"Record
of Rights and the responsibility of the State towards its
maintenance".
The Government of India has also appointed a 7 members
committee namely Committee on Revitalisation of
Land Revenue Administration, headed by Shri P.
S. Appu, former Chief Secretary, Government of
Bihar, to deal with several aspects and one of them is :
"To examine the desirability and feasibility of
introducing the system of State 'Guaranteeing Title of Land' with a view
to reducing litigation and ensuring security and stability in land
transactions".
Though it is said the Government proposes to take steps
to "Guarantee Title of Land", and to ensure security and
stability in land transactions", no positive steps have been taken
in this direction. The Supreme Court has held that entry in the Record of
Rights is for fiscal purpose and does not confer or establish the title.
Though it is said that steps will be taken to reduce the
litigation, as per present state of affairs, the litigation is in
increase.
II.
Registration under Indian Law
5.4 As per the Indian Law, any document for conveyance of
immovable property is a private document. Many times there is
intervention of the Notary under Notaries Act 1952 for identifying the
parties. The function of the Notary, however, falls within a very narrow
compass. Notary is not a public servant. His role is only to identify the
parties and their signature in the document. The document by itself does
not create any right. It has legal efficacy only when it is registered
under Indian Registration Act 1908. Once the registration is done it
interacts to the date when the conveyance is executed. What is said about
applies also to the registration of the encumbrances like mortgage of immovable
property.
5.5 In order to make registration, the sub registrar does
not enquire into the legality of transaction, i.e. whether the transferor
has ownership right to the land or not. He will register the deed
provided the parties are properly identified, property is properly
described, market value is given, stamp duty is paid and other
formalities like NOC under Town and Country Planning Act or Income Tax
Clearance Certificates are complied with.
5.6 However, certificate issued to find out whether there
are encumbrances or not normally called as 'Nil Encumbrance Certificate'
always carry following endorsement :
"Neither the Government nor the sub registrar issuing the
certificate guarantees the accuracy or the correctness of the contents of
this certificates and will not be liable for any claim or damages, for in
respect of any information contained therein".
5.7 Therefore, for all legal purpose it has
"nil" effect. Either the State or the sub-registrar not even
assume the responsibility in respect of the certificate issued and it is
the party who has to satisfy itself after the search, at least for the
period and 12 years or more, that the person has valid and marketable
title to the land and it is free from encumbrances.
5.8 The mechanism of entry in the record of the right or
the registration in the office of Sub-Registrar is therefore of no
assistance to the party to satisfy about the
