DEVELOPING LEGISLATION FOR WISE USE OF FRESHWATER

WETLANDS OF WEST BENGAL, INDIA

Dr. Susmita Sen*

Dr. Dhrubajyoti Ghosh**

I. Introduction

The State of West Bengal abounds with wetlands of diverse kinds. These ecosystems

provide means of livelihood to a large section of rural population in the State. However,

these resource systems are not identified within a specific sector of the government and

therefore do not receive any formal management attention or any particular legal

protection for their continuance and sustenance. In the absence of a wetland policy and a

wetland law in the country or in the State, these ecosystems, particularly outside

protected areas, are vulnerable to neglect, misuse, overuse and conversion. Expectedly,

under these circumstances, wise use of wetlands is generally not evident.

It is found that there are some sectoral legal and institutional measures, which

inadvertently and marginally address to the wetland-related problems. There are again

some, which may even encourage wetland loss through drainage and conversion.

Although at the local level some stray customary laws exist, they fail to have an impact

on the survival of these ecosystems in general, in the State. It is the formal legal and

* Lecturer in Geography, Shri Shikshayatan College, Kolkata, India.

** Senior Fellow in Development Studies, Centre for Studies in Social Sciences, Calcutta, Kolkata, India.

1
institutional measures, which can perhaps directly promote wetland conservation and

wise use on a larger scale. It therefore becomes necessary to review the existing legal

measures for their effectiveness in supporting wetland protection, conservation and wise

use. It is also necessary to identify the clauses in the existing relevant Acts, which can be

amended so that they help in achieving conservation and wise use objectives.

Although this may address the wetland-related problems presumably without appreciable

delay it is not easy to amend different clauses of many Acts in a country or a State so that

they allow protection and promote conservation and wise use.

Another approach is to take a fresh look at the entire matter and proceed to enact a

separate wetland and water bodies Act to deal with the wetland related problems.

The present paper attempts to examine the clauses in some relevant Acts and other legal

documents of the country and the State, which affect wetlands directly or indirectly. The

possible areas of amendment of these clauses to support wetland conservation and wise

use have also been investigated. The paper also attempts to identify the elements of a

freshwater wetlands and water bodies Act. Although the work adheres to freshwater

wetlands of West Bengal only, with appropriate modifications it may be applicable to

other wetlands also.

The present paper is an outcome of a critical review of the existing State and Central

legislative and regulatory provisions together with field studies in six districts of West

2
Bengal from where the interactions between the people and the wetlands could be learnt

and problems of wise use could be understood (Sen 2007). 1

II. Wise Use and Legislation

Wise Use of wetlands as defined by the Ramsar Convention is “their sustainable

utilization for the benefit of humankind in a way compatible with the maintenance of the

natural properties of the ecosystem".2 Very recently in 2005, following the Millenium

Ecosystem Assessment (MA) the Convention has updated the definition as "wise use of

wetlands is the maintenance of their ecological character, achieved through the

implementation of ecosystem approaches, within the context of sustainable

development." It maintains that enhancement of ecosystem benefits and services through

3
wise use are expected to promote human well-being and poverty alleviation. The

Ramsar Convention emphasizes the need for formulating national wetland policies,

1 Sen, Susmita, 2007. Management guidelines for wise use of freshwater wetlands: a community-based approach for selected
wetlands of West Bengal. Ph. D. Kharagpur, India. : Indian Institute of Technology,
2 Ramsar Convention, 1987. Wise use of wetlands. Recommendation 3.3. Regina. [Online]. Ramsar Convention Available from:
www.ramsar.org/rec/key_rec_3.3.htm [cited 1 August 2005].
3 Ramsar Convention, 2005. Additional guidance for implementing the wise use concept Res. IX.1, Kampala. [Online]. Ramsar
Convention. Available from: http://www.ramsar.org/res/key_res_ix_01_e.htm [cited 27 March 2007].

3
reviewing laws and functions of institutional framework etc. to promote wise use and

conservation. 4 5 6 7 8 9

In West Bengal as also in India, the absence of a dedicated legal and institutional support

in favour of wise use and sustainable management, the need for handling a number of

user-groups with diverse interests, the compulsion of protecting the wetland characters

and setting operational limits in wetland areas, together present a stiff challenge to a

wetland manager. Thus understanding wise use, which can be implemented, becomes

imperative. It is understood, that the key elements determining wise use of any wetland

area are (i) the needs of the beneficiaries, (ii) conformity of these needs with the

maintenance of the ecosystem functions and processes and (iii) the supporting indirect

drivers i.e. legislation and other institutional arrangements. A judicious blend of these

factors will allow management options to emerge, which will ensure wise use. In many

cases it is found that the main barrier to wise use and wetland management is institutional

rather than technical in nature. Thus policy, legislation and organizational support are

essential for achieving wise use goals. For this, an integrated wetland policy, a wetland

4 Ramsar Convention, 1980. Recommendation 1.5 on National Wetland Inventories, Cagliari. [Online]. Ramsar Convention.
Available from: http://www.ramsar.org/rec/key_rec_1.5.htm [cited 24 January 2004].
5 Ramsar Convention, 1984. Action points for priority attention. Recommendation 2.3, the Netherlands. [Online]. Ramsar
Convention. Available from: http://www.ramsar.org/rec/key_rec_2.3.htm [cited 26 May 2006].
6 Ramsar Convention 1996a. Strategic Plan 1997-2002, Brisbane. [Online]. Ramsar Convention. Operational Objective 2.1, Action
2.1.2. Available from: http://www.ramsar.org/key_strat_plan_e.htm [cited 3 April 2005].
7 Ramsar Convention,1999. Guidelines for developing and implementing national wetland policies. Annex to Res. VII.6, San José.
[Online]. Ramsar Convention. Available from: http://www.ramsar.org/key_guide_nwp_e.htm [cited 27 March 2007].
8 Ramsar Convention, 1999a. Guidelines for reviewing laws and institutions to promote the conservation and wise use of wetlands.
Annex to Res. VII.7, San José. [Online]. Ramsar Convention. Available from: http://www.ramsar.org/res/key_res_vii.07e.htm
[cited 27 March 2007].
9 Ramsar Convention, 2004a. Handbook 1. Wise Use of Wetlands. [Online]. Ramsar Convention. Available from:
http://www.ramsar.org/lib/lib_handbooks_e.htm [cited 16 March 2007].

4
Act, and reviewed and amended provisions of the existing Acts, all can provide the

necessary support.

Although there is no comprehensive regulatory control for wetland use and conservation

actions in general, there are some Acts of the State and Central Governments which may

have some direct and indirect implications on wetlands and their wise use. It is found that

although there are some clauses in these acts, which may adversely affect the efforts of

sustainable management of wetlands, many others can promote wise use when they are

suitably amended. Some clauses are again found to be favourable and can be directly

applicable.

III. Existing and Proposed Statutory Controls

In India, the term wise use is generally not found in the legal documents. However, the

following Central and State Acts and a Draft Notification have some relevance to wetland

conservation and protection and have been analyzed for the present study. They are:

1. The Land Acquisition Act, 1894 (with West Bengal Amendments) (WBLAA

1894) 10

2. The Indian Forest Act, 1927 with West Bengal amendments, along with The

Forest (Conservation) Rules 2003, The West Bengal Private Forests Act (W.B.

Act XIV of 1948) (IFA 1927)11

10 The Land Acquisition Act 1894. [W.B. Act I of 1954] with West Bengal amendments. West Bengal: Government of West Bengal.
11 The Indian Forest Act 1927 (16 of 1927) with West Bengal amendments, along with The Forest (Conservation) Rules 2003, The

5
 3. The West Bengal Land Reforms Act, 1955 (WBLRA 1955) 12 and the West

Bengal Land Reforms (Amendment) Act, 2005 (WBLRAA 2005) 13

4. The Wild Life (Protection) Act, 1972 (WLPA 1972) 14

5. The West Bengal Panchayat Act, 1973 (with Amendments) (WBPA 1973) 15

6. The Water (Prevention and Control of Pollution) Act, 1974 (WPCPA 1974) 16

7. The West Bengal Town And Country (Planning and Development) Act, 1979

(With Amendments, 2001) (WBTCPDA 1979) 17

8. The Forest (Conservation) Act, 1980 (FCA 1980) 18

9. The West Bengal Inland Fisheries Act, 1984 (WBIFA 1984) 19 and The West

Bengal Inland Fisheries (Amendment) Act, 1993 (WBIFAA 1993) 20

10. The Environment (Protection) Act, 1986 (EPA 1986) 21

11. The Environment (Protection) Rules, 1986 (EPR 1986) 22

12. The East Kolkata Wetlands (Conservation and Management) Act, 2006.

(EKWCMA 2006) 23
West Bengal Private Forests Act (W.B. Act XIV of 1948). New Delhi and Kolkata: Government of India and Government of West
Bengal.
12 The West Bengal Land Reforms Act 1955. [West Bengal Act X of 1956]. West Bengal: Government of West Bengal.
13 The West Bengal Land Reforms (Amendment) Act 2005. [West Bengal Act XXVIII of 2005] [With effect from 1.12.2005]. West
Bengal: Government of West Bengal.
14 The Wild Life (Protection) Act 1972. (53 of 1972). New Delhi: Government of India.
15 The West Bengal Panchayat Act 1973. [West Bengal Act XLI of 1973] with amendment. West Bengal: Government of West
Bengal.
16 The Water (Prevention And Control Of Pollution) Act 1974. (6 of 1974) and The Water (Prevention and Control of Pollution)
Rules 1975. New Delhi: Government of India.
17 The West Bengal Town And Country (Planning And Development) Act 1979 (As amended by West Bengal Act 18 of 2001).
West Bengal: Government of West Bengal.
18 The Forest (Conservation) Act 1980. (69 of 1980). New Delhi: Government of India.
19 The West Bengal Inland Fisheries Act 1984. [West Bengal Act XXV of 1984]. West Bengal: Government of West Bengal.
20 The West Bengal Inland Fisheries (Amendment) Act, 1993. [W.B. Act XIX of 1993]. West Bengal: Government of West Bengal.
21 The Environment (Protection) Act 1986. (29 of 1986). New Delhi: Government of India.
22 The Environment (Protection) Rules 1986 as amended by The Environment (Protection) Second Amendment Rules 2005. New
Delhi: Government of India.
23 The East Kolkata Wetlands (Conservation And Management) Act, 2006. (West Bengal Act VII of 2006). Kolkata: Government of

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 13. The Scheduled Tribes (Recognition Of Forest Rights) Act, 2007 (STRFR 2007) 24

14. Draft Notification on Regulatory Framework for Wetlands Conservation, Ministry

Environment and Forests, Government of India, 2008 (RFWC 2008) 25 26

The East Kolkata Wetlands (Conservation and Management) Act, 2006, (EKWCMA

2006) 27 and the Draft Notification on Regulatory Framework for Wetlands Conservation,
28
Ministry Environment and Forests, Government of India, 2008 (RFWC 2008)

respectively address wetland protection and conservation issues for a Ramsar site and in

general for some identified wetlands of the country. The EKWCMA 2006 is aimed

particularly at the Ramsar site of East Kolkata Wetlands. The Ministry of Environment

and Forests, Government of India, has published the Draft Notification for comments and

finalization. The Draft however, excludes “main river channels; paddy fields; coastal

wetlands such as mangroves, marine algal beds and coral reefs; and other entities covered

under the notification on Coastal Regulation Zone under the Environment (Protection)

Act, 1986” from the definition of wetlands. Besides these, the term wetland finds no

mention in the existing Acts except in the Wild Life (Protection) Act, 1972 (WLPA 1972).
29
The Act mentions the terms “canals, creeks and other water channels, reservoirs,

rivers, streams and lakes, whether artificial or natural, marshes and wetlands and also

West Bengal.
24 Das Mohapatra, M. and Mohanty, P., 2007. Forest Rights Act – End or continuation of injustice on tribals? Community Forestry.
April 2007. RCDC Centre for Forestry and Governance, pp. 23-28.
25 Draft notification on ‘Regulatory Framework for Conservation of Wetlands’ for Comments 2008 [internet]. New Delhi: Ministry
Of Environment and Forests, Government of India. Available from: http://envfor.nic.in/mef/Draft_Wetlands.pdf [cited 12 October
2008].
26 Ministry of Environment and Forests Notification. Regulatory Framework for Wetlands Conservation. Draft. 2008 [internet]. New
Delhi: Ministry Of Environment and Forests, Government of India. Available from:
http://envfor.nic.in/mef/draft_on_regulatory_framework.pdf [cited 12 October 2008].
27 The East Kolkata Wetlands (Conservation And Management) Act, 2006, passim.
28 Ministry of Environment and Forests Notification. Regulatory Framework for Wetlands Conservation. Draft. 2008, passim.
29 The Wild Life (Protection) Act 1972, passim.

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includes boulders and rocks” [Ch.1 Sec.1 (15) and (17)] as habitat of wildlife. This is

because the existing Acts have different aims to achieve and enforce regulatory control on

particular predetermined issues. Wherever the issues relating to water and land covered

with water have arisen, various terms like “fishery”, “tank fishery”, “water area etc.”,

“area retaining water for a minimum period of six months in a year”,” flowing river”,

“other water area, “confined water area”, “any water area, natural or artificial and capable

of being used as fishery”, “temporary water areas”, “lakes, rivers, “fountains and the

like”, “environment including water, air and land”,” recipient systems”, “stream”

including “(i) river; (ii) water course (whether flowing or for the time being dry); (iii)

inland water (whether natural or artificial)” etc. have been used in the Acts. In these Acts,

the object of attention is either land or resource extraction or discharge of pollutants in

water area or species protection in the water.

There are several clauses in the various Acts, which, although not aimed particularly for

the purpose, can be effectively used for conservation and protection of wetlands. As for

example, the WBIFA 1984 restricts certain activities in the water areas used as fisheries,

stipulates use of fishing gear, time of catch, area of fishing, size of catch, etc. (Sec. 3-6);

it emphasizes maintenance and restoration of water areas and specifies measures like

acquisition by the Government on non-compliance with the norms of pisciculture and

public utility (Sec. 8). The West Bengal Inland Fisheries (Amendment) Act, 1993
30
(WBIFAA 1993) has protection clauses prohibiting fragmentation of land, land use

change, conversion and filling up [(Sec 17A) (a), (9)]; it brings a virtual ban on

conversion of some water areas with a conditional stipulation of seeking permission from
30 The West Bengal Inland Fisheries (Amendment) Act, 1993, passim.

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the State Fisheries Department. The West Bengal Land Reforms Act, 1955 (WBLRA
31
1955) and the West Bengal Land Reforms (Amendment) Act, 2005 (WBLRAA 2005)
32
enforce a control on alteration and conversion of a water body for any other use almost

precluding conversion of water bodies of any size and description without prior

permission of the Collector and the concerned Department [Sec. 4B & 4C, WBLRA

1955; Sec. 6(1), 6 (2) and 6 (3) WBLRAA 2005]. 33 34 Realizing cost of restoration from

the offender, vesting of ceiling surplus area and acquisition by State are other important

clauses in the WBLRAA 2005 [Sec. 6(3), Sec. 14 M]; the provision for consolidation of

lands by the State Government on the basis of representation of the raiyats 35 in any area

or on the State’s own accord [Sec. 39 (a and b)] makes conservation efforts more

effective and management easier. It is also found that there are some clauses in some of

the Acts, which may adversely affect the efforts of sustainable management of wetlands.

In the following sections the existing Acts and a Proposed Notification are analyzed.

IV. Suggested Amendments

A. The Land Acquisition Act, 1894 (With West Bengal Amendments) (WBLAA 1894) 36

31 The West Bengal Land Reforms Act 1955, passim.

32 The West Bengal Land Reforms (Amendment) Act 2005, passim.
33 The West Bengal Land Reforms Act 1955, passim.
34 The West Bengal Land Reforms (Amendment) Act 2005, passim.
35 A raiyat is a person or an institution holding land for any purpose.
36 The Land Acquisition Act 1894, passim.

9
This is an Act “to amend law for the acquisition of land for public purposes and for

Companies”. By the term “land” the Act includes “benefits to arise out of land, and things

attached to the earth or permanently fastened to anything attached to the earth;” [(Sec. 3

(a)]. By this definition a wetland is also a land and provisions of acquisition will also

apply to it. The Sec. 23 mentions several matters, which should be considered in

determining compensation for a land acquired.

The shortcomings of the Act are as follows: (a) for regions where land is a scarce

resource, a uniform definition of land will be misleading. A wasteland, for example,

should not be considered equivalent to a land rich in biodiversity or resources or which is

performing vital environmental functions. (b) For determining compensation on

acquisition, the factors do not include the worth of a land, which may sustain a rich

biodiversity and may also include endangered and/or rare species [Sec. 23 (1)]. (c) There

is no precautionary provision against the permanent ecological damage brought about in

such a habitat due to temporary occupation of land (Part VI).

There should be a provision in Part II (Acquisition) of the Act for ecological

considerations prior to taking decisions on acquisition. This inclusion should be extended

to all sections of the Act wherever applicable.

10
 B. The Indian Forest Act 1927 With West Bengal Amendments, Along With The Forest

(Conservation) Rules 2003, The West Bengal Private Forests Act (IFA 1927) 37

The Act recognizes four kinds of forests viz. reserved forests, village forests, protected

forests and forests and lands not being the property of the Government. In the Act “river”

“includes any stream, canal, creek or other channels, natural or artificial” [Sec.2 (5)]. The

wetlands and water bodies in these forests do not naturally fall under any of these

descriptions. The sections 3, 28 and 29 empower the Government to declare a forest as

reserved or protected and to assign rights to any village community of any land to form

village-forests. This allows the “rivers” in these forests to be protected also. The main

purpose of the Act is protection of forest resources and their management. In case of

contravention of the Act there is a provision for penalty also. In Sec.10, there is a

provision for examining claims relating to practice of shifting cultivation and granting or

prohibiting their rights. But there is no mention of the traditional people who capture fish

or collect other items from the water areas in the forests. The Sec. 25 gives power to the

Forest Officer to “stop any public or private water way or water course in a reserved

forest” and provide a substitute in lieu of that. The Act prohibits certain actions in

reserved, village and protected forests, which include fishing and poisoning of water [26

(i), 28 (3) and 32 (j)]. This is a safeguard for species and to some extent for the habitat i.e.

the wetlands. As mentioned earlier, the Sec.28 allows the State Government to assign

37 The Indian Forest Act 1927 (16 of 1927) with West Bengal amendments, along with the Forest (Conservation) Rules 2003,
passim.

11
right to any village–community over any land of the reserved forest and create village-

forests. This also empowers the State Government to make rules for villagers on issues

including extraction of timber or other forest produce, use of land as pasture, duties for

protection and improvement of forests and management of forests by villagers [Sec. 28

(2)]. It has been found that the traditional ways of resource exploitation is generally non-

intensive and maintain environmental harmony. Protection of forest by the traditional

communities and also wetlands within it may lead to maintenance sustainable use of such

areas. Villagers, when given such responsibilities with adequate monitoring

arrangements, may have a sense of belonging and feel responsible to protect an

ecosystem for their own sustenance. The Sec.29 (3) regarding inquiry in relation to nature

and extent of rights of the Government in notifying Protected Forests mentions that “…in

case of any forest-land or waste-land, the State Government thinks that such inquiry and

record are necessary, but that they will occupy such length of time as in the meantime to

endanger the rights of the Government, the State Government may, pending such inquiry

and record, declare such land to be a protected forest, but so as not to abridge or affect

any existing rights of individuals or communities”. Although this clause has no relevance

to wetlands directly, it has some similarity with the suggested “precautionary principle”

of the Ramsar Convention of immediate prohibition of any action liable to cause damage

to a wetland site. This is because an investigation into the cause may take a long time and

may result in destruction of the wetland altogether. Chapter V of the Act regarding

control over forests and lands not being the property of the Government empowers the

State Government to regulate or prohibit some actions in any forest or waste-land [Sec.35

(1)]. The purposes for such regulation or prohibition [Sec.35 (1) (i) to (v)] mention some

12
 functions and services that are generally provided by wetlands also. This includes

“protection against storms, winds, floods, protection of land against erosion, maintenance

of a water supply in springs, rivers and tanks” [Sec.35 (1) (i) to (iii)].

The shortcomings of the Act are as follows: (a) Wetlands are generally components of a

forest ecosystem and functioning of the forest and its biota is governed by the presence of

these water areas. Representing all these water areas by “river” (considering stream,

canal, creek or other channels, natural or artificial, as included in the Act) only, excludes

the all non-flowing wetlands from the purview of the Act. (b) The Act is silent about the

fishermen communities operating in these forested wetlands. (c) This Act seems to be

heavily weighed in favour of forests ecosystem and lacks in a balanced approach towards

other component ecosystems within the forests like wetlands. As for example, the Sec. 25

never attaches any ecological consideration while empowering the State Government or

any authorized officer to stop and modify watercourses in reserved forests. Manipulation

and complete obliteration of natural watercourses may have serious impact on their

biodiversity which may not be ameliorated by creating newer ones elsewhere. (d) The

sections 26 (1i), 28 (3) and 32 (j), although emphasize on protection of species like fish,

appear to be less specific on their habitat.

Few amendments suggested for this Act are as follows:

i. The Section 2(5) may include “wetlands and water bodies” in place of only “rivers” for

the same meaning of the term.

13
ii. Introduction of the concept of “forested wetland” as a component of forest ecosystem

and rules on them should be incorporated in the Chapters II (Reserved Forests), III

(Village-Forests) and IV (Protected Forests) of the Act.

iii. The provisions, particularly for protection and penalty on contravention, in Chapter II

and Chapter IV, should be made applicable to “forested wetlands” also.

iv. There should be inclusions in (a) Chapter II and Chapter IV to protect rights of the

fishing communities and the rules for the use in the forested wetlands, (b) in Sec.25, for

mandatory assessment of the impact of stopping or altering waterways and their

creation elsewhere within the forest, (c) Sections 26(1), 28(3) and 32 for prohibition of

any action degrading water areas in the forests (d) Sec. 28(1-3) for assigning rights to

village communities to “forested wetlands” also. (e) Sec. 35 (1) (regarding protection

for special purposes) of a regulatory clause to prohibit misuse, overuse and abuse of

forested wetlands. This amendment is needed since the wetlands perform many of the

vital functions mentioned in the same clause. (f) Sec.36 dealing with the power to

assume management of forests by the State Government in case of “neglect and wilful

disobedience” in maintaining “forests and lands not being the property of the

Government”. The inclusion can be made on similar terms also for wetlands in such

areas.

C. The West Bengal Land Reforms Act, 1955 (WBLRA 1955) 38 And The West Bengal

Land Reforms (Amendment) Act, 2005 (WBLRAA 2005) 39

38 The West Bengal Land Reforms Act 1955, passim.

39 The West Bengal Land Reforms (Amendment) Act 2005, passim

14
According to the Act “land means land of every description and includes tank, tank

fishery, fishery, homestead, or land used for the purpose of live-stock breeding, poultry

farming, dairy or land comprised in tea garden, …, and any other land together with all

interests, and benefits arising out of land and things attached to the earth or permanently

fastened to anything attached to earth.” [Sec 2(7)] This definition therefore includes

wetlands. On maintenance and preservation of land, (Sec.4B) the Act maintains that

“every raiyat holding any land shall maintain and preserve such land in such manner that

its area is not diminished or its character is not changed or the land is not converted for

any purpose other than the purpose for which it was settled or previously held except

with the previous order in writing of the Collector under Section 4C”. According to

Section 4C (1) “ a raiyat holding any land may apply to the Collector for change of area

or character of such land or for conversion of the same for any purpose other than the

purpose for which it was settled or was being previously used or for alteration in the

mode or use of such land” The explanation says that “ for the purpose of this subsection,

mode of use of land may be residential, commercial, industrial, agriculture excluding

plantation of tea, pisciculture, forestry, sericulture, horticulture, public utilities or other

use of land.” This indicates that without the permission of the Collector or District

Magistrate, an owner cannot convert any land and can never change an area of

pisciculture or an area used for public utilities etc. Thus, this provision restricts

conversion of water areas, which are used for fisheries and for public utilities to some

extent. This also includes agricultural land. It is also mentioned that violation of Section

4C “shall be a cognizable and non-bailable offence and shall be punishable with

15
imprisonment for a term which may extend to three years or with a fine which may

extend to fifty thousand rupees 40 or both.”

The amendment to Section 4C adds that “ provided that where the application as stated

in sub-section (1) relates to permission for change, conversion or alteration of any plot of

land having water body of any description or size, the Collector shall not make any order,

unless he has made a prior consultation in writing with such appropriate Department of

the State Government as may be prescribed and such order of the Collector may,

depending on the circumstances of case, include an order for creation of compensatory

water body of equal or larger size of such water body which is required to be changed,

converted or altered” [Sec. 6(1)]. It is further added that, if a water body of any

description or size gets degraded or destroyed directly or indirectly due to the change of

area or character or use of land, resulting from construction of buildings or for the

purpose of business or any other activity, “no such approval or permission of the

appropriate Department of the State Government or the local authority shall be made

unless the order of the Collector directing change, conversion or alteration of such plot of

land or plot of land having any water body of any description or size, as the case may be,

under sub-section (2) is obtained.” [Sec.6 (2)]

There is a compulsion on the raiyat and/or the lessee that in public interest he, at his own

cost may have to restore the original character of land converted or the State may realize

the cost of restoration from him to carry out the work [Sec. 6(3)].

40 Currency used in India. One Indian Rupee = 0.02035 U.S.Dollars

16
This certainly enforces a regulation on conversion of a water body for any other use. It

almost precludes conversion of water bodies of any size and description without prior

permission of the Collector and the concerned Department.

According to the Act, in no case a raiyat can hold land more than ceiling area fixed at 7
41
standard hectares (Sec. 14 M). In excess of this, the land will be vested with State and

acquired by the Government. It indicates that large water areas in excess of stipulated

ceiling will be vested and acquired by the State.

There is a provision of consolidation of lands by the State Government on the basis of

representation of the raiyats in any area or on the State’s own accord [Sec. 39 (a and b)].

The possibility of such consolidation of small water areas into one larger area makes

conservation efforts more effective and management easier.

Incentives for forming Co-operative Farming Societies as mentioned in Chapter V,

Clause 48 (1 and 2) will help judicious cultural options including use of water resources.

The shortcomings in the Act are as follows: (a) there are large areas of water bodies
42
created by the kings and the zamindars , which need restoration and sustainable

utilization of their services and resources. Many of them earlier maintained by the kings

and the zamindars now remain derelict and need immediate attention. This reduces their

community values also. There is no provision in the Sec.52 dealing with management of

lands, which can ensure conservation of these “lands”. (b) The Act is heavily weighed in
41 1 standard hectare for non-irrigated area = 3.459 acres. One acre = 4046.8564224 square metre.

42 A zamindar is a large land owner (now abolished).

17
 favour of agriculture and cultivators. While it has been remarkably forthright in
43
protecting the interest of cultivators by way of allowing them barga right, it has not

allowed any such right to fishermen although a water area is as much a “land” as it is a

cultivated area by the definition given in the Act.

The amendments include the following:

i. For implementation of the Act the terms “wetlands” and “water bodies” should be

introduced in the definition of “land” in place of only “tank, tank fishery and fishery”

[Sec.2 (7)].

ii. Conservation obligations of the state-owned wetlands and water bodies must be made

more specific.

iii. In Chapter II in the Act on raiyat, there should be inclusions on (a) The responsibility

of the raiyat or lessee to conserve his water areas and maintain a use record for the

same. (b) Provision for the raiyat or lessee to seek and obtain necessary support from

the authority for sustainable management of the water area. (c) The duty of the

concerned authority to provide technical assistance to the raiyat or lessee for proper

maintenance of the water area and the use of its resource. (d) Restriction on partitioning

and transferring water areas within the ceiling area (Sec. 14M) whereby its ecological

character is altered. (e) Empowering concerned authority to acquire water areas kept

derelict and allowing degradation, for a stipulated period for its upkeep. (f) The duty of

the authority to allow incentives to raiyat or lessee for good management of water areas

and to impose penalties for misuse and abuse.

43 Barga is a right to till land.

18
iv. Regarding ceiling area and distribution of land in excess of the ceiling area, (Secs. 14M

and 14S) inclusion should be made in the following areas for: (a) Ensuring reasonable

distance of the water area from the residence of the allotee. (b) Enforcing maintenance

of ecological character of the water area as far as practicable. For this, an annual

ecosystem character report should be prepared. (c) Regular monitoring of the use of the

ceiling surplus land by the concerned authority so that the original character of the land

is retained.

v. Right to access to one’s own water area must be ensured even if the surrounding plots

have been converted to other uses like buildings and business establishments as found

often in the only Ramsar site of the State i.e. the East Kolkata Wetlands.

vi. A water body cannot be degraded or destroyed by activities carried out in the

surrounding contiguous plots of land put to other uses. In such cases, compensatory

arrangements in cash or kind will have to be given to the raiyat or lessee to create

similar water areas elsewhere.

D. The Wild Life (Protection) Act, 1972 (WLPA 1972) 44

In defining the habitat for wild life, the Act includes “land, water or vegetation which is

the natural home of any wild animal”. “Land “in this Act includes “canals, creeks and

other water channels, reservoirs, rivers, streams and lakes, whether artificial or natural,

marshes and wetlands and also includes boulders and rocks” [Ch.1 Sec.1 (15) and (17)].

The term “wetland” and different categories of them find mention in this Act, although

44 The Wild Life (Protection) Act 1972, passim.

19
only as habitats for wild life. “Protected area” in the Act “means a National Park, a

sanctuary, a conservation reserve or a community reserve notified under sections 18, 35,

36A and 36C of the Act;”(Sec. 24A).”Reserve forest means the forest declared to be

reserved by the State Government under section 20 of the Indian Forest Act, 1927 (16 of

1927), or declared as such under any other State Act;”. “Sanctuary means an area

declared as a sanctuary by notification under the provisions of Chapter IV of this Act…”

The Chapter IV Sec. 18 (1) states that “the State Government may, by notification,

declare its intention to constitute any area other than an area comprised within any

reserved forest or the territorial waters as a sanctuary if it considers that such area is of

adequate ecological, faunal, floral, geomorphological, natural or zoological significance,

for the purpose of protecting, propagating or developing wild life or its environment”. By

this provision “canals, creeks and other water channels, reservoirs, rivers, streams and

lakes, whether artificial or natural, marshes and wetlands” are protected. The Act also

prohibits destruction and damage of habitat and diversion, stopping or enhancing the flow

of water into or outside the sanctuary without permission of the Chief Wildlife Warden

(Sec. 29). This precludes modification of watercourses in or outside a sanctuary. The Act

also provides Schedules for mammals, amphibians, reptiles, fishes, birds, and other life

forms to be protected many of which are wetland biota.

The shortcomings include: (a) a lack of understanding of and emphasis on the intrinsic

relationship of wild life with water and wetlands in the protected areas; (a) lack of

provision for monitoring of the natural successional changes in the wetland habitats of

20
 the protected areas; (b) absence of any provision for defining responsibilities of the

community in managing reserves and habitats; (c) absence of any clause on incentive for

good management by the community and penalty for contravention of the Act.

The suggested amendments are as follows:

i. In the Section 33 regarding control on activities in the sanctuaries, a clause enforcing

regular ecological monitoring of the habitat should be included.

ii. Habitat management and maintenance through community efforts jointly with the State

will help reducing the misuse of the habitat and its wildlife. In the Sections 36 (A-D),

50 and 51 inclusion of provisions should be made on the duties of a community in

managing habitats, together with incentives and penalties, wherever applicable.

E. The West Bengal Panchayat Act (1973) (With Amendments) (WBPA 1973) 45

46
The [Sec.19 (2g)] of the Act specifies the obligatory duty of a Gram Panchayat to

manage and take care of public tanks in the rural areas, subject to the provisions of the

Bengal Tanks Improvement Act, 1939. This may allow some maintenance measures for

tanks, in a village. The Sec. 20. (d) empowers the Panchayat in respect of water

management for irrigation and also for development of a watershed of which wetlands

are integral parts. Among discretionary duties of the Gram Panchayat, it is mentioned in
45 The West Bengal Panchayat Act 1973, passim.
46 In India the Panchayat is the unit of local self-government constituted by the State government for every gram or village. The
Gram Panchayat in India is the lower-most tier of the local self-government in a three-tier panchayat system having jurisdiction
over a few villages.

21
[Sec 21(c) and (i2)], that Panchayat may sink wells and excavate ponds and tanks and

promote fishery if the State Government directs it to do so. It also has the power to fill up

“insanitary depressions and reclaiming of unhealthy localities” [Sec. 21(h)]. Thus the

Panchayat is empowered by the Act to create, maintain and also drain wetlands. By [Sec

26 (1)] of the Act the Gram Panchayat has the power to prevent pollution of a “private

water-course, spring, tank, well or other place, the water of which is used for drinking or

culinary purpose...” by pursuing the owner. A penalty clause is also attached to it. It

somehow ensures maintenance, cleaning and control on misuse of such sources of water.

Weed infestation is identified as a major problem in wetlands in the State. The Act has

already made provisions in this direction by empowering Gram Panchayats to prevent

growth of water hyacinth or other weed that pollute tank, pond or similar water areas
47
(Sec.27). In the [Sec.124 (1)] and [Sec. 171 (1)] on the Sthayee Samitis of the
48
Panchayat Samiti and Zilla Parishad 49, it is seen that wetland benefit streams can be

sufficiently addressed by these samitis constituted at both Block and the District levels

respectively.

50
This Act should have a clause for empowering the Panchayati Raj Institutions by

adequate training to functionaries, so that they can exercise the constitutional authorities

wisely, particularly in dealing with natural ecosystems. The responsibility of identifying

particularly vulnerable and valuable wetlands within their jurisdiction and initiating

separate programmes for them should be given to the Panchayat. The Panchayat, by the
47 A samiti or samity is a committee. Sthayee Samitis are Committees of the Panchayat Samity and Zilla Parishad.
48 A Panchayat Samity is a unit of local self-government constituted by the State government for a Block. A block is an
administrative subdivision of districts comprising several villages.
49 A Zilla Parishad is a unit of local self-government constituted by the State government at the District level.
50 Panchayati Raj is the Panchayati system of decentralized governance in India.

22
operation of the Act should implement zoning and land use controls on wetlands in their

jurisdiction to promote wise use. It must be noted here, that no ecosystem can inherently

be “insanitary” or “unhealthy” unless man interferes with it and the Panchayat should be

empowered to identify the cause of abuse of an ecosystem and take necessary actions for

its restoration rather than reclamation. A clause should be added to this effect in the Sec

21 (h).

F. The Water (Prevention And Control Of Pollution) Act, 1974 (WPCPA 1974) 51

In the Act, the term “stream” includes “(i) river; (ii) water course (whether flowing or for

the time being dry); (iii) inland water (whether natural or artificial); ……” (Sec.2 j). It is

mentioned that this Act may not apply to a State only but also to a particular watershed

area [Sec. 19 (2)]. This brings wetlands, as components of a watershed, comprehensively

under the purview of the Act. There is a “prohibition on use of stream or well for disposal

of polluting matter, etc.” (Sec. 24). It also imposes restrictions on new discharges and

building new outlets (Sec. 25) and makes provision for already existing discharge of

sewage or trade effluent prior to the commencement of the Act (Sec. 26). The Act also

directs that emergency measures should be taken in case of accidental pollution of a

stream or a well (Sec. 32). It includes clauses for penalties and enhanced penalties in

contravention of the Act, (Chapter VII).

51 The Water (Prevention And Control Of Pollution) Act 1974. (6 of 1974) and the Water (Prevention and Control of Pollution)
Rules 1975. passim.

23
 A shortcoming of the Act is that there is no provision for control of non-point sources of

pollution like agricultural runoff, runoff from tea estates, discharges from settlement

areas etc.

In the Act, there should be provisions regarding:

i. Vigilance in the discharge areas by the Central Board [Sec.16 (2)] and the State Board

[Sec. 17 (1)] constituted by the Act.

ii. Control of non-point sources of discharge [Sec. 24].

G. The West Bengal Town And Country (Planning And Development) Act, 1979 (With

Amendments, 2001) (WBTCPDA 1979)52

This Act does not give any importance to conservation of water areas as such. However,

the Act directs a Planning Authority or Development Authority to prepare a Land Use and

Development Control Plan (LUDCP) within two years of the declaration of a Planning

Area (Chapter VI. Sec. 31). It is required, by the Act, among other things, an indication of

allocating areas or zones of land for different uses [Sec. 31.4(b)]. Among different uses,

areas for “environmental and ecological purposes” are mentioned, which may or may not

include wetlands and water bodies [Sec. 31.4(ai)]. It however includes “areas of natural

scenic beauty, forest, wildlife, natural resources, fishery and landscaping” [Sec. 31.4(bi)].

Here also the terms wetlands or water bodies or even lakes are not explicitly mentioned.

However, to make provision for water supply, “improvement of lakes, rivers, fountains
52 The West Bengal Town And Country (Planning And Development) Act 1979 (As amended by West Bengal Act 18 of 2001),
passim.

24
and the like,” is included [Sec. 31.4 (ciii)]. It is seen that some categories of wetlands and

water bodies find mention in the Act for their water supply function. Although

considered as functional units particularly for water resource, they are not considered as

separate spatial units requiring attention. Thus control on development activities cannot

be effectively applied in unspecified wetland zones (Ch.VII. Sec. 44). The Act states the

once the LUDCP is approved by the State Government, a Development Authority

constituted by the Act may prepare development schemes for implementation (Ch. VIII

Sec. 57). According to the Act, “such schemes may make provisions for all or any of the

following matters: -” which includes “ … (b) the filling up or reclamation of low lying

swamp or land to which damage has been caused by subsidence due to operation of

mines or unhealthy areas or levelling up of land; “. Thus the Act provides a strong

support for outright drainage and reclamation of wetlands and water bodies without any

scope for restoration and hence actually encouraging their destruction. [Ch. VIII Sec. 58.

(2b); 59 (e)].

The stark shortcomings of the Act are: (a) the LUDCP does not include wetland zones. It

is a serious omission not to include wetlands and water bodies as spatial units of

planning; (b) the Act fails to include wetlands and water bodies purely for their

ecosystem and public utility values; (c) unless recognized as a separate zone in the

LUDCP, no scheme for management, planning and control could be effectively

attempted; (d) the Act is indeed oblivious to the country’s Ramsar obligations, which

include restoration and recreation of lost wetland areas.

25
 Necessary amendment and inclusion of significant clauses are suggested below:

i. “Wetlands and water bodies” need to be explicitly mentioned in the list of zones of land

use in the LUDCP in Sec.31 (4bi).

ii. Mandatory creation of wetland zones as nature reserves, public utility services and for

their ecosystem value must be included in Sec.31 (4biii).

iii. Prohibition on filling up or reclamation of wetlands and water bodies for any

development programme in the planning area should be enforced through amendment

of the Sec. 58 (2b).

iv. Protection and conservation of all wetlands and water bodies in the planning area must

be ensured through amendment of the Sec. 58 (2b).

v. Imposition of penalty for non-compliance with new wetland protection clauses

suggested above.

vi. Introduction of a clause on the duty of the competent authority for assuring aesthetic

benefits by creating wetland reserves in the planning area.

vii. Imposition of a new clause in the Act to ascertain the duties and responsibilities of the

residents of the planning area for fulfilling the conservation objectives.

viii. Provision for creation of wetland protection committees including members from

among the residents of the planning area.

ix. Mandatory EIA for all schemes affecting a wetland zone in any way in the planning

area should be ensured through a new clause.

26
 H. The Forest (Conservation) Act, 1980 (FCA 1980) 53

The Sec. 2 of the Act imposes a restriction on the de-reservation of forests or use of

forestland for non-forest purpose by the State Governments except prior approval of the

Central Government. Non-forest purposes are specifically defined in the section and

exclude “any work relating or ancillary to conservation, development and management of

forests and wild life, namely… construction of water holes…” among other things. Thus

this has a provision for creation of water areas within the forests although exclusively for

the wildlife.

An amendment is required in the Sec. 4 of the Act, which gives power to the Central

Government to make rules for conservation of the forests. It should also assign power to

the Central Government for framing rules for monitoring wetland characteristics within a

forest.

I. The West Bengal Inland Fisheries Act, 1984 (WBIFA 1984) 54 And The West Bengal

Inland Fisheries (Amendment) Act, 1993. (WBIFAA 1993) 55

The Act defines “fish” as including aquatic plants and animals in any stage of their life

cycle. “fishery” means “any activity or occupation connected with conservation,

development, propagation, protection, exploitation or disposal of fish and fish products,

or any place or water area where such activity or occupation is carried on, and includes a

53 The Forest (Conservation) Act 1980, passim.

54 The West Bengal Inland Fisheries Act 1984, passim.
55 The West Bengal Inland Fisheries (Amendment) Act, 1993, passim.

27
tank fishery” (Sec. 2). It describes “fixed engine” as including a net, cage, fishing fence,

anchor, trap or contrivance for taking fish, fixed in the soil or made stationary in any

other way” (Sec.2).

The Act has provisions for restricting fishery activities for any specified area, for a

specified period of time with restrictions on the catch of specified size, group or species.

It also includes restrictions on erection and use of fixed engine, temporary or permanent

construction of any weir, dam or bundh 56, and the kind and dimension of net and mesh

size, as also on choice of mechanical fishing device and the mode of using them. There is

a clear restriction of construction of any barrier on a flowing river without allowing

provisions for fish pass or fishing ladder as the State Government may stipulate. There

are provisions for preventing angling without permission, use of explosives and poison in

a fishery or water area, and also discharge of industrial waste, sewage or any other

polluting substances into any flowing or confined water area which may affect or destroy

fish. For using explosives and poison, a person may have to pay a fine of two thousand

rupees or be imprisoned up to six months, or both. For causing pollution through

discharge, the State Government will notify the person to take action to prevent and

control such pollution failing which the Government will take measures to do the same

with the cost recovered from the offender. There is also a provision for prosecuting the

offender and a punishment of imprisonment that may extend up to six months and/ or

payment of a fine, which may be up to ten thousand rupees (Sec. 3-6).

56 Bandh/bundh/bund is a barrier to hold water. It is also used synonymously with a reservoir created by such barriers.

28
Control on fishery activities, fixed engine and other structures and on the use of fishing

gear help in maintaining the wetlands. Prohibition on the use of explosives and poison for

catching fish protects a water area from getting polluted and functions disrupted. To some

extent this Act definitely helps in guarding the wetlands from destruction.

Dereliction of vast areas of water bodies and consequent destruction are common

phenomena. Lack of maintenance of a tank and non-compliance with the norms of

pisciculture and public utility allow the State Government to acquire such areas from the

owners on payment of a stipulated rent for a period not exceeding 10 years at a time and

never more than 25 years. On acquisition, the State Government may conditionally hand

over the acquired water area to any person for management and control at different times,

as may be necessary. This clause applies to tanks under single and multiple-ownershipas

well as to those owned by the State Government jointly with one or more individuals.

This allows for restoration of the tank, although for fishery purposes (Sec. 8).

Sec. 9 of the Act directly promotes sewage-fed fish culture and ensures equitable

distribution of sewage for the fisheries through constitution of a committee to look after

the matter and “exercise powers as may be prescribed”.

A direct protection clause is included in the West Bengal Inland Fisheries (Amendment)

Act, 1993, where it states that “ no person shall (a) put any water area including
57
embankment measuring 5 cottahs or 0.035 hectare or more, which is capable of being

used as fishery, or any naturally or artificially depressed land holding measuring 5 cottahs
57 One cottah or katha is equivalent to 66.89 sq. m. or 720 sq. ft.

29
or 0.035 hectare or more, which retains water for a minimum period of six months in a

year, to such use, other than fishery, as may result in abolition of fishery” [(Sec 17A) (a)]

or “(b) fill up any water area including embankment or naturally or artificially depressed

land holding as aforesaid, with a view to converting it into solid land for the purpose of

construction of any building thereon or for any other purpose” or “(c) divide any water

area including embankment or naturally or artificially depressed land holding as aforesaid

into parts to make any such part measure less than 5 cottahs or 0.035 hectare for any

purpose other than pisciculture or transfer any part or any such water area including

embankment or naturally or artificially depressed land holding as so divided to any other

person.” On contravention, the acquisition, control and management provisions by the

State Government are applicable as before. This, the Act mentions, is for the “purpose of

promotion of pisciculture, checking of destruction of fisheries and prevention of

environmental degradation.” It is for the first time in this Act that the concern for

“environmental degradation” can be seen. Regulation is imposed also on change to any

land use other than fisheries and filling up for conversion of water area into solid land

through development schemes of the Central and State Governments, public

undertakings, statutory body, local authority, any other organization in the public and

private sector, and individuals, without prior approval of the Fisheries Department,

Government of West Bengal. This brings a virtual ban on conversion of such water areas

with a conditional stipulation of seeking permission from the State Fisheries Department

[Sec. 17A. (9)]. Violation may result in punitive measures like acquisition of such water

bodies for better management and control as before, mandatory restoration compulsion

for the owner/owners at own expense or recovery of cost of restoration by the

30
Government and /or more stringent punishment like imprisonment that may extend up to

two years and payment of fine which may extend up to two lakh 58 rupees [Sec. 17A. (2)

– (11)]. There are sufficient protective measures in the Amendment Act to control

conversion of “water area etc.” for other use.

It is found that the Amendment Act (1993) substitutes the term “water area etc.” for “any

water area including embankment measuring 5 cottahs or 0.035 hectare or more, .......” as

against “fishery” of the earlier Act of 1984, which means any place or water area where

such fishery activity or occupation is carried on, and which includes a tank fishery. In

later subsections however, “flowing river”, “other water area”, “confined water area” are

also included. It can be said that although the size (0.035 ha.) for implementation of the

Act is specified, it has a larger domain of “any water area, natural or artificial and capable

of being used as fishery” and also temporary water areas. Wetlands conforming to these

categories are thus protected by this Act.

However, the Act has some shortcomings in the context of wetland conservation and wise

use. These are: (a) The area of enforcement of the Act justifiably excludes many kinds of

wetlands particularly which do not primarily provide benefit of resource extraction but

may be valuable for other services like groundwater recharge, flood mitigation, shore line

protection etc. (b) The stipulated duration of wetness of “at least six months” in a year

does not conform with the accepted definition of wetland which may contain water or

wherein the soil may remain saturated at least for a period such that it supports

hydrophytes. Thus many large seasonal wetlands get excluded from the purview of the
58 One lakh is equivalent to one hundred thousand.

31
Act although local people may catch fish in them for subsistence, when they are

inundated. (c) A fishery is a wetland first. The term “public purpose” (Sec. 2) is

considered as that relating to fishery only and the Act has given more emphasis on

maintenance of fish health and related conditions rather than on comprehensive

ecological maintenance of the habitat. (d) Nowhere the Act aims at maintaining an

ecological balance between components of the ecosystem, although by definition, “fish”

includes all “aquatic plants and animals”. (e) There is no provision for a mandatory EIA

to assess the impact in the downstream areas of large barriers/ dams/ barrages particularly

when those are built with the help of State initiatives; (f) as regards distribution of

sewage water for sewage-fed fisheries, the purpose and responsibility of the committee

are not explicitly mentioned for facilitating maintenance and stability of these fisheries.

(g) The Act is silent about the responsibility, bindings and regulations applicable for

many “informal “ groups of fishermen operating throughout the State; (h) a glaring

omission in the Act is the inability to impose punishment in case of dispute between a

fisherman and the labour employed by him [Sec.17 (2)]. While it is stated that “ the State

Government may make rules regulating payment of wages, either in cash or kind or in

both, the weekly duty hours and other terms and conditions of employment of the labour

employed in fishing activity of any kind”, it has not specified any penalty if the

provision/agreement is not honoured by either side. Inadequacy to solve this operational

problem has been found to cause thriving fisheries in the East Kolkata Wetlands Ramsar

Site (EKWRS) to become gradually unsustainable. (i) The Act does not have any

provision for incentive to owners/ operators for good management.

32
 The necessary amendments in the Acts may be as follows:

i. It is necessary to include the term “wetlands” in the Act. There is an accepted definition

of the Ramsar Convention and India being a signatory to the Convention can adopt a

modified definition of “fishery” in the Act. It is to be mentioned here, that all wetlands,

whether natural or man made, permanent or temporary, lotic or lentic, which are

suitable for fish culture and are already being used as a fishery as also the capture

fishing grounds, should be included in the purview of the Act (Sec. 2).

ii. Besides giving due importance to the species i.e. the fish, provisions for protection of

habitat and necessary supporting elements need to be introduced.

iii. Distinction should be made between aquatic plants and animals as components of fish

(Sec. 2), which may have different requirements of sustenance and continuance.

iv. The issue of species balance between plants and animals has to be incorporated in the

Act to restrict some operations and species introduction, particularly in the capture

fishing areas.

v. Any water area although primarily designated as a fishery, may have multifunctional

values. Comparative assessment of functional benefits and reduction of conflicts among

different services is necessary. In the Act, there should be provision for upholding the

other significant functions of the water area in addition to its resource extraction

services. Thus, the Act can promote the multifunctional benefits of the wetlands in

addition to realizing their fishery resource potential.

vi. It is often found that contiguous and naturally depressed land holdings, which are

temporarily inundated and suitable for pisciculture, remain unutilized and are often in

the process of decay. This is particularly true in the floodplains. Multiple-ownership

33
 further aggravates the problem. A provision should be added in the Act for

consolidating such suitable lands and introducing seasonal fish culture in them. The

Fishery Department can act as a nodal agency for even informal groups of seasonal

operators with specific responsibilities and bindings imposed through the Act. This

way, more unutilized and under-utilized areas floodplain wetlands and water bodies can

be brought under organized pisciculture, alternating with the cultivation of crops in the

predetermined seasons. A clause can be added for supervision of activities of such

groups through decentralized monitoring mechanisms.

vii. There are provisions for acquisition of water bodies by the State from owner/owners for

better management and control and transfer “to any person for proper utilization for

pisciculture” (Sec. 8). The words “any person” should be replaced by “any competent

person or persons” to ensure good result from such transfer.

viii. There are long stretches of borrow pits along railways and roads throughout the State

owned by various Departments of the State, or by the Central Government. As they are

good culturable fishing grounds, the Act should have some separate provisions for use

of such lands.

ix. In sewage-fed fishery areas the purpose of the constituted Committee (Sec. 9) should

include (a) ensuring good quality of sewage (b) its equitable distribution (already

mentioned in the Act) and (c) optimal availability of sewage for maintenance of the

fisheries. These responsibilities of the Committee should be clearly mentioned in the

Act.

x. Inclusion of a clause mentioning responsibility of the owner to conserve his water area

used for fishery purposes and to maintain a productivity record for the same, to be

34
 submitted to the Department of Fisheries for adjudging good management practices as

well as for awarding incentives.

xi. Penalty on non-compliance with provisions of Sec. 17 (2) i.e. for engagement of fishing

labour must be introduced in the interest of the survival of the fisheries.

xii. In the Act, there are some clauses for punishment for non-compliance. Similarly, there

should be incentives for good management also.

J. The Environment (Protection) Act, 1986 (EPA 1986) 59

In the Act “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, microorganism and property;” [Sec.2 (a)]. “Environmental pollutant means any

solid, liquid or gaseous substance present in such concentration as may be, or tend to be,

injurious to environment;” [Sec.2 (b)]. It also defines environmental pollution as “the

presence in the environment of any environmental pollutant;” [Sec.2 (c)]. This Act brings

wetlands into the fold of environment and not only ensures provision of maintaining the

components but also their inter-relationship and functions. The Sec.2 (iii) includes

measures like “laying down standards for the quality of environment in its various

aspects”. The Sec. 2 (iii) and (iv) provide a check on the discharge of municipal and

industrial pollutants in the environment as also in the wetlands. The Act gives power to

the Central Government to make rules and take various measures “for the purpose of

protecting and improving the quality of the environment and preventing, controlling and

abating environmental pollution” [Sec.3 (1)]. There is a comprehensive provision for

59 The Environment (Protection) Act 1986, passim.

35
 taking care of environmental pollution including those of wetlands (Sec.6). It also has a

provision for penalties against offenders (Sec.15).

A shortcoming of the Act is that it is completely silent about non-point sources of

pollution although the wetlands are substantially degraded by such sources. There should

be inclusion of sections in this Act regarding control of non-point sources of pollution.

K. The Environment (Protection) Rules, 1986 (EPR 1986) 60

The Environment Protection Rules set the standards of emission or discharge of

environmental pollutants in “recipient systems”, meaning “the part of the environment,

such as soil, water, air or other which receives the pollutants” [Sec. 3 (1) and Sec. 2 (f)].

Wetlands may be taken as recipient systems of discharge and thus these clauses can be

applied for maintenance of their water quality.

Although there is control of quality at source, the “environment statement” (Sec.14) has

no provision for monitoring the recipient character (particularly water and soil).

A clause each should be included:

i. In Sec. 3 regarding non-point sources of pollution and

ii. In Sec.14 regarding assessment and monitoring of the character of the recipient water

area, particularly water and soil, at regular intervals.

60 The Environment (Protection) Rules 1986 as amended by the Environment (Protection) Second Amendment Rules 2005, passim.

36
 L. The East Kolkata Wetlands (Conservation And Management) Act, 2006 (EKWCMA

2006) 61

In this Act, the term “land” includes “any wetland” [Sec.2 (d)] and “water body” includes

any land holding water [Sec. 2(k)]. By the operation of the Act, the State Government is

empowered to constitute an Authority that will be called the East Kolkata Wetlands

Management Authority [Section 3(1)]. It is a 19-member committee comprising

Government, non-government and stakeholders’ representatives [Sec. 3 (2)]. According

to the Sec. 4, the functions and powers of the authority include (a) demarcation of

boundaries on field, (b) taking necessary action against any unauthorized development,

project, use or activities, (c) directing demolition or alteration in display and bill boards,

kiosk etc. within the area, (d) prohibiting or restricting mining, quarrying, blasting etc. (e)

taking measures for pollution control and conserving flora, fauna and biodiversity, (f)

preparing action plans and updating land use maps, (g) implementing and monitoring

implementation of action plan, (h) promoting research and disseminating its findings

among stakeholders, (i) generating awareness, (j) promoting sewage-fed pisciculture and

ecotourism, (k) enforcing land use control, (l) detecting changes occurring in ecological

character and land use in the East Kolkata wetlands (m) conducting inquiry or scientific

study, (n) constituting expert committees for any purpose of conservation and

management etc. The Sec. 9 of the Act prohibits all landholders any action that will

reduce the area of the land, change its character, and convert it to any other use other than

for which it was recorded. However, he can do so with the permission of the Authority in

consultation and approval of the Land and Land Reforms Department, Government of
61 The East Kolkata Wetlands (Conservation And Management) Act, 2006. (West Bengal Act VII of 2006), passim.

37
West Bengal. If it involves filling up of water bodies, the petitioner has to create a water

body in an appropriate place in the East Kolkata Wetlands and not less than the size of the

original water body that will be filled up. The Act also prohibits the Authority to give

permission to any kind of land use change, which will degrade the local environment and

the surroundings [Section 10 (1-5)]. On contravention of the clause of the Act, the

Authority is empowered to enforce restoration by the offender or recover the cost of

restoration from him (Sec. 11). The Sec. 17 allows the State Government, in the public

interest, to “include any area in, or enlarge any area of the East Kolkata wetlands...” Sec.

18 attaches a penalty clause of imprisonment and fine for violation of the provisions of

the Act. A punishment clause is also attached for “any officer of the State Government or

of a local body” permitting any action against the provision of the Act (Sec.20).

The shortcomings can be identified as follows: (a) It is found that the Clause 17 of this

Act allows the Authority to include or enlarge any area to the East Kolkata Wetlands in

the interest of the public. It is also intriguing that at present 37 mouzas are included in the

area whereas, in 2002, the designated conservation area comprised 32 mouzas. Therefore,

the originally declared Ramsar site does not match with the present Ramsar site as

delineated by the Authority. It is an undesirable action on part of the Authority to modify

the Ramsar Site within such a short span of time of its declaration as a conservation area.

The Clause 17 will only allow the State Government to keep on changing the area of the

original Ramsar site over and over again and in the process, will allow ecosystem

alienation and functional modification in the wetland area, which is strictly against the

principles of conservation and Ramsar obligations. No Authority should be allowed to

38
manipulate a conservation area and no Act should uphold such manipulations. (b) The

EKWRS has been included in the Ramsar List of Wetlands of International Importance

because of its wise use practices. The wetland practices found here, date back to as early

as the 19th century. It is entirely due to the creativity of the local entrepreneurs, farmers

and fishermen of the region that the “wise use” exists today. The Sec. 3 (1-3) regarding

constitution of the 19-member Authority undermines the stewardship of these indigenous

people for whom this site is what it is today. It allows “(xvi) three persons to be

nominated by the State Government of whom one each shall be from amongst the

representatives of – (a) the non-Government organisations having expertise in the field of

wetland conservation; (b) the non-Government organisations having expertise in the field

of wetland management; and (c) the fishermen’s co-operative societies formed for the

purpose under the West Bengal Inland Fisheries Act, 1984” [Sec.3 (2) xvi)]. Therefore it

is found that the participation of NGOs is given more emphasis than that of the primary

stakeholders. Secondly, the East Kolkata Wetlands is a cluster of wise use practices,

which include both fish culture and agriculture. Although the clause allows representation

of a member of a fishermen’s co-operative, it is silent about the representation of the

farmers and other beneficiaries. Thus, the Act seems to be an incompetent instrument in

ensuring people’s participation. This is again a shocking deviation from the Ramsar

obligations.

Amendments should ensure the following:

39
 i. Under no circumstances the East Kolkata Wetlands Management Authority shall be

allowed to tamper with the area of the original Ramsar site and all the inconsistencies

regarding delineation of the boundary will have to be eliminated.

ii. There should be an adequate provision in Sec 3 of the Act for inclusion of Panchayat

representatives and representatives from all levels and categories of stakeholders in the

Authority.

iii. The Act, in general, empowers the Authority and the State Government to handle the

issues of the East Kolkata Wetlands “wisely or unwisely” with immunity from

prosecution and without recognition of the people’s choice (Sec. 1). This provision

seems to be biased and counterproductive. It therefore needs amendment to enforce

accountability of the Authority’s actions to the users.

M. The Scheduled Tribes (Recognition Of Forest Rights) Act, 2007 (STRFR 2007) 62

This Act abolishes the right of the tribal communities to collect some minor forest

produce from “aquatic bodies”. It excludes products viz. fish, weeds etc. obtained from

the aquatic bodies, from the definition of the “minor forest produce”. It therefore

overrides the Provisions of the Panchayat (Extension to the Scheduled Areas) Act (40 of

1996) where not only collection of minor forest produce from the aquatic bodies is

allowed but also “planning and management of minor water bodies...is vested with the
63
Gram Sabha ” (Das Mohapatra and Mohanty 2007). Thus, the area of operation of the

forest dwelling communities is appreciably reduced and they are driven towards gradual
62 Das Mohapatra, M. and Mohanty, P., 2007, passim.
63 Gram Sabha is a village council.

40
impoverishment by the Act. Any prohibition on removal of weeds from the aquatic bodies

may either result in uncontrolled eutrophication and gradual decay of these water areas or

an additional cost burden for cleaning and removal of weeds.

N. Draft Notification On Regulatory Framework For Wetlands Conservation, Ministry

Environment And Forests, Government Of India, 2008 (RFWC 2008) 64

The Draft mentions the importance of wetlands and that they are threatened by various

activities of man. Being a signatory to the Ramsar Convention the country has obligations

towards conservation and management of wetlands where there is no formal regulatory

control on these ecosystems. The Ministry of Environment and Forests has identified a

number of wetlands for conservation and management under the National Wetland
65
Conservation Programme. The National Environment Policy (NEP) recognizes the

numerous ecological services provided by wetlands and emphasizes on the need for

setting up a legally enforceable regulatory mechanism for the identified wetlands. The

Draft proposes that these Rules may be called the Wetlands (Conservation and

Management) Rules, 2008 and shall be applicable to all wetlands identified and notified

by the Government (Clause 3).

Clause 2 gives definitions and 2 (b) defines wetlands as ‘an area of marsh, fen, peat land

or water, whether natural or artificial, permanent or temporary with water that is static or

flowing, fresh, brackish or salt, including areas of marine water, the depth of which at
64 Ministry of Environment and Forests Notification. Regulatory Framework for Wetlands Conservation. Draft. 2008, passim.
65 National Environment Policy, 2006. New Delhi: Ministry Of Environment and Forests, Government of India.

41
low tide does not exceed six meters’. However, it excludes main river channels paddy

fields and coastal wetlands such as mangroves, marine algal beds and coral reefs and

other entities covered under the notification on Coastal Regulation Zone under the

Environment (Protection) Act, 1986.

In Clause 2 (b) the definition could not distinguish wetlands from deep-water bodies. By

definition it includes saline, brackish and marine waters influenced by tides but in the

explanation the Draft excludes coastal wetlands. Duration of inundation has not been

specified in the definition, which makes inclusion of numerous floodplain wetlands

uncertain. The Clause 2 of the Draft should contain the definition of wise use of wetlands.

Clause 2 (f) specifies the Regulatory Authority as the Ministry of Environment & Forests

at the Central level and State Environment Impact Assessment Authority constituted at

the State level. However, the State Environment Department will be a more appropriate

authority at the state level and in the absence of such a department in any state the

existing provision should be applicable. The process of notification as mentioned in

Clause 3 is likely to take a long time of at least five to ten years. As a precautionary
66
measure, wetlands as depicted in the Revenue Maps may be considered for application

of the Rule. However, the Revenue Maps should be verified with remote sensing maps.

Clauses 4 (1) and (2) put restriction on activities within wetlands. The prohibitive

activities like conversion of wetland to non-wetland use, reclamation of wetlands, solid

waste dumping and discharge of untreated effluents or any other activity which may have

adverse impact on the ecosystem are well identified and can ensure control on wetland

loss. Regulated activities include withdrawal of water/impoundment

66 In India Revenue Maps or cadastral maps are drawn with recorded details of field and village boundaries for tax purposes.

42
/diversion/interruption of sources, harvesting (including grazing) of living/non-living

resources, treated effluent discharges (industrial/domestic/agro-chemical), plying of

motorized boats, dredging except where siltation poses a threat to the wetland, permanent

constructions within 50 m of periphery except boat jetties, activity within 200 m of the

wetland which interferes with the normal run-off and related ecological processes or any

other activity which may have adverse impact on the ecosystem. It also mentions that the

regulated activities should be allowed after conducting impact assessment and obtaining

clearance from the Regulatory Authorities. The Clause 4 recognizes three categories of

wetlands according to importance (as identified in Clause 7) and vests power with

different authorities for “any intervention intended for the restoration and/or enhancement

of the functions and values of the wetland”. It however allows wetlands to be converted

to non-wetland use if it is in interest of the public. The clause also mentions that “any

change in category of land use shall be in accordance with the Town and Country

Planning Acts, of the respective States/Uts 67”. The clause therefore has some provisions

for wetland conversion and land use change.

It is however necessary to identify the specific wetland situations where even the

regulated activities will be disallowed. In wetlands acting as groundwater recharge area

control should be more stringent within the recharge zone, which may extend beyond 200

metres. Regulatory control should be exercised also on the application of fertilizers and

pesticides in and around a wetland area. In this case the stipulations of the responsible

authorities like the State Agricultural Departments should be followed.

67 Union Territories are sub-national administrative units in India. Every Union territory is administered by the President acting through an administrator.

43
In case of non-compliance with the Rules, the Clause 6 proposes penal provisions as

available under the provisions of the EPA 1986. 68

The Clause 7 identifies relative functional significance of wetlands for applying

regulatory control on them. Accordingly, the wetlands have been categorized into three

types. These are:

“i) Category ‘A’

Wetlands shall be categorised under this category based upon all or any one of the following criteria:

a) Wetlands listed under the Ramsar Convention

b) Wetlands recognized as or lying within a world heritage site or a national heritage site

c) Transboundary wetlands

d) Inter-state wetlands which do not fall under category B or C;

e) Wetlands with an area equivalent to or more than 1000 ha in arid regions, 5000 ha in semi-arid regions,

10,000 ha in sub-humid and 1,00,000 ha in humid tropic regions; and

f) Wetland which is a major source of drinking water for ‘Class A’ cities.

ii) Category ‘B’

Wetlands shall be identified & categorised under this category based upon all or any of the following

criteria:

a) Wetlands recognized as, or lying within, a state heritage site;

b) Wetlands with an area of 25 ha but below 1000 ha in arid regions, 100 ha but below 5000 ha in semi-arid

regions, 500 ha but below 10,000 ha in sub-humid; and 2,500 ha but below 1, 00,000 in humid tropic

regions;

c) High altitude wetland at 2,500 metres or more above mean sea level; and

d) Wetland which is a major source of drinking water for ‘Class B’ towns.

68 The Environment (Protection) Act 1986. (29 of 1986), op.cit.

44
iii) Category ‘C’

Wetlands shall be identified & categorised under this category based upon all or any of the following

criteria:

a) Wetlands other than those covered under category A and B;

b) Wetland with an area less than 25 ha in arid regions, less than 100 ha in semi-arid region, less than 500

ha in sub-humid and less than 2,500 ha in humid tropic regions;

c) Wetland which is a major source of drinking water for local communities involving at least 100

households; and

d) Wetland which is socially and/or culturally important to the local communities.”

It is also mentioned in the Clause that “a wetland proposed for identification should be

free from ‘Conflict of Interest’.”

In Clause 7, there is no criterion for identifying wetlands which provide means of

livelihood for large communities or those which perform extremely valuable ecological

functions such as groundwater recharge and shoreline stabilization. This is a serious

omission in the criteria for selection of wetlands for prohibitive and regulated activities.

Again, the explanation for the Clause disqualifies a wetland from being proposed for

identification on grounds of ‘Conflict of Interest’. This will result in exclusion of a large

number of wetlands from conservation and management. The best example is the only

Ramsar site of the East Kolkata Wetlands.

The Clause 8 includes the Community Based Organizations (CBOs) among the categories

of proponents who can initiate the proposal for identification of a particular wetland. The

45
Clause 25 suggests a monitoring mechanism and allows CBO participation in

undertaking monitoring activities. These give the scope for participation of the CBOs and

primary stakeholders in conservation and management of wetlands.

The Clause 9 has provided opportunities for implementation of the regulations,

conservation, monitoring, review of progress of implementation through hierarchical

authorities from Central Government to the District Level.

The provision for participation of the local communities is proposed in the Clause 12 (b).

The Clause 12 (f) promotes research and dissemination of finding of research on

wetlands among stakeholders. Clause 12 (g) promotes awareness generation about

wetlands in general and the designated wetlands in particular. Among functions and

powers of the different communities, issuing guidelines for the purpose of conservation

and wise use is proposed in the Clause 12 (h). The Clause 12 should have provisions for

empowering primary and other stakeholders through training.

The Clauses 13 and 14 deal with the approval procedure for identification of different

categories of wetlands. The procedure should begin with a detailed inventory and

benchmarking before proposing for identification of wetlands.

Clause 20 (b) deals with the regulatory and enforcement agencies and also the

enforcement of regulated activities. It should include the State Environment Department

as one of the enforcing authorities for regulating activities in wetlands.

46
The Clause 23 deals with an important participatory provision i.e. public consultation

before preparation and finalization of a Management Action Plan for an identified

wetland. It allows involvement of people through public hearings as also through written

applications from stakeholders.

The envisaged Rule fails to consider the explanation of wise use of wetlands as defined

by the Ramsar Convention.69 No clause in the Draft upholds wise use and poverty

alleviation issues in letter and spirit and thus the Draft remains incomplete and ineffective

as far as the Ramsar Convention obligation to wise use is concerned.

V. Suggesting Elements Of A New Wetland And Water Bodies Act

It is seen, that although water, aquatic species and water areas as components of land

have been addressed in various Acts and documents, for various purposes, there is an

urgent need for a comprehensive regulatory provision for an ecosystem like wetlands as

they have several unique physical, biological, social and livelihood functions.

Resource extraction is found to be a principal activity in the wetlands, which is governed,

by some policies, rules and regulatory controls. Maintenance of water areas for wildlife is

another area of attention. Protection against pollution and conversion to other land use

has also been dealt with in some related Acts. However, there is no Act, which

69 Ramsar Convention 2005. Additional guidance for implementing the wise use concept Res. IX.1, op.cit.

47
 acknowledges the valuable indirect services the wetlands render. It is also found that

according to the provisions of the existing Acts, the responsibility of implementing

regulatory controls for different matters is entrusted with different “specified authorities”

of the Government. The divided responsibility of different “authorities” of several

departments of the Government may generate contradictory goals for resource extraction,

management and conservation. Multiplicity in authority only increases complexity and it

is perhaps because of this, that except for few cases, wetlands largely remain ill managed,

less protected and consequently become less productive.

In view of this, it is necessary that a wide-ranging wetland Act be passed to specifically

ensure protection and wise use of wetlands. There is a need for a special Act dealing with

inland wetlands and water bodies of West Bengal and which will have an overriding

effect over all other contradicting and conflicting provisions of law, which have been

enacted from time to time. The basic premises to be followed for the enactment are given

below (Sen 2008) 70:

i. It will be prudent to formulate separate Acts for (a) marine and estuarine wetlands

(hereinafter termed as coastal wetlands and water bodies) and for (b) riverine, lacustrine

and palustrine wetlands (hereinafter termed as inland wetlands and water bodies).

ii. The small water bodies should have separate regulatory controls, as they are

functionally different from larger wetlands and water bodies. Specification of the size

of a small water body is essential.

70 Sen, Susmita, 2007, ibid.

48
 iii. Although paddy lands are, by definition, wetlands, they are adequately dealt with in

other Acts, particularly the WBLRA 1955 and the WBLRAA 2005, these cultivated

lands together with those lands where jute, mat sticks (species of Cyperus L.), hogla

(species of Typha L.), and other semi aquatic plants are cultivated, pose a complexity on

inclusion in the proposed Act. It is therefore necessary to decide whether these lands

will be included in the Act or not.

iv. The Act should distinguish between forested and non-forested wetlands as actions on

forested wetlands are somewhat regulated by the provisions of the IFA 1927, the FCA
71
1980 and the WLPA 1972 etc. The amendments and inclusions in these Acts

suggested above will be able to address some important issues relating to wetland

conservation and wise use, not attempted previously through the Acts.

v. The Act should apply to both natural and man-made wetlands and water bodies.

vi. The Act should contain schedules of wetland flora and fauna indicating vulnerable,

endangered, rare, threatened species etc.

vii. The Act should define all non-use values such as microclimate stabilization, flood

control, groundwater recharge and discharge, nutrient retention, sediment/toxicant

retention, storm protection/windbreak, shoreline stabilization/erosion control, biomass

export etc. (hereinafter termed as vital ecological functions)

viii. The attributes of wetlands viz. biodiversity, uniqueness to culture/heritage should also

be explained.

ix. Direct consumptive and non-consumptive uses are to be explicitly defined.

x. Meaning of wise use and the goals to achieve wise use principles should be clearly

stated as one of the purposes of an Act.

71 The Forest (Conservation) Act 1980. (69 of 1980), op.cit.

49
 xi. Wetlands and water bodies are owned by both the State and the Central Governments as

also by private individuals. The Central Government-owned water bodies are in many

cases the borrow pits along highways and railways lines. Separate sections on

conservation and management of each type should be included in the Act. In addition,

“community-wetlands” like the community-forests can be created and separate rules

can be framed for them.

xii. Vested wetlands and water bodies over the stipulated area often remain unproductive

and are finally drained and put to other uses by the allotees or patta72 holders of such

lands. In no case fragmentation of a wetland should be allowed even if it is subject to

the provision of land ceiling restrictions. In such case, transfer of the wetland to a group

of operators for a joint venture, rather than to a single owner, may be more prudent.

xiii. It is found that in many cases, there is a tendency of draining the wetlands and then

changing records of character of land to “shali jami”73or land for cultivation, to

facilitate further conversion of a wetland. This is often carried out in connivance with

the agents who are entrusted with the task of handling land records. In view of this, it

will be absolutely necessary to use the old land records of the last 50 years such as the
74 75
Cadastral Survey (CS) records, the Revenue Survey (RS) records etc. of the State

Government for verification of the original character of the land. It is also necessary to

take help of the comparatively recent remote sensing data products to record the

changes that have occurred in the recent past.

72 Conditional title deed.

73 Low land for cultivation.
74 Cadastral surveys are large-scale surveys linked with the ownership of the property and collection of revenue.
75 Revenue surveys are also linked with fiscal administration and collection of taxes.

50
xiv. The rights and duties of a community in managing wetlands and water bodies will have

to be acknowledged through the Act. Community participation as a component of

wetland management shall have to be established.

xv. Creation of authorities and departments to exclusively control and manage wetlands

and water bodies and to deal with the related issues is essential. Responsibilities and

rights of such authorities and departments will have to be explicitly mentioned in the

Act.

xvi. The basic purpose of the Act is to promote wetland protection, conservation, and wise

use. Creation of new wetlands in the same sub-basin and restoration of the degraded

ones should also be enforced. The “no net loss” concept should be adopted.

With these basic premises the envisaged Inland Wetlands and Water bodies Act will be

formulated. The principal elements of the Act will be as follows (Sen 2007) 76:

I. Constituting Wetland Authorities

Creation of a State empowered appropriate authority for wetlands and water bodies and

related organizations for implementing the provisions of the Act.

II. Power of the Authorities

76 Sen, Susmita., 2007, op.cit.,pp. 224 – 237.

51
Empowering the authorities to recommend the wetland issues related to protection,

conservation, wise use and management, frame necessary statutory provisions and rules

accordingly and forward them to the appropriate bodies.

III. Definitions of Wetlands, Water Bodies and Wise Use

1. The term wetland finds no mention in the existing Acts except in the WLPA 1972.

This is because the existing Acts have different aims to achieve and enforce regulatory

control on particular predetermined issues. Wherever the issues relating to water and land

covered with water have arisen, various terms like “fishery”, “tank fishery”, “water area

etc.”, “area retaining water for a minimum period of six months in a year”,” flowing

river”, “other water area, “confined water area”, “any water area, natural or artificial and

capable of being used as fishery”, “temporary water areas”, “lakes, rivers, “fountains and

the like”, “canals, creeks and other water channels”, “reservoirs”, “rivers, streams and

lakes, whether artificial or natural, marshes and wetlands” , “environment including

water, air and land”,” recipient systems”, “stream” including “(i) river; (ii) water course

(whether flowing or for the time being dry); (iii) inland water (whether natural or

artificial)” etc. have been used in the Acts. In these Acts, the object of attention is either

land or resource extraction or discharge of pollutants in water area or protection of

species in the water.

India is a signatory to the Ramsar Convention and a specific definition of wetland is

provided by the Convention and accepted by the country. It will be advisable to consider

52
the Ramsar Convention definition for the meaning of the term wetlands and water bodies.

It can always be modified according to local situations. Keeping in mind the IFA 1927

with amendments, a forested wetland should be distinctly defined, particularly for

management purposes, in the envisaged Act.

2. The concept of “wise use” as defined by the Ramsar Convention is to be included

in the Act and all sections of the Act should uphold the principles of wise use and

conservation.

3. Wetlands can be identified at various spatial hierarchical levels such as:

A “wetland region” comprising “one or more sub-basins of a major river basin or

island…”

A “wetland complex” belonging to the next lower level which “can be either entire sub-

catchments; or large, individual wetlands (of various types); or a number of smaller

discrete wetlands that are hydrologically linked because they lie within the same sub-

catchments.”

“Wetland habitats” at the lowest level which “occur within the wetland complexes”. 77

In the same wetland complex difference in hydrological regime, ecological characteristics

and functions may lead to different types of wetland habitats. The areas for which the

legislation is made should be clearly stated to avoid confusion. However it is to be

77 Finlayson, C.M. et al., 2002. A Manual for an Inventory of Asian Wetlands. Draft. A planning and management tool for wetland
conservation and wise use. Darwin: Wetlands International, National Centre for Tropical Wetland Research.

53
decided whether hierarchical classes or the generic wetland definition will be apt for

enforcement of the Act.

The Acts should contain schedules of wetland flora and fauna indicating vulnerable,

endangered, rare, threatened species etc.

IV Wetland and Water Body as Components of Land

1. Rights and responsibilities of the owner in respect of the wetland and water

body

The rights of owner will include the rights of inheritance and transfer. As in the case of

land, an owner should be able to dig or use the earth or sediment of his wetland or water

body for the purpose of the maintenance of the same and the embankment only. However

no digging or earth cutting shall be permitted if the purpose of such work is not

conservation and maintenance of the wetland or the water body.

Every owner or lessee has to maintain and preserve his wetland or water body in such a

manner so that its area is not reduced or its character is not changed or the use of such

land does not degrade it. All the abovementioned provisions will apply in case of transfer,

inheritance, mortgage, tenancy or sale.

54
If any person holding a contiguous plot is a co-sharer or obtains a wetland or water body

by transfer, inheritance or sale, he shall be allowed to consolidate his plot with the newly

acquired wetland or water body.

If, on account of inheritance or for other reasons, a need arises for fragmentation, an

appeal to the specified authority will have to be made and after investigation the specified

authority may give permission for fragmentation of the wetland or water body with a

clause of payment of a prescribed fee by the owners seeking permission of fragmentation.

However if the owners, even after inheritance, jointly manage the wetland or water body

as a single plot, will not have to pay any fee. Unlike land, a water area gets appreciably

reduced when fragmented and enclosed by embankments. Therefore, to keep the wetland

or water body functions and uses intact, collective management rather than management

of small fragmented wetland or a water body by single owners, is desirable.

No conversion or alteration of any wetland or water body of any description or size as

mentioned in the Sec.6 of the WBLRAA 2005 will be applicable. Even if the Collector or

District Magistrate allows any conversion and alteration in consultation with the

appropriate Department, a substantial amount of levy should be charged from the owner

for tampering with the existing character of the wetland or water body whether by

digging, earth cutting, fragmentation, building embankments, conversion or alteration.

The “creation of compensatory water body of equal or larger size of such water body

which is required to be changed, converted or altered” has been mentioned in Sec. 6.

Although this clause applies to the person who is attempting to alter or has altered the

55
wetland or water body, he cannot replace the original biodiversity of the altered wetland

or water body and has to, in addition, pay a fee for degrading the biodiversity and

hampering the ecological functions. This is to be considered as an annual “environment

tax” for non-compliance with ecological principles.

In all the cases, the Collector, in consultation with the specified authority will decide on

the appeals. In case of a breach of provision, the owner will be penalized. However, the

owner will have an opportunity of defending himself and explain his action. On appeal,

the specified authority will decide the mode of action to be taken against him. Besides, all

provisions of penalty prescribed in Sec. 4C of the WBLRA 1955 will apply. In case of

good management of a wetland and water body, there should be a provision of incentive.

All the abovementioned rules will apply in case of a transferee, tenant, co-sharer, and a

person holding the land on mortgage.

The State Government should be empowered through the Act, to “take over the

management and control” of any wetland or water body kept derelict and degraded by the

owner/s, as permissible in the Sec. 8 of the WBIFA 1984.

Right to access to one’s own water area must be ensured even if the surrounding plots

have been converted to other uses like buildings, industries, business estates etc. The

users of the surrounding plots will not be allowed to alter the ecological character of the

water area by their operation. Any such action causing pollution and degradation of the

character of the water area should be considered as a punishable offence.

56
Rules for restoration and creation of water bodies by the owner/s will have to be made.

2. Ceiling on land held by an owner

The ceiling on land as prescribed in the Chapter II B of the WBLRA 1955 will apply. The

Government should distribute the ceiling surplus land among collective operators such as

fish farmers” groups that may be registered or informal or any other group or if within

stipulated size, to a single person for management, following provisions made in the

WBLRA 1955. However, it is to be ensured that the allotees reside within a reasonable

distance from the allotted wetland or water body. All regulations regarding alteration and

conversion will apply to these groups. In no case further fragmentation shall be allowed

after allotment of the wetland or water body, since it may get altered in the process.

3. Operators corresponding to bargadars 78

All provisions of barga or share cropping practice as stipulated in the WBLRA 1955

should be applicable in case of similar users of a wetland or water body also.

4. State obligations
78 Sharecroppers.

57
Conservation obligations of the State and the Central Governments should be made

specific and precise in terms of operation, management and control of the wetlands and

water bodies owned by them.

5. Wetland and water body in a Planning Area

While declaring an urban Planning Area, the existing wetlands and water bodies in the

area will have to be clearly demarcated in the plan and their ecological characteristics

assessed. These areas should be treated, as “environmentally sensitive zones” in the Land
79
Use and Development Control Plan (LUDCP) and rules will have to be framed
80
separately for their protection and management. The LUDCP should clearly indicate

the permissible use for such areas. If a wetland or water body is found to perform any

vital ecological function, it should be demarcated as a “protected area for public utility”

in the LUDCP,81 and all alterations and conversions should be prohibited contrary to the

provision in Sec. 59 (e) of the WBTCPDA 1979 82 encouraging filling up and reclamation

of low lying swamps. The use of such areas should conform to wise use principles and

their immediate restoration should be planned. The Planning Authority should take

decision on the restoration and use in consultation with a team of experts working in such

areas of disciplines. If, however, any use relating to municipal services of the area exists
79 CMWSA, 1997. East Calcutta Wetlands and Waste Recycling Region. Primary Data. Baseline Document for Management Action
Plan (As per Ramsar Convention Guidelines). Calcutta: Creative Research Group for Calcutta Metropolitan Water and Sanitation
Authority.
80 Ibid.
81 Ibid.
82 The West Bengal Town And Country (Planning And Development) Act 1979 (As amended by West Bengal Act 18 of 2001), op.
cit.

58
from before, all the relevant authorities will have to be consulted regarding any

restoration work, new introduction or change of use. But no use should be permitted

which alters or modifies the ecological character of the wetland or the water body.

When a wetland functions as a common public facility, no authority can deny these

facilities to the common people. In case of any violation by the State the residents of the

area should be compensated adequately for loss from the time when such alteration has

been made and shall continue till its restoration.

There should be mandatory EIA for all the schemes affecting a wetland zone in any way,

in the Planning Area.

When a Planning Area does not contain any wetland or water body within it, creation of

the same should be encouraged.

Management of the wetland or water body will primarily be the responsibility of the

Government but citizens’ groups, or other organizations can be allowed to participate in

such activities wherever possible.

No activity should be allowed that could degrade the wetland or water body in a Planning

Area. There should be provision for imposing penalty due to non-compliance with the

statutory norms. Amelioration by the offender should be enforced, wherever necessary.

6. Prevention and control of pollution of wetlands and water bodies

59
Although some Acts provide adequate protection from pollution, the term wetlands and

water bodies have been used synonymously with “recipient system” or “water”,

“environment” etc. in these Acts. The protection from non-point sources of pollution

should also be considered in the new Act. In case of point sources of pollution, regular

monitoring of the receptacle wetlands and water bodies by the offender should be made

mandatory along with submission of regular records of maintenance to the specified

authority. There should be a provision for imposing a levy or cess for discharging

wastewater into a wetland or water body. A certain portion of the cess shall be utilised for

taking remedial measures in the areas affected by non-point sources of pollution and

restoration of the receptacles.

7. Acquisition of wetlands and water bodies

In case of acquisition, the maintenance of the ecological character will have to be

considered. Under no circumstances the ecosystem character should be altered due to

acquisition.

8. Responsibility of the State

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The State Government along with the “empowered”, “specific”, “responsible” authorities

constituted by the State, should protect all wetlands and water bodies in its territory and

ensure wise use of them. Any activity causing degradation, alteration and conversion has

to be controlled by adequate statutory provisions and offender should be penalized

according to the provisions of the existing Acts. The State Government is already

empowered to acquire private water areas kept derelict and degraded. The areas like

borrow pits should come under the purview of conditional acquisition by relevant

authorities for resource use and management. The State should have clear regulatory

provisions, facilities for training of staff in the subject, and efficient monitoring

mechanisms. Creation of wetland protection committees involving common people and

experts may be promoted through the new Act. In case of degradation of a wetland and a

water body in an urban area, the concerned authority should be made answerable to the

public. Public should be allowed to challenge the decisions of the Government in the

court of law even for a Ramsar site. Degradation and destruction of wetlands by any

physical intervention or policy of the State should be compensated by creation of other

wetlands and water bodies of same size and character as far as practicable, elsewhere

within the same drainage sub-basin.

V. Wetland and Water Body as Resource Systems

Wetlands are productive ecosystems and generate various products in addition to water.

Thus planning for resource extraction, in harmony with the ecological characters, is

necessary. There are stringent regulatory provisions by the West Bengal Inland Fisheries

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 Act, 1984 and the WBIFAA 1993, which adequately cover different areas of resource

extraction functions of wetlands, particularly for fisheries.

In addition, the new Act should consider the following:

i. Acquisition by State authorities of all unused and abused water areas for the purpose of

management through state machinery, co-operatives, Panchayat or others, as may be

suitable. This should also apply to the borrow pits along the highways and railway

lines.

ii. Mandatory assessment of characteristics and monitoring of functions of all wetlands

and water bodies.

iii. Depressed areas in the floodplains and large water bodies under multiple-ownership,

often lie unused or abused. These areas can be put to group management under

supervision of a nodal authority. The members of the group should include the owners

and users as well as competent persons having experience of sustainable resource

extraction.

iv. Determination of conformal and non-conformal uses of a wetland or a water body is

necessary, keeping in mind all the important functions that it performs.

v. Both the components of flora and fauna are to be given equal emphasis in respect of

resource use and sustenance.

vi. It is necessary that separate rules be formulated for forested water areas. Regulations on

resource recovery from forested area should be more stringent than that from the non-

forested areas.

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vii. Formulation of a physical plan is required for use of any water area. It should consider

temporal variations in use particularly for seasonal wetlands and for the periphery of

the permanent water bodies. Oscillations of the margin and seasonal variations in the

spread of water areas are important temporal characters of wetlands and will have to be

taken into consideration while planning for their use.

viii. A wetland complex may have varied spatial characteristics and may be suitable for

different uses. Therefore zoning based on analysis of resources and of livelihood need,

is necessary. The zones may be demarcated for agriculture, fisheries, grazing,

waterfowl habitat, recreation etc. as may be compatible with the ecosystem functioning.

The plan should deliberately include some “non-use/wilderness areas” for allowing the

wetlands and water bodies to perform certain natural functions and some processes to

operate in them.

ix. A plan for all extractive uses such as conjunctive use of water, cultivation, fishing and

collection of flowers, fruits, grasses, reeds and other aquatic, and semi aquatic plants

etc. has to be made.

x. There should be a control on quantity of any product cultured, cultivated and collected.

xi. There should be prohibition on unlimited withdrawal of water from the wetlands and

water bodies except for the purpose of fire fighting.

xii. The wetlands and water bodies which perform vital ecological functions and where

organized capture and collection of product are allowed, a tax may be imposed on such

activities in a similar way as prescribed in the Sec. 39 of the IFA 1927 regarding duty

on timber and other forest produce.

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 xiii. The method for selecting competent resource production groups, authorities and

individuals for management of the resource system should be stringent. Rights and

responsibilities of such groups should be precisely stipulated.

xiv. Separate rules are to be framed for imposing control on resource use by informal

production groups.

xv. Creation of a nodal agency for monitoring the activities of different production groups

and keeping annual productivity records is necessary.

xvi. A wetland habitat should be treated as a component of a wetland complex and a

wetland region. In these linked ecosystems, provisions of the Act should protect the

downstream areas affected by actions taken in their upstream. This calls for assessment

of impact of any small manipulation made in the habitat for resource recovery

practices. This is more significant for connected wetlands. Where structures like sluices

may hinder fish migration and result in gradual removal of some species from the

habitat.

xvii. Specific rules are necessary for sewage fed fisheries, as they are both public utility

service systems as well as resource recovery systems. The authority entrusted with the

management of these fisheries should look into the issues relating to both these

functions and take actions accordingly. All drainage channels feeding and discharging

water are to be maintained in a manner so that system operates with maximum

efficiency.

xviii. Considering a wetland as a resource system, there should be provisions for a “code of

conduct” of the owner/ operator/ labour and for penalty in case of violation of the Act.

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xix. There should be a provision for incentives and rewards for sustainable resource

recovery by the owner/operator.

VI Wetland and Water Body as Conservation Areas

It is now known the world over that the wetlands are one of the richest habitats of

biodiversity which also perform several vital functions. They are also valued for certain

socio- cultural attributes. They are also highly vulnerable because regulatory provisions

for their protection and maintenance are often inadequate. In the forested areas, they

remain under some degree of protection, although their conservation objectives are only

auxiliary to the primary goals of conservation and protection of forest and wild life

habitat. In the non-forested areas, the protection clauses under the WBIFA 1984 and the

WBIFAA 1993, WBLRA 1955 and the WBLRAA 2005 and EPR 1986 have some

provisions for safeguarding these ecosystems. But these are not adequately specific for

different issues to be tackled in these ecosystems.

For this, the new Act should include the following points:

1. Rules are to be made for:

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 i. Preparation of a complete wetland inventory with descriptive qualifiers,

which will help in classifying the wetlands. Socio-cultural qualifiers

should also be added in the descriptions. Use of remote sensing

products, GIS, existing relevant maps, state land records and ground

checking may aid the work of inventorying.

ii. Functional assessment of wetlands and ranking them according to

dominant functions.

iii. Identification of wetlands with important dominant functions of indirect

services, biodiversity maintenance and with valuable cultural attributes.

They should then be designated as “common environment facilities” and

“nature conservation sites” (hereinafter termed as conservation area).

2. Designating boundaries of a conservation area and criteria for such designation

The conservation area can be designated irrespective of their ownership and for privately

owned wetlands a “designation certificate” should be issued by the specified authority

prohibiting any kind of non-conformal use of the wetland. Violation may even lead to

permanent acquisition by the State without any compensation. However, the term “non-

conformal use” should be precisely defined in the Act. For this, indicators like quality of

water, soil, biota and other parameters, with predetermined standards can be used. When

a privately owned wetland or water body performs any vital function such as

groundwater recharge/discharge etc., a “designation certificate/ticket” will allow the

owner/owners to enjoy some state benefits for preservation of the valuable function.

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Thus, there can many categories of conservation areas designated by the specified

authority, such as state-owned, privately owned, ceiling surplus land vested in the State,

property of the Central Government, land emerged due to “recess” of river belonging to

the State and so on.

Thus there should be a clear distinction between wetlands and water bodies as primarily

(a) resource systems or production areas and (b) conservation areas. There may be several

uses and functions in the wetland but the dominant ecological function will determine its

designation. A resource system when found to possess any of the criteria for designation

as a conservation area, restriction on existing use/uses will have to be imposed with

certain conditions. Wetlands and water bodies within forests will primarily be considered

as conservation areas. Demarcation of conservation areas is also necessary in both urban

and rural areas.

All existing provisions and those suggested for the new Act will protect the resource

systems or production areas. A resource system or a conservation area cannot be degraded

or destroyed by activities carried out in the surrounding contiguous plots of land put to

other uses. In such cases, the owner or operator of the affected wetland will have to be

compensated for the loss.

3. Use of the conservation area

The following issues will have to be considered in the envisaged Act, for permitting use

of the conservation area:

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i. The specified authority will (a) set the standards of physico-chemical

and biological parameters for the conservation area and its immediate

contiguous areas; (b) make a list of complementary and conflicting uses

and functions and (c) determine the hinterland of the conservation area

having mutual impact.

ii. On obtaining a “conservation certificate/ticket”, the owner will be

eligible for receiving financial assistance and scientific guidance from

the State for appropriate management and conservation of his property.

But he has to abide by the restrictions on use as specified by the

authority. Restrictions can be on use of inputs, quantity of resource

generated, physical, chemical, biological modification etc. as specified

by the authority. However, if the owner/lessee incurs a loss through

mandatory conservation impositions, the State will have to provide him

with a compensatory water body to be used as a resource system, in

exchange of a nominal rent. In this manner, vast stretches of derelict and

under-utilized wetlands and water bodies will be better managed and can

become more resource efficient. However, while distributing a

compensatory wetland or water body, the Government should consider

the distance of the residence of the allotee from the wetland and the

condition of the wetland allotted, so that his cultural operation remains

economical. Even if the compensatory water body is larger than the

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 conservation area it should be exempted from ceiling on land of the

raiyat.

iii. The same principle will apply in case of multiple-ownership, lessee,

transferee and land on mortgage and those acquired by the State.

iv. A wetland may have a complementary resource practice and

conservation function. For example, a sewage-fed fishery may function

both as a sewage treatment facility and a fishery. Again, a flood plain

depression may act as a flood cushion, a fishing ground and as an area of

flood recession agriculture. Such synergy between conservation function

and resource use will have to be allowed even in a conservation area.

Similarly, controlled grazing in a waterfowl habitat may sometimes be

helpful. However, for contradictory activities like fish culture against

protection of habitat for vulnerable and endangered species, a

conditional restriction on resource extraction may have to be imposed.

v. Responsibility of the owner or lessee will be to conserve his water area

and to maintain an “ecosystem use and character report” for the same.

The report should be submitted once a year to the concerned authority.

This will ensure monitoring of the conservation area.

vi. Regular monitoring of the activities in the conservation area by the

concerned authority is essential.

VII Wetland and Water Bodies in Reserved and Protected Forests

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These are already protected by some clauses of the different existing Acts. However,

wetlands and water bodies as important components of forests has nowhere been

recognized. These ecosystems, although situated in the protected areas, need attention

specifically for their use and management. Forested wetlands require attention for:

i. Regular monitoring of physico-chemical parameters necessary for

particular function for which they are important. In all the cases, the

quality of water and soil must remain within the stipulated standards.

ii. Within the forests, the wetlands and water bodies may undergo natural

processes of succession and may also be affected by siltation and

occasionally by non-point discharges from the surrounding agricultural

fields. Tourism and resulting discharges from point sources may also

affect these ecosystems. Compulsory monitoring of the natural and

anthropogenic processes is therefore necessary.

iii. All physical manipulations like diverting and stopping a course of water

should be prohibited. Interference with the hydrological regime should

be controlled. If however, these interventions are required for the

purpose of functioning of the ecosystem, the specified authority may

allow conditional modifications.

iv. Villagers traditionally reside within forests and at the margins of the

forests. They earn their livelihood through different practices in and

around the forests. The Forest Department also gives some incentives to

forest villagers so that destruction of the forest can be checked.

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 Following the concept of a village-forest, the Forest Department may

assign the responsibility of management of wetlands and water bodies to

a village community. The Government may, however, cancel such

assignments on grounds of non-performance and violation of specified

rules regarding management and use.

There should be an incentive for good management by the forest community and a

penalty for contravention of the Act.

VIII Creation of a Watchdog Committee

It is necessary that there should be provisions in the Act for constitution of a “watchdog

committee” for protection, conservation and management of wetlands. Although the

committee may include a few representatives of the Government, it will be primarily a

body of facilitators and users. The Act should specify the composition of the committees

and sub-committees with adequate representation from the bar association, medical

profession, academic institutions, NGOs, Chamber of Commerce, etc. Representation of

women should be obligatory. The committee should have statutory power to investigate

into all issues relating to wetlands and water bodies and advise the Government and the

people regarding them. It should also be empowered to act as an “environmental auditor”

and should have the authority to conduct public hearing.

IX Accountability of the Decision Makers

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Under no circumstances any authority responsible for conservation and management of

wetland ecosystems and for that matter any other ecosystem should enjoy immunity from

public proceedings for non-performance and allowing alteration, degradation and

conversion.

A Wetlands and Water Bodies Act should be implemented through an organization such

as an Authority or a Board that will be solely responsible for the well-being and upkeep

of wetlands and related issues. It will act as a co-ordinating body where more than one

department get involved in any wetland related project. It will also act as a facilitator to

local communities who depend on wetlands for their livelihood.

VI. Conclusion

Provisions for conservation and sustainable management of wetlands in West Bengal as

well as in the country are absent in the existing Acts making them too weak an instrument

for the comprehensive upkeep of the wetlands and the primary stakeholders. The two

main objectives of reviewing existing laws of a country are “to identify legal and

institutional measures which constrain wetland conservation and wise use; and to support

the development of positive legal and institutional measures for wetland conservation and

wise use.” 83 This requires developing a knowledge base of both the local customary laws

on one hand as well as of the formal enactments, which form the basis of regulatory

83 Ramsar Convention, 1999. Guidelines for reviewing laws and institutions to promote the conservation and wise use of wetlands
adopted by Ramsar Resolution VII.7 [Online]. Ramsar Convention Available from: http://www.ramsar.org/key_guide_laws_e.htm
[cited 13 October 2008]

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actions taken by the government. The analysis of the existing formal enactments reveals

that the wetlands are not considered as a focus area in any of these Acts. Some clauses of

some Acts even allow their drainage and conversion. It is also found that there is a lack of

horizontal coordination among different sectors of the government. Again, the different

conflicting regulatory provisions make any conservation work for wetlands difficult to

undertake.

It is understood that there are two ways to address this state of near absence of a legal

tool. Either the range of existing laws which are somewhat related to wetland matters

should be modified to respond to the requirements of conservation and wise use or a new

wetland and water bodies Act should be passed. For the wetlands of the state of West

Bengal, both these approaches have been carefully traversed. In addition to reviewing

the existing laws and suggesting relevant amendments, a set of elements for developing

an Act on freshwater wetlands and water bodies has been proposed. It is expected to

promote sectoral and institutional coordination for wise use planning and

implementation, particularly for the freshwater wetlands and water bodies of West

Bengal. However, the task of wise use will still remain incomplete without developing

effective implementing authorities for the regulatory measures for achieving wise use of

wetlands.

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