Land Acquisition Act 1894: Difference between revisions

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The Land Acquisition Act, 1894 is a law in India and Pakistan that allows the government to acquire private land in those countries. “Land Acquisition” literally means the acquisition of land for some public purpose by a government agency from individual landowners, as authorised by the law, after paying a government-fixed compensation to cover losses incurred by landowners from surrendering their land to the concerned government agency. In India, a new Act, [The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013]] was passed by the Parliament in 2013 to repeal this Act.

Purpose

The land acquisition act of 1894 was created with the purpose of facilitating acquisition by the government of privately held land for public purposes. The word "public purpose", as defined in the act, refers to the acquisition of land for constructing educational institutions or schemes such as housing, health or slum clearance, as well as for projects concerned with rural planning or formation of sites. The word "government" refers to the central government if the purpose for acquisition is for the union and for all other purposes it refers to the state government. It is not necessary that all the acquisition has to be initiated by the government alone. Local authorities, societies registered under the societies registration act, 1860 and co-operative societies established under the co-operative societies act can also acquire the land for developmental activities through the government.

History

Regulation I of the land acquisition act was first enacted by the British government in the year 1824. Its application was throughout the whole of the Bengal provinces immediately subject to the Presidency of Fort William. The rules empowered the government to acquire immovable property at, what was deemed to be, a fair and reasonable price for construction of roads, canals or other public purposes. In 1850 some of the provisions of regulation I of 1824 were extended to Calcutta through Act I of 1850, with a view to confirm the land titles in Calcutta that were acquired for public purposes. At that time a railway network was being developed and it was felt that legislation was needed for acquiring land for the purposes of the railways. Building act XXVII of 1839 and act XX of 1852 were introduced to obviate the difficulties pertaining to the construction of public buildings in the cities of Bombay and Madras. Act VI of 1857 was the first full enactment, which had application to the whole of British India. It repealed all previous enactments relating to acquisition and its object. Subsequently, Act X of 1870 came into effect which was further replaced by the Land Acquisition Act of 1894, a completely self-contained act, in order to purge some of the flaws of act X of 1870.

After the independence of India in 1947, the Indian government adopted the 1894 Land Acquisition Act. Since then various amendments have been made from time to time but the administrative procedures have remained same.

Content

Notification

The process of acquisition begins with the issuance of preliminary notification, as envisaged under section 4(1) of Land Acquisition Act, 1894. The notification has to be essentially published in the official gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language. Further, it is also necessary that the notification has to be affixed in conspicuous places of that locality.

Filing of objections

The main objective of issuing preliminary notification is to call for objections, if any, against such acquisitions from the owners or others who are having certain interest over the property; giving them an opportunity to raise their claims against the move of the government for acquiring their lands. The persons aggrieved by such notification shall file their objections within thirty days from the date of preliminary notification(date of the publication of notification).

Final declaration

After receipt of objections, the concerned authority shall consider those objections, and if found unsatisfactory, then a final declaration rejecting the claims will be issued. Section 6 of the amended Act provides that the final declaration shall be issued by the authority within a period of one year from the date of issuance of preliminary notification under section 4(1) of the Act. However, prior to the amendment, the time stipulated under the Act for final declaration was three years from the date of publication of the preliminary notification. The final declaration has to be published as required under section 6(2) of the Act.

Award

Section 11 of the Act provides that after receiving the objections, the authority will have to hold an enquiry. However, it is necessary that actual extent of land proposed to be acquired and the value of the land has to be assessed before starting the enquiry, as required under sections 8 and 9 of the statute. On completion of the enquiry, award will be passed to that effect and published by the competent authority. After passing the award, the Collector or the Deputy Commissioner shall send notice to the owners or their representatives who were not present personally at the time of passing of the Award.

Time limit

Once the enquiry is concluded, it is the duty of the competent authority to pass the award within two years from the date of publication of the declaration under section 6, as envisaged under section 11 A of the Act. If the authority fails to adhere to the time schedule prescribed under the Act, the entire proceedings initiated for land acquisition will lapse. After passing of the award, the Deputy Commissioner or any other competent authority may take possession of the land immediately, which shall thereupon vest absolutely with the government, free from all claims, whatsoever.

Special powers

Section 17 of the Act confers special powers with the concerned authority wherein passing of award may be dispensed with and yet permits to take possession of the land notified for acquisition. Further holding of enquiry can also be waived, as envisaged under section 5 A of the Act. However, such powers can be exercised only in case of urgency. After passing of the award, the person whose land has been proposed to be acquired can give his consent for such acquisition and agree to receive the compensation.

Objections can also be raised against the measurement of the land, enhancement of compensation or apportionment of the compensation by filing a written application before the Deputy Commissioner, as provided under section 18 of the Act, requesting the authority to refer the matter to the court for determination of the grounds raised in the application. An application to that effect has to be filed by the person who was personally present when the award was passed, within six weeks from the date of the award passed by the Collector. In other cases, the application will have to be made within six weeks from the date of receipt of the notice issued under section 12(2) or within six months from the date of the award passed by Deputy Commissioner, whichever is earlier.

Compensation

Provision for settlement of dispute pertaining to apportionment of the compensation amount is available under section 30 of the Act. In such a situation, the Deputy Commissioner should refer the matter to the court. The claimant will be entitled to the compensation which is determined on the basis of the market value of the land determined as on the date of preliminary notification. According to section 34, if there is delay in payment of compensation beyond one year from the date on which possession is taken, interest at the rate of 15 per cent per annum shall be payable from the date of expiry of the said period of one year on the outstanding amount of compensation until the date of payment.

Judicial Interpretation of the word "Dispute" in the land acquisition proceedings—State of Madras Vs. B.V. Subramania Iyer AIR 1962 Mad. 313- The Word “Dispute”- Includes any controversy with regard to the title of a single claimant- The word ‘dispute’ has been used in a wide and not in a literal sense and implies any controversy at to title, whether as between the actual claimants, or as appearing from the documents made available by the government. It is obvious that when the government exercises its power of eminent domain and acquires property, Public funds have to be utilized for the payment of compensation to the true owner, and not merely to any claimant who cares to appear on the scene. The government has a special responsibility in this regard, and cannot later take refuge behind the pretext that the compensation was paid to the claimant who actually appeared while others did not appear. So long as that is the situation the acquiring officer has a right to make such a reference, even if a dispute or controversy arises on the documents before him. He cannot be made liable for costs, and it is the party who has to bear the costs incurred in establishing the title, of the party to receive the compensation amount.

Status of the Tenant occupying the land to be acquired under Land Acquisition Act, 1894—M/s Indarprastha Ice and Cold Storage Ltd. Vs. Union of India AIR 1987 Del 171- Tenant is entitled to only a nominal compensation- Only a nominal portion of the compensation of the acquired land is to be paid to the tenant and substantial amount has to be taken by the landlord. The tenant is not entitled to 1/3 or 1/4 of the amount of compensation on the basis of judicial decisions relating to agricultural land on which the tenant had a right to purchase under Section 18 of the Punjab Security of Land Tenures Act. The tenant is only entitled to 1/8 share of the compensation

The government, under section 16 of the Act is at liberty to withdraw from acquisition of land except in cases provided under section 36. However, if the possession of land has been taken, then the government will have no authority to withdraw from such acquisition.

Procedure for the Land Acquisition

1. Investigation

When a local authority or a company requires a land, an application is required to be made by it to the revenue authority.
The application should be accompanied with a copy of the plan showing survey nos., purpose of acquisition and the reason for the particular site to be chosen and the provision made for the cost of the acquisition.
After the government has been fully satisfied about the purpose, the least area needed, and other relevant facts as provided under land acquisition rules, it will issue a notification under Section 4 of the act that the particular land is required for public purpose.
One of the revenue officers is appointed as the collector to hold an inquiry under Section 5-A of the Act.
After notification the owner is prohibited from selling his property or disposing of it and prevented from carrying out any works of improvements for which no compensation will be paid if executed without prior permission from the collector.

2. Objection and Confirmation

Objections are invited from all persons interested in land within thirty days from the date of notification.
The objections will be valid on one or more of the following grounds:
- i. That the purpose for which the land is proposed for acquisition is not a public purpose.
- ii. That the land is not or less suitable than another piece of land for the said purpose.
- iii. That the area under acquisition is excessive.
- iv. That the acquisition will destroy or impair historical or artistic monuments or will desecrate religious buildings, graveyards and the like.
The collector after hearing the objections will submit his report to the government who will finally declare the land for acquisition under the Section 6 of the Act.
After notification the collector proceeds with the claim. He has the site marked out, measured and a plan of the same is made.

3. Claim and Award

The collector will issue notices under Section 9 to all persons interested in the acquisition to file their claim reports.
The collector is not to be a party to the proceedings, is to possess an expert knowledge on valuation, and offers a fair price to an owner and checks that the public funds are not wasted.
The claim filed should contain the names of the claimants and co-shares if any rents or profits for last three years and a valuation report of the land from an architect or an engineer.
The government can abandon the acquisition proceedings by simply canceling the notification. However, in that case compensation has to be paid under Section 48(2).
In determining the compensation the market value of the land is determined at the date of notification. The rise and fall in the value during the period of transaction and notification is taken into consideration.
Compensation is also payable when:
- i. Part of the property is proposed for acquisition in such a manner that the remainder depreciates in value.
- ii. When the land notified for acquisition has standing crops or trees.
- iii. If the person interested has to change his place of residence or business then the excess rent payable for the new premises is also considered for compensation.
Matters which are not taken into consideration for the purpose of land acquisition are:
- i. The degree of urgency which has led to the acquisition.
- ii. Any disinclination of the person interested to part with the land.
- iii. Any increase in the land value likely to accrue from the use to which it will be put when acquired.
• After necessary inquiries the collector declares his award showing true area of the land, total amount of compensation payable and apportionment of compensation if there are more than one owners or claimants.
The collector has to make the award under section 11 within a period of two years from the date of notification.

4. Reference to Court

Any person interested to whom the award is not satisfactory can submit a written application to the court.
This application should be made within six weeks from the date of declaration of the award.

5. Apportionment

In apparent of the compensation each of the claimants are entitled to the value of his interest, which he has lost, by compulsory acquisition.
Thus it is required to value a variety of interest, rights and claims in the land in terms of money.

Authorities and agencies involved

Union Government
State Government
Public authorities/agencies like DDA, NOIDA, CIDCO
Companies like Reliance, Tata (for SEZs)

The procedure involved for acquisition of land for companies are dealt with under chapter VII of the act, which requires an agreement to be entered into by the company with the appropriate government and the same has to be published in the official gazette. The government cannot initiate acquisition proceedings without issuing proper notice to the owners in any of the prescribed mode of service provided under the act and provide them sufficient opportunity. If any of the provisions envisaged in the act is violated or mandatory procedures are not followed, then the entire acquisition proceedings would become void.

Criticism

The Land Acquisition act has been criticized by groups that view the act as weak and ineffective, and by groups that view the act as draconian(unusually harsh law). People who feel that act is weak argue that the procedure followed is cumbersome and costly, often resulting in inordinate delay in land acquisition. This group argues that, the determination of public purpose should be matter of executive discretion and should not be contestable at law. It has also been argued that the property valuation techniques are flawed and that the land owners get to peg the value higher than the real value, based on ‘potential value’ and ‘opportunity value’ of their property; resulting in, what is claimed as, a heavy strain on public finances and restrictions on the scale of development and redevelopment projects. There is also opposition to the additional payment of solatium to landowners over the property value.

People who argue that the act is draconian claim that a number of projects with no public purpose attached, as in the case of SEZs, usurped land from property owners, with the help of the Land Acquisition Act, at what is claimed as, well below the market value of these properties. It is argued that, even in the case of projects that are genuinely for public purposes, there is a considerable difference between the market value of the property and the value that the land acquisition officer pays the land owners. It is also argued that the relocation and rehabilitation of land owners displaced by the actions of the act, is not followed up adequately, and that this is not covered comprehensively in the framework of the act. A notable instance of opposition to land acquisition, through the land acquisition act, is the Nandigram violence incident.

It is for this reason that government has proposed further amendments in the Act to strict define the purposes for which land could be acquired. If the Amendments get through, the provisions of the Act could be invoked only in limited conditions. There are some suggestion by various commission in different states, to provide rehabilitation for whom evicted from their own land. The land acquisition (kerala amendment) bill proposed by Justice V.R Krishna Iyer Committee submitted on 26 January 2009 is an example. It is in the consideration of Kerala Government until the date.

References

External links