Process of land acquisition
The Process of Land Acquisition
The difficulties that come in the process of Land Acquisition in India are immense, given the population density and the type of land use in the country. This is evident from the fact that the fundamental issue in a number of top stories in the past few years has been the Process of Land Acquisition; be it Narmada Bachao Andolan or the recent Nandigram issue. With number of State Governments demarcating lands as Special Economic Zones the problem just is going to get worse. The evolution of Law of Land Acquisition as it exists today in various forms in different statutes in India has undergone an evolution in the last decade. Originally the wishes of owners of property were totally irrelevant, but at present, the law tries to provide various provisions for objections and alternative remedies in case of inadequacy of compensation
In English Law the concept is known as the Law of Compulsory Purchase and under the United States Law it is known as the Power of Eminent Domain. This law empowers the state, (as an exception to the general rule) to compel an owner of the property to submit the property to the state or any agency or an entity authorised by the state because the same is required for the use of the state or such an agency or entity of the state. The concept that underlines such an act and the rationale behind such an act lies in the concept of Utilitarianism which emphasis on the fact that community good is paramount to the right of individual to hold property. The underlining principle of Land Acquisition, Power of Eminent Domain or the Law of Compulsory Acquisition whatever it may be called can be summarised by the legal maxim salus propuli est suprema lex, meaning welfare of the people is paramount in law.
Compulsory acquisition of property involves expropriation of private rights in the property, it is a restraint on the right of private owners to be able to dispose off property according to their wish . The Law of Land Acquisition is intended to legalise the taking up, for public purposes, or for a company, of land which is private property of individuals the owners and occupiers, and pay equitable compensation therefore calculated at market value of land acquired, plus an additional sum on account of compulsory character of acquisition.
The Constitutional Framework
Originally the Constitution of India consisted of provisions under Article 19(f) and Article 31 which constituted Right to Property. But there were number of difficulties that the state was confronted with, Right to property, Articles 14, Articles 19 and Article 31 read in tandem by the Courts proved to be anti developmental, as the courts struck down various acts of the state. In a number of cases the courts declared the reforms initiated by the state as being ultra vires, which hampered the development by means of growth of infrastructure which was essential for development soon after the independence. It was because of the difficulties in the functioning of the right to property that had been brought to light by the judicial decisions the Constitution (First) Amendment Act, 1951 was enacted and the Right to Property was done away with. Article 31(A) which was enacted categorically states that no law which provides for acquisition by the state of an estate can be held void as being ultra vires Article 14 or Article 19. It also provided for payment of compensation at a rate not less than market value of the property
Acquisition and Requisition of property falls in the concurrent list , which means that both the centre and the state government can make laws on the matter. There are a number of local and specific laws which provide for acquisition of land under them but the main law that deals with acquisition is The Land Acquisition Act, 1894. The law was enacted by the British government and by virtue of The Indian independence (Adaptation of Central Acts and Ordinances) Order, 1948 continues to exist as the law of land acquisition in India. Given the fact that Land Acquisition falls under the concurrent list both the State Government and the Central Government have amended the law, evolving it with time and according to the local needs.
Land can be acquired either by the state or the central government for the purposes listed under state and central list respectively unless the central government delegates the task to the state government under article 258(1) of the Constitution. The term “appropriate government” in the act would imply the government weather centre or state that issues a notification under section 4 to acquire the land.
Constitutionality of various sections of the Land Acquisition Act has been considered as being in violation of Article 19 and 31 of the constitution as being confiscatory in nature and it is sought to deprive appellants of their lands
Article 31(2) categorically states that a land can be acquired by the state only for Public Purpose. Broadly speaking, public purpose would include a purpose, in which the general interest of the community, as opposed to a particular interest of the individual, in generally and vitally concerned . In a generic sense the expression public purpose would include a purpose in which where even a fraction of the community would be involved. It has been identified as a work from which public in general would derive benefit or be benefited. Anything which is useful to the public, in the sense that it confers some public benefit, or conduces to some public advantage, is a public purpose . It is the requirement of public purpose that is determining factor on the question weather or not a particular land should be acquired, and the considerations of hardships to the individuals cannot outweigh the question of public demand . Section 3(f) of The Land Acquisition Act defines public purpose as the expression “public purpose” includes-
- the provision of village-sites, or the extension, planned development or improvement of existing village-sites;
- the provision of land for town or rural planning;
- the provision of land for planned development of land from public funds in pursuance of any scheme or policy of Government and subsequent disposal thereof in whole or in part by lease, assignment or outright sale with the object of securing further development as planned;
- the provision of land for a corporation owned or controlled by the State;
- the provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by Government, any local authority or a corporation owned or controlled by the State;
- the provision of land for carrying out any educational, housing, health or slum clearance scheme sponsored by Government or by any authority established by Government for carrying out any such scheme, or with the prior approval of the appropriate Government, by a local authority, or a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a state, or a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State;
- the provision of land for any other scheme of development sponsored by Government or with the prior approval of the appropriate Government, by a local authority;
- the provision of any premises or building for locating a public office, but does not include acquisition of land for companies.
The expression Public Purpose is not to be strictly construed under Section 3(f) of Land Acquisition Act, it is an inclusive definition of public purpose and from time to time the courts have held different purposes to be Public Purpose. It is not possible to give an exact and all-embracing definition of public purpose . Public Purpose includes the following aims:
- In which general interest of the community, or a section of the community, as opposed to the particular interests of the individuals, is directly or vitally concerned ;
- Which would preserve or promote public health, comfort or safety of the public, or a section of it, weather or not the individual members of public may make use of the property acquired ;
- Which would promote public interest, or tend to develop the natural resources of the state;
- Which would enable department of the government to carry on its governmental functions;
- Which would serve the public, or a section of it, with some necessarily or convenience of life, which may be required by the public as such, provided that the public may enjoy such service as of right; or
- Which would enable individuals to carry on a business, in a manner in which it could not be otherwise be done, if their success will indirectly enhance public welfare, even if the acquisition is made by a private individual, and the public has no right to any service from him, or to enjoy the property acquired; or
- If the use to which the property would be put, is one of the widespread general public benefit not involving any right on the part of the general public itself, to use the property or;
- Which would result in an advantage to the public; it is not necessary that the property, or the work upon it, should be available to the public as such; the acquisition may be in favour of individuals, but, in furtherance of scheme of public utility, which would result in enhancement of public welfare.
One of the test of public purpose is if the purpose would satisfy the expenditure of public funds and in number of judgements courts have said that government is the best judge of public purpose. The declaration of public purpose by the government is final except if there is a colourable exercise of power. To allege mala fide or colourable exercise of power of eminent domain the facts or grounds should be pleaded in support, which would show at least some nexus between the party for whose benefit the power is sought to be exercised and the authorities of the state which could support a reasonable suspicion that there has been an improper exercise, of such power exceeding the ambit of eminent domain as to constitute a fraud . The power to select the lands is left to reasonable discretion of the government and the courts cannot interfere in this regard. The view held by court is that a declaration under Section 6 is a conclusive evidence of public purpose and unless it is shown that there has been a colourable exercise of power courts cannot go on to look weather it is a public purpose or not.
With the march of civilization, the notions as to the scope of the general interest of community changes and widens, with the result that old and narrower notions as to sanctity of private interest or individual no longer stem the forward flowing tide of time and give way to broader notions of general interest of the community.
The Process of Land Acquisition
For the purposes of Land Acquisition Act of proceedings are carried on by an officer appointed by the government known as Land Acquisition Collector. The proceeding under the Land Acquisition Collector is of an administrative nature and not of a judicial or quasi judicial character. When a government intends to occupy a land in any locality is has to issue a notification under Section 4 in the official gazette, newspaper and give a public notice which entitles anyone on behalf of the government to enter the land for the purposes of digging, taking level, set out boundaries etc. The notification puts forward the intention of the government to acquire and entitles government officials to investigate and ascertain weather the land is suitable for the purpose. The section also makes it mandatory for the officer or person authorised by the government to give a notice of seven days signifying his intention to enter any or building or enclosed court in any locality. This is a mandatory provision of the process of land acquisition
An officer or authorised person of the government has to tender payment for all necessary damage, and dispute all disputes to insufficiency of amount lie to the collector . Under Section 5(a) any person interested in land which is notified under section 4 (who is entitled to claim an interest in compensation) can raise an objection, in writing and in person. The collector after making inquiry to such objections has to forward the report to the government whose decision in this respect would be final. After considering such report made by the collector under section 5(a) the government may issue a declaration within one year of the notification under section 4 to acquire land for public purposes or company, this declaration is a mandatory requirement of the acquisition.
After the declaration under Section 6, collector has to take order from the appropriate government weather state or central for the acquisition of land under section 7. The next step in the process of acquisition is that collector has to cause land to be marked out, measured and appropriate plan to be made accurately , unless it is already done. Requirement of this section deals only with approximation and does not require exact measurement. An important process that takes place under this section is demarcation which consists of marking out boundaries of land to be acquired, either by cutting trenches or fixing marks as posts. Object is to facilitate measurement and preparation of acquisition plan, but also let the private persons know what land is being taken. It is to be done by requiring body that is the government department or company whichever be the case. Obstruction under Section 8 and Section 4 are offence punishable with an imprisonment not exceeding one year and with fine not exceeding fifty rupees.
Section 9 requires the collector to cause a public notice at convenient places expressing government’s intention to take possession of the land and requiring all persons interested in the land to appear before him personally and make claims for compensation before him. In affect this section requires collector to issue two notices one to the locality of acquisition and other to occupants or people interested in lands to be acquired, and it is a mandatory requirement.
Next step in the process of acquisition requires a person to deliver names or information regarding any other person possessing interest in the land to be acquired and the profits out of the land for the last 3 years. It also binds the person by requiring him to deliver such information to the collector my making him liable under sections 175 and 176 of the Indian Penal Code. The object of this step is to enable the collector to ascertain the compensation by giving him a vague idea.
The Final set of collector’s proceedings involve an enquiry by the collector into the objections made by the interested persons regarding the proceedings under section 8 and 9 and making an award to persons claiming compensation as to the value of land on the date of notification under section 4. The enquiry involves hearing parties who appear with respect to the notices, investigate their claims, consider the objections and take all the information necessary for ascertain the value of the land, and such an enquiry can be adjourned from time to time as the collector thinks fit and award is to be made at the end of the enquiry. The award made must be under the following three heads:
- Correct area of land
- Amount of compensation he thinks should be given
- Apportionment of compensation
Section 11 makes it obligatory on the part of the collector to safeguard the interests of all persons interested, even though they might not have appeared before him. In awarding compensation the Land Acquisition Collector should look into estimate value of land, give due considerations to the other specific factors. Value of the property in the neighbourhood can be used as a criteria . The award should be made within 2 years.
The law of Land Acquisition jeopardises private interest for public interest and hence it denies an individual his right to property. It overrides the right of a person to own a property, so the law in general should be strictly construed . The strict construction of the Law of Land Acquisition has been emphasised by the court for the last 60 years as it does not hold the person whose property is being taken and state at par. The owner of the property has no bargaining power with the state in such circumstances nor does he have a say in compensation; so its inevitable in the interest of equity that the law should be strictly construed and the procedure which provides for various checks and balances should by strictly complied with. Compulsory acquisition can be effective only in accordance with Acquisition because it is an inroad into citizens right to property . On this matter the established law is that if from the purpose for which the land is acquired, it is apparent on the face of it that the purpose is not a public purpose and there can be no two arguments to construe it otherwise, means the act of the government is ultra vires so in this case the public purpose is justifiable i.e. courts can look into the matter . But when the purpose mentioned can be interpreted either ways of being a public purpose or not, it is not justifiable
With respect to an enquiry or proceedings by the Land Acquisition Collector is just an Administrative act, it is neither Judicial nor a Quasi Judicial act. Though section 14 gives the power to summon and enforce attendance of witness and compel production of documents as in Civil Procedure Code to the Civil Court. The offer made by the Land Acquisition Collector binds the government not the persons interested. If there is an agreement between the collector and the persons interested as to the compensation, area of land, apportionment (in case of more than one persons interested) no need arises for further proceedings otherwise provisions of Section 18 as to the judicial settlement are invoked.
As to the brief outline of the Land Acquisition Act, 1894 sections 1 to 3 give the short title, object and reasons and the important definitions. Sections 4 to 17 deals with the process of acquisition. Then comes sections 18 to 28 which describes the reference to court and procedure thereupon in the off chance of a conflict with respect to compensation. Sections 29 and 30 deal with Apportionment in case of more than one individuals interested, and section 3 to 34 lay down the payment of compensation. Sections 35 to 38 deal with temporary acquisition of land and finally sections 38 to 44 deal with the acquisition of land for companies.