CHAPTER - 5 LAND ACQUISITION ACT BRIEF HISTORY OF LAND ACQUISITION Law The history of land acquisition legislation in this country dates back to the beginning of last century. Theffirst{ piece of legislation India in respect to Uie acquisition of proper’ was the Bengal Regulation Act of it applied to all the provinces subject to the presidency of Fort William, It only made ProvisiéHis for enabling the officers" of Governmentto obtain land or other iinmovable -property required Jaf. roads-.canals or ‘other public purposes. In some of the provisions of the said Act wef extended to the Calcutta City, when the Railways were being developed in mid 19th centuty- twas felt that legislation was needed for acquiring lands for them also. Thus through: the Act. railways were declarestas pubticworks and Tands acquired for the construction of railways also. * Laterthere wasarapid pace ofurbanisation dué to Industrial Revolution this lead to _ deterioration ti public health, which necessitated the compulsory. purchase.ofJand for various public health. urban renewal and ‘town, expansion purposes. Thus the Government became, aware of the neéd to expand the scope for compulsory acquisition of land. to above mentioned purposes also. 839. was the {first for acquisition of lands for the purposes of widening or altering any existing public road, street or other thoroughfare within the islands of Bombay and-Colaba were provided, It was a similar Act to Bengal Regulation Act of 1824, Later the Actof 1852 was passed in Madras ieee aMadeas for the purpose of facilitating the acquisition of land in the Presidency of St, Fort George. This act adopted first seven sections of the Bengal Regulation Act of 1824 with certain modifications. For the whole of British India, an Act on. thig subject was for the Girst time, enacted in ¢ fist As stated in the preamble of this Act. it \ Fé pealed ‘all the previous enactments relating. to dequisition and its object was to make better provisions for the acquisition of lands needed for Public purposes. wathin the territories in ‘the possession and under the governance of Fast India Company. Italso went to the extent of determining the amount of compensation with reference to certain pangiples. Under .this Act. the Collector was empowered to fix,the ammount of compensation. tobe paid by agreement, if possible, but if there, was no such agreement possible, the dispute had to be referred to Arbitrator, whose decision was final and could hot be impeached except, on grounds of cofruption and misconduct. This Act was grinded by the Act of 1861_ and subsequently by the Act of 1863. However afew years working of the Act revealed that themethod of settlement of compensation by Arbitrators was found to be unsatisfactory as they were incompetentand even corrupt. There was no machinery to get their decision revised as there Was no appeal provided under the Act against the award of Arbitrators. Uluimately the legislature had to intervene and the Act of 1870 was passed. This Act, for iedirst timp, provided for a reference taa.ctvil court for the determination of the amount of compensation when the Collector could hot settle by agreement. It laid down a detailed procedures for the acquisition oflandand also provided definite rules: for assessing coinpensation. A better type of tribunal for the decisions of the claims and a dear set of rules for: assessing compensation were the new features of the statute. But the Act of 1870 was found to be equally unsatisfactory, particularly the matters, oF reference, to the court, and consequently another Act in the year 1894 {which ia ~’ €ven now) was passed in place of th of 1870. ~— ‘The Act of 1870 was not found entirely effective for the’ protection of either the » Governments or the personsinterested in lands tg be acquired. The provisions that the collector shall refer for the decision of court every pretty difference of opinion, resulted jn involvement in litigation and considerable delays particularly because several parties, whose interest in the land was insignificant. also made the Collector to refer their cases to,the court. Before 1894 the valuation of Jand was hands of @tbiirate: for whose ‘was no appeal. This system led toa lamentable waste of public money, because the Arbitrators were often incompetent, and even corrupt and also the law then laid to 35 + 1894, which must be considered to beahistoric S } ‘The above mentioned defects were sought & to be remedied by the Land Acquisition Act ¢. instructions for their guidance, piece of legislation in this regard. Detailed” instructions were provided in this’ Act about those matters which are to be considered and those which are to be neglected in award: of compensation for lands acquired under its provisions. Under this Act the Collector's award was norgnally fingl, unless desired bytheconcerned parties to be referred to the court. Thus the previous rule of compulsory reference to court In all cases where there was no agreement among the several claimants as regards apportionment amongst the claimants and if any of them is aggfieved.it i3 open to him to apply to the Collector for reference to court. withiA the time specified in Section 184 of the Act. Peeerer ew Various amendments were ‘made to the 1894 Act from time to time. Despite these amendments, the administrative procedure has under the Land Acquisition Act, 1894 basicallyremained same since 1894, when it was first enacted and this Act has served admirably well the purpose of compulsory acquisition of properties for public purposes. as may be required by various public authorities, during the last one hundred years. DEFINITION OF LAND Inthe context of land acquisition, the term ‘land does not refer merely tavacantland but iieludes st y, existing on Acquisition Act, 1894 clearly defines the expression ‘land’ as including ‘benefits to arise mn nr rar PAPA PPAPPRRAAPDE PDout of land, and things attached to the earth Permanently fastened to anything attached to the earth’ ALTERNATIVE METHODS OF POSSESSION OF LAND ‘There are three alternative resources open to Government or a public authority” for possessing a land, under private ownership. 1. Outright purchase of the land from th owner by mutual agreeinent f on sale price. ‘Taking over land on lease terms from the owner for a specified period by mutual agreement subject to the conditions meritioned in the lease * document. Compulsory acquisition of property ulider thé Land Acquisitionacr—~ ‘The first method (viz. dutright sale) is the quickest and best method provided the owner is agreeable wre Te Teasonable sale price. ~~ ‘| The second method Is also resorted to when, land is required by State for a specified period only and if the ‘owner is agréeable to reasonable terms. Whenever elther of the two methods, referred to above. are resorted to. the administrative procedureas laid down in many states. require that In Interests of avoiding wastage of public funds, the prior approval of 1 senior officer of the Government (ike District Collector/should be. obtained by the public authority before they enter into sale or lease agreement, as the case may be with the owner. 36 Only when either of the first two methods, are not {eagible or applicable in any FAS compulsory acquisition of property has to be undertaken by the State. CONSTITUTIONAL PROVISIONS IN RELATION TO LAND ACQUISITION ‘The constitution ofany country. written or otherwise. is the fundamental law of the land and allotherlawsofthe country are subservient tot The sanctity of private property is recognised and guarantees accordingly provided normally in every Constitution and Indian, Constitution is no exception to the same. + The property right as a fundamental right is contaii “Articles 19(1)() of the Constitution which reads as under: Art. 19 (1) All citizens shall have the right (0 toacquire, hold and dispose of property. According to the conception of the jurists, the ownership right of a property owner-iswit bundic of separate rights. The rights to use the peoperty, the right to sell it. to right to lease or mortgage. the right to give it away. the right to build on it - all these rights and many others represent to the individuals a bunch of sticks in that big ownership bundle. However the fundamental right specified In Article 19(1N(0 is subject to the restriction mentioned in Article 19(5) of the Constitution which reads as under: Art, 195) Nothing in sub-clause (cd). (cl and ( of the said clause shall affect the operation ufany existing law in so far as it, imposes or prevent the State from making any law imposing. reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of “the general public or for the protection of the interests of any Scheduled Tribe. * The purpose of the emiinent domain or tiie power of State to acquire private property is given expression by Article 31 of the Constitution. Art. 31()._No person shall be deprived of his propertysave by : authority of law. Art.'31(2), No property shall: be . . compulsorily gcquiredor requisitioned save for a ublic purpose arid save for authority of a law which provides for compensation . for the property so acquired. or.requisitioned and either fixes the amount of the compensation or specifies the principles onwhich, and the manner in which, the compensation is ts be determined and given; and no such law shall be called In question in any court on the ground that the compensation provided .by that law ts not adequate. A few principles relating to acquisition of a property can be derived from Article 31 asg= explained below: . 1. . A person cannot be deprived of his | property by a mere _ executive flat = * without the backing of a law. al ea The implication is that the executive | mustsetaccordingto and within the framework of a law which must provide necessary powers to the = Government for compulsory ¢_| acquisition of property. Hence it is obligatory that the executive must follow in such cases the procedure _ Jaiddown » in law and any deviation @— from it. might resut in the admmistrative action being-declared as invalid by the courts. 2,” "The lad acquisition. Jaw teas. to conform to two Constitutional requirements so as to be operative. Firstly, the acquisition can only be for ‘public purpase and Secondly the » ss aequisition “law should -provide for: payment of compensation for the «_ Broperty acquire — — CONCEPT OF PUBLIC ‘PuRPOsE Now, in the context of compulsory land acquisition. thie question arises what is the ‘pubic puigiose’. Theconcept of public purpose’ etn ‘and not poesatc as the modern | society is a dynamic 6ne, It would be diflicult- to lay down any hard and fast definition of what should ‘constitute’ a ‘public- purpose. Hence Land" Acquisition Act also avoids giving any exhaustive definition as towhat purpdse would come within ‘the purviéw of the meaning of ‘public purpose ang 5 PPP PPPPPPPR PP PPS RPP The Leading court decision on the subject 's the case of Hamabal Framjee Petit vs,[ee beleveited te for India inwhieh Bachelor ‘General definitions are. I think, rather to the avoidance Is possible, |) ghd 1 make no attempt to define precisely the extent of the phrase. ‘public’ purpose’ = It Is enough to say that in my opinion . the phrase, whatever elseitmay mean. must include a purpose. the object or aim in which the general interest of the community. a5 ‘opposed to the particular interest of individuals. Is directly and vitally concerned. Section 6(3) of the Land Acquisition Act states that the declaration by the Government under Section 6(1) of the Act that specific land is‘ required for public purpose.: shall be conclusive eviderice that the land is needed for public purpose. It is implied Hereby that once a Section 6{1) of Land AcquisitionAct cannot enjoy such immunity frominterfefence| by court because ‘public purpose’ is justifiable and the quits have Sautytosee that what is purported fo be a publig’ purpose I really so = Hence. in all such cases the criteria ‘mentioned by J Bachelor in the case, referred toabove, namely that the acquisition of land is needed’ in the “general interest of the community, as opposed to the particular interest of individuals”. ‘Another important relevant case in the ‘Supreme Court was Raja Anand Brahma Shah vs. State of Ul , Some land of the petitioner was acquired forlime stone quarry. The samestone extracted from quarries situated on the land acquired was used by the State Government for the manufacture of cement which was sold commercially. The petitioner argued that this was nota public purposeandso the acquisition way had. The Supreme Cou this.ais Section 6(3] ‘Tali presumption regarding publi post. Court cannot go behind It and try to sat itself whether, in fact, the acquisition was public purpose. The Supreme Court hel it was for the Government to be satisfied, ‘in a particular case, that the purpose for which the land was needed was a public purpose andthe declaration of the Government under Section G{1)' would be final subject. however. to colourable exercise of power when the declaration 1s open to challenge. ‘Thus in all such cases the Important principle would: be that the action of the Government should not bea'colourable exercise of power’. tn another case the court has held that it would be a legitimate policy on part of the Government, in view of extraordinary shortage of housing accommodation in Delhi. to encourage the development of cooperative housing societies on a non-profit basis, and it amount to ‘public purpose’ for which land can be acquired by the Government. ADMINISTRATIVE PROCEDURE UNDER LAND ACQUISITION ACT Animportant administrauve principle with regard to the operation of land Acquisition Act is that whenever any Government Dept. ora publicauthority want toacquire any land, they ‘will_not_themselves directly undestake the various stages of acquisition under the Act but they must send their requisition proposal.to the appropriate office of the Government (sormally designated as Land Acquisition Collector) whowill on behalf of the Department or Public authority. which needs the land. go through the various stages of the land acquisition procedure until he takes possession.»gress Colteetor aftePRELIMINARY NOTIFICATION Gopal Singh vs. state of Ra ya Thakur vs. Stat ‘pmver by the Government under don ths teed ‘Sipar of such contention, care should sw sec nexusbetseen Meee a use beet (he land 8 beng Mme apd the dures ofthe State EREN couid support reasonable suspcon sive or mala 40enjeter an opportunity tobe heard and afer decide. DECLARATION UNDER SECTION 6{questioned by any aggrieved part Tete cormection it may be Colourable exercise of power. ‘meaning’ nor ‘existence of public purpose’ Is 2