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DISADVANTAGES OF THE 1894 WITH LEGISLATION AND ADVANTAGES OF THE
2013 ACT, AND 'RIGHT TO PROPERTY'
LAND LAW- I ASSIGNMENT
Submitted By- Name: MOHAMMAD ARISH Roll no.: - 16BLW B.A.LL.B (Hons.) 9th^ semester (Self-Financed) Faculty Of Law, Jamia Millia Islamia Submitted To: Prof. Kahkashan Y. Danyal, Professor (Faculty Of Law, Jamia Millia Islamia, New Delhi) Date of submission: 10 - 11 - 2020
ACKNOWLEDGEMENT
The success and final outcome of this assignment required a lot of guidance and assistance from many people and I extremely fortunate to have got this along the completion of our assignment work. Whatever I have done is only due to such guidance and assistance and I would not forget to thank them. I respect and thank Prof. Kahkashan Y. Danyal for giving me an opportunity to do this assignment on time. I extremely grateful to him for providing such support and guidance. I am really grateful because I managed to complete this assignment within the time given by Prof. Kahkashan Y. Danyal. This assignment cannot be completed without the effort and co- operation from our group members. I would like to express my gratitude to my friends for support. THANKING YOU
INTRODUCTION
The Government of India believed there was a heightened public concern on land acquisition issues in India. Of particular concern was that despite many amendments, over the years, to India’s Land Acquisition Act of 1894, there was an absence of a cohesive national law that addressed fair compensation when private land is acquired for public use, and fair rehabilitation of land owners and those directly affected from loss of livelihoods. The Government of India believed that a combined law was necessary, one that legally requires rehabilitation and resettlement necessarily and simultaneously follow government acquisition of land for public purposes. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 is a legislation that regulates land acquisition and provides laid down rules for granting compensation, rehabilitation and resettlement to the affected persons in India. The Act has provisions to provide fair compensation to those whose land is taken away, brings transparency to the process of acquisition of land to set up factories or buildings, infrastructural projects and assures rehabilitation of those affected. The Act will replace the Land Acquisition Act, 1894, a nearly 120- year-old law enacted during British rule.
CONCEPT OF PROPERTY
Ownership and Property have been a long-discussed concept in the legal arena. According to Salmond, ownership denoted the relationship between a person and an object forming the subject-matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being good against the entire world and not merely against specific persons. Austin on the other hand defined ownership or property as the right to use or deal with some given subject, in a manner, or to an extent, which, though is not unlimited, is indefinite. The State, be it corporeal or incorporeal property has always played a material role in protecting the interest of individuals against their personal property. The taking away of such property by the State, with a welfare motive from persons for the greater good of the rest of the society is also not an alien concept. The practise is done keeping in mind the state practices, economy structure and the pace of societal growth. Systems of Land Administration are not an end in themselves. The design and development of those systems find their rationale and justification in the broader framework of land policy and land management. The way governments intend to deal with the land issue in their society, determines the requirements to the institutional and operational set up of land administration systems.^1 The Constitution and other legislations are modified keeping in mind all of the eventualities. The Right to property, found its place as a fundamental right under the Indian Constitution until it was finally repealed.4 Before the said amendment in 1978, Article 19(1)(f) and Article 31 guaranteed safeguard of interest to defenceless individuals against their property. The object behind such amendment was to surcease the accumulation of land holdings in the hands of zamindars and rich individuals. However, since the said objective has been achieved the viability of the said amendment is again in question. The right to property is now a statutory right. Article 31 now finds its place under the Indian Constitution as Article 300A. This transfer justifies the doctrine of eminent domain. The doctrine absolves the acquisition of land by State, provided it is for public purposes and adequate compensation is given in this regard. Therefore, property of an individual is acquired, except by authority of law. In (^1) Paul Van Der Molen, Eugene. H Silayo, Arbind M. Tuladhar on “ A Comparative study of Land Policy in 9 countries in Africa & Asia”.
purposes “at a fair valuation.” Subsequently, The Bombay presidency enacted an act similar to the Bengal Resolution I which included parts of the present-day states of Maharashtra, Gujarat, and Karnataka. In 1850, The British government then enforced Act XLII of 1850 in the country to acquire land for the purpose of building a rail network. The Madras in 1852, presidency passed an act^6 in order to facilitate the acquisition of land for public purposes which included the present-day states of Tamil Nadu and Andhra Pradesh, parts of Odisha, Kerala, and Karnataka, and Lakshadweep. The government enacted legislation that brought the whole of British- ruled India under one uniform land acquisition law^7 that stroke out all the previous enactments relating to land acquisition. Under this act , the collector had the power to fix compensation for the acquired land, while disputes were referred to arbitrators whose decision was final. The 1857 legislation was amended owing to the “unsatisfactory settlement,” “incompetence” and “corruption.” In 1870, a new act was implemented that replaced arbitrators with civil courts for resolving disputes. The act of 1870 was found to be unsatisfactory, therefore it leads the government to pass the Land Acquisition Act, 1894. This act permitted the government to forcibly acquire land from private landholders for projects of public purpose. The price for the land was determined by the government. THE LAND ACQUISITION ACT, 1894 The Land Acquisition Act of 1894, allows the Indian Government to acquire the private land in the country. Under this Act, “Land Acquisition” means acquiring land for any public purpose by government or its agency, as authorized by law, from the individual land owners after paying a fixed compensation in lieu of losses incurred by these land owners due to surrendering of their land to the concerned government agencies. According to this Act, the state has power to exercise its right of eminent domain wherein it is the ultimate owner of all the Land which it can acquire for public purposes after paying full compensation calculated on the basis of market value. Despite numerous amendments of the Act after independence, the two basic principles of land acquisition, that is, a). Public purposes and b). Compensation on Market Value remains unchanged.13 Although the Central Government determines the content of the law, but there can be regional variations in the procedural (^6) Act XX of 1852 (^7) Act VI of 1857
matters. As Land is a scarce resource and always has various holders claiming ownership, this Act provided a set of rules for convenient settlement of such disputes. As per the 1894 Act, land can be acquired either under Part-II or Part-VII of the Act. While the former is used when acquiring body is the central or state government or companies that are either owned, partly owned or controlled by the State, the latter is used in case of private companies. Another important aspect is that, while land acquisition under Part-II is entirely for “Public Purpose”, acquisition under Part-VII can be for both “Public Purpose” and “Non-public Purpose”, although the scope for” Non-public Purpose” is very limited. COMPOSITION AND PROCESS OF LAND ACQUISITION Under this part, acquisition process involves the following steps: -
- NOTIFICATION^8 The land acquisition process starts with issuing of a preliminary notification in the Official Gazette in two locally circulated newspapers. Also, the collector is to ensure the “public notice of substance of such notification” to be given at a convenient place in the locality. This notice:
- Makes it lawful for an authorized officer to enter and inspect the land specified in the notice without the owner’s permission
- Alerts the owner not to invest any money or labour on any improvements to his land without the Collector’s consent and
- Informs the public not to acquire any interest in such land.
- FILING OF OBJECTIONS^9 Owners and the people who have interest in the land are then required to file their objections (if any) within 30 days of the issuing of the notice. These objections are to be submitted to the collector and the collector shall give opportunity of being heard to all those people who raise objections. After hearing these objections, the collectors submit a report to the government which contains all his recommendations and all the records of the proceedings. Then the government takes a decision of acquisition based on the collector’s report. The right to file objections is regarded a substantial right (^8) Section 4(1), Land Acquisition Act, 1894. (^9) Section 5-A, Land Acquisition Act,1894.
LAND ACQUISITION UNDER PART VII
Under part VII, land can be acquired for non-governmental companies. Unlike Part II, where compensation is granted wholly or partly, but under Part VII, a company is bound to pay the entire amount of compensation for the notified land.^14 The term “company” includes companies as defined under the Company’s Act 1956, societies registered under Societies Registration Act 1860, Co- operative Societies and industrial establishments either owned individually or through partnership. Basically, the process of land acquisition under Part VII is similar to that Part II, but there are two major exceptions. The exceptions are related to the company in following ways:
- Getting government’s consent under Sec 6 (1)
- Entering into an agreement with the government before the declaration is issued under Sec 6(1) MAJOR DRAWBACKS OF THE LAND ACQUISITION ACT 1894 There were many factors that lead to the inapplicability of the Land Acquisition Act 1894, the major drawbacks being: -
- The Land Acquisition Act 1894, though provided reassurance to the land owners, it was totally unsympathetic towards the people who earned their livelihood from those lands. India being an agro- based country, where more than 60% of the population is still dependent on agriculture, the interest of the labourers working on the land cannot be completely overlooked. Moreover, ages of working on land renders them such perfection in agriculture that it becomes difficult for them to adopt some other occupational means for their survival.
- Under the Land Acquisition Act 1864, the government can take over land of private land owners only for “public purposes”. But this term “public purposes” has been given a very wide definition under this Act and it includes ➢ Any extension or improvement or development of existing infrastructure ➢ Any rural town or city planning. ➢ Any development in pursuance of any scheme or policy of the government.
- According to the Land Acquisition Act 1894, the compensation to be given to the land owners is to be in accordance with the market value. But this Act does not provide for any guidelines to (^14) Devinder Singh v. State of Punjab 2008 AIR 261
assess this market value. Hence, the calculation of compensation becomes really difficult. The Supreme Court in 2012 directed the government to increase the compensation to the highest market value of the land, in the basis that someone who is compelled to surrender his land should be able to claim a higher compensation than what a similar land owner would receive if he would sell his property willingly.
- Moreover, the rehabilitation and resettlement provisions for the displaced people that includes allotment to government land, grant for house construction and other substantive allowances are completely impractical in nature. This renders the appropriate government to rehabilitate the displaced people in a proper manner. 22 The government was driven by the above-mentioned drawback to take necessary measures to overcome the defects faced by it in enforcing the Act. Due to this reason the UPA government came up with the amendment bill in 2007. Again in 2011, it introduced the Land Acquisition, Rehabilitation and Resettlement Bill. THE CONSTITUTIONAL MANIFESTATION OF EMINENT DOMAIN The Constitution in its original un-amended form guaranteed right to property as a fundamental right. Article 19(1) (f) existed in the Constitution of India which gave a modicum of protection to private property^15. This Article was repealed by the 44th Constitutional Amendment and was replaced by Article 300A. This move has to a great extent diluted the Constitutional protection to the institution of private property in India. Also, the erstwhile Article 31 had given the legislature the power to make laws interfering with the individual’s right to property. One of the reasons for the deletion of Articles 19(1)(f) and 31 and insertion of Article 300- A was to reduce the right to property from the status of fundamental right to that of a legal right, i.e., the right will be available against the executive interference but not against the legislative interference^16. The Supreme Court has very clearly stated that the executive cannot deprive a person of his property without the authority of law and law in this context means an Act of Parliament or of a state Legislature, a rule, or a statutory order, having the force of law, that is positive or state made law^17. Article 19(1)(f) dealt with cases wherein the owner misused his property when seen from Article then authorized the framing of certain laws imposing reasonable restrictions to prevent the same. The state was empowered to make such future misuse a crime or to confiscate the property in order to prevent (^15) Kalpana Yadav ‘Eminent Domain: An Interrogation’ (2010) (^16) 44th Amendment, 1978, The Constitution of India. (^17) Bhimeshwar Dayal Chandra Mohan v State of U.P. (1982) 2 SCC 542
Firstly, the necessity of a legislative sanction as a prerequisite for the exercise of the power. That is to say that a person cannot be deprived of his property by an executive order and that it is only by the exercise of its legislative powers that a state can deprive a person of his property. Secondly, such deprivation can only be for a public purpose and thirdly, Compensation has to be paid for the property compulsorily taken by the state. The Supreme Court also discussed the all-important issue of the adequacy of the amount of compensation payable in the case of State of West Bengal v. Subodh Gopal Bose^21 the Supreme Court made it clear that constitutional obligation of paying compensation arose only where the state action resulted in the substantial deprivation of private property of the individual. In the case of State of West Bengal v. Mrs. Bela Banerjee^22 the court held that- “ While it is true that the legislature is given the discretionary power of laying down the principles which should govern the determination of the amount to be given to the owner for the property appropriated, such principles must ensure that what is determine as a payable must be compensation, that is a just equivalent of what the owner has been deprived of. Within the limits of this basic requirement of full indemnification of the expropriated owner, the Constitution allows free play to the legislative judgment as to what principles should guide the determination of the amount payable. Whether such principles take into account all the elements which make up the true value of the property appropriated and exclude matters which are to be neglected, is a justiciable issue to be adjudicated by the Court. ” ARTICLE 300A & DOCTRINE OF EMINENT DOMAIN The Forty-fourth amendment to the Constitution in 1978 transformed the right to property from the category of fundamental rights by repealing Article 31, and converted it into an ordinary constitutional right by enacting Article 300-A which merely says, “No person shall be deprived of his property save by authority of law”. Hence, the rights in property can be curtailed, abridged or modified by the state only by exercising its legislative power. An executive order depriving a person of his property without being backed by a law is not constitutionally valid^23. Also, in order to classify to be called a valid law, it must satisfy the following three tests: (i) The authority which has enacted the law must have the legislative competency to do so; (^21) 1954 (5) SCR 587 119 (^22) AIR 1954 SC 92 (^23) State of Mysore v K.C, Adiga AIR 1976 SC 853
(ii) It must not infringe upon any other fundamental right guaranteed by Part III of the Constitution (iii) It must not violate any other provision of the Constitution. It is often said that the ostensible purpose of repealing Article 31 was to free the legislature from the restrain of paying compensation for property acquired. However, the same has been countered by arguing that the dual requirement of 'public purpose' and 'compensation' in case of acquisition of property are inherent and essential elements or ingredients, or inseparable concomitants of the power of eminent domain, and therefore, of Entry 42, List III as well. In Basantibai v. State of Maharashtra^24 , the court did seek to interpret Article 300A favorably to the property owners by reading therein the twin requirements of public policy and compensation. Under this Article, the legislature cannot sanction the deprivation of property for a public purpose. However, the same did not mean that the Parliament intended to confer an absolute right on the Legislature to deprive a citizen of his property merely by the passing of a black-letter law. The court clearly held: “ The doctrine of eminent domain really recognizes the natural right of a person to hold property, and if that right can be taken away by the legislation without satisfying the two requirements, then entire concept of Rule of Law would be redundant. The introduction of Article 300A in the Constitution while deleting Article 31 clearly indicates that the Parliament intended to confer a right on the citizen to hold property which could not be deprived without authority of law. In spite of this, the constitutional obligation to pay adequate amount to the expropriated owner is not taken away. ” Moreover, after the Maneka judgment^25 , the expression ‘authority of law’ must necessarily mean ‘just, fair and reasonable’ law in keeping with the touchstones of Articles 14, 19 and 21 of the Constitution of India. The Supreme Court clearly identified right to transfer as an incidental to ownership which cannot be taken away without authority of law. An owner may use the property within limitations imposed by legislature. The Supreme Court gave a new dimension to ownership as it regarded the right to property in human right. It says that even a claim of adverse possession has to be read in consonance with human rights. (^24) AIR 1984 Bom. 366 (^25) Maneka Gandhi v UOI, AIR 1987 SC 597
That is, if the land is acquired by the government for a private company or for a public private partnership or for its own use, then provisions of land acquisition shall apply and compensation has to be paid and rehabilitation and resettlement of the parties shall also to be done. In case of a land acquired by the government for a public private partnership, the land continues to vest with the government. Section 4 of the 2013 Act provides for Social Impact Assessment Study to be conducted before acquisition of land by the government for a public purpose in consultation with the concerned Panchayat, Municipality or MCD in the affected area. That is, this provision provides for study of impact of the impending project on the society. “While undertaking a Social Impact Assessment study, the government has to consider the impact that the project is likely to have on various components such as livelihood of affected families, public and community properties, assets and infrastructure, particularly roads, public transport, drainage, sanitation, sources of drinking water, sources of water for cattle, community ponds, grazing land, plantations, public utilities such as post offices, fair price shops, food storage godowns, electricity supply, health care facilities, schools and educational or training facilities, anganwadis, children parks, places of worship, land for traditional tribal institutions and burial and cremation ground.”^26 Section 9 provides that where the land is proposed to be acquired invoking the urgency provisions under Section 40 of the Act, the government may exempt the undertaking of the Social Impact assessment Study. Further under proviso to Section 6, in respect of irrigation projects where the process of Environment Impact Assessment is required under the provisions of any other law, the provisions relating to Social Impact Assessment shall not apply. Once the social impact assessment process has been executed satisfactorily, the proceedings of acquisition of the identified land can begin with a ‘Preliminary Notification’ issued under Section 11. This is an initial notice to the public at large that a certain parcel of land is to be acquired along with details relating to the area. This notification is different from its 1894 counterpart in the sense that it must contain a statement on the nature of the public purpose involved along with the reasons necessitating the displacement of the affected persons. This has to be accompanied with a Social Impact Assessment Report and particulars of the Administrator appointed for the purposes of rehabilitation and resettlement who is required to conduct a survey and undertake a census of the affected families under Section 16 of the Act. Further, under Section 14, when the preliminary Notification under Section 11 is not issued within 12 months from the date of appraisal of the Social Impact Assessment Report, then such report shall be (^26) Section 4(5) of the 2013 Act
deemed to have lapsed and a fresh Report is required to be taken prior to issue of Notification of acquisition under Section 11. Once the Preliminary Notification has been issued, any person interested in the land which has been notified for acquisition may within sixty days from the date of publication of the Preliminary Notification, raise objections under Section 15 of the Act with regard to the area and suitability of land to be acquired, the justification offered for public purpose or the findings of the Social Impact Assessment Report. This is followed by a survey and census of the affected families by the Administrator for Rehabilitation and Resettlement and declaration for acquisition under Section 9 of the Act. Under Section 23, the Land Acquisition award is passed by the Collector. It contains the following details - the true area of the land, the compensation as determined, the Rehabilitation and Resettlement award as determined and the apportionment of compensation among all individuals who have an interest in the land. Under the old Act, possession could be taken without satisfactorily compensating or resettling the families. But under the 2013 Act, the Collector can take possession of the land only after ensuring the full payment of compensation including the rehabilitation and resettlement entitlements to the entitled persons. Under the 2013 Act, the amount of Compensation must be sufficiently fair so as to justify the forcible acquisition of land. Under the 1894 Act, compensation was required to be paid at market value. The Court has also recognized in Ram Jiyawan v. State of Uttar Pradesh^27 the importance of paying compensation as “Acquisition without payment of compensation is violative of Article 14”. Compensation provisions are contained in Sections 26-30, 39 and the First Schedule of the Act. Section 26 provides for determination of the market value of the land by the Collector according to the criteria mentioned therein which lays down “(a) the market value, if any, specified in the Indian Stamp Act, 1889 for the registration of sale deeds or agreements to sell;” or “(b) the average sale price for similar type of land situated in the nearest village or nearest vicinity area;” or “(c) consented amount of compensation in case of acquisition of lands for private companies or for public private partnership projects.” The Act provides a method for calculating the average sale price referred to in clause (b). It shall be “determined taking into account the sale deeds or the agreements to sell registered for similar type of (^27) AIR 1994 All 38.
CONCLUSION
It is felt that it has been a topsy-turvy journey in which we made certain changes in Indian Constitution. Like Indian citizens lost right to property as fundamental right while Supreme Court made an attempt to make a balance in the right to property, eminent domain and land acquisition process. Supreme Court rendered radical judgments to concretize the process of compensatory acquisition of land and property. Article 31A, 31B & 31C and 300A were added. Twenty-five years of first phase were devoted to settle the dust and it continues till date and shall continue as the core of the land acquisition issue is that individual and state both are bargaining for more power for themselves. The government has to carry out development work for which land is the basic requirement. The British brought the 1894 Act which was in its own right a draconian, unjust, archaic legislation. This legislation provided for compulsory acquisition of land without the consent of the landowners, it only provided for monetary compensation (determination of which was not satisfactory), there was no provision for rehabilitation and resettlement of the displaced people. This legislation generated a lot of conflicts as large business groups pressed for land acquisition for their mega projects and the landowners protested and the protests grew louder with events like Singur and Nandigram. Finally, the Government enacted the 2013 Act with provisions of just and fair compensation, rehabilitation and resettlement to the affected families. The effect of land acquisition on the affected families was to be gauged by a Social Impact assessment before resorting to land acquisition. It also provided for the return of land to the owners if it remained unutilized for a period of 5 years. The need of the hour is that a balance should be created between the needs of the corporate sector which requires land for their projects and the landowners and farmers. The Government should shelve the idea that development of the country can take place only through industrialization and creation of more jobs. Agriculture and farming is a very essential part of our economy which cannot be neglected for the sake of development.
BIBLIOGRAPHY
Statue:
- The Land Acquisition Act, 1894
- THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND
- ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013 Article:
- www.jlsr.thelawbrigade.com
- http://www.legalserviceindia.com/article/l295-Land-Acquisition-Act.html
- https://www.lawctopus.com/academike/land-acquisition-india/
- http://docs.manupatra.in/
- https://indiankanoon.org/
