Land acquisition in India is currently governed by The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which came into force from 1 January 2014. This act had re appealed the earlier existing Land Acquisition Act, 1894. The preamble of the act describes the new act in very clear words which is worth reproduction here:
An Act to ensure , in consultation with institutions of local self-government and Gram Sabhas established under the Constitution, a humane, participative, informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanization with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected person for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected person become partners in development leading to an improvement in their post acquisition social and economic status and for matters connected therewith or incidental thereto.
Government has now promulgated an Ordinance dated 31/12/2014 proposing some amendments in the provisions of the said act which has created several controversies now. Going into the background of the matter, we find that the original Land Acquisition Act of 1894 was enacted by the British Government in India to enable the government to acquire land of any kind at, what was deemed to be, a fair and reasonable price for construction of roads, railway lines or canals or other public purposes. Free Indian government also adopted ?Land Acquisition Act-1894? however various modifications by way of amendments were made to the 1894 Act from time to time. The provisions of the Act and the administrative procedures have remained same and the basic sections as contemplated under the said act are still intact through which the land is acquired by the government for any purpose. Besides the Land Acquisition Act there are 13 more acts which empower the government agencies to acquire private land for various uses of railways, highways, airports, army, oil wells, mines etc.
- IMPORTANT FEATURES OF THE NEW ACT:
The Act provides for land acquisition as well as rehabilitation and resettlement of the persons displaced by any land acquisition. This concept has been introduced for the first time keeping in mind the plight of the displaced persons due to land acquisition.
- The Act also provides for Social Impact Assessment survey, preliminary notification stating the intent for acquisition, a declaration of acquisition, and compensation to be given within a certain time frame to the persons whose land is acquired.
- The rate of compensation for the owners of the acquired land shall be four times the market value in case of rural areas and twice in case of urban areas. The determination of the market rate will be done on the basis of the reported value of sale of land in the area.
- In case of acquisition of land for use by private companies or public private partnerships, consent of 80 per cent of the displaced people will be required. Purchase of large pieces of land by private companies will require provision of rehabilitation and resettlement. No such consent is required in case of PSUs.
- It is not clear whether Parliament has jurisdiction to impose rehabilitation and resettlement requirements on private purchase of agricultural land.
- The requirement of a Social Impact Assessment for every acquisition
without a minimum threshold may delay the implementation of certain government programmes.
- The market value is based on recent reported transactions or the rate of the land fixed by the local government for registration process.
- The government can temporarily acquire land for a maximum period of three years. There is no provision for rehabilitation and resettlement in such cases.
THE PROCESS OF LAND ACQUISITION:
The process of land acquisition is initiated by the government and the landowner has no role to play in it except for filing of the objections or collecting compensation of the land. Various state governments have come out with several schemes for the people whose land is acquired. The pre dominant purpose of any acquisition of land by the government has remained public welfare related activity or construction of various industrial, housing schemes. By and large land acquisition by the state government is upheld by the courts whenever challenged as the public purpose is always kept in mind by the courts dealing with such cases. The challenge to the award and the filing of objections is in the designated revenue courts and the matters are dealt specifically by such courts.
When a local authority or a company requires a land, a demand or requisition is sent to the revenue department of the state concerned where the land is required.
After the government is satisfied about the purpose, the least area needed, and other relevant facts as provided under land acquisition rules, it issues a notification to the effect that the particular land is required for public purpose.
One of the revenue officers is required to hold enquiry into the matter. The new act further contemplates the Social Impact Assessment of the proposed acquisition which will be done by a committee appointed by the government within the period prescribed.
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 is to be paid if executed without prior permission from the collector.
II. OBJECTION AND CONFIRMATION
Objections are invited from all persons interested in land within thirty days from the date of publication of the notification.
The objections remain valid on one or more of the following grounds:
That the purpose for which the land is proposed for acquisition is not a public purpose.
That the land is not or less suitable than another piece of land for the said purpose.
That the area under acquisition is excessive.
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 in public hearing will submit his report to the government who will finally declare the land for acquisition.
After notification the collector proceeds with the claim. He has the site marked out, measured and a plan of the same is made.
III. CLAIM AND AWARD
The collector will issue notices 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.
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. The recorded transactions of the land of the area or the land rates fixed by the local authority for registration are kept in mind.
Compensation is also payable when:
Part of the property is proposed for acquisition in such a manner that the remainder depreciates in value.
When the land notified for acquisition has standing crops or trees.
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:
The degree of urgency which has led to the acquisition.
Any disinclination of the person interested to part with the land.
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 within the time fixed under the act.
IV. 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.
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.
The procedure involved for acquisition of land for companies are dealt with specifically, 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.
THE STAGES OF LAND ACQUISITION
The process of acquisition begins with the issuance of a notification as envisaged under the act. 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 local language of the area. 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; it is for the purposes of 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 notification in the gazette.
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 within a period of one year from the date of issuance of preliminary notification.
After receiving the objections, the authority will have to hold an inquiry or public hearing in the matter. 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 inquiry. On completion of the inquiry, award will be passed to that effect and published by the competent authority. After passing the award, the Land acquisition collector who can be the collector or the deputy commissioner of the district, shall send notice to the owners or their representatives who were not present personally at the time of passing of the Award.
Once the inquiry 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. 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 Competent Authority may take possession of the land immediately, which shall thereupon vest absolutely with the government, free from all claims, whatsoever.
SPECIAL POWERS TO THE GOVERNMENT
The Act like the earlier one 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. 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 authority, 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.
Provision for settlement of dispute pertaining to apportionment of the compensation amount is provided under 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. There is provision for grant of interest on the delayed payment of the compensation amount.
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. The recent judgment of the courts has stuck down the attempts by the government to change the purpose of land use for which the land was acquired by the government from the landowners. The quashing of the awards in the Greater NOIDA are mainly due to the abovesaid reasons which may now give a new dimension to the land acquisition process.