LAND ACQUISITION LAWS IN KERALA – AN ANALYSIS

Sasi K.G.

01. INTRODUCTION

Land acquisition is an expression of the States power of eminent domain to fulfill the developmental aspirations of the State and its instrumentalities as well as companies, Public private partnerships etc. The Land acquisition laws have already been complex in nature and the lower strata of the people are most affected by acquisition. The beneficiaries of land acquisition and the victims of land acquisition were always pertaining to different classes and therefore there has been persistent resistance where forceful acquisition and eviction were resorted to by the State. A proper equilibrium of the rights of involved parties and rehabilitation of the victims as well as a share for the victims in the benefits of the fruits of acquisition and its subsequent development have evolved into the centre stage of the legal acquisition process in the modern era.

02. LAND acquisition LAWS APPLICABLE TO KERALA

As far as Kerala is concerned land acquisition procedure is prescribed mainly by the five Acts, two being Central, one State and the other two those of princely States of Cochin and Travancore. They are in their chronological order;

Land Acquisition Act, 1894 (Act 1 of 1894),

Cochin Land Acquisition Act, 1894 (Cochin Act II of 1070ME),

Travancore Land Acquisition Regulation, 1914 (Travancore Act XI of 1089ME),

Kerala Land Acquisition Act, 1961 (Act 21 of 1962) and

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013).

They are dealt with in this paper in detail.

The enactments in India regarding land acquisition rehabilitation and resettlement includes many special laws also such as;

The Requisitioning and Acquisition of Immovable Property Act, 1952;

The National Highways Act, 1956;

The Railways Act, 1989;

The Ancient Monuments and Archaeological Sites and Remains Act, 1958;

The Atomic Energy Act, 1962;

The Damodar Valley Corporation Act, 1948;

The Indian Tramways Act, 1886;

The Land Acquisition (Mines)Act, 1885;

The Metro Railways (Construction of Works) Act, 1978;

The Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, I962;

The Resettlement of Displaced Persons (Land Acquisition) Act, 1948;

The Coal Bearing Areas Acquisition and Development Act,1957;

The Electricity Act,2003; etc.

However, for the purpose of the present study, they are not considered here

03. LAND ACQUISITION ACT, 1894

01. Preliminary

The Land Acquisition Act, 1894 (Act 1 of 1894) which was passed on 02.02.1894 and came into force on 01.03.1894 was repealed in part by the Repealing and Amending Act, 1914 (Act X of 1914) Section 3 and Schedule II and later in part by the Repealing Act, 1938 (Act I of 1938) and the remaining provisions alone were applicable as a Central Act. As far as Kerala is concerned, this Act was first made applicable in the Malabar area of Madras Presidency under British Rule and after independence remained in Malabar of Kerala. However, by Kerala Land Acquisition Act, 1961 repealed the operation of this 1894 Act by its repealing clause in Section 62  and provided that the Act shall cease to apply to the Malabar District referred to in sub-section (2) of section 5 of the State Reorganization Act 1956 (Central Act 37 of 1956). The Land Acquisition Act, 1894 had VIII Parts comprising of 55 Sections.

02. Scope of the Act

In R.L. Aurora Ram Ditta Mal v. State Of Uttar Pradesh and Ors. AIR 1958 All 126, Allahabad High Court on 30.08.1957 held that the Land Acquisition Act is an existing law within the meaning of Art 306, sub-clause (10) saved by the provision of Art 31 (5)) of the Constitution.

The Supreme Court in New Reviera Co-Operative Housing Society and Anr. v. Special Land Acquisition Officer and Ors 1996 SCC (1) 731, JT 1995 (9) 215 on 4 December, 1995 held that acquisition of land by State exercising its power of eminent domain does not offended right to livelihood or right to shelter or dignity of person. State is not obliged to provide alternative site.

Allahabad High Court in Raja Ram Kumar Bhargava v. State of Uttar Pradesh and Anr. AIR 1969 All 604 on 05.09.1968 held that lease hold interests even though the land itself belonged to the Government, the petitioner having lease hold's right therein, the lease hold interests could be acquired as they come within the definition of the expression "Land."

The Land Acquisition Act 1894, the prime legislation until 2013 in India, deals with land acquisitions giving effect to the power of eminent domain of the State. The main object of the Act is to amend and codify laws relating to land acquisition for public purpose and for companies and also to determine the compensation, which is required in cases of land acquisition. As per the judgment in State of Bihar v. Maharajadhiraj Sir Kameshwar Singh, [1952] SCR 889 anything that would promote the welfare of the people would constitute a public purpose.

The power can be exercised for traditional governmental activities such as roads, post offices, police stations and for public utilities such as electricity, water supply and transport undertakings as well as for charitable objects such as schools, hospitals and libraries and for industries. Acquisition of land for a factory manufacturing air conditioners (as held in Somawati v. State of Punjab [1963] 2 SCR 774), housing facility to the members of a co-operative society (Thambiran v. State of Madras, AIR 1952 Mad. 982), and large tracts of land suitable for industrial development (Arnold Rodricks v. State of Maharashtra, [1966]3 SCR 885) are considered as acquisitions for a public purpose. The Act authorizes the government to acquire land for planned developments, provisions for town or rural planning, provision for residential purpose to the poor or landless and for carrying out any education, housing or health scheme of the Government as held in Section 3 (f) of the Land Acquisition Act, 1894 and Girnar Traders v. State of Maharastra, 2011 (3) SCC I (SC).

In Somawati v. State of Punjab [1963] 2 SCR 774, the Supreme Court observed that the object of the Land Acquisition Act is to empower Government to acquire land only for a public purpose or for a company.

Payment of compensation is also an essential condition under the Act. The payment must be as per market value of the property.

03. Person Interested

Section 3(b) of the Act defines ‘person interested’ as,

“Section 3(b). the expression "person interested" includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land.”

It is inevitable from the above treatment that even though the Act recognizes the tenant as a person interested, it does not envisage any special status to the tenant than any other interested person.

A beneficiary is also a person interested (Neyveli Lignite Corporation Ltd. v. Special Tahasildar (L.A), (1995) 1 SCC 221). The State is not a person interested; and hence State cannot make an application of reference (State of Chhattisgarh v. M/s. Raipur Metal Products Pvt. Ltd., AIR 2011 Chh.13).

04. Rights of Persons Interested

Under the Act an interested person has the following rights.

1. Under Section 3(g) the interested persons and his trustees / guardians are “entitled to act” as far as the acquisition is concerned.

2. Under Section 5 an interested person has a right to object the acquisition within 30 days after the issue of the acquisition.

3. Under Section 9 an interested person has a right to get notices and to be heard.

4. Under Section 10 an interested person on requirement by the Collector may make a statement containing so far as may be practicable, the name of every other person possessing any interest in the land or any part therof as co-proprietor, sub-proprietor, mortgagee, tenant or otherwise, and of the nature of such interest, and of the rents and profits (if any) received or receivable on account thereof for three years next preceding the date of the statement.  Every person required to make or deliver a statement under this section or section 9 shall be deemed to be legally bound to do so within the meaning of sections 175 and 176 of the Indian Penal Code.

5. Under Section 11the Collector is duty bound to conduct an enquiry on the measurements and value of the land and make an award prescribing compensation and its apportionment among the interested persons.

6. Under Section 17, in the case of urgent taking possession of the land an interested person has a right to compensation for the standing crops and trees (if any) on such land and for any other damage sustained by him caused by such sudden dispossession.

7. Under Section 18, an interested person has a right not to accept the award and to require the Collector to refer the case for the determination of the Court.

8. As per Section 23, while determining the compensation Court shall take into consideration,

1. market-value of the land at the date of the publication

2. damage by the person interested, by reason of the taking of any standing crops or trees

3. damage sustained by the reason of severing such land from his other land

4. damage sustained by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings

5. reasonable expenses incidental to the compelled change of residence or place of business of the interested person

6. damage bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration and the time of the Collector's taking possession of the land

7. In addition to the market-value of the land as above provided the Court shall in every case award a sum of fifteen per centum on such market-value, in consideration of the compulsory nature of the acquisition.

9. Under Section 24, the Court shall not, however, take into consideration

1.      the degree of urgency which has led to the acquisition

2.      any disinclination of the person interested to part with the land acquired

3.      any damage sustained by him, if caused by a private person

4.      any damage which is likely to be caused to the land acquired, after the date of the publication of the declaration or in consequence of the use to which it will be put

5.      any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired

6.      any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquires will be put; or

7.      any outlay or improvements on, or disposal of, the land acquired, commenced, made or affected without the sanction of the Collector after the date of the publication of the notification.

10. Under Section 29, interested persons have the right to agree in the apportionment of the compensation and in that case such apportionment shall be specified in the award.

11. Under Section 31, interested persons are entitled to get payment according to the award and if prevented by some one or more of the contingencies the Collector shall deposit it in the Court. The interested persons have the right to receive the payment under protest.

12. Under Section 33, an interested person has a right to ask the Court to invest the deposit in Government or other approved securities.

13. Under Section 34, an interested person has a right to interest at 6% per annum if the compensation is not paid or deposited.

14. Under Section 36, an interested person has a right to get his land restored on the expiry of the prescribed term. But if the land has become permanently unfit to be used, interested person may require the Government to permanently acquire it.

15. Under Section 48, if the Government withdraws from the acquisition, an interested person has a right to get compensation for the damages suffered by him together with costs.

5. Preliminary Notification

The first stage of an acquisition under the Act is the publication of preliminary notification in the official gazette and issue of public notice by the Collector under section 4. If the appropriate Government wants to acquire land for public purpose or for a company, a preliminary notification shall be published in the official gazette and in two daily newspapers circulating in that locality; and one must be in the regional language. No property can be acquired without preliminary notification. In Land Acquisition Officer v. Mohd. Amir Khan (1986) 1 SCC 3, the apex Court observed that if the Collector fails to issue a public notice under Section 4 of the Act then the notification would be invalid. Newspapers circulated in the locality means, newspapers having a regular and steady circulation in the locality. Even a newspaper having 2% to 3% market share out of the total circulation figures for regional newspapers sold in the locality (Special Deputy Collector v. J. Sivaprakasam, AIR 2011 SC 922). If the notification is delayed by two or three months, simultaneously there may be a spurt or hike in value in view of the development contemplated in the proposed acquisition. Hence the land owner can legitimately expect the value at the date of publication of the notice in the official gazette (State of West Bengal v. Gobinda Chandra Makal, AIR 2011 SC 3834).

Notification in the official gazette is the bedrock of acquisition proceedings. Section 4 (1) clearly shows that a notification stating therein ‘the land which is needed or is likely to be needed for a public purpose’ has to be published in the Official Gazette (Collector v. Raja Ram Jaiswal, AIR 1985 SC 1622). It is only on publication of the notification that the authorized officer can enter into the land and take necessary steps to conduct a survey and mark the boundaries of the proposed land. A valid notification is a condition precedent to make a declaration under Section 6 (1) of the Act13. Notification under section 4 is a statutory necessity and applicable even if the acquisition is made for a company

6. Compensation for Damage

Section 5 of the Act contains a provision related to payment of compensation by an authorized person or authority seeking acquisition. He shall pay compensation for damages occurred at the time of entry and preliminary investigations. In the case of a dispute regarding insufficiency of the compensation, the Collector shall decide the matter after proper enquiry. Section 5 is reproduced below.

“Sn.5. Payment for damage: The officer so authorized shall at the time of such entry pay or tender payment for all necessary damage to be done as aforesaid, and in case of dispute as to the sufficiency of the amount so paid or tendered, he shall at once refer the dispute to the decision of the Collector or other Chief Revenue officer of the district and such decision shall be final.”

In Balakrishnan v. Union of India 2017 TaxPub (DT) 0362 (SC), the two-judge bench of the Supreme Court categorically held that negotiation on amount compensation between the parties for compulsory land acquisition do not make a sale ‘voluntary’, and therefore, the same cannot be made chargeable to tax under the head ‘Capital gain’. The bench comprising of Justice A.K. Sikri and Justice R.K Agarwal, overruled the decision in Info Park Kerala vs. Assistant Commissioner of Income Tax 2008 (4) KLT 782, and clarified that merely because the compensation amount is agreed upon would not change the character of acquisition from that of compulsory acquisition to the voluntary sale.

7. Hearing of Objections

After the preliminary notification, the Collector shall issue a general notice to the interested person as prescribed under the Land Acquisition Rules passed by various State Governments in India. All monetary benefits in the name of compensation have to be paid only to ‘interested’ persons under the Act.

The absence of giving notice is a serious lapse on the part of the government and declaration under Section 6 is liable to be quashed (Kailash v. State of Rajasthan, AIR 2011 Raj. 79). In Patel Gandalal Somnath v. State of Gujarat AIR 1963 Guj. 50, the court held that the purpose of enquiry under Section 5A is twofold; firstly, it is meant to act as a safeguard against any ill-informed action on the part of the Government; and secondly, it provides an opportunity to the persons interested in the land to put forward their point of view, supported by such material as they like, stating that the land concerned is not needed for a public purpose or for a company (See also, Babu Ram v. State of Haryana, AIR 2010 SC (Supp) 285; Anand Singh v. State of U.P, (2010)11 SCC 242; Dev Sharan v. State of U.P, AIR 2011 SC 809; Radhy Shyam v. State of U.P, (2011) 5 SCC 553; Raghbir Sing v. State of Haryana, AIR 2012 S.C 468; Kamal Trading (P) Ltd. v. State of West Bengal, AIR 2012 SC 823; Surinder Sing Brar v. Union of India, AIR 2013 SC 159; Usha Stud and Agricultural Farms Pvt. Ltd. v. Haryana, AIR 2013 SC 1282.). The decision once taken under Section 5-A cannot be cancelled or altered. After a decision has been taken by the State Government on the objection in favour of the objector, it is no longer possible to make a declaration to the contrary under Section 6 because that would amount to setting aside the decision taken under Section 5-A.

Objections can be filed by persons interested in land or in compensation within thirty days from the date of publication of the notification. The right to raise objections under Section 5A can be exercised after both the notification under Section 4 (1) and the declaration under Section 6 (Bahori Lal v. L.A Officer, AIR 1970 All. 414 (FB)). A land owner who is really aggrieved by the acquisition proceedings has to challenge the proceedings immediately after the declaration made under Section 6 of the Act (A.P Industrial Infrastructure Corporation Ltd. V. Chinthamaneni Narasimha Rao, (2012) 12 SCC 797.). The objections will be valid only 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.

8. Declaration of Intended Acquisition

As per Section 5A (2), after hearing objections from the interested persons, the Collector has to send a report along with his recommendations to the Government. If the State Government feels that the land is required for a public purpose, a declaration shall be published in the Official Gazette under the signature of the Secretary to the State Government; strictly in tune with the requirements of Section 6 (Tinsukia Development Corporation v. State of Assam, AIR 1961 Ass. 133 (FB)) denoting the satisfaction of the appropriate Government. Declaration with respect to the payment of cost of acquisition should precede the notification (Venkatapathi Raju v. State of A.P, AIR 1957 AP 686). Non-publication of declaration under S.6 of the Act within the prescribed time limit will be a ground for quashing the entire acquisition proceedings initiated under Section 4 (1) of the Act (Al Haz Amir Hassan Properties Ltd v. L.A Collector, AIR 2011 Cal.222).

First proviso to sub-section (1) of Section 6 of the Act provides a limitation of three years, from the date of notification under Section 4 of the Act, for making the declaration under Section 6.

Prior to the 1984 amendment, the declaration under Section 6 of the Act could be made simultaneously with the publication of the notification under Section 4 (1) of the Act, but now it can be made only after the date of publication of the notification under Section 4 of the Act. The final declaration under Section 6 of the Act empowers the Collector to acquire, measure and mark out land and also to take steps for the passing of award under the Act.

9. Acquisition of Land

After the publication of the final declaration, the Government has to issue an order which authorizes the Collector to acquire the land included in the declaration under section 6. He has no power to acquire any land outside the boundaries specified in the declaration (Collector of Chingleput v. Qadir Mohideen, AIR 1926 Mad. 732). The Collector shall acquire the land needed for public purpose before passing an award under the Act. The decision whether to acquire or not lies with the government; and hence the Court cannot compel the government (Jayamma v. Deputy Commissioner, Hassan Dist. Hassan, AIR 2013 SC 1972).

After the publication of the declaration under section 6, the Government has to issue an order to the Collector under section 7 to acquire the land included in the declaration under section 6. The Collector acts as the agent of the Government. His power is limited to the area specified in the declaration (Ezra v. Secretary of State, ILR 30 Cal. 36).  After the order for the acquisition of land, the Collector has to mark out the land, if it has not been done previously under section 4 of the Act, and prepare a plan for the same. If the appropriate Government commits a mistake by giving an erroneous boundary, the Collector cannot rectify the mistake. The demarcation of the outer boundary includes marking the outer boundaries of the land to be acquired either by cutting trenches on the ground or by fixing posts as marks, at every bend and corner. After the acquisition and demarcation of the boundaries, the Collector has to pass an order of compensation in the form of an award with respect to the land acquired by him.

10. Award by Collector

Before making an award, Collector shall issue a public notice. It shall contain particulars of the land acquired by the Government along with a request to all interested persons to appear before the Collector on a particular date. The notice is pasted on or near the land to be taken or sent by post to the interested persons. After hearing the parties, the Collector shall make an award under his hand stating the true area of the land, the compensation allowed for the land and the apportionment of the compensation among all the persons known or believed to be interested in the land either as per the terms of an agreement, if any; or otherwise, if no agreement is in existence, as provided for in the Act.

Section 11 enables the Collector to conduct an enquiry into the measurement, value and claims and to pass the award. The enquiry as regards the person interested in land should be conducted personally by the Collector. Merely writing the word ‘approved’ in the order of award cannot be considered as valid (Jahangir Bomanji Wadia v. C.D Gaikwad, AIR 1954 Bom. 419). The award under Section 11 is only an offer to the claimants and therefore unless the award is accepted by the claimants, the same is not binding (M.S Ramiah v. Special Land Acquisition Officer, AIR 1974 Kant. 122).

In State of Maharashtra v. Sant Joginder Singh Kishan Singh (1995) SCC Supl. (2) 475, it was observed that Section 11A of the Land Acquisition Act is a procedural provision and does not stand on the same footing as Section 23 of the Act. Procedure is a mode in which the successive steps in litigation are taken. Section 11A not only provides a period in which the land acquisition proceedings are to be completed but also provides for consequences, namely, that if no award is made within the time stipulated, the entire proceedings for the acquisition of the land shall lapse. A lapse in the acquisition of the land results in the owner of the land retaining the ownership right in the property and it is a substantive right accrued to the owner of the land; and Section 11A of the Act is part of the law which creates and defines right, and not an adjective law which defines method of enforcing rights. It is a law that creates, defines and regulates the rights and powers of the party.

Though the Act vests the Government with the power of compulsory acquisition, it does not relieve the Government of the payment of compensation to the land owner. The acquisition proceedings remain incomplete without the payment of compensation. Generally there are five methods of making payment; i.e. direct payment, by order of the treasury, by money order, by cheque, and by deposit in a treasury. In the present day society, payment by cheque is a valid way of tendering the money (Damadila v. Parashram, AIR 1976 SC 2229).

It is significant to note that nothing in the Act provides for a procedure whereby the owner can scrutinize the proposal for acquisition as he is not usually supplied with the details of the proposal and has no right to demand the same. Moreover, he has no right to cross-examine the exponents of the proposal. It is also noteworthy that the officer holding the inquiry is not competent to decide, he merely makes a report to the government (Abdul Hussanin v. State of Gujarat, [1968] 1 SCR 597). In 1984, a major change was brought in the form of an Amendment Act: a new Section 11A was added which imposes an obligation upon the collector to make the award within a period of two years from the date of notification. One of the chief merits of the said amendment is that it hastened the acquisition proceedings.

The Collector or a Special Officer who passes an award under the Act is neither a judge nor does he act judicially. Consequently, he is not entitled to get protection either under Section 77 of the Indian Penal Code, 1860 (Surendra Kumar v. Kanhaiyal, AIR 2009 S.C 1961) or the Judges (Protection) Act, 1985 (Paul P.R v. State of Kerala, 2013 (2) K.H.C 692).

The Collector shall fix the value of the land acquired. Until an award is announced or communicated to the parties concerned, it cannot be said to be legally made. The duty cast upon the Collector is to form an opinion as regards the compensation payable, but that does not mean that in every case he has to hold that some compensation is payable. If the Collector decides against awarding any compensation in respect of the easement claimed by the owner of the dominant tenement, it shall not be deemed a violation of the requirements of S.11; and hence the validity of the award cannot be challenged on the ground of such non-payment (Jivanda Khimji v. Narboda Bai AIR 1959 Cal. 519).

The award passed by the Collector shall be final unless it is objected to, and a reference to Court is sought by any person aggrieved by the award. After the notification, the owner is prohibited from selling his property or disposing of it; and he is prevented from carrying out any works of improvements for which no compensation will be paid if executed without prior permission from the Collector. Anybody claiming himself to be the owner seeking injunction against his dispossession shall have to prove that he was the owner of the property (Yamuna Nagar Improvement Trust v. Khariati Lal, AIR 2005 SC 2245).

The owner of the property or an interested person can invoke civil jurisdiction by reference under S.18, only after the award becomes final under Section 12 of the Act.

11. Review of Award

The Collector cannot review the award passed by him. Under Section 13A, the Collector is empowered only to correct any clerical or calculation error, within a particular time, in the award passed under Section 12 (Brij Mohan v. State of Haryana, AIR 2005 NOC 353). In Nirmal Chakraborty v. L.A Collector AIR 1953 Cal. 257, the Court held that the power of the Collector under the section shall be exercised before the award is made final. A subsequent application for amendment by person interested in land in respect of which compensation is paid will not come under the category of mistakes.

12. Reference to Civil Court

No one can file a civil suit directly before the Civil Court to get compensation under the Act. Any interested person, who is aggrieved by the award passed by the Collector, may apply to the Collector for a reference to the Civil Court under Section 18 of the Act. The Collector shall make a reference only after receiving an application from a person who is dissatisfied with the award. While making a reference under section 18, he acts as statutory authority who is bound to act. The Collector cannot suo motu refer the matter to the civil court. The right of a land holder to obtain an order of reference would arise only when he has not accepted the award or received under protest. Once such an award is accepted without any protest in respect of the quantum of the amount, he has no legal right to claim a reference to the Civil Court. The application shall be given in writing by a person who is an interested person, and who has not accepted the award. Person interested includes a person for whose benefit the land is acquired. Such a person would, on the language of Section 18 be entitled to ask for a reference (Union of India v. Sher Singh, (1993) 1 SCC 608). No application shall be filed directly to the court and the court has no power to direct the Collector to make a reference.

While making the reference to the civil court, Collector has to inform in writing about the 

(a) the situation and extent of the land, with particulars of any trees, buildings or standing crops thereon,

(b) the names of persons whom he has reason to think are interested in such land,

(c) the amount awarded for damages and paid or tendered under Section 5 and 17 and the amount paid or deposited under sub-section 3-A and (d) if the objections relate to the amount of the compensation, the grounds on which the amount of compensation was determined.

13. Proceedings of Civil Court

Civil Court is a court as defined under section 3 (d) of the Act64 and it acts as a special tribunal having special jurisdiction to decide upon the matters referred to it. The first step towards the proceedings of the court is to issue a notice to the applicant and other interested persons stated in the report of the Collector. Any enquiry made by the court shall be limited to the consideration of the interests of the persons affected by measurement, the amount of compensation, the persons to whom the amount is payable and the apportionment of compensation. The reference court cannot go into any question raised for the first time by any party to the reference case.

Similarly, the reference court cannot allow an amendment petition which would have the effect of introducing a new matter which had not been referred to it (Province of Bengal v. P.L Nun K.C. Pal, AIR 1945 Cal.312). In B.I.S.N Co. v. Secretary of State I.L.R 38 Cal.230, the court observed that the scope of enquiry before a reference cannot be enlarged on the option of the parties. In the absence of a valid award, a civil court has no jurisdiction to take any proceedings or a reference made to it (State of Mizoram v. Biakchhawna, 1995 LACC 79 (SC)).

The Land Acquisition Amendment Act, 1984 made a substantial change in the payment of compensation by Civil Court. It removed all restrictions imposed on the payment of compensation under section 25. At present, Civil Courts are free to award any amount, within its jurisdiction, as compensation and it should not be less than the amount awarded by the Collector. In Krishi Utpadan Mandi Samiti v. Kanhaiya Lal (2000) 7 SCC 756, the court held that Section 25 of Land Acquisition Act can be considered as substantial in nature and it could not be applicable to acquisitions prior to the Amendment Act, 1984. Proceedings before the reference court are the same as those of an ordinary civil court. All persons who are entitled to practice in any Civil Court shall be eligible to appear, plead and act in such proceedings.

14. Determination of the Amount of Compensation

The matters to be considered for determining the amount of compensation are discussed in detail in Section 23 and 24 of the Act. The market-value of the land at the date of the publication of the notification under section 4(1), the damage sustained by the person interested, the damage sustained due to taking of any standing crops trees on the land, the severing of such land from his other land, the loss of earnings etc. are the factors to be taken into account in determining the amount of compensation to be awarded for land acquired. Though the Land Acquisition Amendment Act 1984 came into force on 30 April 1982, land owners could not claim additional benefits provided under Section 23 (1A) of the Amended Act, for awards passed before 30th April 1982 (Union of India v. Giani, AIR 2011 SC 977).

15. Award by the Court

After hearing both parties in the Land Acquisition Reference case, the court shall pass an award under Section 26 of the Act. Thus there are two types of award under the Act i.e. the award of the Collector under Section 11 and the award of the Court under Section 26. The main difference between these two is that, the award passed by the court is in accordance with Section 23 and 24 of the Act. But the award passed by the Collector is based on a fair value on the basis of the market value of the property. In State of Madhya Pradesh v. Seth Gowardhan AIR 1993 MP 70 (F.B), it was held that the award passed by the Court is in the character of a ‘decree’ and hence appealable. On determination of compensation, the court shall pass an award under section 26 and in the form and manner specified therein. In Gopalakrishnan v. Spl. Tahasildar2000 (2) KLT 711, the High Court of Kerala observed that the reference court does not have any power to amend the reference application or to adjudicate enhanced compensation in respect of land not covered by a reference application.

16. Appeal to High Court and Supreme Court

Subject to the provisions of Civil Procedure Code1908, an appeal shall lie only to High Court from the award of civil court of original jurisdiction. Those who are aggrieved by the order of a High Court shall appeal to the Supreme Court subject to the provision of Section 110 of Code of Civil Procedure Code. Though the term ‘award’ is not defined in the Act, it is used throughout the Act as a ‘final order’ of the Collector or Judge of a Reference Court. Once a proper reference comes before the District Judge, his final order on it is an award whether he gives an additional amount or not or whether the Acquisition Officer’s award is upheld or not for some reason or other (Muthu Verappa Pillai v. Revenue Divisional Officer, AIR 1931 Mad. 26). Inordinate delay in filing a writ petition challenging the acquisition will not sustain according to the provisions of the Act (Huchamma (D) v. State of Karnataka, AIR 2009 SC 1428).

The Act contains provisions to protect the interest of poor persons. The Act provides specific provisions to provide equality among the displaced people by way of re-determination of compensation. It also provides for the payment of interest on compensation, apportionment of compensation and to settle disputes related to apportionment. Another peculiarity of the Act is that it protects the rights of incompetent persons. It is the duty of the court to invest the money awarded as compensation to persons who are incompetent to alienate.

17. Re-determination of Amount of Compensation

As observed by the Supreme Court in Union of India v. Pradeep Kumar AIR 1995 SC 2259, (See also, Dist. Collector, Kannur v. Athickal Muhammed Kunhi, 2013 (1) KHC 13 (D.B)), the Act is intended to remove inequality and to give relief to the poor people who are not able to take advantage of the right of reference to the Civil Court. If the court allows any amount of compensation in excess of that awarded by the Collector, any person interested in the land covered by the same notification or any person aggrieved by the award of the Collector may, give a written application to the Collector within three months from the date of the award of the Court. The Collector shall, on receipt of such an application, issue notice to all the persons interested, conduct proper enquiry; and after giving them a reasonable opportunity of being heard, re-determine the award passed to the applicants. The only restriction is that the aggrieved party has to make an application within 3 months from the date of the enhanced award of reference court. The benefit of this provision is applicable to all interested parties irrespective of whether he had received the compensation under protest or not (Union of India v. Hansoli Devi, AIR 2002 SC 3240).

18. Apportionment of Compensation

It is a basic principle of justice that if there are several persons interested in the same property and if they agree amongst themselves as to the manner of apportionment of the compensation, then the agreement shall be conclusive evidence of the correctness of the apportionment of award. In Purna Chandra v. Fakir Mohammad AIR 1955 NOC 1541, it was held that a covenant in the lease deed directing the lessee not to claim any portion of the compensation which may be awarded if the property leased out, be compulsory acquired, is valid in law and enforceable.

But in the case of a dispute with respect to the apportionment of award, the Collector shall refer the matter to a Civil Court85. In State of Madras v. Subramania Iyer AIR 1962 Mad. 313, Madras High Court observed that, “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 Collector can even make a reference without an application from the party. If a property has been jointly inherited by brothers and sisters, then brothers together had no right to sell the entire property (Shanmugha Sundaran v. Diravia Nadar, AIR 2005 SC 1841).

19. Compensation and Investment of Money for Incompetent Persons

It is the duty of the Collector to ensure the payment of the award in whose favour the award has been made. If the parties interested in acquisition of land do not consent to receive the amount or when there is a dispute as to the title or as to the apportionment of the compensation money or when the compensation money is payable to a person who is not competent to alienate the land, the Collector shall deposit the amount of compensation in the court to which a reference is made by him. For the purpose of this provision, ‘incompetency to alienate’ implies ‘personal incapacity, such a lunacy, idiocy, and minority’. As to the question whether a party has the power to alienate the land, and consequently entitled to receive payment, the Collector is not competent to give a decision. In such cases where he has a bonafide doubt, it is his duty not to take upon himself the task of determining that question himself but to send the matter to the court that would have jurisdiction to hear the reference Secretary of State v. Joynarain Chunder, ILR 63 Cal.525.

20. Payment of Interest on the Amount of Compensation

The Land Acquisition Act provides for the payment of interest also. Interest is payable on excess compensation from the date of taking possession of land (Raghbir Singh v. Union of India, AIR 1985 Del. 228). It is a settled legal position that when a statute prescribes payment of interest to the claimants at a fixed rate, then the court has no power to award interest in a manner other than that prescribed in the statute. The provision is to be administered in the manner laid in the Act and in no other way (State of Himachal Pradesh v. Dharam Das, (1995) LACC 638 (SC)). The Act empowers the reference court to enhance the compensation awarded by the Collector; and in the case of enhancement, the Collector shall pay interest on such excess amount at the rate of nine percent per annum from the date on which he took possession on the land to the date of payment of such excess into court.

If the Collector has not paid or deposited the compensation on or before taking possession of the land, then he shall pay the amount awarded with interest thereon at the rate of nine per cent per annum from the time of taking possession until compensation has been paid or deposited.The principle underlying this provision is that if the party is deprived of his profit or usufructs from the date he loses possession and if the Collector has not made payment before he takes possession, then the party is entitled to claim interest from the date of deprivation of his interest in the property (Kuldip Raj v. State of J&K, AIR 1969 J&K 142). If the compensation or part thereof is not paid or deposited within a period of one year from the date on which possession is taken, then the Collector shall pay interest at the rate of fifteen per cent per annum from the date of expiry of one year on which the amount of compensation or part thereof which has not been paid or deposited.

21. Emergency Powers of the Collector

In the case of urgency, as per the direction of the appropriate Government, the Collector shall take possession of the land acquired even though no amount has been paid to the interested person. But the possession can only be taken after the expiry of 15 days from the date of the publication of the notice. This period has been prescribed apparently to enable the occupier either to make a representation to the Government or to have more time for delivery of possession. Section 17 deals with special situations and exceptional circumstances covering cases of ‘urgency’ and unforeseen emergency. However, even in such cases, a valid declaration should be made before the acquisition. Planned development of residential, commercial, industrial or institutional schemes will not be covered under the term ‘urgency’. In Anand Singh v. State of Uttar Pradesh 2010 (6) SCJ 71, the Supreme Court held that the power under Section 17 shall not be lightly invoked and that the Government has to produce sufficient material evidence before the Court to the effect that it has applied its mind while invoking the provision of ‘urgency clause’.

However, urgency is a matter of subjective satisfaction of the appropriate Government; and it is not open to the courts to examine the propriety or correctness of the satisfaction on an objective consideration of the facts. Section 5A notice is mandatory and whenever the requirement as to such notice has been dispensed with on the basis of Section 17, it should be justified; and the reasons thereof shall be explained (Anand Singh v. State of Uttar Pradesh 2010 (6) SCJ 71). The opinion of the appropriate Government can be challenged only if it can be shown that the Government never applied its mind (Devendra Singh v. State of U.P, AIR 2011 SC 2582) or that the action of Government is malafide (Ram Narain Rai v. State of U.P, AIR 1991All.330).

The term “emergency” denotes a state of things which is not the result of a sudden occurrence; it is a condition of things causing a reasonable apprehension of the near approach of danger (Arjun Singh v. State of Punjab, AIR 1959 Punj. 538). In the case of emergency, special powers may be  exercised by the appropriate government; but even in such cases, inquiry and hearing of objection under section 5-A cannot ipso facto be dispensed with unless a notification under sub-section (4) of section 17 of the Act has been issued (Esso Fabs Pvt. Ltd. v. State of Haryana, AIR 2009 S.C 1552).

In Har Karam Singh v. State of U.P. AIR 2012 (NOC) 97 (All.); See also, Delhi Airtech. Services Pvt. Ltd. v. State of U.P, AIR 2012 SC 573, the Supreme Court held that acquisition of land for public purpose for planned industrial purpose under ‘urgency clause’ and its subsequent allotment to private builders for housing complex to earn profit would render acquisition illegal and acceptance of compensation by the interested parties would not stop them from challenging acquisition.

22. Acquisition of Land for Companies

Acquisition of land for companies is one of the most controversial provisions in the Land Acquisition Act 1894. Most of the acquisition for companies raises hue and cry from the common man in India. In acquisition for companies, in the name of development, there is a clash between the haves and the have nots. The provision of acquisition of land for companies for the construction of works of public utility was first introduced in 1853 through a special legislation: Act XXII of 1863. Subsequently it became part of Land Acquisition Act 1894. The term ‘company’ is defined as a company registered under Companies Act or a Society registered under the Societies Registration Act or a co-operative society within the purview of any law relating to Co-operative Societies.

The first step to be taken by the company desiring to acquire land under Land Acquisition Act is to apply to the Collector giving particulars of the lands needed and the work which the company proposes to do on it. The application shall be accompanied with a copy of the plan showing survey numbers, the 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 with the purpose, the least area needed, and other relevant facts as provided under land acquisition rules, it will issue a preliminary notification under Section 4 of the Act and collect objections under section 5A of the Act. One of the revenue officers is appointed as the Collector to hold an inquiry under Section 5-A of the Act. In the case of acquisition of land for companies, there is no need of specific notice to the owners of land under section 4 of the Act (Swastya Raksha Samiti, Rati Chowk v. Chaudhary Ram Harakh Chand, AIR 2005 SC 1835).

The purpose of acquisition must be clearly stated in the agreement and the company cannot be permitted to divert the use of the land. Though agreement and conveyance contains provision with respect to that, its strict implementation is not possible in many cases. Land Acquisition Act 1894 makes it possible for any industrial concern ordinarily employing not less than one hundred workmen owned by an individual or an association of individuals and not being a company to acquire land for erecting dwelling house for workmen of the establishment. In State of West Bengal v. P.N. Talukdar AIR 1965 SC 646, the Supreme Court held that a society registered under Societies Registration Act of 1860 can acquire land for the construction of (i) staff quarters, (ii) hostel buildings, and (iii) playground.

One of the main drawbacks of this provision of the Act is that even a joint venture of private persons can acquire land on flimsy grounds. There is no procedural difference with respect to the acquisition of land for companies under the Act. The only requirement is that Government will proceed only after subjective satisfaction of the purpose and deposit of full amount to be paid to the displaced owners of the land.

23. Temporary Occupation of Waste Land

The Act also provides for temporary occupation of waste or arable land; power to enter into such lands and take possession, and the payment of compensation or restoration. Under section 35 (1), appropriate Government may direct the Collector to procure the occupation and use of such lands on such terms as it shall think fit for a period not exceeding three years. The Collector shall issue notice in writing to interested parties in such land for the purpose of occupation and use of the land in urgent situations. The notice shall be virtually the same as the declaration under Section 6 of the Act. In the case of temporary occupation also the Collector has to pay compensation either in gross or in periodical installments.

24. Criticism

The Land Acquisition Act has been criticized as weak and ineffective. Many jurists consider the Act as draconian and a ‘fertile land’ for the lawyers. Those who attack the Act as weak argue that the procedure followed is cumbersome and costly, which often result in inordinate delay in land acquisition. Some argue that the determination of ‘public purpose’ shall not be a matter of executive discretion; and it shall be subject to judicial scrutiny. The notion of fairness leads to accuracy in adjudication. The first theory of fair procedure may hold that individuals have a right to invoke all manners of procedures or are entitled to procedural rules under which they may advance their cause. 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. A Bench of the apex Court consisting of G S Singhvi and H L Dattu JJ once cautioned (Devender Kumar Tyagi v. State of Uttar Pradesh, (2011) 9 SCC 164): if remedial measures are not initiated within another five years, muscle men would take over the private land and utter chaos would prevail as the prices of land are shooting up everywhere. In all the cases, land being acquired in the name of emergency and public purpose, the poor farmer is being uprooted from his place and deprived of his only source of livelihood. The Land Acquisition Act ought to be scrapped as it is a "fraud" devised by some "sick people."

As revealed by the empirical study, the lack of awareness about legal remedies is a major obstacle to claiming proper relief under the Land Acquisition Act. The majority of persons who are affected by the Act are unaware of the procedures of acquisition.

25. Delegation of Power of Central Government to State Governments

Government of India, Min of Home Affairs Notification No. 123/50-Jude, dated 24th March, 1952, in second exercise of the powers conferred by clause (1) of Article 258 of the Constitution, the Central Government entrused to the Government of Bombay, Uttar Pradesh, Punjab, Bihar, Madhya Pradesh, Assam and Orissa with their consent, the functions of the Central Government under the Land Acquisition Act, 1894 (1 of 1894) in relation to acquisition of land for the purpose of the Union within their respective territories.

By Notification of Ministry of A and RD (Department of Rural Development) New Delhi, dated 25th October, 1985, S.O. 782 (E),  in suppression of all previous notifications on the subject in so far as they relate to the States of Andhra Pradesh, Assam, Himachal Pradesh, Karnataka, Madhya Pradesh, Meghalaya, Orissa, Tamil Nadu, Tripura and West Bengal, the President entrusted to the Government of the aforesaid States, with .their consent, the functions of the Central Government under the Land Acquisition Act, 1894, except the functions exercisable by the Central Government under the proviso to sub-Section (1) of Section 55 of the said Act, and the Land Acquisition (Companies) Rules, 1963, in relation to the acquisition of land for the purpose of the Union in these States subject to the following conditions, namely--

(a) that in the second exercise of such functions, the respective Government shall comply with such general and special directions as the Central Government may, from time to time, issue; and

(b) that notwithstanding the entrustment, the Central Government, may itself second exercise many of the said functions should it deem fit to do so in any case.

04. COCHIN LAND ACQUISITION ACT, 1895 (ACT II OF 1070 ME)

Cochin Land Acquisition Act, 1895 was made soon after the enactment of the British legislation Land Acquisition Act, 1894. The Act is also called Act II of 1070 Malayalam Era. As this Act is practically similar with the 1894 Central Act, Cochin Land Acquisition Act, 1895 is not detailed any further. The 1895 Act got repealed by Section 62 of the Kerala Land Acquisition Act, 1961.

05. TRAVANCORE LAND ACQUISITION REGULATION, 1914 (ACT XI OF 1089 ME)

The Travancore Land Acquisition Regulation, 1914 came into force under the date 16.12.1914. The Regulation was amended as and when needed and rules were framed accordingly. Some important provisions of the Act are reproduced hereunder.

Unlike other laws Rule 6B of this Regulation prescribes a time limit of three months for the completion of acquisition except in exceptional cases wherein the cause should be explained and recorded.

Rule 8 provides that it is not merely the recent purchase price of land in the neighborhood similarly cultivated or improved that should be taken into account. Considerations determining value as similar advantages of situation, corresponding area, existing demand and saleability need also be considered. A small parcel of land usually commands larger price and a site with good road frontage is of greater value.

As per Rule 9A, tenants are given rights even in Sri Pandaravaga Thanathu lands in case they have rights of pattom, Otti, etc. The price of the Pandaravaka land acquired should otherwise go to the Sri Pandaravaga Department. Pandaravaka lands after acquisition will be called Poramboke.

Rule 10 provides that party has a right to approach Civil Court by resorting to a reference under Section 18 of the Regulation, if he is not satisfied with the award.

As per Rule 10 A, the officer making award shall place the evidence in support of the award before the Civil Court. A Revenue officer not below the rank of a Taluk Head Clerk who has himself seen the land should among others be called in as a witness.

If the sum involved or compensation is very high, the case should be watched by the Division Peshkar. A special report should be made to the Land Revenue Commissioner in cases of serious importance.

Rule 11 provides that if the acquiring officer, if he is not a Division Peshkar, should consult the latter in matters of doubt of difficulty and in particular in awards with more that 10% of original estimate or if the amount of award is above Rs.1000. In important cases the Division Peshkar may at his discretion, through the Land revenue Commissioner, seek the orders of the Government.

Rule 13 mandates that even when the land is voluntarily offered by the owner for public purposes, land should be acquired with nominal compensation to secure an indefeasible title to the land.

Under Rule 23, in acquiring Service Inam Lands, in which the actual holder shall have only a life interest, an agreement under Section 28(3) of the regulation should be made with the persons interested for the grant of other lands in exchange. Rule 24 provides that such land should be assessed Government Waste. If such exchange is not acceptable to the claimant, the Division Peshkar after obtaining the orders of the Government, make an award of lump sum. The claimant may challenge the award in Civil Court.

Section 35 A of the regulation provides for the acquisition at the cost of any local authority, such authority also is given power to refer the award to District Court, with power to adduce evidence on behalf of the local authority.

The 1914 Travancore Act was got repealed by Section 62 of the Kerala Land Acquisition Act, 1961.

06 . KERALA LAND ACQUISITION ACT, 1961 (ACT 21 OF 1962)

01. A Historical Overview of the Act

Kerala, when formed in 1956 did not have a uniform law for land acquisition. The laws relating to compulsory acquisition of land in force in the Travancore and Cochin areas of the state were contained in the Travancore Land Acquisition Act 1089ME (1914) and the Cochin Land Acquisition Act 1070ME (1895) respectively. In the Malabar area of the state, the law of land acquisition was contained in the Land Acquisition Act 1894, which is the Central Act. The Kerala Land acquisition Act 1961 was formed with the objective of forming a uniform legislation in the matter of land acquisition which is applicable to the whole of state of Kerala and was formed in the period of the second Kerala legislative assembly (1960-1964). The said act formed in 1961 basically followed the principles of the Central Act or the LAA 1894.

The Kerala Land Acquisition Act 1961 have been amended over the years but without significant changes to the basic concept of the Act. The amendments mainly served only to provide more powers to the Government only. For example the 1966 Act brought in an amendment to the 1961 Act that the declaration should be done within 2 years of the publication of the preliminary notification issued by the Government and if not done the notification would be considered void. The 1980 amendment during the sixth Kerala legislative assembly (1980-1982) increased the period to 3 years increasing the time gap between the preliminary notification and declaration which only served to meet the interests of the Government.

In between, the Kerala Land Acquisition (Amendment and Validation) Bill was introduced in 1968 during the third Kerala legislative assembly (1967-1970). The Land Acquisition (Kerala Amendment) Bill 1985 introduced during the seventh Kerala Legislative Assembly (1982- 1987), defined the Board of Revenue or the Collector as the Appropriate Government vested with powers for acquiring the land. The Land Acquisition (Kerala) Rules was published in 1990 as per Government order with the objective of explaining the various rules, process and procedures to be followed by the Appropriate Government during land acquisition.

The Land Acquisition (Kerala Amendment) Bill proposed by the Law Reforms Commission under the leadership of Justice V R Krishna Iyer in 2009 proposed two major changes in the existing legal provisions, while acquiring the land. One was to provide a compulsory rehabilitation package which includes land and residential accommodation and to proclaim the right of the evictee to claim for the same. Another right sought was the return of the land to the evictee in case the land acquired is not used for the mentioned purpose within 10 years of acquisition.

In November 2011 Kerala announced a new R&R policy (Order issued by Revenue (B) department G.O (Ms) 419/2011/RD dt.15.11.2011 formulating Rehabilitation and Resettlement Policy of Government of Kerala 2011) which in par with the Central LA &RR Bill offered different benefits in the context of displacement. The objective of the policy was to provide the project-affected persons with a just and reasonable compensation to maintain their socioeconomic status through transparent procedures. The policy mandated disbursement of all forms of compensation before taking possession of land. As per the policy a high level committee headed by the Chief Secretary will coordinate land acquisition proceedings at the state level and the Collector or an officer designated by him in the district level. The High level committee will consist of the Chief secretary, Revenue secretary and Secretary of the Administrative Department. A District level Purchase Committee (DLPC) will decide the value of the land to be acquired. The DLPC consists of District Collector (Chairman), concerned Revenue Divisional Officer (RDO)/Sub collector, Finance officer from Collectorate, Representative of the Requisitioning Agency and the Deputy Collector in charge of Land acquisition.

A State level empowered committee (SLEC) consisting of Chief Secretary (Chairman), Revenue Secretary, Secretary of the Administrative Department, Law secretary, Finance secretary will approve the value fixed for land. The policy highlighted the following significant points

1. A clear definition of public purpose is mandatory

2. The compensation would be paid as per fair value or the market value

3. Depreciation would not be taken into account while assessing value of buildings

4. Provision of alternate land of up to 3 cents to people if their annual income is less that Rs 75000 and are landless and homeless with no salaried income

5. Social impact assessment of the land acquisition to be done

6. Employment to at least one member of the evictee family to be considered if it is a public sector undertaking

7. Rent to be provided to evictee families till they build alternate accommodation or at least for six months

The policy also came with a suggestion of providing redeemable infrastructure bonds to evictees for the value of land but was kept in abeyance for expert decision which has not materialised till date. Provision of land-based rehabilitation and social rehabilitation was still at stake as per the guideline. The focus was still confined to social impact and was silent about the ecological or food security impacts.

In 2012 the Revenue Department of the Government of Kerala brought out comprehensive guidelines  for land acquisition, R&R package and the constitution of institutions to facilitate land acquisition (Government Order on Land Acquisition for public purpose, R&R package etc - G.O.(Ms) No. 182/2012/RD, Revenue (B) Department, dated 3rd May 2012). The institutional provisions as explained above in the R&R package of 2011 were sustained through the present Order. The Order decreed many conditions for getting sanction for acquisition of land, of which few relevant ones are cited below.

1. Any LA should be for a declared, defined and established public purpose

2. The extent of land required should be justified

3. All statutory clearances or exemptions from any Acts or Rules like Wet land Paddy Land Act, Environment Clearance etc. shall be obtained by the Administrative Department before the proposal is sent to Revenue Department.

4. The R & R package issued in the G.O (Ms) 419/2011/RD dt.15.11.2011 will be applicable to all cases of LA.

The positive features were that the Government recognized the need for a clearly defined public purpose and seeks justification for the extent of land requested for. To what extent this will be implemented is a matter to be experienced. The major negative aspects are that the Order, just like any other Act, Bill or Policy that had come up in matters of land acquisition and rehabilitation was silent about the ecological or agricultural significance of the land in question and continued to treat land as a uniform entity. As per the language in the Order, the concern was confined to getting a clearance or exemption from the Wetland Conservation Act or the Pollution Control Board. The regional and geographical peculiarities of the land in question were not deemed to be significant. The checklist provided with the Order for the approval of the High level Committee of land acquisition had a question in it whether the land belongs to Coastal Zone Regulation (CRZ) area, ecologically fragile or paddy land/wetland category. The follow up question was not on the impact of the project on such areas, but only whether clearance had been obtained to acquire such an area. Here the environment angle was treated as an externality to the whole process of land acquisition. Another negative feature was that though R&R was made applicable to all LA cases the scope of R&R was limited in terms of land-based and social rehabilitation. Further the Order mandated that the R&R package will be applicable only to those land owners who agree to reach a negotiated settlement of land value.

02. Preliminaries

The Kerala Land Acquisition Act, 1961 (Act 21 of 1962) received the assent of the President on 31.08.1962 and published in the Kerala Gazette Extraordinary dated 06.09.1962. The Statement of the Objects and Reasons of this Act states,

“The law relating to compulsory acquisition of land in force in the Travancore and Cochin areas of the State are contained in the Land Acquisition Act, 1089ME (Travancore) and the Land Acquisition Act, 1070ME (Cochin) respectively. In the Malabar area of the state the law on the subject is contained in the Land Acquisition Act, 1894 (Central Act 1 of 1894). It is considered necessary to have a uniform legislation on the subject applicable to the whole of the State of Kerala.”

The Act extends to the whole of State of Kerala.  The Kerala Land Acquisition Act, 1961 (Act 21 of 1962) which came into force on the 1st April, 1963, replaced the laws till then in force in this State regarding the acquisition of property, namely, the (Travancore) Land Acquisition Act, 1089 in force in what we might call the Travancore area, the (Cochin) Land Acquisition Act, 1070 in force in the Cochin area, and the (Central) Land Acquisition Act. 1894 (as amended by Madras Acts XXI of 1948 and XII of 1953) in force in the Malabar area. (We shall refer to the first mentioned Act as the Kerala Act; to the second as the Travancore Act; to the third as the Cochin Act; and to the last as the Central Act). Section 62 of the Kerala Act says that the Travancore and Cochin Acts are repealed; with regard to the Central Act it says that that Act shall cease to apply to the Malabar area. Kerala High Court in The Special Tahsildar for Land Acquisition, Kozhikode-1 and Ors. v. F. Shamsudin and Bros AIR 1970 Ker 301 held that the land acquisition proceedings commenced under the replaced enactments can be continued The Kerala Land Acquisition Act, 1961. The 1961 had repealed the operation of all the three replaced Acts by its Section 62 Repeal. The Act has IX Parts and 62 Sections. Even though the Act has received Presidential assent, it does not form part of the Ninth Schedule of the Constitution and protected by Article 31 B. The Government have framed a rule under this Act called Kerala Land Acquisition Rules, 1963.

03. Amendments

The Kerala Land Acquisition Act, has been amended in 1966 by Act 4 of 1966, in 1980 by Act 3 of 1981. The Kerala Land Acquisition (Amendment) Act, 1966 had seven sections. The main contents of the Act were the amendments to Section 6, 43 and 44, Insertion of Sections 45A and 45B and substitution of new sections for sections 46 to 48.

The Kerala Land Acquisition (Amendment) Act, 1980 had eight sections. The main contents of the Act were the amendments to Section 3, 5, 6, 9 and 16. The Amendment to section 16 deemed to have come into effect on 01.05.1977 and the amendments to Section 3, 5, 6 and 9 have come into force on 04.11.1980.

04. Constitutionality

Clause (2) of Section 25 and Section 30 of the Kerala Land Acquisition Act (Act 21 of 1962) are repugnant to the provisions of Section 23(2) and Section 28 of the Central Act 1 of 1894 as amended and varied1 by Parliament as per Sections 15 and 18 respectively of Act 68 of 1984, and are therefore void. Section 23(2) and Section 28 of the Central Act as amended by Act 68 of 1984 apply to the acquisition of land effected under the Kerala Act. The appellants are therefore entitled to solatium at 30% of the total compensation awarded for the 1.43 acres of land acquired. They are also entitled to interest under Section 28 of the Central Act at 9% per annum on the enhanced amount of compensation from the date on which the State had taken possession of the land from them and at 15% from-, the date of expiry of one year after the date of taking possession.

In Kanthimathy Plantation (P) Ltd v. State of Kerala and Others 1990 AIR 761, 1989 SCR Supl. (1) 206 Supreme Court of India declared on 19.09.1989 that “There was a State Act in Kerala known as the Kerala Land Acquisition Act of 1961 which dealt with acquisition and that had been legislated on the basis of the same Entry 42. Under the Amending Act of 1984, the Land Acquisition Act of 1894 was substantially amended. Five new provisions were inserted; twenty-one sections were substantially altered; one section was substituted and another was omitted. The Act of 1984 extended the Land Acquisition Act of 1894 to the whole of India excepting the State of Jammu & Kashmir. The provisions were substantially different from the provisions in the Kerala Act. In view of the fact that the Land Acquisition Act of 1894 was extended to the whole of India excepting one State, the Land Acquisition Act of 1894 became applicable to the State of Kerala and in view of the repugnant provisions, in terms of Art. 254 of the Constitution the Kerala Act stood repealed. There is no provision made in the Amending Act to indicate repeal of the State law but application of Art. 254 is automatic to situations where it is applicable and by the operation of the Article the State Act stood repealed and the Central Act became applicable.”

The Apex Court also went on, “Steps taken under the Kerala Act upto declaration under S. 6 which had been upheld by the High Court were valid steps and there was no effacing thereof on account of the deemed repeal of the State Act by the Amending Act of 1984. It was, therefore, open to the Land Acquisition Officer to continue the pending proceeding from the stage where it was at the time of coming into force of the Central Act.”

The Land Acquisition (Amendment) Act, 1984 had come into force on 24.09.1984 and by the above said judgment on 19.09.1989 the Kerala Land Acquisition Act, 1961 has ceased to exist w.e.f. 24.09.1984. Consequently the Kerala Government has made the Land Acquisition (Kerala) Rules, 1990 in exercise of the powers conferred by Section 55(1) of the Land Acquisition Act, 1894, vide Notification G.O.(MS) No. 345/90/RD dated 14.05.1990 published in K.G. Ex. No. 501 dated 18.05.1990 as SRO 675/90.

05. Preliminary Investigation

Section 3 to 5 of the Kerala Act provides for preliminary investigation which includes publication of preliminary notification and powers of officers thereupon, Payment for damages and Hearing of objections by the Collector.

06. Declaration of Intended Acquisition

Section 6 to 10 of the Kerala Act provides for declaration of intended acquisition which includes declaration that land is required for public purpose, after declaration the Collector to take order for acquisition, lands to be marked out, measured and planned, notice to persons interested and power to require and enforce the making of statement as to names and interests.

07. Enquiry into Measurements, Value and Claims and Award by the Collector

Section 11 to 17 of the Kerala Act provides for enquiry into measurements, value and claims and Award by the Collector which cover the topics enquiry and awarded by Collector, award of Collector when to be final, adjournment of enquiry, power to summon and enforce attendance of witnesses and production of documents, matters to be considered and neglected, award in case of agreement as to the amount of compensation and valuation statement to be approved by superior authority.

08. Taking Possession

Section 18 to 19 of the Kerala Act provides for taking possession including power of Collector to take possession and Special Powers in cases where land is needed urgently.

09. Reference to Court

Section 20 to 30 deals with Reference to Court including Collector's statement to the Court, Services of notice, Restriction on scope of proceedings, Proceedings to be in open court, Matters to be considered in determining compensation, Matters to be neglected in determining compensation, Rules as to amount of compensation, Form of awards, Costs and Collector may be directed to pay interest on excess compensation

10. Apportionment of Compensation

Section 31 to 32 deals with Particulars of apportionment to be specified, Dispute as to apportionment

11. Payment

Section 33 to 36 provides for the Payment of compensation or deposit of the same in court, Investment of money deposited in respect of lands belonging to persons incompetent to alienate, Investment of money deposited in other cases Payment of interest

12. Temporary Occupation of Land

Section 37 to 38 provides for Temporary Occupation of Land and payment of compensation and Power to enter and take possession and compensation on restoration and Difference as to condition of land

13. Acquisition of Land for Companies

Section 40 to 45 B covers Acquisition of Land for Companies. Company may be authorized to enter and survey, Industrial concerned to be deemed company for certain purposes, Previous consent of Government and execution of agreement necessary, Previous enquiry, Agreement with Government, Publication of agreement, Restriction on transfer, etc and Land not to be acquired under this Part except for certain purpose for private companies other than Government companies.

14. Acquisition of Land for Projects

Sections 46 to 48 deals with Provisions of this Part applicable in the case of specified project, Definitions, Notification declaring projects to which the provisions of this Part shall apply and Acquisition of land in project areas.

15. Miscellaneous

Section 49 to 62 deals with Service of notices, Penalty for obstructing acquisition of land, Completion of acquisition not compulsory, compensation to be awarded when not completed, Acquisition of part of house or buildings, Power to continue the proceedings started by another Collector, Acquisition of land at cost of a local authority or company, Exemption from stamp duty and fees, Notice in case of suits for anything done in pursuance of Act, Establishment of Land Acquisition Courts, Code of Civil Procedure to apply to proceedings before Court, Appeals in proceedings before Court, Power to make rules

16. Repeal

Since the coming into force of Land Acquisition (Amendment) Act, 1984 w.e.f. 24.09.1984 the Kerala Land Acquisition Act, 1961 has ceased to exist w.e.f. 24.09.1984 as held in Kanthimathy Plantation (P) Ltd v. State of Kerala and Others 1990 AIR 761, 1989 SCR Supl. (1) 206.

07. THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013 (ACT 30 OF 2013)

01. Preliminaries

The Right to Fair Compensation and transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013) (hereinafter called Land Acquisition Act, 2013 got the assent of the President on 26.09.2013. The Act was published in the Gazette of India, Extraordinary, Part II, Section I dated the 27.09.2013. The same was re-notified in Kerala by Notification No. 9612/Leg.Pbn.2/2014/Law dated 16th May, 2014.

The Act extends to the whole of India except the State of Jammu and Kashmir. It came into force on 1^st January 2014, vide notification No. 3729 (E), dated 19^th December, 2013, as per Gazette of India, Extraordinary, Part II, Sec. 3(ii). It has XIII Chapters, 114 Sections and four Schedules. The Act has a preamble as follows,

“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 industrialization, 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 persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic status and for matters connected therewith or incidental thereto.”

This Act repealed the Land Acquisition Act, 1894.

02. Scope

In Ramji Veerji Patel and others v. Revenue Divisional Officer and Others (2011) 10 S.C.C. 643, in para 12, Supreme Court of India has observed,

“12. The provisions contained in the Act, of late, have been felt by all concerned, do not adequately protect the interest of the land owners/persons interested in the land. The Act does not provide for rehabilitation of persons displaced from their land although by such compulsory acquisition, their livelihood gets affected. For years, the acquired land remains unused and unutilized. To say the least, the Act has become outdated and needs to be replaced at the earliest by fair, reasonable and rational enactment in tune with the constitutional provisions, particularly, Article 300A of the Constitution. We expect the law making process for a comprehensive enactment with regard to acquisition of land being completed without any unnecessary delay.”

This observation has ultimately resulted in the 2013 Act. However as per Section 105 provides that ‘subject to sub-section (3), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule.’ The list of Central Legislations which have been exempted from the application of this Act are given below.

1. The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958).

2. The Atomic Energy Act, 1962 (33 of 1962).

3. The Damodar Valley Corporation Act, 1948 (14 of 1948).

4. The Indian Tramways Act, 1886 (11 of 1886).

5. The Land Acquisition (Mines) Act, 1885 (18 of 1885).

6. The Metro Railways (Construction of Works) Act, 1978 (33 of 1978).

7. The National Highways Act, 1956 (48 of 1956).

8. The Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (50 of 1962).

9. The Requisitioning and Acquisition of Immovable Property Act, 1952 (30 of 1952).

10. The Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (60 of 1948).

11. The Coal Bearing Areas Acquisition and Development Act, 1957 (20 of 1957).

12. The Electricity Act, 2003 (36 of 2003).

13. The Railways Act, 1989 (24 of 1989).

However, as per subsection 3 of section 105 of the Act it is provided that “The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be.”

On 31.12.2014, the last day for the Notification through an Ordinance, all the compensation and rehabilitation and resettlement provisions of the Land Acquisition Act, 2013 were made applicable to all the 13 exempted laws mentioned in the Fourth Schedule.

The 2014 The ordinance brought in the following amendments: -

(a)                Compensation and R & R specified in the Act was extended to the acquisition under thirteen Acts mentioned in the Fourth Schedule.

(b)               Projects in the areas of

(i)                 Defence production

(ii)               rural infrastructure

(iii)             affordable housing

(iv)             industrial  corridors

(v)               social infrastructure projects including PPP’s in which ownership lies with the government, were exempted from conducting Social Impact Assessment and taking the consent of affected families.

(c)                Definition of “Public Purpose” was widened to include  private hospitals and private educational institutions.

(d)               The term “Private Company” was changed to “Private Entity” to encompass other forms of companies like proprietorship, partnership, corporation, non-profit organisations and other non-governmental entities.

(e)                “Companies Act 1956” which was the reference for the definition of “Company” was replaced by “Companies Act 2013”.

(f)                The period after which unutilized land had to be returned was extended to any period specified at the time of setting up the project. Land Acquisition Act 2013 required land, which remained unutilized for five years, to be returned to the original owners or the land bank.

Thus the 2014 Ordinance has reduced the scope of the Act considerably.

03. Special Features of the Act

The 2013 Act marked a paradigm shift in the land acquisition process and contains many provisions to protect the interests of not only the land owners but also landless project affected persons such as farm labour and slum dwellers. Under the new law, in cases where PPP projects are involved or acquisition is taking place for private companies, consent of 70% and 80% respectively of the landowners is required. This ensures that no forcible acquisition can take place. Given the inaccurate nature of circle rates, the law provides for payment of compensation up to four times the market value in rural areas and up to twice the market value in urban areas. This ensures fairer payment to the landowners. The new law links land acquisition with the accompanying obligation for Resettlement and Rehabilitation (“R&R”) of all project affected persons, including the landless people. The law contains elaborate processes and entitlements for R&R. It outlines the benefits (such as land for land, housing, employment and annuities) that shall accrue in addition to the one-time cash payments. The new law even has retrospective application in certain cases. It applies retrospectively to land acquisitions under the 1894 Act, where no land acquisition award has been made. Also in cases where the land was acquired over five years ago but no compensation has been paid or no possession has been taken, the land acquisition process must be started afresh in accordance with the provisions of the 2013 Act. In case land remains unutilized after acquisition, the 2013 Act empowers states to return the land either to the owner or to the state land bank. The law provides that no income tax shall be levied and no stamp duty shall be charged on any amount that accrues to an individual as a result of the provisions of the new law. In cases where the acquired land is sold to a third party for a higher price, 40% of the appreciated land value (or profit) is required to be shared with the original owners. In cases where the land is acquired for urbanization, 20% of the developed land has to be reserved and offered to the landowners, in proportion to the area of their land acquired and at a price equal to the cost of acquisition, plus the cost of development. All affected families are entitled to a house, provided they have been residing in the area for five years or more and have been displaced. If they choose not to accept the house, they are offered a one-time financial grant in lieu of the same. Finally, under the new law, R&R provisions are applicable even to acquisitions by private parties, subject to size thresholds to be determined by state governments. If a private investor buys land directly from farmers and if the size of acquisition exceeds the set threshold, the private purchaser must also bear the R&R costs.

04. Amendments

Even though attempts were made to introduce Bills in the Parliament, due to various reasons a proper amendment Act could not be passed after complying all procedures. As a result President promulgated Ordinance No. 9 of 2014 on 31.12.2014, Ordinance No. 4 of 2015 on 03.04.2015 and Ordinance No. 5 of 2015 on 30.05.2015. Even though Lok Sabha had passed the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Bill, 2015 on 10.03.2015, it could not be introduced or passed in Rajya Sabha. Thus the Ordinances have lapsed and the 2013 Act as such can only be said to be valid as on date.

05. Kerala Rules and Policy

As per GO(P) No. 470/2015/RD dated 19.09.2015, Kerala State Government have approved the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Kerala) Rules, 2015. The Rules have VIII Chapters, 26 Rules and 11 Forms. As mandated in Section 108 of the Land Acquisition Act 2013, Kerala Government vide GO (MS) No. 485/2015/RD dated 23.09.2015, have approved A Policy of the State of Kerala for Compensation in Land Acquisition. The policy comprises of an Introduction, four Objectives, 23 Framework of Policies, And two Appendices namely a Check List and a Format for submitting proposals for SLEC.

06. Preliminary Notification

The process of acquisition begins with the issuance of preliminary notification, as envisaged under Section 11 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Whenever, it appears to the appropriate Government that land in any area is required or likely to be required for any public purpose, a preliminary notification under Section 11 in rural or urban areas shall be published.

Publication of Notification

The Preliminary Notification shall be published in the following manner:-

(a) in the Official Gazette;

(b) in two daily newspapers circulating in the locality of required area of which one shall be in the regional language;

(c) in the local language in the Panchayat, Municipality or Municipal Corporation, and in the offices of the District Collector, the Sub-divisional Magistrate and the Tehsil;

(d) uploaded on the website of the appropriate Government;

Immediately after issuance of the notification, the concerned Gram Sabha or municipalities shall be informed of the contents of the notification issued in all cases of land acquisition at a meeting called especially for this purpose.

The notification to be issued shall contain details of the land to be acquired, a statement on the nature of the public purpose involved, reasons necessitating the displacement of affected persons, summary of the Social Impact Assessment Report and particulars of the Administrator appointed for the purposes of rehabilitation and resettlement.

In Khub Chand vs. State of Rajasthan (1967)1 SCR 120, the Court has held that, the words of Section 4(1) of the Land Acquisition Act, 1984 clearly suggest that the requirement is a mandatory one. Publication of the notification in the manner prescribed in Section 4(1) of the Act, it appears from the subsequent scheme of the Act, is an indispensable condition for a valid acquisition.

In Habib Ahmed v. State of Uttar Pradesh AIR 1965 All. 344, the Court has held that neither the notification nor the declaration can be quashed on the ground that there was no necessity for acquiring the land for a public purpose. Whether the land is required for a public purpose or not has to be decided solely by the State Government.

In K.Madhava Rao vs. State of A.P. 2006 NOC 589 (A.P.)195, that Court observed that it is duty of Court to determine whenever question is raised whether acquisition is or not for public purpose. However, prima facie Government is the best judge as to whether acquisition is for public purpose. But it is not sole judge.

Although the above cases were dealt under the old law of Land Acquisition Act, 1984, but the provisions of the new Act and the old law are somewhat similar. Therefore, the rules laid down in the landmark judgments under the old law will hold well under the new Act also.

Restriction on Transaction

No person shall make any transaction or cause any transaction of land specified in the preliminary notification from the date of publication of such notification till such time as the proceedings of acquisition are completed.

Provided that the Collector may, on the application made by the owner of the land so notified, exempt in special circumstances to be recorded in writing, such owner from the operation of this restriction.

But any loss or injury suffered by any person due to his willful violation of this provision shall not be made up by the Collector.

Social Impact Assessment Report

Section 14 provides that where a preliminary notification under section 11 is not issued within 12 months from the date of appraisal of the Social Impact Assessment (SIA) report submitted by the Expert Group under section 7, then, such report shall be deemed to have lapsed and a fresh Social Impact Assessment shall be required to be undertaken prior to acquisition proceedings.

The appropriate Government shall have the power to extend the period of twelve months, if in its opinion circumstances exist justifying the same but such decision shall be recorded in writing and the same shall be notified and be uploaded on the website of the authority concerned.

07. Survey of Land

Section 12 provides for the preliminary survey of land and power of officers to carry out such survey. For the purposes of enabling the appropriate Government to determine the extent of land to be acquired, it shall be lawful for any officer, either generally or specially authorised by such Government in this behalf, and for his servants and workmen,–

(a) to enter upon and survey and take levels of any land in such locality;

(b) to dig or bore into the sub-soil;

(c) to do all other acts necessary to ascertain whether the land is adapted for such purpose;

(d) to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; and

(e) to mark such levels, boundaries and line by placing marks and cutting trenches and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle.

Restriction

No act under clauses (a) to (e) in respect of land shall be conducted in the absence of the owner of the land or in the absence of any person authorised in writing by the owner. Such survey may be undertaken in the absence of the owner, if the owner has been afforded a reasonable opportunity to be present during the survey, by giving a notice of at least sixty days prior to the survey.

In Satnam Singh vs. State of Punjab (1969)9 Cur. L. J. 75 (P&H), the Court held that a notice is necessary condition precedent for the exercise of the power of the entry, and non-compliance with these conditions make the entry of the officer or his servants unlawful.

08. Payment for Damages

Section 13 provides that the officer shall at the time of entry under section 12 pay for any damage caused. It is payment for the intended damage.

Damage means any harm done to land during the course of surveying it and other acts necessary to ascertain whether it is capable of being adapted for public purpose.

In case of dispute as to the sufficiency of the amount so paid the officer shall at once refer the dispute to the decision of the Collector or other chief revenue officer of the district, and such decision shall be final.

09. Hearing Objections

Section 15 is consistent with the basic principle that no man’s property shall be acquired unless he has been given an opportunity of being heard. 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.

Section 15(1) provides that any person interested in any land which has been notified as being required or likely to be required for a public purpose, may within 60 days from the date of the publication of the preliminary notification, object to–

(a) the area and suitability of land proposed to be acquired;

(b) justification offered for public purpose;

(c) the findings of the Social Impact Assessment report.

10. Report on the Objections

Every objection shall be made to the Collector in writing. The Collector shall give the objector an opportunity of being heard in person or by any person authorized by him or by an Advocate and shall, make a report to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him along with a separate report giving therein the approximate cost of land acquisition, particulars as to the number of affected families likely to be resettled, for the decision of that Government.

If objections are made, the Collector will consider those objections and make his recommendation thereon in his report to government. If no objections are made, the Collector has got to make a report. It is thereafter that the Government is empowered to proceed further.

Section 15(3) provides that the decision of the appropriate Government on the objections shall be final.

11. Rehabilitation & Resettlement Scheme

Section 16 provides for the preparation of Rehabilitation and Resettlement Scheme by the Administrator.

Upon the publication of the preliminary notification by the Collector, the Administrator for Rehabilitation and Resettlement shall conduct a survey and undertake a census of the affected families, in such manner, which shall include–

(a) particulars of lands and immovable properties being acquired of each affected family;

(b) livelihoods lost in respect of landless who are primarily dependent on the lands being acquired;

(c) a list of public utilities Government buildings, amenities and infrastructural facilities which are affected or likely to be affected, where resettlement of affected families is involved;

(d) details of any common property resources being acquired.

Drafting the Scheme

The Administrator shall, based on the survey and census before, prepare a draft Rehabilitation and Resettlement Scheme, which shall include-

(i) particulars of the rehabilitation and resettlement entitlements of each land owner and landless whose livelihoods are primarily dependent on the lands being acquired and where resettlement of affected families is involved;

(ii) details of Government buildings, public amenities and infrastructural facilities which are to be provided in the Resettlement Area;

The draft shall include time limit for implementing Rehabilitation and Resettlement Scheme. It shall be made known locally by public hearing in the affected area and discussed in the concerned Gram Sabhas or Municipalities.

The Administrator shall, on completion of public hearing submit the draft Scheme for Rehabilitation and Resettlement along with a specific report on the claims and objections raised in the public hearing to the Collector.

12. Review & Approval of Scheme

Under Section17 the Collector shall review the draft Scheme submitted by the Administrator with the Rehabilitation and Resettlement Committee at the project level constituted under section 45.

The Collector shall submit the draft Rehabilitation and Resettlement Scheme with his suggestions to the Commissioner Rehabilitation and Resettlement for approval of the Scheme.

If the scheme is approved then the Commissioner shall under Section 18 cause the approved Rehabilitation and Resettlement Scheme to be made public in the following way:

(i) in the local language to the Panchayat, Municipality or Municipal Corporation, as the case may be, and the offices of the District Collector, the Sub-Divisional Magistrate and the Tehsil;

(ii) in the affected areas;

(iii) uploaded on the website of the appropriate Government.

13. 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 19 of the new Act provides that the final declaration shall be published by the authority within a period of 12 months from the date of issuance of preliminary notification under section 11 of the Act.

When the appropriate Government is satisfied, that any particular land is needed for a public purpose, a declaration shall be made to that effect, along with a declaration of an area identified as the “resettlement area” for the purposes of rehabilitation and resettlement of the affected families, under the hand and seal of a Secretary to such Government or of any other officer duly authorised to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same preliminary notification.

14. Publication of Declaration

Every declaration shall be published in the following manner:-

(a) in the Official Gazette;

(b) in two daily newspapers being circulated in the locality, of which one shall be in the regional language;

(c) in the local language in the Panchayat, Municipality or Municipal Corporation, as the case may be, and in the offices of the District Collector, the Sub-Divisional Magistrate and the Tehsil;

(d) uploaded on the website of the appropriate Government.

15. Summary of Scheme

The Collector shall publish a summary of the Rehabilitation and Resettlement Scheme along with declaration. But no declaration under this shall be made unless the summary of the Rehabilitation and Resettlement Scheme is published along with it.

Also, the ‘Requiring Body’ must deposit an amount, in full or part, as may be prescribed by the appropriate Government towards the cost of acquisition of the land.

Requiring Body as defined under Section 3(zb) means a company, a body corporate, an institution, or any other organization or person for whom land is to be acquired by the appropriate Government, and includes the appropriate Government, if the acquisition of land is for such Government either for its own use or for subsequent transfer of such land is for public purpose to a company, body corporate, an institution, or any other organization.

In Habib Ahmed v. State of Uttar Pradesh AIR 1965 All. 344 at p. 345, the Court has held that neither the notification nor the declaration can be quashed on the ground that there was no necessity for acquiring the land for a public purpose. Whether the land is required for a public purpose or not has to be decided solely by the State Government.

16. Lapse of Notification

Where no declaration is made within 12 months from the date of preliminary notification, then such notification shall be deemed to have been rescinded. Provided that in computing the time of 12 months any period during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded. The appropriate Government may decide to extend the period of 12 months, if in its opinion circumstances exist justifying the same, which shall be recorded in writing and notified and be uploaded on the website of the authority concerned.

The declaration shall be conclusive evidence that the land is required for a public purpose and after making such declaration, the appropriate Government may acquire the land in such manner as specified under this Act.

17. Notice To Persons Interested

Section 3(x) defines ‘person interested’ as-

(i) all persons claiming an interest in compensation to be made on account of the acquisition of land;

(ii) the Scheduled Tribes and other traditional forest dwellers, who have lost any forest rights recognized under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006;

(iii) a person interested in an easement affecting the land;

(iv) persons having tenancy rights under the relevant State laws including share-croppers; and

(v) any person whose primary source of livelihood is likely to be adversely affected;

18. Public Notice

Under Section 21 the Collector shall publish the public notice on his website and cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensations and rehabilitation and resettlement for all interests in such land may be made to him.

The public notice shall state the particulars of the land so needed, and require all persons interested in the land to appear personally or by agent or advocate before the Collector at a time and place mentioned in the public notice to state their claims to compensation rehabilitation and resettlement along with their objections which may be in writing.

The time period should not be less than 30 days and not more than 6 months after the date of publication of the notice.

In case any person interested resides elsewhere, and has no agent, the Collector shall ensure that the notice shall be sent to him by post in letter addressed to him at his last known residence, address of business and also publish the same in at least two national daily newspapers and also on his website.

In State of Madras v. B.V. Subramania Iyer AIR 1962 Mad. 313, the Court held that the word “Dispute” includes any controversy with regard to the title of a single claimant. 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.

19. Statement to Collector

Under Section 22 the Collector may also require any interested person to make or deliver to him a statement within 30 days containing the name of every other person possessing any interest in the land or any part thereof as co-proprietor, sub-proprietor, mortgagee, tenant or otherwise, and of the nature of such interest, and of the rents and profits, if any, received or receivable on account thereof for three years next preceding the date of the statement.

Every person required to make or deliver a statement to the Collector shall be deemed to be legally bound to do so within the meaning of Section 175 (Omission to produce document to public servant by person legally bound to produce it) and Section 176 (Omission to give notice or information to public servant by person legally bound to give it) of the Indian Penal Code 1860.

20. Acquisition Award

The new Act stipulates that the minimum compensation is to be a multiple of the total of the ascertained market value, plus value of the assets attached to the property, plus a solatium equal to 100% of the market value of the property including value of assets.

Under Section 23 the Collector shall proceed to enquire into the objections which any person interested has stated pursuant to a notice given under Section 21 and into the respective interests of the persons claiming the compensation and rehabilitation and resettlement, shall make an award under his hand of–

(a) the true area of the land;

(b) the compensation as determined under Section 27 along with Rehabilitation and Resettlement Award as determined under Section 31 and which in his opinion should be allowed for the land; and

(c) the apportionment of the compensation among all the persons known or believed to be interested in the land, or of whose claims, he has information, whether or not they have respectively appeared before him.

21. Period for Award

Under Section 25 the Collector shall make an award within a period of 12 months from the date of publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse.

Provided that the appropriate Government may take the decision to extend the period of 12 months if in its opinion, circumstances exist justifying the same but such decision shall be recorded in writing and the same shall be notified and be uploaded on the website of the authority concerned.

22. Determining Market Value

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. The market value of the proposed land under Section 26 to be acquired shall be set as the higher of:

•           the minimum land value, if any, specified in the Indian Stamp Act, 1899 for the registration of sale deeds in the area, where the land is situated; or

•           the average of the sale price for similar type of land being acquired, ascertained from the highest fifty per cent of the sale deeds registered during the preceding three years in the nearest village or nearest vicinity of the land being acquired.; or

•           the consented amount in case the land is acquired for private companies or public-private partnership projects.

The market value would be multiplied by a factor of, at least one to two times the market value for land acquired in rural areas and at least one times the market value for land acquired in urban areas.

Example:

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 mandates compensation and entitlements without limit to number of claimants. Thus, for clarity and as an example, if 1000 acres of rural land is to be acquired for a project, with market price of Rs.2,25,000 per acre, 100 families claim to be land owners, and 5 families per acre claim their rights as livelihood losers under the new Act, the total cost to acquire the 1000 acre would be

·                     Land compensation = Rs.90,00,00,000

·                     Land owner entitlements = Rs.6,30,00,000 + 100 replacement homes

·                     Livelihood loser entitlements = Rs.365,00,00,000  + 5000 replacement homes

The average effective cost of land, in the above example will be at least Rs.41,00,000 per acre plus replacement homes and additional services.

The new Act of 2013 proposes the above benchmarks as minimum. The state governments of India, or private companies, may choose to set and implement a policy that pays more than the minimum proposed.

23. Value of Things Attached

The Collector in determining the market value of the building and other immovable property or assets attached to the land or building which are to be acquired, under Section 29 will use the services of a competent engineer or any other specialist in the relevant field, as may be considered necessary by him.

The Collector for the purpose of determining the value of trees and plants attached to the land acquired, use the services of experienced persons in the field of agriculture, forestry, horticulture, sericulture, or any other field, as may be considered necessary by him.

The Collector for the purpose of assessing the value of the standing crops damaged during the process of land acquisition may use the services of experienced persons in the field of agriculture as may be considered necessary by him.

24. Determination of Compensation

The Collector having determined the market value of the land to be acquired shall under Section 27 calculate the total amount of compensation to be paid to the land owner whose land has been acquired by including all assets attached to the land.

In determining the amount of compensation to be awarded for land acquired under this Act, the Collector shall under Section 28 take into consideration–

·                     the market value as determined under section 26 and the award amount in accordance with the First and Second Schedules;

·                     the damage sustained by the person interested, by reason of the taking of any standing crops and trees which may be on the land at the time of the Collector’s taking possession thereof;

·                     the damage sustained by the person interested, at the time of the Collector’s taking possession of the land, by reason of severing such land from his other land;

·                     the damage sustained by the person interested, at the time of the Collector’s taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;

·                     in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses incidental to such change;

·                     the damage bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 19 and the time of the Collector’s taking possession of the land: and

·                     any other ground which may be in the interest of equity, justice and beneficial to the affected families.

25. Award of Solatium

The Collector after having determined the total compensation to be paid shall, to arrive at the final award, under Section 30 impose a “Solatium” which is the amount equivalent to 100% of the compensation amount.

This solatium amount shall be in addition to the compensation payable to any person whose land has been acquired. The Collector shall issue individual awards detailing the particulars of compensation payable and the details of payment of the compensation as specified in the First Schedule.

In addition to the market value of the land provided under section 26, the Collector shall, award an amount calculated at the rate of 12% per annum on such market value for the period commencing from the date of the publication of the notification of the Social Impact Assessment study under section 4(2), till the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.

26. Authorities under the Act

There are many authorities under the Act of which the most important are detailed below.

District Collector

Section 3 (e) (v) of the 2013 Act provides that in respect of a public purpose in a District for an area not exceeding such as may be notified by the appropriate Government, the Collector of such District shall be deemed to be the appropriate Government. As per Section 3(g) of the Act ‘Collector’ means the Collector of a revenue district, and includes a Deputy Commissioner and any officer specially designated by the appropriate Government to perform the functions of a Collector under this Act. Section 8(2) mandates that ‘the appropriate Government shall examine the report of the Collector, if any, and the report of the Expert Group on the Social Impact Assessment study and after considering all the reports, recommend such area for acquisition which would ensure minimum displacement of people, minimum disturbance to the infrastructure, ecology and minimum adverse impact on the individuals affected.’

If any damage has been caused by Survey conducted under Section 12, as per Section 13 he shall at once refer the dispute to the decision of the Collector or other chief revenue officer of the district, and such decision shall be final.

As per section 15, any interested person in any land notified under Section 11(1), may make an objection to the Collector in writing.

Section 17 mandates that the Collector shall review the draft Scheme submitted under sub-section (6) of section 16 by the Administrator with the Rehabilitation and Resettlement Committee at the project level constituted under section 45. The Collector shall submit the draft Rehabilitation and Resettlement Scheme with his suggestions to the Commissioner Rehabilitation and Resettlement for approval of the Scheme.

As per Section 20, the Collector shall cause the land, unless it has been already marked out under section 12, to be marked out and measured, and if no plan has been made thereof, a plan to be made of the same.

Sections 23, 26, 27, 28, 29, 30, 31,33,34,35,36,37,38, 39, 40, 65 and 72 of the Act confers power on the Collector.

Section 23 deals with the Enquiry and land acquisition award by Collector; Section 26 deals with the determination of market value of land by Collector; Section 27 provides for the determination of amount of compensation; Section 28 provides Parameters to be considered by Collector in determination of award; Section 29 confirms power on the Collector in the determination of value of things attached to land or building; Section 30 empowers the Collector for the award of solatium; Section 31 provides for the Rehabilitation and Resettlement Award for affected families by the Collector; Section 32 envisages that the Collector shall ensure the provision of all infrastructural facilities and basic minimum amenities specified in the Third Schedule; Section 33 states the Corrections to awards by Collector; Section 34 provides for the Collector’s power of adjournment of enquiry; Section 35 provides for the power of Collector to summon and enforce attendance of witnesses and production of documents; Section 36 deals with the power of Collector to call for records, etc.; Section 37 states awards of Collector when to be final; Section 38 deals with Collector’s power to take possession of land to be acquired; Section 39 deals with the additional compensation in case of multiple displacements; Section 40 envisages Special powers in case of urgency to acquire land in certain cases; Section 65 deals with the Collector’s statement to Authority and Section 72 states that the Collector may be directed to pay interest on excess compensation.

Land Acquisition, Rehabilitation and Resettlement Authority

Chapter VIII Section 51 to 74 deals with various provisions of the Land Acquisition, Rehabilitation and Resettlement Authority. As per Section 51(1) of the Act, the appropriate Government shall, for the purpose of providing speedy disposal of disputes relating to land acquisition, compensation, rehabilitation and resettlement, establish, by notification, one or more Authorities to be known as ―the Land Acquisition, Rehabilitation and Resettlement Authority to exercise jurisdiction, powers and authority conferred on it by or under this Act. As per Section 52 and 53, the Authority shall consist of one person only who is or has been a District Judge or is a qualified legal practitioner for not less than 7 years. He shall hold office for three years or until attains the age of sixty five.

As per Section 60 the the Authority shall, for the purposes of its functions under this Act, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) discovery and production of any document or other material object producible as evidence;

(c) receiving evidence on affidavits;

(d) requisitioning of any public record;

(e) issuing commission for the examination of witnesses;

(f) reviewing its decisions, directions and orders;

(g) any other matter which may be prescribed.

The Authority shall have original jurisdiction to adjudicate upon every reference made to it under section 64. The Authority shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made thereunder, the Authority shall have the power to regulate its own procedure.

The Authority shall, after receiving reference under section 64 and after giving notice of such reference to all the parties concerned and after affording opportunity of hearing to all parties, dispose of such reference within a period of six months from the date of receipt of such reference and make an award accordingly. The Authority shall arrange to deliver copies of the award to the parties concerned within a period of fifteen days from the date of such award.

Expert Group

As per section 7 the appropriate Government shall ensure that the Social Impact Assessment report is evaluated by an independent multi-disciplinary Expert Group, as may be constituted by it.

The Expert Group constituted under Section 7 (1) shall include the following, namely:—

(a) two non-official social scientists;

(b) two representatives of Panchayat, Gram Sabha, Municipality or Municipal Corporation, as the case may be;

(c) two experts on rehabilitation; and

(d) a technical expert in the subject relating to the project.

The appropriate Government may nominate a person from amongst the members of the Expert Group as the Chairperson of the Group.  

If the Expert Group is of the opinion that—

(a) the project does not serve any public purpose; or

(b) the social costs and adverse social impacts of the project outweigh the potential benefits,

it shall make a recommendation within two months from the date of its constitution to the effect that the project shall be abandoned forthwith and no further steps to acquire the land will be initiated in respect of the same:

If the Expert Group is of the opinion that,—

(a) the project will serve any public purpose; and

(b) the potential benefits outweigh the social costs and adverse social impacts,

it shall make specific recommendations within two months from the date of its constitution whether the extent of land proposed to be acquired is the absolute bare-minimum extent needed for the project and whether there are no other less displacing options available:

Administrator

Section 3(a) states that ‘Administrator’ means an officer appointed for the purpose of rehabilitation and resettlement of affected families under sub-section (1) of section 43. Section 16 provides that

Upon the publication of the preliminary notification under sub-section (1) of section 11 by the Collector, the Administrator for Rehabilitation and Resettlement shall conduct a survey and undertake a census of the affected families, in such manner and within such time as may be prescribed, which shall include—

(a) particulars of lands and immovable properties being acquired of each affected family;

(b) livelihoods lost in respect of land losers and landless whose livelihoods are primarily dependent on the lands being acquired;

(c) a list of public utilities and Government buildings which are affected or likely to be affected, where resettlement of affected families is involved;

(d) details of the amenities and infrastructural facilities which are affected or likely to be affected, where resettlement of affected families is involved; and

(e) details of any common property resources being acquired.

Section 43 provides that where the appropriate Government is satisfied that there is likely to be involuntary displacement of persons due to acquisition of land, then, the State Government shall, by notification, appoint in respect of that project, an officer not below the rank of Joint Collector or Additional Collector or Deputy Collector or equivalent official of Revenue Department to be the Administrator for Rehabilitation and Resettlement.

The Administrator shall, with a view to enable him to function efficiently and to meet the special time-frame, be provided with such powers, duties and responsibilities as may be prescribed by the appropriate Government and provided with office infrastructure and be assisted by such officers and employees who shall be subordinate to him as the appropriate Government may decide.

Subject to the superintendence, directions and control of the appropriate Government and the Commissioner for Rehabilitation and Resettlement, the formulation, execution and monitoring of the Rehabilitation and Resettlement Scheme shall vest in the Administrator.

Commissioner for rehabilitation and resettlement

As per Section 44, the State Government shall appoint an officer of the rank of Commissioner or Secretary of that Government for rehabilitation and resettlement of affected families under this Act, to be called the Commissioner for Rehabilitation and Resettlement. The Commissioner shall be responsible for supervising the formulation of rehabilitation and resettlement schemes or plans and proper implementation of such schemes or plans. The Commissioner shall be responsible for the post-implementation social audit in consultation with the Gram Sabha in rural areas and municipality in urban areas.

Rehabilitation and resettlement committee at project level

As per Section 45, where land proposed to be acquired is equal to or more than one hundred acres, the appropriate Government shall constitute a Committee under the chairmanship of the Collector to be called the Rehabilitation and Resettlement Committee, to monitor and review the progress of implementation of the Rehabilitation and Resettlement scheme and to carry out post-implementation social audits in consultation with the Gram Sabha in rural areas and municipality in urban areas.

The Rehabilitation and Resettlement Committee shall include, apart from officers of the appropriate Government, the following members, namely:—

(a) a representative of women residing in the affected area;

(b) a representative each of the Scheduled Castes and the Scheduled Tribes residing in the affected area;

(c) a representative of a voluntary organisation working in the area;

(d) a representative of a nationalised bank;

(e) the Land Acquisition Officer of the project;

(f) the Chairpersons of the panchayats or municipalities located in the affected area or their nominees;

(g) the Chairperson of the District Planning Committee or his nominee;

(h) the Member of Parliament and Member of the Legislative Assembly of the concerned area or their nominees;

(i) a representative of the Requiring Body; and

(j) Administrator for Rehabilitation and Resettlement as the Member-Convenor.

The procedure regulating the discharge of the process given in this section and other matters connected thereto of the Rehabilitation and Resettlement Committee shall be such as may be prescribed by the appropriate Government.

27. Application of the Act

The application of the Act is provided under Section as quoted hereunder;

“2. Application of Act.–(1) The provisions of this Act relating to land acquisition, compensation, rehabilitation and resettlement, shall apply, when the appropriate Government acquires land for its own use, hold and control, including for Public Sector Undertakings and for public purpose, and shall include the following purposes, namely:—

(a) for strategic purposes relating to naval, military, air force, and armed forces of the Union, including central paramilitary forces or any work vital to national security or defence of India or State police, safety of the people; or

(b) for infrastructure projects, which includes the following, namely:—

(i) all activities or items listed in the notification of the Government of India in the Department of Economic Affairs (Infrastructure Section) number 13/6/2009-INF, dated the 27th March, 2012, excluding private hospitals, private educational institutions and private hotels;

(ii) projects involving agro-processing, supply of inputs to agriculture, warehousing, cold storage facilities, marketing infrastructure for agriculture and allied activities such as dairy, fisheries, and meat processing, set up or owned by the appropriate Government or by a farmers' cooperative or by an institution set up under a statute;

(iii) project for industrial corridors or mining activities, national investment and manufacturing zones, as designated in the National Manufacturing Policy;

(iv) project for water harvesting and water conservation structures, sanitation;

(v) project for Government administered, Government aided educational and research schemes or institutions;

(vi) project for sports, health care, tourism, transportation or space programme;

(vii) any infrastructure facility as may be notified in this regard by the Central Government and after tabling of such notification in Parliament;

(c) project for project affected families;

(d) project for housing for such income groups, as may be specified from time to time by the appropriate Government;

(e) project for planned development or the improvement of village sites or any site in the urban areas or provision of land for residential purposes for the weaker sections in rural and urban areas;

(f) project 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 the Government, any local authority or a corporation owned or controlled by the State.

(2) The provisions of this Act relating to land acquisition, consent, compensation, rehabilitation and resettlement, shall also apply, when the appropriate Government acquires land for the following purposes, namely:—

(a) for public private partnership projects, where the ownership of the land continues to vest with the Government, for public purpose as defined in sub-section (1);

(b) for private companies for public purpose, as defined in sub-section (1):

Provided that in the case of acquisition for—

(i) private companies, the prior consent of at least eighty per cent, of those affected families, as defined in sub-clauses (i) and (v) of clause (c) of section 3; and

(ii) public private partnership projects, the prior consent of at least seventy per cent. of those affected families, as defined in sub-clauses (i) and (v) of clause (c) of section 3,

shall be obtained through a process as may be prescribed by the appropriate Government:

Provided further that the process of obtaining the consent shall be carried out along with the Social Impact Assessment study referred to in section 4:

Provided also that no land shall be transferred by way of acquisition, in the Scheduled Areas in contravention of any law (including any order or judgment of a court which has become final) relating to land transfer, prevailing in such Scheduled Areas.

(3) The provisions relating to rehabilitation and resettlement under this Act shall apply in the cases where,—

(a) a private company purchases land, equal to or more than such limits in rural areas or urban areas, as may be prescribed by the appropriate Government, through private negotiations with the owner of the land in accordance with the provisions of section 46;

(b) a private company requests the appropriate Government for acquisition of a part of an area so prescribed for a public purpose:

Provided that where a private company requests the appropriate Government for partial acquisition of land for public purpose, then, the rehabilitation and resettlement entitlements under the Second Schedule shall be applicable for the entire area which includes the land purchased by the private company and acquired by the Government for the project as a whole.”

28. Return of Unutilized Land

As per section 101 of the 2013 Act, when any land acquired under this Act remains unutilized for a period of five years from the date of taking over the possession, the same shall be returned to the original owner or owners or their legal heirs, as the case may be, or to the Land Bank of the appropriate Government by reversion in the manner as may be prescribed by the appropriate Government. For the purpose of this section, "Land Bank" means a governmental entity that focuses on the conversion of Government owned vacant, abandoned, unutilized acquired lands and tax-delinquent properties into productive use.

29. Criticism

There are some criticisms raised against the 2013 Act. Now even fertile lands can also be acquired easily. Previously the acquisition of fertile lands were tedious enough to make government think of some more feasible alternative. Only land-owners will be compensated now. The people depending on that land won't be accounted for. Relaxation in laws regarding return of un-used acquired land back to the original owner makes prosecution of defaulting civil servants tough. Retrospective clauses narrowed down. However the most shocking experience is the indifference of the Central and State Governments in the enforcement of the Act. The proposed Amendment of the Act has been delayed badly and three consecutive Ordinances had to be issued. They too only got lapsed as the Government failed to bring a consensus in the issue to get a majority in the Upper House of the Parliament. Many States have Come forward with State Amendments diluting the provisions of the Act. Thus the attempt of the State is to make this piece of law gradually teethless.

08. CONCLUSION

The laws relating to land acquisition have always been complex and have therefore complicated the hazards of the persons affected by such acquisition. The Government being the law maker, beneficiary and the enforcer always have shown conflicting interest against the acquired people. The evolution of the various land acquisition and the quantum of legislative output was much less than its subordinate legislation. Notifications and Circulars have played great importance in land acquisition. The interests of the Governments are mostly interpreted by the judiciary in par with the interests of the State and of the general public. So the power relation as far as a person thrown out of his land and home was that of a foe of the general public. Even though the introduction of the Land Acquisition Act 2013 was a revolutionary step, there was no political will to the Governments in power to make it a workable legislation achieving its objects and reasons.