PROCESS OF LAND ACQUISITION UNDER RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013 : A BIRD’S EYE VIEW

Introduction :

Land Acquisition is defined as the acquisition of ownership of private lands for public purpose. In the context of India, the definition of land acquisition is different than many countries where the government acquires the land for development projects. In India, land acquisition is done by the state governments for various purposes i.e., construction of roads, building infrastructure, urbanisation, industrialisation, development of railways, irrigation etc. The government can also acquire property for private companies to build factories or other industrial facilities on. Land acquisition is a contract between a willing buyer and a willing seller, whereas land purchase is a contract between a willing buyer and a willing seller. This is why the right to property is not recognized as a fundamental right. There are two types of land acquisition namely, compulsory acquisition and voluntary acquisition. Compulsory acquisition means that the government has no choice to acquire the land, while in case of voluntary acquisition, the landowners may opt to sell their land voluntarily to the government.

The idea of Land Acquisition in India is based on principle of Eminent Domain. According to this doctrine, the government can do anything in the public interest. It is based upon two Latin political ideologies – (a)The public’s welfare is paramount; and (b) Public necessity exceeds private necessity. The state has the right to acquire any private property for the public use. Right to property was a fundamental right till 1979 when the 44th amendment reduced it to a constitutional or legal right. As per the amendment, “no person shall be deprived of his/her property save by the authority of law”. Land Acquisition is a concurrent subject. Hence remedy in case of right to property in India is available through High court and not the supreme court. No law can be challenged that violates the right to property. However, according to the constitution, the state cannot acquire land without compensation.

Land Acquisition Act 2013, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 is the main law that regulates land acquisition and establishes rules and regulations for granting compensation, rehabilitation and resettlement to the affected people in India. The act replaced the Land Acquisition Act, 1894.

Identification of land use requirement

Land acquisition process includes identifying land use requirements; obtaining consent/approval of local authority; acquiring land by compulsory purchase; compensation for acquired land and payment of interest. After enactment of the act, Government of India issued notification No. 651/2013-CL dated February 14, 2014 under section 23(2) of the Act providing guidelines for implementation of the Act.

The first step towards the acquisition of land is to identify the land use requirement and its suitability for the proposed project. The identification of land use requirement may vary depending upon the nature of the project, the amount of land involved, and the location of the project. In case of construction projects, the basic requirements are as follows –

 a) The land should be suitable for construction activities. If not otherwise stated, the area of land required for a particular activity should not exceed 25% of the total area of the plot.

 b) The land should have access to water.

 c) There should be no restrictions on the use of the land after completion of the construction works.

 d) If the land is located in a flood prone area, then the acquisition should be approved by Flood Commission.

 e) If the land is situated near habitation areas, roads, and railway tracks, then approval of the concerned authorities should be obtained before acquisition of the land.

 f) The land should not be encumbered with any restriction on transfer.

 g) The land should be free from encroachments.

 h) The land should be suited for the intended use.

 i) If the land is owned by the government, then permission to acquire the same should be obtained from competent authority.

 j) If the land is already being used for some purposes, then the current user shall be given adequate compensation.

 k) If the land is registered under the Registration of Property Act (RPA), 1860, then details of the owner shall be recorded in the RPA register.

The Process of Land Acquisition

For the purposes of Land Acquisition Act of proceedings are carried on by an officer appointed by the government known as Land Acquisition Collector. The proceeding under the Land Acquisition Collector is of an administrative nature and not of a judicial or quasi judicial character.

  1. Public Notification.

When the government intends to occupy land in any locality, it must issue a notification under Section 4 in the official gazette, newspaper, and give public notice, which entitles anyone acting on behalf of the government to enter the land for the purposes of digging, levelling, establishing boundaries, and so on. The notification states the government’s intent to buy the land and authorises government authorities to examine and determine if the area is fit for the purpose. The section also makes it mandatory for the officer or person authorised by the government to give a notice of seven days signifying his intention to enter any or building or enclosed court in any locality.

  1. Collector’s Report

An officer or authorised representative of the government must tender payment for any necessary damage, and all issues relating to insufficient funds must be resolved by the collector. Section 5(a) allows any person interested in land notified under Section 4 (who is entitled to claim an interest in compensation) to object in writing and in person. After investigating such concerns, the collector must transmit the report to the government, whose judgement in this matter is final. Following consideration of the collector’s report under Section 5(a), the government may issue a declaration within one year of the notice under Section 4 to purchase land for public purposes or for a company; this declaration is an obligatory condition of Section 4.

  1. Government Order

After the declaration under Section 6, collector has to take order from the appropriate government weather state or central for the acquisition of land under section 7.

  1. Land Measurement and demarcation

The next step in the acquisition process  is  to arrange for collectors to mark, survey and plan the land (if they have not already done so). The requirements in this section are approximate and do not require exact measurements. A key process that takes place in this section is boundary setting. This consists of marking the boundaries of the land to be acquired by cutting trenches or placing markers as posts.

  • Public Notice

Section 9 requires the collector to cause a public notice at convenient places expressing government’s intention to take possession of the land and requiring all persons interested in the land to appear before him personally and make claims for compensation before him. It is a mandatory requirement.

Next step in the process of acquisition requires a person to deliver names or information regarding any other person possessing interest in the land to be acquired and the profits out of the land for the last 3 years. The object of this step is to enable the collector to ascertain the compensation by giving him a vague idea.

  • Inquiry and Award

The Final set of collector’s proceedings involve an enquiry by the collector into the objections made by the interested persons regarding the acquisition of the land and making an award to persons claiming compensation as to the value of land on the date of notification under section 4. The enquiry involves hearing parties who appear with respect to the notices, investigate their claims, consider the objections and take all the information necessary for ascertain the value of the land, and such an enquiry can be adjourned from time to time as the collector thinks fit and award is to be made at the end of the enquiry.

The award made must be under the following three heads:

• Correct area of land

• Amount of compensation he thinks should be given

• Apportionment of compensation

Conclusion

The Land Acquisition Act endanger private interests for the public good, thus denying private property rights. Generally the law should be interpreted strictly because it nullifies a person’s right to property. The owner of the property has no bargaining power with the state in such circumstances nor does he have a say in compensation. Justice therefore requires a strict interpretation of the law and a strict observance of procedures that prescribe various checks and balances in the interest of equity.

References :

https://www.indiatimes.com/explainers/news/land-acquisition-land-acquisition-process-in-india-555781.html

https://en.wikipedia.org/wiki/Land_acquisition_in_India

https://www.legalserviceindia.com/article/l257-Process-of-Land-Acquisition.html#:~:text=of%20the%20community.-,The%20Process%20of%20Land%20Acquisition,judicial%20or%20quasi%20judicial%20character

https://prsindia.org/billtrack/the-right-to-fair-compensation-and-transparency-in-land-acquisition-rehabilitation-and-resettlement-bill-2013

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