CONCEPTUAL AND HISTORICAL BACKGROUND OF LAND ACQUISITION LAWS IN INDIA IN PRE-INDEPENDENCE ERA BY - DR SUMBUL FATIMA
AUHTORED BY - DR SUMBUL FATIMA
India's geographical region is primarily made up of agricultural land, with forests being the next largest
occupier. A very small portion of land has been used by non-agricultural users,
namely urban areas, industry, and infrastructure, although this portion is
expected to grow quickly in the future as the country modernizes and urbanizes.
A large portion of privately owned land in the country is used for agriculture
and is classified as agricultural land. Landowners
have the option of transferring land to other users, but changing the land use
from agricultural to commercial, industrial, or any other purpose usually
necessarily requires permission from the tax authorities, which is usually
granted quickly in exchange for a fee. When large areas of land are required
for the development of roads, railways, canals, or other basic infrastructure,
urban housing, or for any other public purpose, the government acquires land
compulsorily on payment of compensation in accordance with laws on land
acquisition. These laws include a provision for the acquisition of property in
order to develop private-sector industries. While changes in land use occur
gradually over a period of time as a result of landowners’ decisions and
compulsory land acquisition by the government is the primary tool for
implementing large-scale changes. Since the days of the British
Empire, the Land Seizure Act of 1894 has served
as the primary legal foundation for the forced acquisition of private land.
1.
Introduction
“Our land is more valuable than your
money. This will last forever. It will not perish even in the flames of fire.
As long as the sun shines and the waters flow, this land will be there to give
life to people and animals. Compulsory land acquisition not only leads to the
loss of economic assets and livelihoods, but also disrupts communities,
cultural identity, local markets for goods and labor, putting displaced people
in a "spiral of impoverishment".”[2]
The Food and Agricultural
Organization of the United States in 1992, defines ‘Land’ as a delineable area,
encompassing all attributes of the biosphere immediately above or below the
earth surface, including the soil, terrain surface hydrology, the near-surface
climate, sediments and associated groundwater reserve, the biological
resources, as well as the human settlements pattern and infrastructure
resulting from human activity.
The land is one of the five major
elements (Fire, Water, Wind, Atmosphere, and Earth) across the world. It forms
the identity, social association, and economic lifeline of the individuals and
represents them in the communities. The land is regarded as a productive and
social asset that provides substantive citizenship to the population in rural
India. Land rights and access not only provides economic stability but also
enhances the social status of individuals in society. Land Acquisition is
referred to as the process in which the private land of an individual is
acquired by the State or Central Government to fulfill public-oriented purposes
such as industrialization and infrastructure. It includes paying compensation to
the individual that has provided his/her land for the public purpose as
directed by the law. The Land Acquisition aspects in India are governed by
several Laws and Rulings in the form of Acts such as the National Highways Act,
1956, Land Acquisition Act of 1894, the Indian Tramways Act, 1886, and the
Metro Railways (Construction of Works) Act, 1978. The Land Acquisition Act of
1894 forms the basis for Land Acquisition processes in India and facilitates
the attainment of property/land from the private landowners for public
development activity. In the case of Somawati
v. the State of Punjab[3], the Supreme Court held that as per the Land
Acquisition Act of 1894, the land could only be attained by the private owner.
It also specified that the acquired land is to be used for Public, Company, or
Infrastructure Development purposes.[4] When the acquired land from the private owners is to
be given to a company, the directives laid down under Part VII of the Land
Acquisition Act of 1894 are essential to be implemented. It specifies that the
land that is provided to the company is only to be used for a Public Purpose.
It may be in the form of Public Construction Work that is beneficial to the
large communities.[5]
“The Land Acquisition Act was an
important legal instrument of economic control, oppression and exploitation
promulgated by the British imperialist government.”
Source: www.lawtool.net
2.1.
Ancient concept about Land
Acquisition
To
comprehend the origins of property, as per R.S. Sharma[7], the terms
Pana, which later became Coin, and Dhana, which later came to mean Wealth, are
used as Prizes, Wagers, or Stakes won because of either war or competition in
the earliest portion of the Rig Veda. He explained that acquiring property
necessitates significant effort, including war. This appears to have been the
oldest known origin of faith for the Rig Vedic people. Permanency objects such
as Livestock, Sons, Chariots, Plants, Grain, and belongings such as Weapons,
Pots, Vessels, Clothing, and sordid family articles were started as property
throughout this period. Among the immovable assets, coast or residence were but
in conformity with be regarded as much Non-Public worship between the Rig Vedic
Period. However, in the Post-Vedic Era, the Grihyasutras suggest permanent
houses when dealing with domestic resources. The land was under the full
command of the ruling tribe, and the chief could grant it only with the king's
permission.[8] When
the people started leading a settled life they started owning cultivable land
and essential things. Sooner, they started understanding the importance of land
and its agricultural production value and now they termed property as lands and
precious metals like gold and silver. Later, the Land was used for Pillaging,
Cattle, Horses, Ornaments, Weapons, Women slaves were the most widely accepted
types of property[9].
With the
advancement of material culture, as well as the rapid progress in industry and
trade, the concept of property changed, and whatever one possessed, whether by
inheritance or self-effort, came to constitute property in the modern sense of
the word. There were no complicated distinctions between property ownership and
possession in the early law. At the time, only Roman law made a distinct
distinction between the two, referring to two concepts:
1. Dominium -
The absolute right towards something.
2. Possessio -
It was merely physical attribute.
The
difference was not always clear in English Law. Developments have taken place,
and it reached the stage of ownership through the advancement of possession
laws. The English highlighted possession, whereas the Romans emphasized
absolute rights, i.e., dominium. It was much easier to establish title in Rome.
The Greeks held a view similar to English law, and the writers believed that
whoever could demonstrate superior possession was the owner. The situation changed,
and concepts such as ejectment were introduced to demonstrate absolute
possession. The Roman concept of dominium was still absolute. It could only be
obtained in certain ways. The following are a summary of an owner's full
rights:
1.
Possession with the ability to enjoy, deal with, and
destroy the thing.
2.
Possession with the ability to exclude others.
3.
Alienation power
4.
Security charge power
5.
The ability to will something to happen, no single owner
has all of these rights.
There are
very few owners who have complete control. The owner may delegate many of his
rights to some other person while still trying to remain the owner. Dominium is
the ultimate right that has no rationalization. It could be utterly worthless.
The owner's ability to surrender so many rights generates practical
difficulties.
With the
progress of material culture in Roman Law, combined with the rapid advancements
in industry and trade, the concept of property brought a change, and whatever
one possessed, whether by inheritance or self-effort, is defined as property in
the modern sense of the term. The "Occupation Theory" is the origin
of the proprietary right in land. According to this theory, things that are not
currently the focus of the owner's property become the asset of the first
occupant.
"A
field is his who clears it of jungle," Manu
says, "and game is his who first perceives it." Manu (who flourished in the second century B.C.) did not introduce
this theory for the first time, but it was already in use when he wrote his
Smriti. "Who belongs to wild animals?" asks the great Sanskrit poet Bharavi. He is the one who first pierces
them." Our sages' legal conception, which individuals lived and thought
during Rome's early life, was similar to the notions acknowledged in other
nations later on. Manu's "Occupation
Theory" of property corresponds to the doctrine of occupation" that
prevailed in Rome during the seventeenth and eighteenth centuries.
According to Maine,
Occupancy was the assumption of Physical Possession, and the idea that such an
act confers a title is likely the development of a refined Jurisprudence. As a
result, Maine disagrees with the
thesis that occupation preceded ownership. He developed the Concept of Mere
Possession of a thing followed by the fact of ownership when objects of
enjoyment were brought into ownership. Occupancy becomes ownership when there
is no other claimant to the object (Res Nullius) and everything is assumed to
be "Somebody's Property."
2.3. Land
under Muslim philosophical attitude
The Muslim
Scholar’s explanations of Hadith subsequently contradicted the Occupational
Theory of land. According to Abu Haneefa, simple cultivation of wasteland is
insufficient to create a genuine right in the cultivator; State permission is
necessary for the acquisition of Proprietary Rights. However, his disciples Abu
Yusuf and Abu Mohammad, both of whom served as Judges under Khalifa
Harun-al-Rashid, maintain that no State authorization is required to make the
cultivator the Proprietor. Barren deserts were considered to be responsive
supply chain that became the Cultivator's Property by virtue of his being the
first possessor.
2.4. Land under Hindu Philosophical Attitude
Hindu
philosophers and jurists held that the government was not the primary owner of
the land. He was entitled to a portion of the Usufruct of the lands under his
subject’s occupation, not merely because he was the owner, but because a
proportion was leviable to him as the cost for the protection of Life, Liberty,
and Property. The Sovereign's Fees for subject protection accounted for roughly
one-sixth of the harvest. According to Parashara, a renowned Smriti-Writer,
"He (The Sovereign) receives taxes and thus should protect his subjects
from Thieves, Robbers, and others. "Lately, multiple systems and reforms
were updated on various bases when people started living in the village system
and understanding the importance of Social Life, with this evolution initially
kings use to make amendments as per their senses and later when invasions by
different dynasties brought drastic changes in these reforms under Mughal, Rajputana,
and British Rule Period.[10]
The behavioural phenomena of land
acquisition in India exclusively rests upon legal and jurisprudential grounds
originating from legislative enactments as they are passed by the parliament
out of existing contingencies. As far as peoples’ displacement is concerned we
do not have a separate law for it and consequential uprooting of people is
implicit in the very concept of land acquisition itself. That is why most of
the incidents of land acquisition fail to satisfy any criterion of compensatory
justice as provided by the Economic
Theory. Utilitarian Distributive
Justice would imply a more Egalitarian ownership and tenancy pattern of
land holdings hence selective discrimination against a few does not satisfy
inadequacy of outcome equivalence for Land Acquisition and Displacement
Affected (LADAPs). Democratic Orientation is also not followed by the
Acquisition authorities in the sense that the gainers fail to compensate the
losers to the extent of wilful consent; the Volition-Deficit being overcome by
the force and threat of force of the state. Land Acquisition also fails to give
heeds to Gandhian din-hin- the humblest and poorest as they are usually
the first victims of any Land Acquisition event. But it is matter of worry that
like the rejection of Mahatma Gandhi’s guidance all other humanitarian
principles are also frustrated by the acquisition machinery[11].
A very important Principle of Welfare
Economics is what is called Pareto optimality after Vilfredo Pareto (1848-1923)[12].
“According to this criterion any change
that makes at least one individual better-off and no one worse-off is an
improvement in social welfare. Conversely, a change that makes no one
better-off and at least one worse-off is a decrease in social welfare”.[13]
According to Koutsoyiannis[14],
‘The Resentment and Post-Acquisition decrease in Socio-Economic status of
LADAPs is an indication that the outcome of Land Acquisition is largely welfare
decreasing at least for the affected ones. It can somehow be avoided by the
observance of what is called the Kaldor-Hicks ‘Compensation Criterion’[15].
To bring the idea at home a passage from Koutsoyiannis (1985: 529) is produced here:
“Assume that a change in the economy
is being considered, which will benefit some (‘gainers’) and hurt others
(‘losers’). One can ask the ‘gainers’ how much money they would be prepared to
pay in order to have the change, and the ‘losers’ how much money they would be
prepared to pay in order to prevent the change. If the amount of money of the
‘gainers’ is greater than the amount of the ‘losers’, the change constitutes an
improvement in social welfare, because the ‘gainers’ could compensate
the losers and still have some ‘net gain’. Thus, the Kaldor- Hicks ‘compensation criterion’ states that a change
constitutes an improvement in social welfare if those who benefit from it could
compensate those who are hurt, and still be left with some
‘net gain’.”
2.5. The
Land Acquisition under the British Government in India
The
British rule in India initially enacted the advance land achievement law of
1824 which was once applied of the entire Bengal. The Government could then use
this law to acquire land and other immovable property needed for roads, canals,
or other public purposes "at a Fair Valuation". Later, such new
modifications were added to the legislation that managed to bring all of
British-ruled India under one uniform Land Acquisition Law in 1857 but during
that time the unsatisfactory settlement raised its head due to incompetence and
corruption by the private landlords, Zamindars, etc. Thus, the Act of 1870 due
to its unsatisfactory disputes was amended by 1894 where this Act empowered the
government to forcibly purchase land from private landowners for Public-Purpose
Projects.
Since
Independence, several transformations took place in the policy framework in
different sectors of the Indian economy. However, the land remains a vital
component in almost all economic activities.[16]
Considering the background of the land acquisition law in the Indian context,
it includes different Regulations and Land systems such as Zamindari System, Mahalwari System, and Ryotwari System, the Bengal Regulation, 1824, the Bombay Building
Act, 1839, the 1850 Act, the Land for Public Purposes Act, 1857, and others
that were implemented in different states and Provinces.[17]
2.6. Zamindari System, Mahalwari System, and Ryotwari
System
The
Pre-Independence Land Regulations in India were dominated by three land tenure
systems such as Zamindari System,
Mahalwari System, and Ryotwari System.
The Zamindari system came into form in the year 1793 in which land rights of
the Zamindars were fixed without making provisions for occupancy rights. The
system was introduced by Lord Cornwallis
in which permanent settlement of the land was made without providing any fixed
rent provision to the actual cultivators. As a result, under the Zamindari system, the Zamindars primarily focused on acquiring
rents and did not care about improving land fertility or agricultural
productivity. The system created a wide gap between the superior landlords and
the laborers that were working on the lands.
It led to an increase in the plight and injustice to the tenants leaving
them impoverished, rack rented, and oppressed. Thus, to eliminate the degrading
conditions of land workers and restore the crumbling land system, the Permanent
Settlement Act, 1793 (Zamindari system)
was replaced with a temporary settlement policy.[18] As per
Regulation VII of the 1822 Act, the Temporary Settlement was introduced as a
periodic settlement in selected regions such as the United Provinces. On the
other hand, in some provinces of regions such as Bombay and Madras, the
Ryotwari system was prevalent. In this system, every Ryot was deemed to follow Regulations that were provided by the
owner of the land. It included laws related to mortgage and transfer of land.
In other provinces that were located in regions such as Punjab, Mahalwari Settlement was implemented
under Regulation VII of 1822 Act and Regulation IX of 1833 Act. Under this
system, each Peasant and Landowner had to contribute towards the total revenue
charged with the village as per the size of their landholdings. However, all
these laws and systems were not futile and led to the oppression of the
tenants, land workers, peasants, and middle-lower income groups.
2.7. The
Bengal Regulation, 1824
The
Bengal Regulation, 1824 was introduced to reduce the suffering of the different
segments of the society such as tenants, land workers, peasants, and
middle-lower income groups. It was the first regulation in India to provide
directives related to the acquisition of land of immovable properties that are
to be used for public purposes. Through the Bengal Regulation, the governing
body acquired the authority to attain land or immovable property from their
owners for Public Purposes such as Constructing Roads, Canals, and others
against payment of fair compensation. Thus, through this Act, the concept of
Acquiring Land/Immovable Property against payment of compensation was
introduced for a public purpose. However, the major limitation of the Act was
that it was limited to certain regions and did not cover the entire Country as
a whole.
2.8. The
Bombay Building Act, 1839
As
follow up to the Bengal Regulation Act, the Bombay Building Act was introduced
in the year 1839 to acquire land and use it for public purposes. Under this
Act, the land was acquired in the Islands of Bombay and Colaba to widen or
alter the prevailing roads or develop new roads for Public Transport. However,
the major limitation of the Act was that it was limited to specific regions
such as Bombay and did not cover the entire Indian frontiers.
2.9. The
1850 Act
There
was an emergent need to expand the Railway structure all around the country for
which land was required. As the Railway was not considered as a Public Work,
the land that was acquired for public purpose use cannot be allocated for
railway work. Moreover, as per Regulation, I of 1824, the land that has been
acquired by the Governing Body cannot be allocated to a private party to
execute the Development/Construction of the Public Property. Therefore, the
1850 Act was introduced under which the railways were designated as Public
Work. As a result, the scope of Public Purpose widened, and Railway work was
considered as a Public Utility Activity. Therefore, through this Act, the
Railways were entitled to acquire land under Bengal Regulation Act and expand
railway construction work in the country.
2.10. The
Land for Public Purposes Act, 1857
The
Land for Public Purposes Act, 1857 was the very First Land Acquisition Act that
was enacted all over India as a whole. As per Section 1 of the Act, all the
Codes and Rulings that were included in the previous Land Acquisitions Laws
were included in this Act. Section 2 stated that the Representative or Authorized
officer appointed by the Government of India has the authority to acquire any
land or property in India to carry out Public Purposes. However, attainment of
Land could only be done only after declaring the claim. Section 3 stated that
once the Declaration has been made, the Collector has the authority to acquire
the land by marking the Land, preparing a Plan, and Conducting the Survey.
Section 4 stated that Notification is to be provided to the landowner regarding
the attainment of Land at least 15 days before Confiscation. Section 5 stated
that a meeting has to be organised between the landowner and the Collector to
evaluate the Land Value and compensation amount that is to be provided to the
landowner against sacrificing the Land. Section 27 stated that the decided
amount is to be paid to the landowner as per the Pre-decided Schedule and if
there is any delay, the Collector is liable to pay the amount with an interest
of 6% per annum. Section 6 stated that if the meeting was not attended by the
party, the matter will be resolved by the Arbitrator. As per Section 8, once
the Award is given to the Arbitrator, the Collector possesses the Right to
Acquire the Land immediately. Section 9 stated that if any issue arises during
the Possession of the land, the matter is to be resolved in Court. As per
Section 14, the matter between the Arbitrator, Collector, and Landowner must be
resolve with mutual understanding and allocation right in proportion of reward
to each party. Thus, by laying down
fundamental regulations, the major limitation of the Act was that it was
limited to provide a foundational basis for the Acquisition of Land in
India.
2.11. The
Land for Public Purposes (Amendment) Act, 1861
The
Acquisition of Land was a difficult task as even after the declaration, the
landowners did not want to depart from their lands. As a result, the rulings
that were specified under Section 3 regarding Declaration and Acquisition of
Land became difficult to conduct. Therefore, the help of police was taken to
get the land vacated from the landowners, and modifications were made in the
Act to comply with Police intervention in the Land Acquisition Process under
Section 2.
2.12. The
Land for Public Purposes (Amendment) Act, 1863
The
Land for Public Purposes (Amendment) Act, 1863 was passed to include the
participation of private parties in the conduct of Public Purpose related work
activities. As a result, due to amendments made in the previous Land for
Purposes Act, private parties can be allocated public work-related tasks.
However, after a few years of the implementation of the Land for Public
Purposes (Amendment) Act, 1863, it was found that the settlement procedure for
compensation was unsatisfactory and there was no provision to legally
challenged the award made by the Arbitrator. Therefore, the Land Acquisition
Act 1870 was introduced to eliminate the issues that were faced regarding award
by Arbitrators.
2.13. The
Land Acquisition Act, 1870
Through
the Land Acquisition Act, 1870, the Governing Body acquired the authority to
attain land in any locality on account of using the land for a Public Purpose.
As per Section 4, the Governing Officer issued a Notification that was
published in the Local Gazette in the locality of the displaced people. Once
the notification has been issued, the Governing Officer can survey, mark,
clear, or fence the land that has to be acquired. However, the Governing
Officer could not encroach any land if it is enclosed by the owner without
providing notice at least 7 days in advance. Section 5 stated that any damage
to the property while carrying out the acquisition process is to be paid by the
government. If there is any issue related to compensation, it is to be
discussed by the Collector and the decision given by him will be considered as the
final verdict. Section 17 provides rulings related to the emergency Acquisition
of Land, any waste or arable land can be acquired by the Government after 15
days of issuing a Public Notice. The Act also provided provisions for the
Acquisition of Land for the establishment of an industry that is useful to
promote Economic and Social growth in the Country.
2.14. The
Bengal Tenancy Act 1885
To
reduce the suffering of the landowners, the Bengal Tenancy Act was introduced
in the year 1885. The main purpose of implementing the Act was to confer the
Occupancy Rights of the individuals on Ryots
that were under continuous Possession. As per the Act, if a tenant is in
continuous possession of the land for 12 or more than 12 years, he/she could
not be evicted from the land. The Provisions of the Act can only be averted by
producing a decree of the Court. The law was mainly applied in the Bengal
Province and another law such as the Rent Act of 1873 was introduced in
Punjab, North-Western Provinces, and Oudh.[19] The Rent Acts were introduced to
safeguard the interests of the tenants and confine the subjections of the
landowners. However, the major issue with the Rent Acts was that they were not
efficient to meet the financial condition of the inhabitants and were restricted
to providing occupancy rights to limited individuals. Moreover, no security was
given against the ejectment of the Lease resulting in the development of
antagonism between landowners and tenants. It led to the constant shuffling of
the tenants so that the occupancy rights of the landowners were maintained.
There were unpredictable evacuations of the tenants, extreme control of rents,
charging remuneration for any modifications made in the house at the time of
occupancy. As a result, during 1872-1876, there was the emergence of hostile
rights and agrarian disputes against landowners across India. The conditions of
tenants and landowners were highly unpropitious in Bihar as in many regions in
the province; groups of tenants opposed landowner’s exactions and thoroughly
defeated them by joint resistance.[20]
2.15. The
Land Acquisition Act, 1894
The
provisions that were laid down under the Act of 1870 were not satisfactory
which led to the introduction of the Land Acquisition Act, 1894. The Act was
applied uniformly all over India except certain regions such as Hyderabad,
Jammu & Kashmir, Madhya Bharat, Mysore, Patiala, Rajasthan, Saurashtra, and
Travancore-Cochin that were regarded as Part B states. As per Section 5, if the
land is to be acquired by the Governing Body, a notification is to be published
in the Official Gazette and Public Place. After 15 days of notification, the
Governing Officer can mark and take over the land by paying the damages. If any
issue related to payment against damages occurs, it is to be resolved under the
supervision of the Chief Revenue Officer and Collector. Section 6 stated that
once compensation and award against the land are awarded, the declaration of
the same has to be made and signed by the authorized officer. The declaration must
provide information related to the Plan of land, area of Land Acquired, and
proofs for using the land for a Public Purpose. Section 7 stated that once the
declaration has been approved by the Governing Body, the Collector is liable to
take possession of the land. Section 9 stated that before Acquiring the Land,
the Collector has to issue specific notices to the individuals wherever
required so that all the individuals associated with the land are well informed
about the Acquisition of Land. If any individual has any query must reach the
Collector for resolution at a Pre-decided time and place. Section 17 stated
that in case of emergency, the Collector can acquire land after 15 days of
issuing the notification. The major consideration under such a condition is
that the land must be free from all encumbrances. If there is any standing crop
or tree on the land, the Collector is liable to pay the cultivator damages.
As
per Section 18, if the Compensation amount is not acceptable to the landowner,
the conflict is to be resolved with the Collector by informing the landowner
through an application. The application must mention the ground against which
the reward is not acceptable and propose the interests of the landowners. The
answer to the application is to be given back to the landowner within six weeks
so that issue gets resolved. Section 23 stated that the amounts to be awarded
to the landowners must be decided based on the market value, of the land. The
compensation amount is to be fixed as per the common consent between the
landowner and Collector. Additionally, the landowner is to be provided an award
of 15% more than the market value of the land against the acquisition of land.
If the reward is not paid within the specified time, an additional 6% interest
rate is to be put on the compensation amount. Section 38 stated that if the
land is to be acquired by a company, it is mandatory to take a permit from the
Government and form a contract before the execution of Land Acquisition
activity. Section 40 stated that the land can only be acquired by the company
if the Government is satisfied with the proposal given by the company. As per
Section 42, the agreement that is made by the company is to be published in the
Official Gazette and Local Gazette for display. Moreover, the Regulations that
are mentioned under Section 4 regarding the Acquisition of Land are to be
followed in which rulings related to Preliminary Notification, Declaration,
Notification to concerned individuals, Inquiry and Compensation and Possession
is to be executed as per relevant directions mentioned under Section 6, Section
9, Section 11, and Section 16.
Figure
2.1: Steps involved under the Land Acquisition Act, 1894
2.16. Amendments in the Land Acquisition Act, 1894
As we know that the Land Acquisition Act enacted was based on various
Acts at the Presidency level as well as the Country level from the early
nineteenth Century, it has undergone several amendments both during the
Colonial and Post-Colonial periods. ‘so far, the Act has been amended 17 times.
Various Sections of the Act have also been amended from time to time by the
State Governments to meet their specific requirements’[21].
The amendments are as follows for both Colonial and Post-Colonial periods.
2.17. Colonial period
The Land Acquisition Act, 1894 has undergone several amendments during
the Colonial period, i.e., Act of 1910, 1914,1919, 1920, 1921, 1923, 1933 and
adapted and modified by the Government of India (adaptation of Indian laws)
Order, 1937.
2.18. The Indian Electricity Act, 1910
The Indian Electricity Act, 1910, has made a major Amendments in the Land
Acquisition Act, 1894. This Act made provisions to acquire land by individuals
at the State level with the same conditions as that for companies. The Indian
Electricity Act, 1910 has made a provision to facilitate the individuals to
acquire land for their undertakings at the State level. This is a First
instance to engage the individuals to acquire land to develop their
undertakings.
2.19. Land Acquisition (Amendment) Act, 1921
This Act has made Provisions in the ‘Forms of Award’ as well as to appeal
in the Supreme Court based on the Code of Civil Procedure, 1908. In Section 26
‘forms of award’ the following sub-Section (26[2]) was inserted: every such
award shall be considered a decree and a generalization of purposes for each
such award, a judgement under Sections 2(2) and 9 of the 1908 Code of Civil
Procedure (5 of 1908)’. Under Section 54, a Clause was inserted to facilitate
the Provisions to Appeal in the Supreme Court regarding the Compensation.
2.20. Land Acquisition (Amendment) Act, 1923
As per the Original Act, there is no provision to object to the
Acquisition but only provision to pay for damages. The Land Acquisition
(Amendment) Act, 1923 has made provisions to object to the notification and
also after hearing the objection by the Collector, he has to forward the same
for the final decision of the Government. The amendment has provided
opportunities for the landowners to present their viewpoint. At the same time,
this amendment also made a provision to acquire the land on an emergency basis,
for which there is no need to get the viewpoint of the land owners. Further,
this amendment also provided for consent from the government based on the report.
Under Sections 40 and 41, there was an amendment to provide for more clarity on
giving consent by the government either based on the report of the Collector or
on the report of the Inquiring Officer. This amendment, on the one hand
provided an opportunity to the owner to make objections at the time of
notification and on the other hand it also introduced the emergency provisions
which facilitates ‘no hearing’ objections options. However, this amendment
seeks a detailed report by the government before giving consent for the
Acquisition.
This amendment was made largely to facilitate the industries and
residential purposes for the industrial workers viz., the company is authorized
to survey and construct dwelling houses for workers. It held to obtain land for
the erection of dwelling houses for workmen employed by the company or for the
provision to build amenities. Further, it also emphasized that the work should
be completed within the stipulated time.
Over 50 years of Colonial period, there were several amendments in the
Act such as facility to raise objections against the notification and to appeal
in the Supreme Court for the award of compensation. Other amendments introduced
were emergency provisions, provisions for a detailed report by the Government
before giving consent for the acquisition of land and the provisions for the
industries and residential purposes for the industrial workers.
3. Need for the passing of a Law on Land Acquisition
During
Land acquisitions in the Colonial Era, there was a scarcity of laws related to
safeguarding the interests of the landowners as there was no means to object to
the Land Acquisition process or raise questions against payment of
compensation. The same issues remained prevalent during the 19th
Century and the late 19th Century with the increasing emergence of
allegations related to corruption and misconduct.
The
different rulings that were passed in India in the Pre-Independence Era were in
the form of the Zamindari System,
Ryotwari System, Mahalwari System, the Bengal Act 1855, The Rent Act 1873,
and others. However, these rulings and Acts were not sufficient in eliminating
the subjections that were suffered by the landowners. In the Zamindari system, the land rights of the
landowners were impacted by the intermediaries and in the Ryotwari system, the ownership of land was subjected if they could
not pay the distributed revenue amount. As a result, there was the confiscation
of the land without providing adequate compensation to the landowners. The
condition of the farmers and agrarian peasant deteriorated, as they were not
re-settled against the land acquired from them.
The
major issue was that the Bengal Regulation I of 1824 was limited to the
attainment of lands in Calcutta. The Land under this Act could only be acquired
for Public Purposes such as the construction of roads, canals, and other public
activities. Therefore, Act I of 1859 was passed to include the railway as
public work and acquire land for the expansion of railway routes and stations.
On the other hand, in the case of the Bombay Building Act, 1839, it was limited
to two regions such as Bombay and Calcutta, and could not be applied all over
India. In this Act, the compensation against the attainment of land was decided
by a set of the Jury which comprised of 12 members. However, due to the limited
application of the Act, it was extended in the 1850 Act so that the Land
Acquisition Laws could be applied all over India. As a result, it led to the
introduction of Act XX of 1852 (Madras) according to which Land Acquisition
activity could be carried out in Madras. In case of any dispute at the time of
the Land Acquisition, the matter is to be resolved by the Collector and in
consultation with the disputing parties. Later in the year 1857, all the Acts were
repealed through Act VI of 1857, and Common Law was framed to carry out Land
Acquisition activity under the East India Company. However, under this Act, it
was mandatory to validate the land before attainment which created disputes
between the Collector, Arbitrator, and the Landowners. Therefore, the Act was
amended by Act II of 1861 which permitted temporary attainment of land.
Moreover, under Act XXII of 1863, private parties were permitted to carry out
public works such as the construction of bridges, roads, railroad, transport,
and others. Simultaneously, there was the implementation of Act VI of 1857
through which land was acquired for Public Purposes. However, Act X of 1870
contradicted the Rulings of Acts XXII of 1863 and Acts VI of 1857 which led to the
Consolidation of both Acts.
Moreover,
as per the 1870 Act, the valuation of the land and payment of compensation was
to be done by the Collector through a contract. However, if there was a dispute
between the landowner and the Collector over the contract, there was no law to
appeal against the contract or refer to the Arbitrator. The decision that has
been given by the Collector can only be impeached against the charges of
corruption or misconduct. There was also a lack of Regulations to account for
tasks as a genuine or corruptive activity. As a result, it created a difficult
situation for the landowners to appeal against the injustice caused to them.
Additionally, if the case is moved to the Court Proceedings, it was hard to
predict the consequences as the majority of decisions were taken based on the
documents and award provided by the Collector. Thus, there were few chances
that the landowners received more benefits in terms of compensation. Due to all
these limitations, the Act 1870 was replaced by the Land Acquisition Act 1894.
As per Act 1894, the land is to be acquired for a Public Purpose by providing
the right compensation to the landowners.
The
introduction of the Land Acquisition Act 1894 would provide relief to the
landowners so that they could get adequate compensation for the land obtained
from them. The Act would provide legal rights to the landowners to reach to
Court and fight for their rights to acquire the right compensation and
rehabilitation against the land acquired from them. It was responsible to carry
out land attainment activities and provide rulings related to recompense,
rehabilitation, and relocation of the individuals that have given their lands
for a Public Purpose. The Act provides clear guidelines for the uniform and
fair distribution of the compensation to the affected individuals and draws
transparent rulings for the Acquisition of Land.[22]
It provides that the confiscated land is to be used for performing Public
Purposes such as infrastructure projects, road construction, and setting up
industries.[23]
4.
The passing of the Land
Acquisition Act, 1894
The
Land Acquisition-related activities in India are governed by the Land
Acquisition Act 1894 in different stages which are the Preliminary Stage, the
Publication of Notifications, Inquiry on Objection Petitions (if any), Survey,
and Preparation of Sub-Division records. It also includes other stages such as
preparation and Publication of Declaration, Determination of Compensation,
awarding compensation, and taking possession and handling over to Regulatory
Authority, and reference to Courts. In the Preliminary Stage, there is
Requisition and Survey of the Land. It includes Joint Inspection and peg
marking by the Governing Authorities. After that Publication of Notification is
executed as per Section 4(1) and 6 (1). This is followed by a Survey and
Sub-Division by the Collectorate. Once the Survey is over, there is preparation
for the Draft Declaration. It includes taking approval and Publication of the
Declaration. Another major aspect to be considered while implementing the Land
Acquisition Act, 1894, is the determination of compensation. It includes
estimating the market value of land by comparing the price paid for the same
land, the price for the land in the vicinity, and the price paid in adjacent
landholdings. The sale of the land must be during a reasonable period and in a
bonafide manner so that the Land under acquisition and land selected as the
basis must have similar advantages. Award compensation is another major process
of implementing the Act in which under Section 9 Award Inquiry notice is
provided. It included land measurement, value evaluation, and interest
estimation is to be executed under Section 11(1). Then the Award is made under
Section 23 (1) as per the market value of land, appropriation of compensation
is made under Section 29. Finally, the land is acquired under Section 16[24] and
17[25] by
providing notice to all the interested parties under Rule 15 (3).
The
main reason behind the introduction of the Act was to promote industrialization
in terms of mining, railway lines, roadways, buildings, irrigation, and
manufacturing units. All these activities were under the governance of the
state and customary tenurial systems since the Pre-Colonial Period. The
introduction of the Land Acquisition Act of 1894 empowered the governing body
to acquire private as well as common land property to carry out Public Purpose
activities.[26] The
1894 Act led to the replacement of earlier Acts that were implemented by
different state Governing Bodies in the form of Bengal Regulation I of 1824,
the Act I of 1850, the Act XXII of 1863, the Act X of 1870, the Bombay Act No.
XXVIII of 1839, the Bombay Act No. XVII of 1850, the Madras Act No. XX of 1852,
Madras Act No. 1 of 1854 X of 1861, the Act VI of 1857. These Acts were
initially implemented in the Presidency Towns which later on spread to
different parts of the country. It helped in the easy Acquisition of Land and
conduction of work related to the establishment of canals, roads, and other
public work by compensating the landowners against the land. It also included
appointing an Arbitrator for the evaluation of the cost of land and
compensation that was to be paid to the landowner. An Urgency Clause was included
in the Act, through which any land can be acquired overnight without providing
any prior notice to the landowner. Moreover, there were no provisions for the
resettlement of the landowners that have sacrificed their lands to the
governing agencies.[27]
However,
the Acquisition of Land and provision of compensation faced with certain
problems such as imperfect markers, hold-out problems, and Eminent Domain or
compulsory taking issue [28].
For example, in the case of Hamabai
Framjee Petit v. Secretary of State[29], the
Government of Bombay provided certain land on Lease to a private party (Hamabai
F. Petit) in Bombay and specified that the land would be confiscated as per
requirement after paying compensation.
However, after a point of time, notice was served on Hamabai but there were
issues related to payment of compensation.
6.
Limitations of the Act
However,
the major issue with the law was that it did not provide adequate rulings
related to resettlement and rehabilitation as this concept was not thought of
to be implemented in the Land Acquisition Act. Moreover, if there was an urgent
need to execute a project, the Urgency Clause was added through which immediate
attainment of land was done without providing any prior notification or
information to the landowner. While acquiring the land, the resettlement and
rehabilitation needs of the landowners were pushed aside. Moreover, the land
was acquired by the state whenever it was required by paying a fixed amount
because land losses were faced by the landowners. Thus, the Land Acquisition
Act, 1894 was known as Dwarkian Law
as it was the first law that provided regulations against the attainment of the
land for private and public purposes without considering the benefits of the
individuals that sacrificed their lands to the governing agencies.[30]
The
Concept of Consultation and Consent was absent in the Land Acquisition Act
1894. The Land was obtained by the Governing Agency to meet the different
infrastructure and industry requirements without consulting the landowners. The
land was marked and a fixed amount was provided to the landowner against the
confiscation of the land. The price of the land was fixed by the Governing Body
which was less than the market price of the land. The landowner was given any
right to reject the price offered by the governing agency and forced to reach
Court to fight against the injustice done to them. However, the provisions that
were mentioned in the Act were so complicated that it took years to resolve the
case. For example, in the case of State
of Bombay v. R. S. Nanji [31],
the Supreme Court observed that it is difficult to provide an exact definition
of the expression ‘public purpose’.[32] The
Court determined that the Government Body is the best agency to serve the
Public Purpose and can serve large communities by providing a Requisition
Order.
Moreover,
under this Act, there was reckless attainment of land which led to a shortage
of land and limited access to common property. Most of the common people that
do not have their land access for their survival and sustenance. However, due
to reckless confiscation of the common lands such as forests lands, grazing
lands, and agrarian lands, it became difficult for the landless common people
to find a place for dwelling and settlement. It resulted in the widespread
problem of joblessness as because of the attainment of land by the landowners,
the owners could not perform their livelihood activities of farming, service
workers, artisans that were based on land utilization. As a result, there was
the prevalence of marginalization in the society owing to the financial and
psychological downturn of the landowners. The main reason behind it was that
the individuals were out of their lands and earning opportunities without any
proper support, compensation, or rehabilitation given by the governing agency.
There was the creation of extreme situations of homelessness and food
insecurity as without home and financial security most of the landless
individuals were undernourished and weak. It resulted in a high rate of
morbidity among the displaced individuals as the landless people were forced to
live in temporary sheds, unhygienic habitats with no food. Thus, it can be said
that displacement led to social distraction and disarticulation that caused
insecurity, poverty, and unrest in the community and country.[33]
Land
Acquisition Act, 1894 which has been introduced by the Governing Body of India
did not comply with the principle (Fair Compensation) and terminology (Public
Purpose).[34] The
Colonial status associated with the Act emphasizes that Acquisition of Land is
based on the market-value based monetary compensation that does not provide a
rightful valuation of the land sacrificed by them.[35] The
concept of market-value based monetary compensation works in favour of landowners
when they are willing to sell the land. However, when the land is confiscated
from private owners, the valuation of land differs from the market-value
estimations. It is because the owners evaluate the future benefits and profits
associated with the land.[36]
The
displacements that occurred without any proper rehabilitation schemes or
measures further degraded the condition of the displaced individuals as they
had to suffer from marginalization and impoverishment. As a result, tribal
communities, backward segments of the society, and CPR’s (Common Property Resources) dependents
such as children and women suffered from dislocation issues, loss of
livelihood, and food insecurity. Due to displacement, women have to face issues
related to the collection of firewood, availing drinking facilities, and
acquiring better job opportunities in the new settlements. On the other, the
children have to drop out of school and are forced to do labour activities to
earn livelihoods for sustenance. It results in widespread poverty and misery
that increases the practice of social evil activities such as prostitution,
child labour, and criminal outbursts. For example, in the North-East
communities of India, there was a rise in ethnic conflicts among the different
tribal groups because of limited resources and increased displaced tribal
communities. On the other hand, 60000 displaced tribes that belonged to the
Hajong tribals and Chakma communities had to take shelter in Arunachal Pradesh
as refugees as they were facing issues related to the sharing of resources in
the Kaptai Dam region.[37]
In
India, resettlement, and rehabilitation facilities were provided to the
displaced individuals only in those projects that were either initiated by the
World Bank or highlighted displaced individual’s resistance movement. For
example, resettlement and rehabilitation facilities were provided to the
displaced individuals in the Indravati
Dam, Rengali Dam, Farakka Super Thermal Plant, and Subarnarekha Dam which were either supported by the World Bank or
displaced individual confrontation movement. On the other hand, those Projects
that are not supported by movements or World Bank were not provided with
resettlement, and rehabilitation benefits and compensation issues remain
unsettled for a long duration. For example, no resettlement and rehabilitation
benefits have been provided to the displaced individuals whose lands have been
confiscated for the establishment of the Sardar
Sarovar Dam. The displaced individuals are still fighting for the right
Compensation, Resettlement, and Rehabilitation benefits by doing Jal satyagraha and dharna against Madhya Pradesh and Gujarat Governing Authorities.[38]
7. Cases on this Act (Pre-Independence)
In
the case of State
of Maharashtra v. Chandrabhan[39], the Supreme Court held that as per
the Forty-Fourth Constitutional Amendment Act of 1978, the Fundamental Right of
the individual is considered to be a Legal Right and authorises the State or
Central Authoritative Body to deprive the individual of the property.[40]
In another case, the
State of West Bengal v. Vishnunarayan
& Association[41], the Governing Body of West Bengal
undertook the land from the tenants by force. The government transferred the
undertaking of land to the Great Eastern Hotel Authority that was set up
under Section 5 of the Act of 1980. The transfer took place as per
the Forty-Fourth Constitutional Amendment Act of 1978, which specified that
Land Ownership is a Constitutional Right.[42]
In
the case of Kesavananda
Bharati Sripadagalvaru & Ors v.
State of Kerala & Anr[43], Swami Kesavananda Bharati challenged the
Governing Body of Kerala against the restrictions on the management of his
property under two land reforms. The Court Summoned that the Parliament did not
have any power to amend the laws that are rendered in the Constitution. The
Court also specified that under Article 368 of the Constitution, it only
specified the procedure to make the amendment and was not authorised to make
the amendment. It was clearly stated by the Court that the fundamental rights
of the individuals associated with land cannot be abrogated to meet public
interest obligations. The Basic Structure Doctrine was emphasized in this case.[44]
In
the case of Golak
Nath v. State of Punjab[45], the Court specified that the
Parliament did not possess the authority to bring amendments in the
Constitution as Article 368 only provided guidelines related to making
provisions and did not authorised to execute the amendments. The case was filed
by Henry and William Golaknath against the Governing
Body in Punjab against the confiscation and distribution of land by the
Governing Agency under Article 32 challenging the provisions of the Punjab Act
1965. The case was won by the Golaknath
family as they argued that the Rulings of the Punjab Act 1965 counterfeited the
rulings that were given in the Constitution of India. Thus, as per the Court
judgment, the rights of the individual are to be protected from the absolute
power of the Parliament.[46]
8.
Amendments in the Land
Acquisition Act, 1894
The
First Land attainment ruling was implemented at the time of the British Raj in
the year 1824. It received several amendments and was replaced by the Land
Acquisition Act of 1894 which came into form in the year 1894. It was
formulated and approved by the Imperial Legislative Council which was the
Governing Authority of India in those days. As per the Act, the Land is to be
acquired by the Government Agencies for ‘Public Purpose’ from the individual or
private owners of the land[47].
Modifications were done in the 1894 Act under Section 5A by raising objections
against the Acquisition of Land[48].
However, Bill No. 29 of 1923 the Statement of Objects and Reasons specified
that the individuals that have an interest in the land cannot object to the
Acquisition of Land. It also specified that it is not the liability of the
governing body to identify the interest of the individuals against the land and
the individual that have an objection against the acquisition of land have to
come to the front voluntarily. Thus, the amendment acted as a check on the
governing body that it could not acquire any land unless the objections are
cleared, and it is ensured that the land is used for a Public Purpose.[49]
9.
Conclusion
“The State must ensure to each
individual that he can appropriate for his own use what he has created by his
own labour and what he has acquired under the existing economic order”.
As
we know that there was no transparency in the Land Acquisition Act, 1894 that
resulting in increased agitation among the landowners. The Act was not
appropriate as it brought misery to the poor landowners and created widespread
poverty and subjection in the Country.
The
challenges of Rehabilitation and Resettlement for disabled people and their
families were not covered by the 1894 statute. Furthermore, the 1894 Act's
definition of ‘Public Purpose’ was quite open-ended. It needed to be
reformulated to restrict its use to Land Acquisition for Public Infrastructure
Projects and strategic goals crucial to the state. The terms of the 1894 law
were also applied to the purchase of private land by Corporations. Since a Firm
may arrange land through private talks on a willing seller-willing buyer basis,
which might be seen as more equitable from the landowner's point of view, this
sometimes called into question the legitimacy of such state action and a
justification for each such award.
A lease (even a very long
one) gives the proprietor the psychological assurance that he still
"owns" the land, which is another drawback of the 1894 Act. As a
result, Compulsory Acquisition through leasing faces less emotional resistance
than it does through outright purchase. There is no provision in the Act of
1894 for the Government to Lease property. So, it became imperative to repeal
the 1894 Act and replace it with a new one that had sufficient protections. And
to make the compulsory Land Acquisition provisions more effective and reduce
the hardships of landowners and other dependents. for rehabilitation and
resettlement for disabled persons and their families.
In
terms of the process of Land Acquisition, the World Bank Guidelines prescribe a
Consultative Approach. Stakeholders are to be informed about their rights and
allowed to select between economically feasible compensation alternatives.
Land-for-land alternatives are offered as a first choice and alternative site
should have a combination of productive potential, locational advantages, and
other factors at least equivalent to the advantages of the old site. These
Guidelines also take a Liberal view on the constitution of parties that are
affected by the land transaction. Parties with common property resources,
squatters residing on public lands, encroachers deprived of established access
to resources as well as those with formally recognised property rights,
tenants, artisans, and wage earners are all eligible for compensation. Only
actors who act opportunistically and invade a site for compensation benefits
are denied[51].
Despite
being more Liberal with respect to the views of the erstwhile landowners, the
Consultative Process set out in the World Bank Guidelines may result in the
entire process being played out over an extended period of time, thus delaying
the benefits that citizens would receive from infrastructure or facilities that
are to be built Post-Land Acquisition. Furthermore, as in the case of the
Indian Land Acquisition Act, the Theoretical Guidelines laid down by the World
Bank may not be adequately implemented in practice.
In
the end, it can be said that, the country desperately needs a programme that
works well in these contexts because there is no other way to develop
industrially while being fair to those who get dispossessed.
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[45]1967 AIR 1643, 1967 SCR (2) 762,
Also see some
Latest Latest Supreme Court (SC) Judgements on Land
Acquisition Act, 1894
Ø Noida Industrial Development Authority
v. Ravindra Kumar & Ors. latest
Caselaw 398 SC;
Ø Delhi Development Authority
v. Godfrey Phillips (I) Ltd. & Ors.
2022 Latest Caselaw 395 SC
Ø Muzaffar Husain v. State of Uttar Prades 2022 Latest
Caselaw 393 SC
Ø Delhi Administration through Secretary, Land and Building
Department & Ors. v. Pawan Kumar
& Ors. 2022 Latest Caselaw 391 SC
Ø Bhag Singh Etc. v. Union of India & Anr. 2022 Latest
Caselaw 383 SC
Ø Reddy Veerana v. State of Uttar Pradesh and Ors. 2022
Latest Caselaw 382 SC
Ø Kalyani (D) through LRS. v. The Sulthan Bathery Municipality, 2022
Latest Caselaw 354 SC
Ø Sh. Ram Chander (D) through LRS.
v. Union of India, 2022 Latest
Caselaw 333 SC
Ø Union of India v. M/s. Willowood Chemicals Pvt. Ltd. 2022
Latest Caselaw 331 SC
Ø Ramrao Shankar Tapase v. Maharashtra
Industrial Development Corpn. 2022 Latest Caselaw 330 SC
Ø Union of India v. Premlata, 2022 Latest Caselaw 290 SC
Ø Sukh Dutt Ratra v. State of Himachal Pradesh, 2022 Latest
Caselaw 289 SC
Ø Delhi Development Authority
v. Rajan Sood, 2022 Latest Caselaw
272 SC
Ø The Municipal Committee, Barwala, District Hisar,
Haryana through its Secretary/President v. Jai Narayan and Company, 2022 Latest
Caselaw 269 SC
Ø Laxmikant v. State of Maharashtra, 2022 Latest
Caselaw 250 SC
Ø The Agricultural Produce Marketing Committee Bangalore
v. State of Karnataka, 2022 Latest
Caselaw 249 SC
Ø Jai Parkash v. Union Territory, Chandigarh, 2022
Latest Caselaw 220 SC
Ø Sanjay Kumar Singh v. State of Jharkhand, 2022 Latest Caselaw
216 SC
Ø M.P. Housing Board v. Satish Kumar Batra, 2022 Latest
Caselaw 143 SC
Ø New Okhla Industrial Development Authority (Noida) v.
Yunus, 2022 Latest Caselaw 117 SC
Ø Bangalore Development Authority
v. State of Karnataka, 2022 Latest
Caselaw 69 SC
Ø The Jamia Masjid Vs. Sri K v. Rudrappa
(D) by LRS., 2021 Latest Caselaw 431 SC
[46] Deshpande VS. 38, The Farming of India's Constitution,
Journal of Indian Law Institute, Volume. 11, 1969
[47] G. Raghuram and Sunny.
“Right to fair compensation and transparency in land acquisition,
rehabilitation and resettlement ordinance 2014: A process perspective”, IIMA
Working Papers WP2015-07-03,
Indian Institute of Management Ahmedabad, Research and Publication Department.
[48] Sarkar
PK, Law of Acquisition of Land in India:
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