Saturday 14 September 2013

ARTICLE ON ACQUISITION PROCEEDINGS UNDER LAND ACQUISITION ACT, 1894


INTRODUCTION

The Land Acquisition Act, 1894 (for short ‘the Act’), which

empowers the State/Central Government to acquire private land for

public purposes and for Companies provides a complete mechanism for

acquisition of and as well as for the determination of compensation which

has to be paid on account of such acquisition.  The acquisition of land can

be for public purposes as defined in Section 3 (f) of the Act or for a

Company.  The expression ‘public purpose’ has a wide meaning and

basically encompasses within its fold all the activities which the

Government has to undertake for public welfare like health, education,

housing, industrial development, etc.
 Acquisition for the Company has to


be made in accordance with the provisions contained in Part VII.  The

object of the Act is to provide a speedy method for acquiring land as well

as to determine the amount of compensation payable to the persons

having interest in the land.

NOTIFICATION U/S 4(1)

The Collector can initiate the process of acquisition by way

of a notification issued u/s 4 (1) of the Act to the effect that land of any

locality is needed or is likely to be needed for any public purpose or for a

company.  Such notification should be published in the official gazette

and two daily newspapers having circulation in the locality of which at

least one should be in the regional language (Section 4).  Substance of


such notification should also be displayed at some prominent place in the

said locality.  The Collector or on his behalf Deputy Commissioner or

any other officer specially empowered in this respect, as provided in

Section 3 (c) of the Act, can exercise the powers of Collector.

The two fold objective of notification issued u/s 4 (1) are:

Firstly, to bring to the notice of the inhabitants of the

locality that land from that locality has to be acquired for the

specific public purpose and their interests are likely to be

affected, therefore, they may prefer objections u/s 5A of the Act

against the proposed acquisition.

Secondly, to permit the officers of the Government u/s 4 (2)

of the Act to enter upon and survey the land in order to collect

relevant data to decide which particular land of the locality is

more suitable for the purpose of acquisition.

Issue of notification u/s 4(1) is sine qua non even in

extremely urgent cases; rather it is a condition precedent to the exercise


of any power under the Act (See – Narendrajit Singh v. State of U.P.,

AIR 1971 SC 306).


Any person interested in such land can file objections in

writing before the Collector within 30 days of the publication of such

notification.  On such objections being preferred, the Collector is required

to hear the objector and to decide the objections and to make

recommendations to the appropriate Government for decision thereon

[Section 5A(2)].

NOTIFICATION U/S 6

The appropriate Government after considering the report of

the Collector, if satisfied about the need for acquisition of such land, if

required to publish a declaration in the official gazette and two local



dailies of which atleast one should be in the regional language (Section

6).  Such declaration should be published within three years of the date of

publication of notification u/s 4 (1).  The declaration should state the

district or territorial division in which the land is situated, the purpose of

acquisition, approximate area of the land and the plan, if any, in respect

of such land including the place where such plan can be inspected.  Such

declaration has to be made either under the signature of the Secretary to

the Government or some other officer duly authorized in this respect. 

Section 17 authorizes the appropriate Government to directly issue the

declaration u/s 6 after publication of the notification u/s 4 by skipping the

procedure for filing objections and decision thereon contemplated u/s 5A. 

This procedure may be resorted to if the land is urgently required for

public purpose.

ENQUIRY FOR DETERMINATION OF COMPENSATION

After the notification of declaration u/s 6, Collector is



required to proceed u/s 9 by issuing a public notice u/s 9(1) of the Act

disclosing the intention of the Government to take possession of the land

and inviting claims regarding compensation from persons interested in

the land.  The occupier of the land and all persons informed or believed to

be interested in the land or to be entitled to act for persons so interested in

such land should also be served with such notice.  The time allowed in

the notice for submission of claim should not be less than 15 days from

the date of service of notice.

After issue of notice u/s 9 (1), the Collector or Land

Acquisition Officer is obliged to conduct an enquiry as contemplated by

Section 11.  In such enquiry the Collector should confine himself to find

out:

Firstly,



Firstly, the true area of the land,

Secondly, the compensation to be paid for the land, and

Thirdly, the apportionment of such compensation among the

     interested persons.

The Collector/LAO is required to make an award consisting

of determination on all the aforesaid points.  The Collector, for the

purpose of enquiry, has power to summon and enforce attendance of

witness and production of documents (Section 14).  The Collector has to

pass award within a period of two years from the date of publication of

notification u/s 6 of the Act.

As far as determination of amount of compensation is

concerned, as provided u/s 15, the Collector shall be guided by the

provisions of Sections 23 and 24 of the Act which respectively provide

regarding matters to be considered in determining compensation and

matters to be neglected in such exercise.

The award of Collector should include the following:


(i) Market value of the land on the date of publication of

notification u/s 4 (1)

(ii) Damages, if any for value of the structure, if any over

such land etc.

(iii) In addition to the market value of the land the

Collector u/s 23 (1-A) shall in every case award an amount

calculated @ 12% per annum on such market value commencing on

and from the date of publication of notification u/s 4 (1) to the date

of award of the Collector or the date of taking possession of the land,

whichever is earlier.

(iv) In addition to the above, the Collector shall in every

case u/s 23 (2) award a sum of 30% on such market value in

consideration of the compulsory nature of acquisition.



The award so passed by the Collector u/s 11 (1) is final and

conclusive evidence as between the Collector and the persons interested

regarding the true are of the land, value of the land and the apportionment

of the compensation (Section 12).  The Collector can also pass an award

on the basis of agreement in writing arrived at between the Collector and

the persons interested in the land which is final. [Section 11(2)]

Section 31 stipulates that on making an award under Section

11, the Collector shall tender payment of the compensation awarded by

him to the persons interested entitled thereto according to the award,

unless prevented by one or the other of the contingencies envisaged

therein viz. if they shall not consent to receive it, or if there be no person

competent to alienate the land, or if there be any dispute as to the title to

receive the compensation or as to the apportionment of it, the Collector is

obligated to deposit the amount of the compensation in the court to which

a reference under 18 would normally be submitted.  Thus, before further

proceeding to take possession, if not already taken as envisaged under



Section 17, the Collector has to pay or deposit the amount awarded, in the

manner noticed above, and the parties them will be at liberty to litigate in

the ordinary way to determine what their rights and title to the property

and the compensation may be.

As explained in Government of A.P. and another v. Syed

Akbar, (2005) 1 SCC 55 the acquisition of land has following

consequences:

(i) The acquired land vests in the Government absolutely free

from all encumbrances;

(ii) the land acquired for a public purpose can be utilized for

other public purpose; and

(iii) the acquired land cannot be reassigned or re-conveyed to the

owner merely on the ground of executive order.


REFERENCE

A person interested in the land, who has not accepted the

award and is dissatisfied with the determination made by the Land

Acquisition Officer can make an application within the period of

limitation before the Land Acquisition Officer to refer his case for being

decided u/s 18 by the Civil Court.

When reference is sought by a persons having interest in the

land, Collector has no power to refuse to make reference on the ground

that applicant should file a suit. (See – Smt. Sugandhi and others .

Collector, Raipur and others, AIR 1869 MP 78).  Again Collector/LAO

can not refuse to make reference on the ground that reference is barred by

Limitation.  (See – Shriyana Kumar Jain and others v. State of Madhya

Pradesh and another, 1995 MPLJ 100)


Though no limitation is prescribed in the Act for forwarding

the application to the Civil Court, however, the Apex Court in Prem Raj

v. Union of India, (1992) 3 SCC 40 has ordained that Land Acquisition


Office should disposed of such an application within 3 months of being

made and the outer limit should not exceed 6 months.  The Apex Court

has made it clear that the Land Acquisition Officer should owe

explanation to the superiors in the event of delay beyond 6 months.

The Collector is saddled with the duty u/s 12 (2) of the Act

to give notice of his award to such of persons interested in land, who are

not present personally or through their  representative at the time of

making of award.

JURISDICTION OF REFERENCE COURT

The Act contemplates three different types of references

which can be made to the Civil Court:


Firstly,


Firstly, Reference u/s 18 is made on the basis of an

application in writing made by the person interested who

has not accepted the award.  Objection may be in respect

to measurement of land, the person to whom it is payable

and apportionment of compensation among the interest

persons.


Secondly, Reference u/s 28-A (3) against an award

u/s 28 (2) of the Act, which is an award made by L.A.O.            

re-determining the amount of compensation on the basis

of award made by the Court on a reference u/s 18.

Thirdly, Reference u/s 30 where the dispute arises as

to the apportionment of compensation or as to the right of

the persons to whom the same is payable.


Considering the scope of  jurisdiction of Reference Court, it

was held by the Privy Council in Pramatha Nath v. Secretary of State,

AIR 1930 PC 64 that the jurisdiction of courts under Land Acquisition


Act is a special one and is directly limited by the terms of the provisions

contained in the Act.  The jurisdiction arises when specific objection has

been taken to the Collector’s award.  Such jurisdiction is confined to the

consideration of such objection and the Court has no power to consider

any issue beyond that.


Before proceeding to decide the reference, the Reference

Court should notice not only the applicant (See – Parasmal v. State of

M.P., 2006 (1) MPWN 9) but also the body or authority for whose

benefit the land has been acquired can oppose the enhancement of

compensation.  (See – M.P. Housing Board v. State of M.P., 2001 (1)


MPWN 137).  The  award given by the Reference Court amounts to a

decree.


The factors to be taken into account by the Reference Court

while determining compensation are by now well settled.  Negative and

positive factors which should be kept in mind have been elaborated by

the Apex Court in Viluben Jhalejar Contractor (Dead) by L.Rs. v. State

of Gujarat, (2005) 4 SCC 78.  The reference Court has no jurisdiction to

reduce the amount of compensation than the amount awarded by the

Collector.  (See – Ram Piari and another v. Land Acquisition Collector,

Solan and others, (1996) 8 SCC 338)   Likewise Reference Court cannot

grant anything by way of compensation in excess of the amount sought

by the applicant [See – Ujjain Vikas Pradhikaran (Ujjain Development

Authority) v. Tarachand and another, (1996) 5 SCC 574).  The

reference cannot be dismissed in default.  (See – Khazan singh (Dead)

by L.R.s. v. Union of India, (2002) 2 SCC 242)


To ensure expeditious determination of reference, the Apex

Court has expressed in the case of Prem Raj  (supra) that a reference

ordinarily should be disposed of by a Court within one year of its receipt



with an outer limit of two years.

LIMITATION

Two situations have been contemplated u/s 18 regarding

limitation within which an application for reference should be made:

firstly, if the person making an application was present or

represented before the Collector at the time when award was

made, the application must be filed within six weeks from

the date of such award.

secondly, where a notice has been received by the applicant

u/s 12 (2) the application must be filed within 6 weeks of the

receipt of such notice or within 6 months from the date of

Collector’s award which ever period shall first expire.



While claim for reference u/s 18 should be made within

prescribed limitation, no limitation is provided for making a reference u/s

30 of the Act.  However, as has been held by the Apex Court in Meher Rusi Dalal v. Union of India and others, (2004) 7 SCC 362, reference u/s 30 should be made within a reasonable time.


As regards re-determination of compensation u/s 28-A of the

Act, a person seeking re-determination should move an application

before the Collector within 3 months from the date of the award passed

by the Court u/s 18.  The limitation of 3 months, when more that one

award have been passed by reference Court u/s 18 for land covered by

some notification, starts from the last award.  [See – State of Tripura and

another v. Roopchand Das and others, (2003) 1 SCC 421].  It has been

made clear by the Apex Court in Jose Antonio Cruz Dos R. Rodriguese

and another v. Land Acquisition Collector and another, (1996) 6 SCC

746 that limitation for the purpose of Section 28-A has to be computed

from the date of award of reference Court and not the order of the


appellate Court.  Where application for reference is within limitation or

not has to be decided by the Reference Court and not the Collector [See –

Shriyana Kumar Jain and others v. State of Madhya Pradesh and

another, 1995 MPLJ 100].  However any delay application for reference

cannot be conducted by the Court u/s 5 of the Limitation Act. [See –

State of Karnataka v. Laxuman, (2005) 8 SCC 709]


JURISDICTION OF CIVIL COURT

The notification issued u/s 4 cannot be challenged by

way of Civil Suit (See – State of Bihar v. Dhirendra Kumar and

others, AIR 1995 SC 195).  However, a person claiming an interest

in the acquired land but not notified u/s 9 or 12 of the Act can file a

civil suit claiming share in the compensation [See – Shashikala


civil suit claiming share in the compensation [See – Shashikala

(Smt.) Trimbakrao and others, 2000 (1) VB 112]



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