By Swati Duggal, Punjab University
Editor’s note: In India the Government has the power to acquire land for a public purpose. The legislation that was enacted to govern the same was very old, having not been changed since the time of the British and had several lacunae. Most prominently, there were no provisions for compensation or rehabilitation on acquiring land. This led to the passing of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 which replaces the old Act.
The research paper analyses the aims and objectives of the Act as well as its scope. The researcher also examines the procedure for acquisition under the new Act which begins with the issuance of a notification, publication of the same and carrying out a Social Impact Assessment and a survey of the land to analyse whether the land is being acquired for a public purpose and to ascertain whether there is any alternate land that should be acquired for the same. Case laws under the old act are referred to to clarify issues since the provisions are somewhat similar. There is also a provision for hearing objections with regard to acquisition. Moreover, rehabilitation has been incorporated in the new Act and the procedure for the same has been laid down as well. Additionally, the amount of minimum compensation to be given is also fixed at 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. Time period during which the same is to be granted is specified as well.
Hence, the new Act appears to address issues that the old Act ignored.
The Government of India believed there was a heightened public concern on land acquisition issues in India. Of particular concern was that despite many amendments, over the years, to India’s Land Acquisition Act of 1894, there was an absence of a cohesive national law that addressed fair compensation when private land is acquired for public use, and fair rehabilitation of land owners and those directly affected from loss of livelihoods. The Government of India believed that a combined law was necessary, one that legally requires rehabilitation and resettlement necessarily and simultaneously follow government acquisition of land for public purposes.
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 is a legislation that regulates land acquisition and provides laid down rules for granting compensation, rehabilitation and resettlement to the affected persons in India. The Act has provisions to provide fair compensation to those whose land is taken away, brings transparency to the process of acquisition of land to set up factories or buildings, infrastructural projects and assures rehabilitation of those affected. The Act will replace the Land Acquisition Act, 1894, a nearly 120-year-old law enacted during British rule.
Aims and objectives:
The aims and objectives of the Act include:
- To ensure, in consultation with institutions of local self-government and Gram Sabhas 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
- Provide just and fair compensation to the affected families whose land has been acquired or are affected by such acquisition
- Make adequate provisions for such affected persons for their rehabilitation and resettlement
- Purpose and scope:
The Act aims to establish the law on land acquisition, as well as the rehabilitation and resettlement of those directly affected by the land acquisition in India. The scope of the Act includes all land acquisition whether it is done by the Central Government of India, or any State Government of India, except the state of Jammu & Kashmir.
The Act is applicable when:
- Government acquires land for its own use, hold and control, including land for Public sector undertakings.
- Government acquires land with the ultimate purpose to transfer it for the use of private companies for stated public purpose. The purpose of LARR 2013 includes public-private-partnership projects, but excludes land acquired for state or national highway projects.
- Government acquires land for immediate and declared use by private companies for public purpose.
The provisions of the Act does not apply to acquisitions under 16 existing legislations including the Special Economic Zones Act, 2005, the Atomic Energy Act, 1962, the Railways Act, 1989, etc.
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[i], 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[ii], 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.[iii], 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.
Lapse of SIA 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.
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.
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[iv], 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.
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.
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.
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 authorised 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.
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.
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.
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.
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.
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 organisation 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 organisation.
In Habib Ahmed v. State of Uttar Pradesh[v], 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.
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.
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 recognised 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;
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 Vs. B.V. Subramania Iyer[vi], 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.
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.
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.
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.
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.
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.
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.
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.
- 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.
Formatted on 15th March 2019.
[i] (1967)1 SCR 120
[ii] AIR 1965 All. 344 at p. 345
[iii] 2006 NOC 589 (A.P.)195
[iv] (1969)9 Cur. L. J. 75 at p. 79 (P&H)
[v] AIR 1965 All. 344 at p. 345
[vi] AIR 1962 Mad. 313