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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