LAND ACQUISITION IN INDIA ISSUES AND CHALLENGES

By Kiran Ranganath Kale, Assistant Professor of Law from Sarsenapati Hambirrao Mohite Law College, Rajgurunagar, Pune.

ABSTRACT

In Democratic world, the land Acquisition is the power of the central or the state Government. The private land can be acquired for public purposes and to compensate the original owners and other persons affected due to such acquisition. For the purpose of land acquisition Act of process are done by the officer appointed by the government and not by mere deceleration of the Government hence it is an act of administrative nature and not of judicial or qusi judicial. The act defines that land acquisition as the action of the government whereby it acquires land from its owners in order to pursue certain public purpose or for any company. This acquisition may be against the will of the owners but compensation is paid to the owners or persons interested in the land. This can be distinguished from an outright purchase of land from the market. Land acquisitions by the government generally are compulsory in nature, not paying heed to the owner’s unwillingness to part with the land. The power to take property from the individual is rooted in the idea of eminent domain. The doctrine of eminent domain states, the sovereign can do anything, if the act of sovereign involves public interest. The doctrine empowers the sovereign to acquire private land for a public use, provided the public nature of the usage can be demonstrated beyond doubt. The doctrine is based on the following two Latin maxims, (1) Salus populi suprema lex (Welfare of the People Is the Paramount Law) and (2) Necessitas publica major est quam (Public Necessity Is Greater Than Private Necessity. In the history of modern India, this doctrine was challenged twice (broadly speaking) once when land reform was initiated and another time when Banks were nationalized.

Keywords- Land Acquisition, Public Purposes, Public Interest, Compensations etc.

I. INTRODUCTION

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Land means not mere surface of the earth but it includes everything on the surface of the land and everything above the surface of the land and everything below the surface of the land[1]. In India Land is recognized as MATA (Mother) hence it is very clear that it has public purpose or social purpose, the first land Acquisition in India was imposed by the British rulers which was known as Bengal Resolution 1824, that law was applied to whole Bengal province subject to the presidency of fort William The law enabled the government to “obtain, at a fair valuation, land or other immovable property required for roads, canals or other public purposes[2]." In 1850, the British extended the regulation to Calcutta (now Kolkata), through another legislation, the Act I of 1850, with “the object of confirming the title to lands in Calcutta for public purposes". And lastly the "Land requisition Act of 1894" was enacted. The land acquisition Act was enacted but there was not uniformity in its application as there was application of this law was only to British India and not the princely provinces and states, they have their own land acquisition Laws like Hyderabad Land acquisition act 1899, Travancore Land acquisition act 1809 etc.

The Land acquisition act 1894 states with acquisition, section 6 of the said act gives place for the declaration of acquisition for the purpose of public welfare and section 9 is for invitation to mark claims for compensation[3]. The section 54 of the act deals with actions in court. Since the onset various cases of compensation played an important role for the development of the legislation. But anyhow the process of claiming compensation was not very much good[4]. Land Acquisition in India rises to the process of land acquisition by the union or state government of India for various groundwork and economic growth creativities[5].

The Land Acquisition Act of 1894 permitted the government to acquire the private land for public purposes, which could be used for great growing projects like building roads, industries, mining, etc. But since its acting, the Land Acquisition Act (1894) has been subject to disagreements and violent argument. In India Where more than 70% of the people lives in rural areas and is seriously dependent on the main sector i.e. agriculture[6]. Hence, there is hardly any land which is not engaged. When the government intends to carry out some developmental work like building of dams, flyovers, bridges, mines etc., it needs vast range of land.

Since land is an unusual resource, in order to carry out growing work, the government has to acquire land thereby cheap the existing occupants from its use[7]. This leads to large-scale displacement and required transfer of people from their land. Of course, development is a necessity in the present world, but the question which arises is ‘development at what cost?’ Should it be at the cost of the land owners who are extremely greedy about their land, or the farmers for whom land is the only source of livelihood who they treat like a mother? Should the government blindly go for development without bothering to secure the interest of the landowners and the farmers or should strive to strike balance between the two[8].

After commencement of the constitution of India the concept of the Land acquisition of Land from farmers for building, fertilizer plants, defense, dams and other infrastrure projects, or for project affected people, this come under one umbrella that is public purposes[9]. After the liberalization of economy leading to privatization, the share of private initiative in various sectors enlarged and the private sector happening taking the responsibilities which were earlier cleared by the government in return for a number of inducements from the latter. As a result of which, private players are present in almost all the sectors like housing, education, health services, industry, construction of commercial complexes, media/ news channels. Presently, private sector is prosperous well, competing with its public complement and is in fact stealing the show as these are skillful by big business houses. For all the public purpose projects, the most important requirement is land. Here, the question arises, where does the land come from for these private initiatives[10]?

II. OBJECT OF LAND ACQUISITION IN INDIA

The first and foremost object for Acquisition of Land is Salus Populi Suprema Lex (Welfare of the people is the supreme law) hence in democratic state Government can acquire any private land for Public purposes. In the Constituent assembly[11] was bebate; they promised for clear cut rules to be mentioned in the constitution to evade conflicts in future. There was also a common demand for fundamental rights. Initially, the clause for fundamental rights which read as “No person shall be deprived of his life, liberty or property without due process". Immediately this became a point of discussion that the clause for due procedure can act as shackles for the govt to do socialist activities. Since there was zamindari system and other vices prevailing at that time, it was accepted that due process clause to be dropped from the draft. In the year 1947,

The Hon’ble Supreme court was held that in the case of Golakhnath and Ors. v. State of Punjab[12] and Anrs the Golaknath family had over 500 acres of land and that time, under the "Punjab Security of Land Tenures Act, 1953[13]", the state govt. of Punjab seized his 470 acres of land stating that under the said act, the petitioner could hold land no more than 30 acres. Since, at that time Art 19(1) (f) was a fundamental right, I.C Golaknath knocked the door of the judiciary petitioned the Supreme Court. The issues were whether the parliament has a right to amend fundamental rights or not[14] At that time, the main concern was that "no part of the constitution is un amendable[15]" The apex court adopted different view and held that the “Fundamental Rights given under the part III of Indian constitution cannot be subjected to amendment process provided in article 368. If such rights are too amended, a new separate constitution is to be convened for making a new constitution or radically changing it."

III. ISSUES AND CHALLENGES FOR LAND ACQUISITION IN INDIA

Now, In India, Acquisition of private Land for public proposes is governed by The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,2013. This Act gives place for just, transfrent and fair compensation rehabitation and resettlement for affected people[16] but there are certain things which need to consider with respect acquisition of land and rehabitation of the victims or affected people[17].

Public Purpose:

As per sec 2 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.It classifies the acquisition of land into three categories – (1) appropriate government acquire land for its own use and for public purposes; (2) appropriate government acquires land for PPP projects/ for private companies for public purpose; (3) purchases by private companies through private negotiations. According to the Section 3 (za) of the Act, ‘public purpose’ means the activities specified under Section 2 (1), and includes the following: (a) For strategic purposes relating to naval, military, air force, armed forces of the Union, including paramilitary forces or any work vital to national security or defence of India or State policy, safety of the people; (b) For infrastructure projects, agriculture, industry, educational purposes, sports, tourism and transportation and any other infrastructural facility; (c) Relief Development; (d) Planned Housing; (e) Planned Development; (f) Housing for Displaced Persons[18]. In this legislation there is possibility of government purpose and become public purposes[19] like under the name planned development clause which is part of sec 2 of the Act. Hence I think that there should be one remedy for the land affected people it challenge the object of the said public purposes it in High court or Supreme Court.

The term Rehabilitation and resettlement:

The 2013 Act provides for Rehabilitation and Resettlement, a commendable step for the first time in India’s legislative history, that a law on land acquisition has been tied up with the necessity to carry out rehabilitation and resettlement[20]. But in case of land which is temporarily acquired, there is no such policy of rehabilitation and resettlement[21]

Consent clause under The Act:

Under Section 2(2)(a) and (b), the provisions of the Act relating to ‘ prior consent ’ of the ‘affected families’ apply where the land is acquired for public partnership project or for a private company ( both for a public purpose). This means that in these cases, the landowners can refuse to part with their lands by refusing to give the appropriate percentage of ‘prior consent.’ But when the land is acquired by the government for its own use, hold and control, including for PSUs and for public purpose under Section 2(1), ‘prior consent’ of the affected families is not required to be taken[22]. That is, when the government acquires land for its own use, prior consent of the affected families is not required. It is a forcible acquisition by the government in which the landowners have no say at all and they cannot refuse to part with their land[23]. The State governments have objected to the Chapter III of the 2013Act dealing with acquisition of agricultural land that since ‘transfer and alienation of agricultural land’ comes under the purview of the State List, Entry 18, it is only the State Legislatures who have a right to legislate on this matter.

The 2013 Act exempts the application of the provisions of the Act to certain enactments dealing with land acquisition like the Railways Act, 1989, The Electricity Act, 2003, The National Highways Act, 1956 (all the 13 enactments specified under the Fourth Schedule).

Urgency Clause under the Act:

As per sec 40(2) The powers of the appropriate Government under sub-section (1) shall be restricted to the minimum area required for the defence of India or national security or for any emergencies arising out of natural calamities or any other emergency with the approval of Parliament: 24 Provided that the Collector shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours’ notice of his intention to do so, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience. , I think in this case there should be express provision for rehabilitation and resettlement of the affected people because it is the object of the Act .

IV. CONCLUSION

It is very necessary that the balance should be created between the Acquisition of Private Land for Public propose and the rehabilitation and resettlement of the people because sometimes there is need to compensate the affected people by giving another kind of immovable property like flat, open plot and bungalow or other government service to the family members because persona is giving up his immovable property which is one kind of permanent assent and will not be recreated balance should be created between the needs of the business sector which requires land for their schemes and the landowners and farmers. The Government should shelve the idea that development of the country can take place only through industrialization and creation of more jobs. Agriculture and farming is a very essential part of our economy which cannot be neglected for the sake of development. Both the sectors should go hand in hand. We need both the things food security and development hence it is necessary to protect the agriculture land which will never be re-created.

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[1] R K Sinha, Sec 3 of The Transfer of Property Act ,Edition: 22nd Edition, 2023

[2] Kanwal D P Singh Land Laws (Including Land Acquisition and Rent Laws) Edition: 2nd Edition, 2017

[3] Land Acquisition Act,1894

[4] Pramod Kumar Singh A To Z of Laws of Land and Property Disputes Edition: 2nd Edition, 2024

[5] Premier Publishing An Exclusive Commentary on The Right to Fair Compensation and Transparency in Land Acquisition Rehabilitations and Resettlement (Act No. 30 of 2013) by S K P Sriniwas’s Edition 2023

[6] Land acquisition bill. Maharashtra, India: Economics Times.Manju Menon, K. K. (2017, September 28).

[7] New Land Acquisition Policy. Retrieved from Accommodation Times. Times, E. (2016, March 31).

[8] . Gandhinagar.Today, G. (2015, 12 16). The Land Acquisition, 2013.Vadlapatla, S. (2018, May 3)

[9] Comparison between Land acquisitions Act, 1894 and the right to fair compensation and transparency in land acquisition, rehabilitation and resettlement act 2013Singh, K. S. (2016).

[10] Statesman, 25 October 1976, p 1; 28 October 1976, p 1.

[11] constituent assembly was constituted and held its first meeting in December 19

[12] Golakhnath and Ors. v. State of Punjab and Anrs., MANU/SC/0762/1967

[13] Punjab Security of Land Tenures Act, No. 10, Acts of Punjab State Legislature, 1953 (India).

[14] Article 13 (2) of the Indian Constitution

[15] Shankari Prasad v. Union of India, MANU/SC/0013/1951

[16] Governor of Delhi, W.P.C.2759/2014 decided on September 12, 2014

[17] Surender Singh v. Union of India W.P.C. 2294/2014 decided on September 12, 2014.

[18] sec 2 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,2013

[19] J. L. Sarna v. Union of India W.P.(C) 4965/2000,decided on March 10, 2015

[20] Raman Grover v. Union of India W.P.C.13814/2009 decided on August 22, 2014

[21] Bimla Devi v. State of Haryana (2014) 6 SCC 583

[22] Karnail Kaur and others v. State of Punjab and other I.A. No.8 of 2013 in C.A. No.7424/ 2013 decided on January 22, 2015

[23] Surjan Singh v. Union of India W.P.(C)No. 9175/2014 &CM 20876/2014