CONCLUSION AND SUGGESTIONS

Transcription

1 CHAPTER VIII CONCLUSION AND SUGGESTIONS The Land Acquisition Act, 1894 was made for the purpose of facilitating compulsory acquisition of privately held land by the Government for public purpose. The land can be acquired by the central government if the purpose is for the union and for all other purposes property acquired by the State Government. The acquisition process may not necessarily be initiated by the government; local authorities, companies, registered societies and registered co-operative societies may acquire land through government for developmental activities. The law of land acquisition jeopardises private interest for public interest and hence it denies property of individuals. It overrides the right of a person to own property, therefore, law in general should be strictly construed. The owner of the property has no bargaining powers with the State nor does he say in compensation. The use of eminent domain for land acquisition is also justified when the public purpose in question can be served by only a specific piece of land, which has no substitute. The concept of eminent domain is based on the maxim that the public interest prevails over private interest. Eminent domain is the power exercised by the government to acquire privately held land. The power of compulsory acquisition of land has been recognised as a necessity for the life of the state to carry out its public purpose function. Property including tangible and intangibles has been recognised as subjects of eminent domain. The concept of eminent domain consists of the terms such as 'public purpose' and 'compensation', which are uncertain and ambiguous, have been used as a powerful tool by the government to acquire privately owned land. If public purpose is understood merely as enhancing the total net social benefit, then virtually as socially viable projects justify the intervention of the State. It would be correct to take the view that the compulsory acquisition by the state is justified only if in the realization of a socially viable project required the "specific" land. In other words, it would be more appropriate to say that the specificity of land required for the attainment of public benefit justifies state takings or intervention. The uncertainty prevailing, has resulted in abuse of the power by the state by broadening the scope of uncertain terms and thus expanding the power of the government to acquire private property at the cost of violation of private property right recognised by the constitution. 312

2 The very first issue which has over the years haunted the land acquisition jurisprudence is the definition of the term public purpose. The Government is empowered by the Act to acquire land for public purpose, however, the expression has not been defined in the Act 1 itself or the Constitution of India, thereby giving a rather vague status. No doubt there are examples and illustrations in terms of judicial pronouncements 2 of what public purpose is, but these can hardly be taken as a comprehensive list of instances. The inability of the 1894 Act to precisely define the term public purpose can only be justified to the extent of the social objectives that the Constitution had set out to be achieved. However, during these years a lot of change has been brought about and therefore it is essential that the expression public purpose be defined and possibly curtailed, taking into consideration not only the contemporary development, but also the changing relation between the individual and the State. The Constitution has conferred the status of citizens to the people and this should be acknowledged by all the legislative enactments. The next concern is whether the existence of public purpose should be made justiciable. In the Somwanti case 3, the Supreme Court state that there is no judicial review of public purpose except where there appears to be colourable exercise of power. Neither the meaning nor existence of public purpose is justiciable. Further, the Government's conclusions as to the fitness of the land for the purpose are also conclusive. 4 It is pertinent to note that some State legislations 5 pertaining to land acquisition have made public purpose a justiciable issue. This leads to an anomalous position. There was little justification for continuing with the provisions of Section 6(3) of the Land Acquisition Act, which makes the government the sole judge to decide whether the purpose of acquisition is a public purpose or not. The Government can be regarded as a judge to decide whether the purpose of acquisition is in the general interest of the community or not. However, to make the government an absolute authority in this regard is to deny the person whose property is being acquired, objective proof to show that some public purpose is being served by the 1 S. 3(f), the Act provides an inclusive and not a compendious definition. 2 See chapter on Judiciary and Land Acquisition. 3 Smt. Somwanti v. The State of Punjab, AIR 1963 SC These principles have been reiterated in the cases of Ratilal Shankar Bhai v. State of Gujarat as well as Jage Ram v. State of Haryana. 5 For example the Karnataka Industrial Areas Development Act. 313

3 acquisition is ultimately with the court. The issue of compulsory land acquisition has been cropping up at regular intervals with decisive socio-economic and political consequences, acutely witnessed during the Nandigram episode. Despite the raucous noises made about the inequality of the process and outcome of land acquisition, successive Parliamentary sessions have failed to provide a coherent policy response addressing these concerns. Finally Land Acquisition Act,1894 was repealed and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 came into force. It is quite apparent from reading the statement and object of the 1984 amended Land Acquisition Act, it proposes to make the government an agent of private entities and to take compulsorily from people, under the guise of development. This was never the intent of the law and neither can it be justified within the periphery of Article 39 (b) and (c) of the Constitution, because it may probably result in concentration of wealth, in few individuals. In the present Act also government can acquire property on behalf of a private company, it has find security against abuse of eminent domain power. Before acquisition, 80 per cent project affected families consent must obtained through prior informed process. Therefore, it is of utmost importance that the law defines public purpose with sufficient degree of coherence. The definition would reduce any anomaly associated with land acquisition. An alternative to defining public purpose would be making it a justifiable issue, as has been done in US. However experience has shown that this approach has only created much avoidable litigation. Therefore, the law should not only define the expression but also set up a process for examination of public purpose. The government should not be the sole arbitrator, instead this decision should be made by an expert committee. The researcher submits that the government should constitute a high level committee, which shall be chaired by a retired Supreme Court judge and should have members who are well aware with the plights of displaced people. The definition of expression public purpose as given in the Land Acquisition Act, 1894 is very wide. It has therefore necessary to re-define it so as to restrict its scope for acquisition of land. The definition of public purpose under the Right to Fair 314

4 Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act incorporates land for strategic purposes, land for infrastructure projects where the benefits accrue to the general public and land for any other purpose useful to the general public. The intent of the legislature to the extent that it limits the concept of public purpose to projects of strategic importance and infrastructure development is just and appropriate. A private company or for public private partnership projects can go for acquisition of land only for strategic purpose and infrastructure projects, this would mean that the scope of the power of acquisition is restricted to all possible extent. However, there are two aspects of the Land Acquisition Act, 1894 which arouse concerns. Firstly, the Act mandates payment of only cash compensation, which has been proved to be an ephemeral and inadequate substitute for land. Secondly, the Act did not speak about procedure for displacement of project affected families. Hence, it is called as forcible Land Acquisition Act, The issue with the acquisition regime is that the Land Acquisition Act, 1894 didn't define what compensation should be paid and leaves it at the Collector's assessment which is based upon principles laid down in section 23 and 24 of the Act. Although, the Judiciary in various cases has affirmed that compensation should be equivalent to recompense, but there is an urgent need to incorporate the notion within the purview of the Act in order to give it more legitimacy. A private property owner s right to compensation for property lost through eminent domain proceedings is a universally accepted constitutional right in our democratic way of life. However the term compensation needs to be interpreted as an 'amount' because the word compensation has inherent ambiguities. Compensation means to make good the loss of property suffered by the land loser because of his land being acquired by the government for the fulfillment of a public purpose. Hence compensation must be equivalent to market value of the acquired land. The Land Acquisition Act, 1894 provides that the "market value' of the land at the date of publication of notification should be considered. It is well settled that the Land Acquisition Officer is competent to collect evidence during the inquiry of the market value of three years preceding the notification and then fix the market value. However, the market value so fixed is not binding on the claimant neither fixation of market value by the collector is conclusive 315

5 or final. 6 While the Land Acquisition Act, 1894 calls for consideration of the "market value" of the land in determining compensation, this term is a fraught with uncertainty. Under the Act, the exact means of calculating market value are left undefined. 7 This position regarding measuring of the acquired land market value for the purpose of fixing compensation remains continued in the present Act also. Further, the Land Acquisition Act provides that the assessment shall be done by the collector for any objections raised under section 5 and section 9 of the Act, the Collector and Government act as the Quasi-Adjudicatory Body, and regarding this suits to a civil court are specifically barred. This principle is in stark contrast to the laws of other countries, which provide for assessment by independent valuers. In the present also no provision for independent valuers to assess compensation aganist any objections raised under section 21 of the Act. It is reasonable to the extent that the Collector was made the sole authority to determine the amount of compensation. Researcher observed that how can section 18 of the Act be justified which provides for prior permission of the collector for referring the matter to the court, if the power of the collector to determine compensation should go, and it should be vested in a technical body comprising of independent valuers. Hence, there is a need for an independent technical committee to fix the amount of compensation to be paid and hear the objections. In the present Act also made the collector as a sole authority to determine the compensation. It is highly unfortunate that in India the government is not only the taker but also the assessing authority, which confers upon it absolute power and in the process citizens are reduced to subjects. It is also distressing to note that the 1894 Act only takes into consideration the owners whose lands are acquired. There are whole segments of persons who are displaced due to acquisition, such as agricultural labourers, tenants, artisans etc. and as they possess no legal title or interest they stand automatically excluded from the ambit of the Act. but the irony is that the 1894 Act did not incorporate rehabilitation and resettlement measures. This calls for a comprehensive legislation providing acquisition rehabilitation measures, 6 B.L.Bansal, Law of Acquisition of Land in India, I st ' ed 2004 p Tenth Law Commission Report. 316

6 However, this position seems to have changed, after the Right to Fair Compensation and Transparency in Land acquisition, Rehabilitation and Resettlement Act, 2013 came into force. The Act contains progressive measures for displaced people and will give the right to resettlement, the status of law rather than policy, which will further help to strengthen their enforcement. It is a significant movement, the Act recognises the rights of the landless and artisans to compensation rather than just landowners ( only if prove that at least three years prior to the displacement due to land acquisition they are resident in that area). The Act mandates that those having land acquired must receive a house plot and money for construction, compensation for cattle sheds, moving costs, where jobs are created through the jobs providing employment to a member of family provided employment not lower than minimum wages or one time settlement of five lakhs rupees per family or two thousands rupees per family for twenty years or three thousand rupees a monthly substance grant shall be given for a period of one year for each family. In addition this fifty thousand rupees shall be given to scheduled casts and scheduled tribes displaced from scheduled area. Another riddle associated with the Land acquisition Act was that acquisition for companies. After the 1984 Amendment there is a clear-cut difference between the acquisition of lands for public purpose and acquisition of lands for companies. When lands are acquired for a company the acquisition has to be made under Part VII of the Act. If instead, the acquisition is made under Part II of the Act, then the entire proceedings were ultra vires, vitiated and a fraud upon the statute. However, legislative experience and judicial pronouncements have diminished this difference and the government was consistently acquired land for companies under the public purpose clause ( under Part II of the Act). This has been reinforced by the judicial pronouncements of the Apex court 8, which has held that if a part( token amount) of the compensation amount is paid from public revenue, the acquisition can be made under Part II of the Act, irrespective of the fact as to for whom the land was being acquired. This line of reasoning adopted by the judiciary is concerning from the 1984 amendment that source of the funds cannot be a sole criterion to judge the nature of 8 Pandit Jandu Lal v. Union of India, AIR 1961 SC 343; Abdul Sattar v. State of Uttar Pradesh, AIR 1994 All 77; Pratibha Nema v. State of M.P., AIR 2003 SC

7 acquisition. This persistence on the part of the judiciary lacks conviction, for it represents an annihilation of the 1984 amendment. This dichotomy is addressed in the present the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 wherein government can acquires land for private companies or for public-private partnership projects where the benefits accrue to the general public subject to eighty per cent. the project affected families obtained through prior informed process. Eight per cent. consent of project affected families rule will some what reduce the interference of State in acquisition process. Another concern with the 80 per cent. of prior informed consent of project affected families is that it gives the owner of the land the right of bargaining or to prevent the acquisition of his land. Under Section 5-A of Land Acquisition Act, 1894, the nature of objections to be raised is such that it does not allow the person to scrutinize the proposal for acquisition as the details of the proposal are not made available to the people and he has no right to demand the same. He also has no-right to cross-examine the exponents of the proposal. Thus, one can only raise objections against acquisition on the ground that the purpose is not for the general good of the public. However, in order to do so, it is necessary to have the requisite information. This would often prove very difficult because the Act gives only one month to raise objections, it appears that the entire process is biased heavily in favour of the acquiring body. Therefore, it was necessitated to change the provisions of Land Acquisition Act to make the process of acquisition democratic firstly, by involving the people who are to be affected and then by taking the help of trained specialist, who are conscious of the social, economic, psychological, and ecological impacts of acquisition. The researcher observed that there was no provision for usage of surplus acquired land under 1894 Land Acquisition statute. In USA, there is a provision to acquire only bare minimum extent of land needed for the projects and if the acquired land is surplus, it would sell back to original owner on the basis of doctrine of preemption. Further under section 17(1) of the Land Acquisition Act, 1894 no specific grounds are mentioned, to invoke urgency clause. Hence, Land Acquisition Act, 1894 is totally inadequate and fails to secure social justice. It fails to protect the interest of project affected persons and fails to 318

8 balance the land loser interest with public interest. Government invariably abused its eminent domain power, acquiring property in non-democratic manner. Under this colonial Act other than land losers or project affected communities had not been taking into consideration in payment of compensation. Land Acquisition Act, 1894 did not speak about rehabilitation and resettlement of displaced persons. In a democratic country, where displacement takes place by the government or private collaboration with government or even by the private companies, it is the responsibility of the government to take care of the displaced people. Even though from time to time government formulated rehabilitation and resettlement policies for project displaced people, past experience witnessed about the differences between governmental policies and legislation. Under the Constitution of India, there is a provision for reservation for the SCs and STs population in different spheres, there is no provision in the constitution and as well as in the Land Acquisition Act, 1894 for the SCs and STs who are displaced from their native places due to the construction of development projects by the government. 9 For all these short-falls Land Acquisition Act, 1894 has been repealed and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 came into force. Analysis of data collected from different sources clearly indicates that the colonial Land Acquisition Act, 1894 is ineffective and inadequate and its deficiencies and drawbacks are to be done away with to ensure land acquisition without litigations. The analysis of the data has clearly substantiated the following hypothesis formulated for the study. 1. The power vested with the state to acquire land for the public purpose is being misused. 2. State has completely failed to promote the social justice though it has acquired the private land for public purpose. 3. The compensation to be paid to the land owners in case of acquisition is not realistic and rational. 4. The judiciary has played a pivotal role in evolving new principles with regard to acquisition of land and related compensation and rendered justice to the people. 9 Ashok Kumar Sahay and Prabira Sethy, Tribal Displacement and Resettlement Effective Safeguard, 58 Social Action 24(Jan-Mar 2000). 319

9 5. The new land acquisition law needs to be enforced effectively to address the problems pertaining to land acquisition; compensation, rehabilitation and resettlement etc. to render justice to the affected and further it shall be fined tuned with respect to certain aspects. The overall conclusion of the investigation is that if the above deficiencies had been removed the Land Acquisition Act,1894 would have been able to secure the social justice and it could balance the land loser interest with societal interest at large. As such to avoid the multiplicity of amendments to the colonial Land Acquisition Act, 1894 and mainly to rehabilitate and resettle the project displaced persons the Act was repealed and replaced by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, Suggestions In the light of the above study and conclusion drawn from it, following suggestions have been made to make the law more effective. 1. The study reveals that the concept of public purpose is one of the most entrenched issues in the legal field. What constitutes pubic purpose is an open question subject to interpretation and use. Public purpose is a condition for the exercise of state s power of compulsory acquisition of private property but no definition of the phrase public purpose is given either under repealed Article 31(2) or under Article 300A or under repealed Land Acquisition Act, There are number of cases which have considered the word public purpose but none of them have proposed to lay down the definition or the extent of the expression. To overcome this problem, the word public purpose has been defined under Section 2 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act in a comprehensive manner, so that government intervention in acquisition is limited to defense certain development projects only. Acquisition authorities must strictly adhere to the purposes of acquisition of land which shall be within the ambit of the term public purpose defined under the new Act. 2. Under section 2(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act consent of 80% of project affected families through prior informed process shall be mandatory in case of 320

10 acquisition of property for private companies or for public private partnership projects for infrastructure projects. It may considerably reduce the abuse of eminent domain power in acquisition cases. This limitation must be strictly observed by the acquisition authorities to curb the abuse of eminent domain power in land acquisition cases. 3. Section 4 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act provides for social impact assessment of every proposed project to ascertain the views of the affected families. Hence, public hearing shall be given. This provision should be strictly implemented in the letter and spirit of law to disseminate information and enable public participation in land acquisition process. 4. There must be an independent expert committee to make recommendation to the government either to acquire or not to acquire a particular piece of land to serve the public purpose. To overcome this problem under section 7 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act provides for constitution of an independent multi-disciplinary Expert Group to make recommendations within two months from the date of its constitution whether the project serves any public purpose or not and whether the social costs and adverse social impact of the project outweighs the potential benefits. Hence, the said provision shall be effectively implemented. 5. Rehabilitation and resettlement should be provided not only to the land losers, it shall be provided even to all involuntary displaced persons. The project affected families have been made entitled for rehabilitation and resettlement. The provisions pertaining to rehabilitation and resettlement of project affected people should be given effect to. Failure to comply with these provisions should be viewed strictly and made punishable. 6. Study reveals that in many cases more than required land were acquired under the guise of public purpose and was misused by the politicians and officials subsequently as there was no limitation in the Land Acquisition Act, Hence, it is advisable to acquire only a bare minimum land needed for a project. Accordingly, section 101 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act provides for acquisition of bare minimum land needed for a project. Therefore, the authorities shall strictly adhered to the provisions of the new law while acquiring the land. 321

11 7. Though the new land acquisition Act provides that if acquired land remains unutilized for a period of five years from the date of taking over the possession, same shall be returned to the original owner or to the Land Bank. There is no clarity in this section either to give first priority to the original owner or not. Hence, it is suggested that, like in USA, on the basis of doctrine of preemption first priority must be given to the original owner then only it shall be returned to the Land Bank. 8. It is found that the Land Acquisition Act, 1894 did not provide any kind of restriction to acquire agricultural land. As such there were several instances of indiscriminate acquisition of agricultural land. To over come this deficiency, under Section 10 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act it is restricted that no agricultural land shall be acquired except in exceptional circumstances and that to by developing equivalent wet land or an amount equivalent to the value of the land acquired shall be deposited with the appropriate government for investment in agriculture for enhancing food security. Acquisition authority should strictly adhere to this statutory mandate. 9. Under Land Acquisition Act, 1894 the cases were required to be referred to civil court and was taking long time to decide the cases. To over come this problem provision has been made under section 51 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act to establish the Land Acquisition, Rehabilitation and Resettlement Authority for speedy disposal of reference cases. The new authority should be strengthened by providing institutional and infrastructural facilities for speedy disposal of cases and to render justice to the affected persons. 10. The provision has (Section 30) been made for payment of hundred per cent of solatium under the new Act which is a well-coming measure and needs to be applied strictly. 11. Section 102 of the new Act provides that, if the acquired land is transferred to any person for a consideration without any development or the purpose for which it was acquired, only forty percent of the appreciated land value shall be shared with original owner. Since property was acquired by the Government without the 322

12 fault of the owner, it is advisable to give all 100 percent of the appreciated land value to the original owner. 12. Under section 43 of the repealed Land Acquisition Act as well as under section 93 of the present Act uncanalized power given to the government to withdraw from land acquisition before taking the actual possession of the land. Under the new Act property shall be acquired only in consultation with local-self government and in addition, public hearing for social impact assessment shall be given to ascertain the views of the affected families. Further, the expert group shall evaluate the social impact assessment report. After passage of these processes only property shall be acquired. Giving unguided powers to the government from withdrawal of acquisition of land, is undemocratic and needs to be imposed with certain restrictions. 13. The provisions of the new Land Acquisition Act are not made applicable to the acquisitions made under other sixteen existing legislations including the Special Economic Zones Act, 2005, the Atomic Energy Act, 1962, the Railways Act, 1989, etc. It is immaterial for the displaced persons that under which enactment he has been displaced and therefore no justification for non-application of provisions of rehabilitation and resettlement to the persons who are displaced under other than this Act. Therefore, the beneficial provisions of the new Act shall be made applicable to all acquisitions. 14. Social Impact Assessment for every acquisition shall be completed within a period of six months from the date of commencement. If it is not completed, again the Government may make fresh notification for social impact assessment for the same project. If there is no minimum threshold on the authority for making fresh notifications for social impact assessment, it may delay the implementation of certain government programmes. It is advisable to have provision containing limitation on the authority for making successive notifications for social impact assessment for the same project. 15. The market value is based on recent reported transactions. This market value is doubled only in case of rural areas to arrive at the compensation amount. This method may not lead to an accurate market value because of the possible under reporting of prices in land transactions. Therefore, it is advisable to give compensation four times the market value in rural areas and two times the market value in urban area. 323

13 It is respectfully submitted that if, the above suggestions are faithfully implemented, it will make the land acquisition statute more effective and efficient and ensure land acquisitions without much litigations. 324