CHAPTER – 1

INTRODUCTION
1.1 Introduction

Criminal misappropriation takes place not when the possession has been innocently
come by, but when, by a subsequent change of intention or from the knowledge of some
new facts with which the party was not previously acquainted, the retaining becomes
wrongful and fraudulent. The offence consists in the dishonest misappropriation or
conversion, either permanently or for a time being, of property which is already in the
possession of the offender. See illustrations (a), (b) and (C) which show that the original
innocent taking amounts to criminal misappropriation by subsequent acts. The offence is
completed by a mental act. Section 403 IPC.

Dishonest misappropriation of property Whoever dishonestly misappropriates or

converts to his own use any movable property, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or with both.

Illustrations

(a) A takes property belonging to Z out of Z's possession, in good faith, believing, at any
time when he takes it, that the property belongs to himself. A is not guilty of theft; but if
A, after discovering his mistake, dishonestly appropriates the property to his own use, he
is guilty of an offence under this section.

(b) A, being on friendly terms with Z, goes into Z's library in Z's absence, and takes
away a book without Z's express consent. Here, if A was under the impression that he
had Z's implied consent to take the book for the purpose of reading it, A has not
committed theft. But, if A afterwards sells the book for his own benefit, he is guilty of
an offence under this section.

(c) A and B, being joint owners of a horse, A takes the horse out of B's possession,
intending, to use it. Here, as A has a right to use the horse, he does not dishonestly
misappropriate it. But, if A sells the horse and appropriates the whole proceeds to his
own use, he is guilty of an offence under this section.
Seventy long years have passed to the independence; However Indian economy is still in
its transition phase. Lots of changes have been taking place in its policy framework with
respect to different sectors of economy.

But, the land remains a fundamental need for all economic, political and social
activities. The recent people's agitation against the acquisition of land across the nation
has initiated a great debate. Besides the common man being at the helm of debate, the
Central Government, respective State Governments, Political parties and civil societies
all are actively participating in this debate. The discourse arose due to this phase of
massive modernization, industrialization; transforming an essentially agrarian economy
into an industrial power and concerns mainly with location of industries, compensation
and employment of the displaced person. The very relationship between agriculture and
industrialization is being questioned1. Nevertheless, it is quite strange to note that neither
the Government nor any of the political parties were serious enough to discuss the worth
of colonial legislation i.e. “Land Acquisition Act, 1894”. As “The Land Acquisition
Act, 1894” remained only the important legal instrument till the implementation of
“Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act 2013” for acquiring land even for private companies in India even
after more than 68 years of independence.

The Land Acquisition Act seems to be very important as much legislations are based on
it; facilitating much needed industrialization, giving a solution to unemployment 2,
widening the divide between poor and rich, urban and rural, threatening environment
and propagating disguised unemployment etc. The Britisher’s legislation had been
enacted very different time, for very different purposes which suited Britishers most.
But, the irony of Indian democracy is that a successful attempt to provide a legal

1
Morris, India Infrastructure Report 2000, Issues and Regulation and Industry Structure, (Oxford
University Press, New Delhi, 2001).
2
R Seshsayee. ‘How can Land acquisition be human?’, Economics Time, 16 June 2007.
framework for land acquisition had not been made for a long time. In first decade of 21st
century it was sincerely considered to remove 120 years old land acquisition legislation
and finally “The Right to Fair Compensation and Transparency in land Acquisition,
Rehabilitation and Resettlement Act, 2013” was passed.

Dishonest misappropriation or conversion to one’s own use-

For an offence under this section it is not necessary that the property should be taken
with dishonest intention, the possession of property may come innocently and then by
subsequent change of intention , or knowledge of some new facts with which the party
was not previously acquainted, the retaining of property become wrongful and
fraudulent.(Bhagiram Dome v. Abar Dome, (1888) 15 Cal).The essence of offence
under this section is that some property belonging to another which comes to the
possession of accused innocently, is misappropriated or converted by the accused to his
own use. There must be actual conversion of the thing misappropriated to the accused’s
own use. Mare retaining of an article found does not amount to criminal
misappropriation. Misappropriation or conversion need not be permanent, it may be
even for a time being. (Abdool, 1868 10 W.R.(Cr.)23 Illustrations (a), (b) and (c) show
that the original taking was innocent but offence of criminal misappropriation is
constituted because of subsequent dishonest conversion or appropriation.

In a case {Phool Chand Dube, (1929) 52 All.200}, where ‘A’ took possession of stray
cattle and it was not shown that the cattle was stolen property, and he dishonestly
retained it, he was held liable under this section. But, Where a person found a purse on
the pavement of a temple and put it in his pocket, but was immediately thereafter
arrested, it was held that he was not liable for criminal misappropriation, for it could not
be assumed that by the mere act of picking up the purse or putting it in his pocket he
intended to appropriate its contents to his own use. (Inder Singh, (1925) All.288.)

1.1.1 Background of Land Acquisition Law

There is no doubt that in India growing urbanization, increasing of infrastructure

requirements and rapid economic development has imposed high pressure on land.
Private land is being frequently acquired for both Governments projects as well as for
private projects. Till the enactment of “The Right to Fair Compensation and
Transparency in land Acquisition, Rehabilitation and Resettlement Act, 2013”
compulsory Land Acquisition was governed by the “Land Acquisition Act, 1894”,
which was more than 129 years old legislation. This Act was enacted in the very
different economic, social and political scenario. However even after independence
Indian Government has not made big changes in the acquisition policy to reflect the
needs and values of our times. 1884 Land Acquisition Act resulted in to a social,
legal, cultural, economic and as well as political fallouts as there has been many
instances of agitations even some of them turned into a bloody affair also where many
people even lost their lives also.

Followings were the main issues which were being raised against such land acquisition:-

a) No one, “be it the land owners whose land was acquired (mostly farmers), nor
those who may not have owned the land but whose occupations were dependent on the
land acquired (mostly agricultural laborers), were compensated monetarily or otherwise
as per this Act. No attempt was made for the rehabilitation or resettlement of those
who had been affected by such land acquisition either”.

b) “There was no requirement of any prior consent of the affected parties (those
who will lose their land and/or their occupation or be affected by the pollution or
environmental impacts of these infrastructure projects in future as they live nearby) for
constructing any of these projects”.
c) Also, “land could be acquired with just a notice by the Collector within a very
short time frame where people who would be affected neither had a chance necessarily
to challenge the acquisition legally, nor had a chance to find some alternate occupation
or arrangements for their own. The government could acquire land in a manner it thinks
fit”.

d) “Most of the land was acquired in the name of India's development but the local
people found very little stake or benefits in the project”. No adequate compensation or
rehabilitation was given to those people were affected due to acquisitions or even no
opportunities were given for them their employment.

There were huge protests on of these issues and on account of protests over the years
against many such development projects be it the protests against Tehri Dam or those
against Sardar Sarovar dam or those against Singur or Nandigram and many others
which failed in preventing land acquisition there were growing demands from not just
the activists but also to an extent from the corporate houses also for a transparent and
accountable land acquisition process so that while the people could get adequate
compensation and would be suitably rehabilitated, corporate do not have to face delays
on account of protests against land acquisition and it is in this context that “Land
Acquisition (Amendment) Bill, 2007” and “Rehabilitation and Resettlement Bill, 2007”
supposed to amend the “Land Acquisition Ac, 1894” have been introduced but
unfortunately they could not see the light as they were lapsed due to dissolution of the
Fourteenth Lok Sabha. Thereafter, the “Land Acquisition Act (2011)” was introduced,
and finally passed in the Lok Sabha on 29th August 2013.

Accordingly in this background the colonial “Land Acquisition Act, 1894” was repealed
and replaced by the “Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013”. In this context the research work presents
an over review of “Land Acquisition Act, 1894” while comparing it with “the Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013” and issues around like “Compensation, Resettlement and
Rehabilitation”, which I seek to addressed in the later chapters.
It is now a well settled principal that whenever State or Government acquires Land from
its citizens for public purpose, it has power to do so on the name of “Eminent Domain”.
The jurisprudence that has developed around “Land Acquisition Act, 1894” over the
years on this subject has made the citizens a subject to Land Acquisition. The irony
is that the colonial mind-set i.e. all pervasive under the “1894 Act” was reflected in
practice for many years even after the independence also. Even the judiciary has
inadvertently furthered this notion in some cases. Therefore, it becomes important to
analysis the law and test it against the current democratic principles of a welfare state.

However, the “Right to Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013” made an attempt to balance within the
public interest to individual interest while doing acquisition in India. In particular the
Act is giving an approach to concept of eminent domain in present timings with “public
purpose, rehabilitation and resettlement, compensation, safeguards the Project Affected
Persons (PAPs), land acquisition processes (including the urgency clause), linkages with
environment protection” etc. In the “Land Acquisition Act, 1894” the expression “public
purpose” has been very widely defined and same has been used in a discretionary
manner by the relevant Governments. Public purpose is the base for exercising “eminent
domain” power therefore governments misused its eminent domain power in acquiring
land for public purposes. Therefore in present scenario it become necessary to re-define
the word “public purpose”.

Therefore, under the “Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013” word “public purpose” has
been comprehensively defined so as to restrict its scope for acquisition of land for
strategic purposes and infrastructure projects important to the state. The provisions of
the new Act are also extended for acquisition of land companies or public-private
partnership projects where the larger benefits accrue to the general public. However
under the old “Land Acquisition Act, 1894” state can acquire property for public
purpose and even for private companies for economic development completely ignoring
their rehabilitation and resettlement of the people who have been affected by such
projects. This practice raises a question mark on the desirability of such state
intervention because, when such land may be arranged by the company through private
negotiations on a “willing seller-willing buyer” basis, which could be seen to be more
fair and transparent arrangement from the point of view of the land owner then why
compulsory acquisition by the State for private companies or persons. Therefore, to
streamline the provisions of this Act causing less hardships to the owners of the
land and other persons dependent upon such land, it was proposed to repeal the “Land
Acquisition Act, 1894” and to have a new combined legislation for acquisition,
rehabilitation and re-settlement.

Further under the old Act the concerned Govt. acquires the land for various public
purposes on permanent basis only but at times it may need to acquire land for public
purpose for a temporary period also, such practice is generally known as requisitioning
of immovable property. The subject matter of land acquisition for public purpose on
permanent basis was governed by the “Land Acquisition Act, 1894” now it is replaces
by the “Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013”. “The Requisition and Acquisition of
Immovable Property Act, 1952” deals with the acquisition of land for a temporary
period for public purposes. These two Acts are in force having relevance to the doctrine
of eminent domain in India. This statute deal with the acquisition of property for public
purposes applies to the whole India except the State of Jammu and Kashmir. It is a
central Act however it empowers the State Government also to make appropriate
amendment to the Act, to suit their local needs of the states. Land may be acquired by
the respective Governments either under this Act or under any other Special Acts.
Provisions of this Act can be applied only to those cases where acquisition is made
under this Act and there is a Special Act for acquisition, provisions of the new Act i.e.
“Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013” need not be applied. Where there is any Special Act which
prescribes the method of acquisition and assessing of compensation, it is not necessary
to take proceedings under this Act. There are many “Special or Local Acts” which also
provide for compulsory acquisition of land subject
to modification as made by such special or local Acts when they are applied to
acquire land for purposes mentioned under them.3 These Special Acts are:

I.“Calcutta Improvement Act, 1911”.

II. “The City of Bombay Municipal Act of 1888”.
III. “Calcutta Municipal Act, 1899”.
IV. “Calcutta Municipal Act, 1923”.
V. “The City Rangoon Improvement Act, 1920”.
VI. “The United Provinces Town Improvement Act, 1939”.
VII. “The City of Bombay Improvement Trust (transfer) Act, 1925”.
VIII. “Indian Telegraph Act, 1885”.
IX. “Indian Railways Act, 1890”.
X. “Indian Electricity Act, 1910”.
XI. Indian Tramways Act, 1886”.
XII. “The Defence of India Act, 1937 and the Defence of India Rules”.
XIII. “The Government of India Act, 1935”.
XIV. “The U.P. Municipalities Act, 1916”
XV. “The Bihar and Orissa Municipal Act, 1922”.
XVI. “The Punjab Municipal Act, 1911”.
XVII. “The Bengal Municipal Act, 1932”.
XVIII. “The Bombay District Municipal Act, 1901”.
XIX. “The Central Provinces Municipalities Act, 1922”
XX. “The City of Lahore Corporation Act, 1941”.
XXI. “The Madras District Municipalities Act, 1920”.
XXII. “The Madras City Municipal Act, 1919”.
XXIII. “The City of Bombay Improvement Act, 1898”.
XXIV. “The City of Bombay Improvement Act, 1904”.
XXV. “The Calcutta Improvement (Appeals) Act, 1911”.
XXVI. “The Punjab Town Improvement Act, 1922”.
XXVII. “The Madras Town Planning Act, 1920”.
XXVIII. “The Bombay Town Planning Act, 1913”.

3
P.K. Sarkar, ‘Law of Acquisition of Land in India’,( Eastern Law House, Kolkata, 1st ed., 2002), p 33
XXIX. “The Nagpur Improvement Trusts Act, 1936”.
XXX. “The United Provinces Town Improvement Act, 1919” (including
Delhi).
XXXI. “The United Provinces Town Improvement (Appeals) Act, 1919”
(including Delhi).
XXXII. “Land Acquisition (Bengal Amendment) Act, 1934”.
XXXIII. “Bombay Land Acquisition (Amendment) Act, 1948”.

Any amendment to the repealed “Land Acquisition Act of 1894” subsequent to the date
from which a “Special Act” came into force cannot applied to the “Land Acquisition
Act, 1894” same thing will be applicable to the present Act i.e. “Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013” also.4 Section 5A of the “Land Acquisition Act did not apply to
the acquisition made under a Special or Local Act enacted prior to the Land Acquisition
(Amendment) Act 19235”.

1.1.2 Public Purpose

The main reason behind the land acquisition in India is the public purpose. To acquire
land by virtue of the power of eminent domain, the government must satisfy the
public purpose requirement. Wide and open definition of the word ‘public purpose’ in
“Land Acquisition Act, 1894” obviously left to the Governments to declare the purpose.
It has been noticed that the expression “public purpose” has been used in its generic
sense of including any purpose in which even a fraction of community may be interested
or by which it may be benefited. “In State of Gujarat v. Shantilal
Mangaldar”6Supreme Court lay down broad guidelines as to the “public purpose” as
follows:

1) “Which ever purpose is beneficial or useful even to a section of public” or

2) “when small concerns having less than 100 workmen require land for housing
of workmen” or

4
V.G.Ramachardran, ‘The Law of Land Acquisition and Compensation’,(Eastern Book Co., Lucknow,1st
ed.,1960), p 158
5
Land Acquisition (Amendment) Act, 1923
6
AIR 1969 SC 634 at 644; (1969)1 SCC 509; (1969)1 SCR 459
3) “for erection of dwelling-houses for workmen of a company or for
providing amenities not being public purpose but it is so for public utility” or
4) “if the work of “construction” is found to be of some benefit even to a
section of public” or
5) “under Part VII, a company is to enter into an agreement with the Government
showing public utility amongst others” or
6) “Government is bound by agreement to provide lands for various public utility
concerns such as Railways, Electricity Supplies and Water Supply Corporation etc”.

The statutory design is that, government can acquire lands for public purpose.
Government has sole or absolute power to decide the question whether the purpose
for which lands are acquired is a public purpose and further court has no jurisdiction
to impose any restriction on this absolute discretion. The word public purpose is
nowhere actually and precisely defined, but if the work for which acquisition is made
involves “construction” which is beneficial even to a section of the public will be for
public purpose. Therefore public purpose question is an important aspect as it is this
crucial phase which would determine the validity of acquisition of land in question. If
land acquired for industrial development resorting to eminent domain and considers it
for public purpose, then broader interpretation of the term public purpose is necessary. If
broader interpretation given to public purpose one has to be sure about drawing the line
between the public purposes and non-public purposes. It is of utmost importance that
executive and the judiciary tread a clear line, otherwise the difference between public
purpose and non-public purpose stands dissolved. In the quest of economic development
too liberal interpretation of the expression public purpose can devoid the people of their
inherent right to hold their property, therefore it is incumbent on the government to
balance the conflicting claim of the citizens and the society.

Preamble of the Act, categorically states that individuals whose property is taken over
have a right to receive compensation. The bulk of the Act is devoted to creating a regime
relating to the manner in which an acquisition is to be made, the compensation to be
paid and the procedures to be followed while pursuing the acquisition. However, in 21st
century everything looked from the perspective of human rights, the colonial
Land Acquisition Act in many aspects violated the human rights. The Act did not
recognize the procedure for displacement of project affected families consequently
displacement of project affected families was not humane. There is no provision for
Social Impact Assessment of the projects, except monetary compensation no additional
protection for land losers and marginalized people like SCs and STs, totally “Land
Acquisition Act, 1894” did not provide social security except monetary compensation to
the land losers. Hence it is considered as forcible “Land Acquisition Act”; therefore
government proposed to have a unified legislation dealing with acquisition and,
rehabilitation and resettlement mechanisms. Hence, on 1st January 2014 the “Right of
Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013” came into force and it replaced the colonial “Land Acquisition
Act, 1894”. Most unique feature of the “Right of Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement Act” is that governmental
intervention in acquisition is limited to defense and certain other development projects
only. It has also ensured that acquisition of property for private companies or for public
private partner projects consent of 80 per cent of the project affected families shall be
mandatory and it is obtained through prior informed process. Acquisition under urgency
clause has also been limited for the purposes of national defense, security purposes and
rehabilitation and resettlement needs in the event of emergencies or natural calamities
only. It is a unified legislation dealing with acquisition of land and having provisions for
rehabilitation and resettlement for the project affected families. Social Impact
Assessment (SIA) of proposed projects could be made through a participatory, informed
and transparent process involving all stake-holders, including the affected persons and it
is a necessary component before acquisition process starts. The rehabilitation process
would augment income levels and enrich quality of life of the displaced persons,
covering rebuilding socio-cultural relationships, capacity building and provision of
public health and community services. Adequate safeguards have been proposed for
protecting rights of vulnerable sections of the displaced persons. This made the
researcher giving practical approach to the provisions of the “Land
Acquisition Act, 189” and the “Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013”.

1.1.3 Compensation for Land Acquisition

Compensation is at the heart of land acquisition. The amount being paid must be
sufficiently fair so as to ameliorate the forcible and involuntary nature of acquisition.
Courts have recognized the act of paying compensation as a necessary condition in
the taking over of the land.7 In India the problem arises with regard to the quantum that
officers often award to affected families in the name of ‘market value’. In the present
work it has been discussed how the “Land Acquisition Act, 1894” remained a failure to
give an adequate and realistic compensation. It has been also discussed what provisions
and mechanism has been made under the new law “the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013”. The
new law attempts to achieve fairness in the payment of compensation.

Under the “Land Acquisition Act, 1894”, compensation was required to be paid at
market value.8 This seems to be a sensible idea in theory but is actually responsible for
widespread injustices and the cause of action for a litany of legal disputes.

As anyone who has purchased property in India can attest, land values are grossly
underquoted in land records. For example, a property is listed at V value, then chances
are, in urban areas particularly, the property will be sold for at least four times that
value (that is, 4x). One reason for this gaping inconsistency is that land records are
updated very infrequently.
One of the questions we often asked was why not take the opportunity that a new law on
land acquisition offers and put in a chapter requiring the modernizing of land records.
Though tempting this it was never an option on the table. The law takes advantage of,
and owes its existence-primarily to a single entry in the concurrent list of the
Constitution- ‘Acquisition and Requisitioning of Property’.

7
Acquisition is violative of Article 14 (of the' Constitution of India) without payment. See Ram Jiyawan
vs State of Uttar Pradesh AIR 1994 All 38.
8
As it existed in the land records on the date when the Preliminary Notification under Section 4 of the
now repealed Land Acquisition Act, 1894 was issued. See also Section 23 of the now repealed Land
Acquisition Act, 1894.
‘Land’ as a subject of governance as it falls within the States’ legislative domain. The
law walks a fine line often risking going into the legislative domain of the State
Governments, as it was evidenced by the outcry of some states (led by the Governments
of Tamil Nadu and West Bengal).

Despite the most acute instincts of the draftsmen to fix land records the law simply
could not dictate terms to the States. It focuses instead on devising an approach that
adjusts the final compensation to be paid taking into account the inherent shortcomings
that affect land records and hence land values.

One of the key points of distinction between the now repealed 1894 Act and the new law
is the manner in which the latter seeks to achieve a fairer degree of financial restitution
for the affected parties. It attempts a solution to a system mired in deep rooted flaws and
seeks to put in place a measure that brings about greater if not absolute fairness vis-à-vis
the compensation paid.

In fact, the idea of compensation was the very first issue to be addressed in a meeting by
the Minister for Rural Development, officers of the department of land resources and
members of the National Advisory Council. It was mutually agreed that existing values
fell far short of being considered fair. This gave rise to the question of what would
indeed be a fair value.

1.1.4 WHO WOULD BE COMPENSATED?

When the law was first drafted, it provided compensation to be paid only to the person
who owned the land. Those who depended upon the land for their livelihood but did not
own the land were entitled to benefits provided under the head of rehabilitation and
resettlement.

Following consultations with leaders of other national political parties of India, it was
decided that all individuals who counted as affected families’, should be given
compensation (in addition to rehabilitation and resettlement benefits). This includes.9

9
Section 3(c) of the Act, 2013.
 “First and foremost, a family whose land or other immovable property has been
acquired”
 “A family which does not own any land but whose members may be agricultural
laborers, tenants (including any form of tenancy or holding of usufruct right), share-
croppers or artisans or who may be working in the affected area for three years prior to
the acquisition of the Lind, whose primary source of livelihood stands affected by the
acquisition of land”
 “Members of Scheduled Tribes and other Traditional forest dwellers who have
lost any of their forest rights recognized under the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 due to acquisition
of the land in question”
 “Family whose primary source of livelihood for three years prior to the acquisition of
the land is dependent on forests or water bodies and includes gatherers of forest produce,
hunters, fisher folk and boatmen and such livelihood is affected due to acquisition of
land”
 “A member of the family who has been assigned land by the State Government or the
Central Government under any of its schemes and such land is under acquisition”

 “A family residing on any land in the urban areas for preceding three years or
more prior to the acquisition of the land or whose primary source of livelihood
for three years prior to the acquisition of the land is affected by the acquisition of such
land.”

Further for the first time in India’s legislative history, a new law has tied land
acquisition with the necessity to carry out rehabilitation and resettlement. The provisions
relating to rehabilitation and resettlement are mandatory and far reaching. This research
discusses the thinking that went into identifying what benefits should be non-negotiable
and the infrastructural amenities that have to be provided in cases of displacement.
1.1.5 THE IMPORTANCE OF ‘REHABILITATION AND RESETTLEMENT

‘Rehabilitation and Resettlement’ represent an idea that has been the subject of
impassioned debate for almost three decades in India. Entire movements for effective
rehabilitation and resettlement have been spawned in the wake of coercive acquisitions.
While there is no comprehensive record of how many individuals have actually been
displaced by land acquisition post-independence, estimates put forth by credible studies
find that close to 60 million individuals have been displaced since independence. Worse
still, only about a third of these have actually seen some measure of resettlement and
rehabilitation.10

It is therefore remarkable that it received recognition as a policy priority of the

Government of India in the form of the “National Rehabilitation and Resettlement
Policy as late as 2003”.11 The Government of India had for the first time, through this
measure, acknowledged the need for Rehabilitation and Resettlement of families
displaced by the acquisition of land. The policy was prepared in the wake of widespread
displacements that had taken place after the Narmada Valley project acquisitions.12
Prior to this, States also had their own policies on the subject. “The Maharashtra
Resettlement of Project Displaced Persons Act, 1976” is a fine example of a state law on
the subject with a complete list of amenities being provided. Public Sector Enterprises
such as Coal India13 and the National Thermal Power Corporation also have policies on
Rehabilitation and Resettlement which function as guidelines on a

10
See Chapter rifled ‘Pawns in the "Development"‘, by Walter Fernandes in S. Parasuraman and P.V.
Unnikrishnan (eds), India Disasters Report (2000); See also Walter Pernandes (2004), March.
‘Rehabilitation Policy for the Displaced’, in Economic and Political Weekly, Vol. 39, Issue 12, pp.
1191-3.
11
See the National Policy on Resettlement and Rehabilitation for Project Affected Families 2003
(Published in the Gazette of India, Extraordinary Part-I, Section 1, No- 46, dated 17 February 2004).
Available at: http://www.dolr.nic.in/hyperlink/lrc-status/nprr_2003.htm.
12
In the late eighties, the Narmada Bachao Andolan opened discussions around a coherent R&R policy.
This was followed by a number of propositions, by both civil society organizations and successive
governments. However, none of them were made into law. Finally, in 2011, the National Advisory
Council (NAC) called for a law linking land acquisition and R&R law linking land acquisition and R&R
Oxfam India Policy Brief on The proposed Land Acquisition Bill, 2 October 2012.
13
Coal India’s Policy was Issued in May 2008, available at http://www.coalindia.in/Documents/
PolicyOnCILRR17062008.pdf.The National Thermal Power Corporation’s Policy was revised in 2005
and is available at http://www.ntpc.co.in/images/content/ corporate citizenship/NTPC_R&R_ Policy_
2005.pdf.
project to project basis. In fact, officers of the latter concern, helped with inputs to the
Rehabilitation and Resettlement chapters based on the experiences under their policy.
Following the 2003 Policy on Rehabilitation and Resettlement, the Government of
India drafted the National Rehabilitation and Resettlement Policy, 2007.14 It was in
this policy that many of the ideas which we are now familiar with (such as Social
Impact Assessment) were linked to the proper implementation of the procedure.

However, the problem with a Policy is that it is, in essence, soft law. It does require the
approval of Parliament and can be dispensed with a simple reference to Cabinet. 15 In
other cases that requirement too is waived. The contents of the policy are then regarded
as guidelines or suggestions that may offer clarity in cases of doubt on the part of the
implementing agency. Worse still, the recommendations are to be adopted at the
discretion of the implementing authority. Thus, there is no guaranteed legal mechanism
to implement a policy. Therefore the new law was enacted

1.2 The Research Problem

Since State has failed to achieve the goals of social justice though “Land Acquisition
Act, 1894” which had provisions for acquisition of Land on the name of public purpose.
The term “Public Purpose” is so vast that any thing may be included on the name of it.
Another big hurdle with the Act was that it did not had any provision for “rehabilitation
and resettlement of project affected families or involuntary displaced persons, though,
individual interest is also a part of public interest”. Further “Land Acquisition Act,
1894” did not had any provision for redistribution of surplus acquired land. It was
having provisions only in the form monetary compensation to the affected person.
Therefore, the statutory mechanism was not effective for acquisition of land without any
problems.

Hence, the researcher has undertaken a detailed study about the 1894 Act to identify the
grey areas in the law and explore the emerging trends and issues and to make a
comparative analysis of the “Land Acquisition Act, 1894” with that of the “Right to

14
The National Rehabilitation and Resettlement Policy, 2007 dated 31 October 2007, available at
http://www.dolr.nic.in/NRRP2007.pdf.
15
An Example is the National Forest Policy of the Ministry of Environment and Forests issued in
1988.
Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013” and to suggest certain solutions to address the issues involved
in “Land Acquisition”.

Researcher has tried to investigate the constitutional dimensions of issues related with
the Land Acquisition. The research work also explores the mechanism and process of
Land Acquisition, compensation and resettlement and rehabilitation of affected people.
Issue of “Public Purpose” and “Social Impact” has been explored in details in the
research work. Keeping in view that the “Land Acquisition Act, 1894” could not meet
the expectations of a welfare state for “Land Acquisition” process and assuming that
“The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013” shall prove a better Legislation. The researcher aims to
explores the dimensions of compensation, resettlement, rehabilitation, rights of
internally displaced people, Gram Panchayat or Local Governing bodies in “Land
acquisition, rehabilitation and resettlement of affected persons” due to land acquisition
process.

Keeping in above mentioned facts the following problems and issues arises for a
detailed study and it is very much important to find out the appropriate solutions to
address the same.

1. Whether “eminent domain powers” are absolute or they are subject to any
restrictions in timings of concept of welfare state?
2. What due steps are required to be taken for “Land Acquisition.”
3. How much and what compensation given by the State is sufficient or not?
4. What should be criteria for calculation of compensation under the Act?
5. What is ‘public purpose’ and its interpretation?
6. Who is having authority to decide about the “Public Purpose”?
7. Whether even after amendment of fundamental right of property deletion
of right to State need to pay compensation equivalent to the property acquired.
8. How “Land Acquisition Act, 1894” has been found to be insufficient and how
far the “Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013” achieves the goal of social justice in the
present scenario?
1.3 Objectives of the Study

The objectives of this research work are as follows:

A. Analysis of the need and relevance of “Land Acquisition” in India and to

probe into the effectiveness of the legal mechanism for land acquisition.
B. Examination of eminent domain which empowers the State and its associated
agencies to acquire land or even for private companies.
C. Examine the individual rights with that of public interest.
D. Analyse the constitutional provisions in the light of Land Acquisition Act.
E. To analyse and to discuss the conflict between Parliament and Judiciary
regarding compulsory acquisition provisions and to discuss some important land
acquisition cases which have been decided by the Judiciary.
F. To examine the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act while comparing with Colonial Land
Acquisition Act in the present context of welfare state.
G. To suggest appropriate solutions to address the problems related to “land
acquisition, rehabilitation and resettlement” to make the law more effective.

1.4 Hypotheses

Researcher has formulated the following hypotheses for the study:

1. The power vested with the State to acquire land for the public purpose is not
being used as it should be in a welfare state.

2. State has completely failed to rehabilitee and resettle the people who have
been affected due to acquisition of their land.

3. The compensation given for acquisition is not realistic and rational.

4. The judiciary has played an important role for evolving of new concepts for
Acquisition of Land.

5. The new Act needs to be enforced in true spirit of welfare state for a better
solution of problems of “land acquisition; compensation, rehabilitation and resettlement”
1.5 Literature Review

Nothing is created in vacuum. The researcher is humbly grateful to all the authors of
past on the subject. The primary source for the work is “Land Acquisition Act, 1894”
which played long innings in the history of India for the land acquisition. In “State of
West Bengal v. Bela Banerjee”16 and in “K.T. Plantation’s” the Indian Supreme Court
has been locus classicus on the subject. “The Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013” has
replaced the Act of 1894 and made it more meaningful has also been a primary
document on the subject for research.

1.6 Research Methodology

The present research work is doctrinal in nature and the emphasis has been given to
analyze the statutory provisions with the help of the opinions of jurists and policy
makers available in current Law and in journals in India and abroad and on internet
websites also. For the purpose of primary data researcher has collected the views of
legal, social, political luminaries in various professions such as in academics, advocates,
politicians, social workers etc. The effort of the researcher is in toto; an observation on
various events/incidents also used as a primary data for the purpose of the study.

Keeping in view the nature of the problem analytical method has been adopted. In
accordance with this method apart from the material from decided cases attempts have
been made to use facts and information already available and analyze them to make a
critical evaluation of the problem. While analyzing specific controversial issues, which
often arise, conceptual methodology has been adopted which is generally used to
develop new norms or to re-interpret existing ones. A uniform mode of citation and
referencing based on OSCOLA is adopted.

16
AIR 1954 SC 170; 1954 SCR 587
Temporary Misappropriation

Explanation I to Section 403, IPC, makes it clear that even dishonest misappropriation
for a time being only is a misappropriation within the meaning of this section. The
words ‘ for a time only’ means temporary misappropriation. (Khandu Sonu Dhobi v
State of Maharashtra, AIR 1972 SC 958). Finder of Lost Goods.

Expln. 2 makes it clear that thing abandoned cannot form a proper subject of an offence
under the section. For constituting an offence under this section property appropriated
must be owned by somebody. This explanation requires finder of goods, before
appropriating the property found, to make attempt to find the owner, if they have means
of doing so. The finder must wait up to a reasonable time to allow the owner to claim the
property, before he appropriates it.

The question as to what are reasonable means and what is reasonable time would depend
upon the facts of the case. Illustration (a) to the Expln. 2 shows that the picking of a
rupee whose owner is not known is not an offence. Similarly, ills. (e) to the Expln. 2
shows that the finding of a purse with money belonging to an unknown owner is not an
offence, but the appropriation of it to the finder’s own use is necessary to complete it.
Distinction between Theft and Criminal Misappropriation of Property.

1. In theft the offender dishonestly takes property which is in the possession of a person
out of that person’s possession and the offence is complete as soon as the offender
moves the property. Criminal Misappropriation takes place even when the possession
has been innocently come but where, by a subsequent change of intention or from the
knowledge of some new fact, with which the party was not previously acquainted, the
retaining becomes wrongful and fraudulent.

2. In Theft, the property is moved without the concern of the owner. The person might
have come into the possession of the property with the concern of the owner. He
commits the offence only subsequently when he converts the property into his own use.
3) In Theft, dishonest intention precedes to the taken of property. The dishonest
intention to appropriate the property of another is common to theft and to CM. but, this
intention which in Theft is sufficiently manifested by a moving on the property. In CM
dishonest intention follows to the taking of the property. In CM, be carried into action
by an actual misappropriation or conversion.

4) In Theft, there is invasion of possession of another person by the wrongdoer. The

offender is already in possession of the property and it is unlawful misappropriation of it
that creates the offence.

5) In Theft, mere moving by itself is an offence. In CM, the moving may not be an
offence, it may even be lawful. It is the subsequent intention to convert or
misappropriate the property that constitute the offence.

Section 404 is an aggravated form of criminal misappropriation. It relates to dishonest

misappropriation of property possessed by deceased person at the time of his death. This
section relates to a description of property peculiarly needing protection. The offence
consists in the pillaging of movable property during the interval which elapses between
the time when the possessor of the property dies, and the time when it comes into the
possession of some person or officer authorized to take charge of it. The section deals
with misappropriation by two classes of persons. The first class is strangers who may
take advantage of the death of a person and misappropriate property. In such a case, the
accused is liable to imprisonment upto three years and fine. If the accused is a clerk or a
servant, then it is taken more seriously by the legislature and the maximum punishment
provided therein is imprisonment upto seven years. It is similar to Sec. 381, which treats
offence of theft by clerk or servants as an aggravated form of theft.
1.7 Scheme of the Study

The study work of present research has been planned in 7 chapters.

1.7.1 Chapter I: Introduction

This chapter is introductory in nature which deals with a brief introduction, tells about
the research problems and objectives of the research. It also tells about the hypothesis
for study, adopted methodology for research along with an overview of literature used.
In this chapter scheme of study has been also mentioned.
1.7.2 Chapter 2: Historical Development of Land Acquisition Laws in India

This chapter deals with right to property and analyses how through the process of
Constitutional amendments, the State has deconstructed this right and how the judiciary
has tried to restore and defend this inherent right of citizens. It also examines the
concept of eminent domain and the Constitutional manifestation of this power. It also
elaborates how judiciary has played it role in defining of Right to Property. This chapter
deals with the concept of property, its emergence in civil world and the concept for
preservation, protection and proprietorship of property. The notions and theories of
property are detailed out in the chapter. The chapter especially focuses on right to
property under the Indian Constitution. The chapter also interlinks the right to property
with land acquisition process and therein bring out and analyze legal intricacies.

1.7.3 Chapter 3: Right to Property under the Constitution of India: An Analysis

In this chapter an attempt has been made to explain the property right from historical
background to present scenario. Constitutional perspective of Right to Property before
and after 44th Constitutional amendment and meaning of property right explained in the
given chapter. The Researcher has explored the struggle between legislature and
judiciary regarding Article 31(2) of the Constitution which provides for compulsory
acquisition of land.

The word ‘compensation’ used in the article 31(2) has created many problems therefore
the judiciary has interpreted the word compensation in many cases. Chapter also deals
with the harmony and balance of Art. 31A, 31B and Ninth Schedule.
Balance between Fundamental Rights and Directive Principles has been also discussed
in light of Land Acquisition Laws as balance between these is an essential feature of the
basic structure of the Constitution.

1.7.4 Chapter 4: Land Acquisition Act, 2013: Issues and Perspective

In this chapter an attempt has been made to explain the important provisions of “The
Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013” in light of constitutionalism spirit of India. Land Acquisition,
Rehabilitation and Resettlement provisions have discussed in details in this chapter.
Further the issue public purpose, social impact assessment and public hearing have been
discussed in details in the chapter.

1.7.5 Chapter 5: Challenges in Land Acquisition under the New Act

In this chapter an effort has been made to explore the key issues relating to procedure for
Land Acquisition of Land. It lays out the procedure for the acquisition of land in the
chronological order in which it should occur. Unfortunately, given the constraints of
legal drafting, the Act does not lend itself to a linear narration. Therefore the Researcher
has sought to present the process as it is intended to be followed.

Parties affected by land acquisition are now entitled to a comprehensive process that
puts their concerns foremost. Punctuated by deadlines and detailed checks and balances
on the discretion to be exercised by officials, this process is clear and cannot be
subverted. An analysis has been made out that in what manner land acquisition process
has to be invoked.

1.7.6 Chapter 6: Compensation under Land Acquisition Act: A Critical Analysis

In this chapter issues of compensation along with rights of Land Owners & Person
Interested in Land Acquisition have been discussed in details. As compensation is at
the heart of land acquisition. The amount being paid must be sufficiently fair so as to
ameliorate the forcible and involuntary nature of acquisition. Roles of courts have
discussed to as they have recognize the act of paying compensation as a necessary
condition in the taking over of the land. In India the problem arises with regard to the
quantum that officers often award to affected families in the name of ‘market value’.
This Chapter discusses how the new law attempts to achieve fairness in the payment
of compensation.

Further for the first time in India’s legislative history, a new law has tied land
acquisition with the necessity to carry out rehabilitation and resettlement. The provisions
relating to rehabilitation and resettlement are mandatory and far reaching. This chapter
discusses the thinking that went into identifying what benefits should be non-negotiable
and the infrastructural amenities that have to be provided in cases of displacement.

1.7.7 Chapter 7: Conclusion and Suggestions

Finally in this chapter on the basis of whole research from different available sources
and there analysis up to my competence and academic understanding concluding
observations and humble suggestions have been made in the seventh chapter.

This chapter contains the fair summary of the whole study and suggestions to make
the new Act of land acquisition more effective. As, “Land Acquisition Act, 1894” could
not serve the purpose as it ought to be in a welfare state, therefore a new Act “The Right
to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013” has been enacted.

At this juncture, the researcher has highlighted some of the lacunas in the “Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013” in this chapter and finally some workable solutions have been discussed
in this chapter.