THE LAW OF LAND ACQUISITION

Dr.M.K.RAMESH

THE LAND ACQUISITION ACT,1894

PRILIMINARY OBSERVATIONS:
EMINENT DOMAIN- STATE SOVEREIGNTY - GROTIUS- (De Jure Belli ac Pacis)-KAUTILYAS ARTHA SASTRA (- INDIVIDUAL-FAMILY-VILLAGESTATE)- power of sovereign to take property for public cause with out owners consent, coupled with the obligation to make good the loss

SALUS POPULI EST SUPREME LEX :

WELFARE OF THE PEOPLE IS THE ONLY CONSIDERATION AND MAY BE SAID TO BE THE CORNER STONE OF THE LAW OF LAND ACQUISITION

A. BACKGROUND
1824:BENGAL PROVINCE- REGULATION I : ACQUISITION OF IMMOVABLE
PROPERTY FOR A FAIR AND REASONABLE PRICE FOR CONSTRUCTION OF ROADS , CANALS OR OTHER PUBLIC PURPOSES- DEVELOPMENT OF RAILWAY NETWORK

1839 (BOMBAY) &1852 (MADRAS)- BUILDING ACT:- TO OBVIATE

DIFFICULTIES CONCERNING CONSTRUCTION OF PUBLIC BUILDINGS

ACT VI OF 1857- FIRST FULL ENACTMENT- APPLICATION TO ENTIRE BRITISH INDIAREPEAL OF ALL PREVIOUS ENACTMENTS- ACT X OF 1870- REFERENCE OF
COMPLAINTS AND GRIEVANCES TO COURT- TIME CONSUMING PROCESS AND PROHIBITIVELY EXPENSIVE

1894 LAA:- REPLACED THE LAW MADE EARLIER- ADOPTED BY INDEPENDENT INDIA
AFTER INDEPENDENCE- VARIOUS AMENDMENTS NOTWITHSTANDING, THE ADMINISTRATIVE PROCEDURES HAVE REMAINED MORE OR LESS THE SAME EVEN AFTER A CENTURY OF ITS MAKING LAW PASSED BY COLONIAL STATE, WHEN POPULATION WAS LESS THAN A FOURTH OF WHAT IT IS NOW AND GROUNDS FOR ACQUISITION ONLY A FEW MOVEMENT FROM AN AGRICULTURAL AND SUSTENANCE ECONOMY -THROUGH WELFARE STATEAND TRANSITIONING INTO MARKET ECONOMY LAW MADE WITH THE SOLE OBJECTIVE OF ENRICHING THE CROWN IN ENGLAND

PARALLEL DEVELOPMENTSLAND REVENUE ACT; MINES AND MINERALS: PART OF PUBLIC PURPOSE- REGULATIONS AND LEGISLATIONS FOREST RESERVATIONS (1806 LAW)-FOREST ACT -1865, 1878 & 1927- ESTABLISHMENT OF ABSOLUTE PROPRIETARY RIGHT IN THE STATE AND ITS MONOPOLISTIC CONTROL OVER LANDS BY CONVERTING THEM TO STATE PROPERTYTRADITIONAL RIGHTS AND CUSTOMARY PRACTICES REDUCED TO CONCESSIONS AND PRIVILEGES- STATE TO HAVE EXCLSIVE CONTROL OVER FORESTS STATE CAN HAVE SIMILAR CONTROL OVER PRIVATE FORESTS AND OTHER LANDS THROUGH A PROCEDURE ESTABLISHED UNDER THAT LAW

CONSTITUTIONAL FOUNDATION:
Art.31 Art.300A Sch.VII , List.III, Entry 42

B. STRUCTURE & SCHEME

63sns.,VIII Parts: I Preliminary (-3 sns.:-Nature of the Act & Defns.); II Acquisition (-18 sns.:- Investigations, Objections, Declaration of intent, Claims & Award, Possession); III &IV Court , Compensation & Procedures(- 14 sns.); V Payments (4 sns.) ; VI Temporary Occupation of Land (3 sns.) ; VII Acquisition of Land for Companies ( 9 sns.) ; VIII Miscellaneous ( 12 sns:-Notice, Penalties, Appeals etc.) Amendment of about 20sns. Insertion of 9 snn. And deletion of one sn. In the course of about 115 years of the life of the Act. Major overhaul and amendment of the Act proposed in 2007- still at various stages of consideration Several State legislations to facilitate acquisition for industry & to put the process on fast track in existence

III.PRELIMINARIES
A. PREAMBLE & OBJECTS:
Law for acquisition of Land for, - public purposes and companies and - determining the amount of compensation to be made on account of such acquisition Empowering state to compulsorily acquire land on payment of due compensation- a form of indemnity for the monetary loss suffered- no such acquisition possible with out observing LAA procedures Acquisition for public purpose or for a company . In the case of a company, as contemplated under Part VII Substantive aspects of the law to be understood , interpreted and applied, to give effect to the objects

 Act, is of expropriatory character Only an interested person can challenge the acquisition Makes provision for assessment and payment of compensation for the deprivation

B. DEFINITIONS: (S.3) 1. (a) land

2. (b), person interested and (g) person entitled to act representative capacity 3. (e) company 4. (f) public purpose

IV. ACQUISITION
A. INVESTIGATIONS : Ss.4-5 B.HEARING OBJECTIONS : S.5A C. DECLARATION OF INTENTION :Ss.610 D. ENQUIRY & AWARD
:Ss.11,11A,12,13,13A,14,15, & 15A

E.POSSESSION : Ss.16-17

A. INVESTIGATION
1. PRELIMINARY NOTIFICATION: (S.4)
(a)- when it appears to govt. that a particular land is likely to be needed for any public purpose or a co., it shall publish a notn. besides giving a public notice to that effect ; (b)- following the notn., the authorised authority empowered to enter the land, survey the same, draw its boundaries and carry out such works as to ascertain the suitability and adaptability of the land for the purpose . Proviso: when it concerns a dwelling house, an enclosed court or a garden attached to a dwelling house, the entry shall be with the consent of the occupier and after serving a notice of such intention

 - Amendments effected to the sn. In 1923,1950 (-appropriate

govt.)and 1984:- emphasis on publication and wide publicityobject of notn.: a warning to those interested that the land may be acquired for a public purpose, that they may file objections against it and that the latter should maintain status quo there after(Laxmi Devi v. St. of Orissa,1990) Compliance of Procedures:- Observance of procedures mandatory - publication & notice, conditions precedent for entry- noncompliance fatal to the entire acquisition proceedings(-Khub Chand v. St. of Raj, 1967) - no requirement of personal service of notice ( Mahal Singh V. St. of Pun., 1974) - the description of the land likely to be acquired to be set out with sufficient precision (-New Ludhiana Industrial Corprn v. St. of Punjab,1971)

 CONSTITUTIONAL CHALLENGE: -Not ultra vires the Constitution non-discriminatory in nature (Ramgir Uttamgir Goswami v. Guj.,1988); -not violative of A.19(1) & A.31, just because it had the confiscatory character (Bai Malimabu v. Guj. 1978 ); -public purpose wold prevail over individual right to shelter, as the petitioner is still entitled to seek an alternative accommodation under the ex-owner category (Sivalinga v.T.N. 2003) -acquisition of business is not in the contemplation of the Act-no power to acquire a running business or any commercial undertaking such an acquisition is with out the authority of law-govt. can not acquire a business and say that it was mainly an acquisition of land and, incidentally, of business (Metro Theatre, Bombay,Ltd. V.UoI,1988)

 Public Purpose: - Prima facie the appropriate authority is the best judge in deciding about the suitability of land for public purpose- it is only in the malafide exercise of power that the court can interfere(Mukhtyar Begum v. Commissioner, Nagpur,1976) -resettlement of refugees, is a public purpose- it means their rehabilitation- contemplating to provide amenities like, hospitals and educational institutions, shopping centres etc. after notn., can be aspects of rehabilitation it would suffice, if it is for a public purpose - making provision for having hospital for crippled children is valid, even when the idea came subsequent to notn.,- (Collector of 24 Paraganas v. Lalit Mohan Mullick,1986) -nothing in the Act is against principles of Natural Justice (Gauripada Bandopadhyaya v.S.Banerjee,WB1953)

-public purpose, bound to vary with the times and the prevailing conditions in a given locality, and therefore, it would not be a practical proposition even to attempt a comprehensive definition-govt. to assess the situation and satisfy itself Where a huge land is covered, it is difficult to insist upon greater precision for specifying public purpose because, it is quite possible that various plots covered by the notn. may have to be utilized for different purposes (Delhi Admn. V. Friends Housing Society, 1981, Aflatoon v. Lt.Gov.Delhi,1974 S.C)- No need to mention specific plots and names of persons, clear mention of the area alone would suffice(Ram Sewak V.U.P ,1963 All.) Petitioners who are few in no. can not complain about the acquisition proceedings on the ground that they are going to be deprived of their source of livelihood-that is a sacrifice by the petitioners for the larger interest of of a larger no. in the society who belong to the weaker sections(D.Ramappa v. St. of Karnataka, Kant.1989)

Law requires a broad and understandable statement of PP-as this would give an opportunity to those whose lands are proposed to be acquired, to effectively object to it in an enquiry u/s.5A- vague PP makes notns. Illegal(Munshi Singh v. UoI 1973 S.C) S.4 notn. to be more comprehensive and detailed and s.6 notn. to be more precise and restricted in terms (Babu Singh v.UoI,1979 S.C)- .former refers to land in a particular locality, the latter contemplates a particular land (Vishnu Prasad Sharma v.M.P, 1962) CHANGE OF PUBLIC PURPOSE :-Slum dwellers for whose benefit land was sought to be acquired refused to move inState Housing Board, proceeded to allot building sites in the area to the persons belonging to low and middle income groups-

Challenged: failure of the intended purpose & no authority of diversion- held , notn. meant for a beneficent purpose, must receive liberal construction- slum dweller, to include poor people and those belonging to low income group living in a crowded place in a city- not diversion(S.Sivaprakasa Mudaliar v.St. of Madras,1964 Mad.)-Govt. can change its project to a different site if subsequently it is realized that it could better be located elsewhere- it is equally permissible to locate another public project in the site already acquired (-Guestavo Renato de Cruz Pinto v. St. of Goa, Bom.1988) NOTN.: Defect in notn. incurable- not even by giving full particulars in s.6 notn.(Narendrajit Singh v.St.of U.P1971 S.C) - No bar for issue of successive notn.

- it is always open to the govt. to rescind a notn. made

earlier(Ghansham Dass Goyal v. P& H, 1986)-Act a complete code-No power for Civil Courts to qn. Validity of notns.(St. of Bihar v. Dhirendra Kumar,1996 S.C)-* Publication of the substance of the notn. mandatory- inordinate delay or non-publication deprives the person interested to file objections vitiates the entire acquisition proceeding(Chevuru Suryanarayana Reddy v.A.P 1983)

- COMPLETION OF ACQUISITION NOT COMPULSORY ( S.48):

(a) Except in case of Temporary Acquisition of land(-s.36),Govt. at

liberty to withdraw from acquisition of any land, of which possession has not been taken (b) Upon such withdrawal, Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice/ of any proceedings thereunder, and shall pay such amount to the person interested, together with all the costs reasonably incurred by him in the proceedings (c) Provisions of Part III shall apply in determining the compensation payable

 2.PAYMENT FOR DAMAGE (S.5): Authorised officer shall, at the time of entry, pay for all necessary damage to be done and in case of dispute as to the sufficiency of the amt. so paid, he shall at once refer the dispute to the decn. of the Collector or other Chief Revenue offcr. of the district and such decn. shall be final

B. Hearing of Objections (s.5-A)

(a) Person interested may object to the acquisition within 30 days of its publication (b) Every objection shall be made to the collector in writing-Collector shall give the objector an opportunity of being heard- after hearing all the objections and after making such further inquiry, as deemed necessary, he has to make a report to the appropriate govt. containing his recommendations on the objections, together with the record of the proceedings held by him, for the decn. of the govt.-decns. on objections shall be final.

 New provision introduced in 1923- object: opportunity of being heard- condition precedent for issuance of a notn. u/s.6 DC, also obliged to give information of the despatch of his report, to enable the objectors to make suitable representation to the govt., if the DCs recommendations are adverse to themomission to impart information,is a transgression of a mandatory provision must lead to nullification of the Declaration made u/s. 6, subsequently (V.K.Kangan .v. St. of Mysore,1967) Interested Person:- person not recorded as tenant, is not Objection with in 30 days of Notn.: - scope for enquiry exists if objections filed with in the stipulated 30 days time- no obligation to consider the same beyond the stipulated time(Brahman Sahayak Sangh v. St. of Mah.2006)-if an objection is filed by an interested person before the publication of Gazetted Notn., it should not be treated as premature- it should treated as valid objection made after the notn.(Kaushalendra Prasad Narain Singh v.St. of Bihar,1978)

 Enquiry:- Petitioner to have the opportunity of knowing the answers given by the concerned depts., referred to by the Acquisition officer in his report to the govt.-posting enquiry on the same day the time for filing objections, would not give the required opportunity- acquisition proceedings vitiated and liable to be quashed ( Sinnaiyan v. U.T.Pondicherry,1971)- A.P Law, debars the authorities from taking possession after the lapse of 3 months, unless an enquiry is held by them before taking such possession RECOMMENDATIONS & OBJECTIONS: Where the former land acquisition proceedings were dropped after the report was submitted, it can not be said that they were dropped as a result of acceptance of recommendations or because the govt. decided to accept the objections, unless it is established that the govt. had actually recorded a decn. on the objection either on the basis of collectors recommendation and report or otherwise ( Sarju Prasad Sahu v. St. of U.P 1962)
o

 Finality of the govt. decn.:-- Decn. once made can not be cancelled or altered, nor a decln. be made u/s. 6 to the contraryif a decn. Is made in favour of the objector, in substance, it amounts a withdrawl u/s.48, it would no longer be possible to acquire the plots with out a fresh notn. u/s.4(-Mowasi v. St. of U.P,1953)

C.DECLARATION & NOTICE

1. S.6: DECLARATION OF INTENDED ACQUISITION (a) Subject to the provisions of Part VII (acquisition for companies), the govt. , upon satisfaction, after consideration of the Report, that any particular land is needed for a PP, or a co., make declaration to that effect under signature of the concerned Secy.-different declns. may be made from time to time in respect of different parcels of any land covered by the same notn. u/s.4 (-1967 amendment incorporated to safeguard the interests of
owners of land as, otherwise, taking umbrage under the provisions for making several declns. In respect of a single notn. u/s.4, the govt. may treat it as a kind of reservoir from which it can from time to time draw out land and

make declns., but at the same time keep the owners of land at bay by having the compensation payable for the lands drawn out at successive stages, pegged down at the rates that were prevalent when the notn. u/s.4 was made(-K.Chinnathambi Gounder v. Govt. of T.N, 1980)

-No such decln. be published, after the expiry of 3 years of the initial notn.(-between 1967 and 1984) or after one year of such notn.( after the commencement of the 1984 amendment)- in computing the period after such notn., exclude the period during which any action or proceeding to be taken in its pursuance, for which a stay has been granted by a Court

Further, no such decln. be made unless the compensation to be awarded is to be paid by a co. or out of the public revenues or some funds with a local authority (b) Publication and public notice of the Declaration shall follow the same procedural requirements of s.4.It should clearly state the district in which the land is situated, the purpose, its approximate area and , in case any plans are made of the land, the place where such plans could be inspected (c) The declaration is the conclusive evidence that the land is needed for a public purpose or for a co. and the govt. may proceed to acquire the same

 -Declaration, indicative of satisfaction of the govt. that the land is needed for PP- there must be some unmistakable manifestation of the intention of the govt. to pay some compensation from out of the public revenues preceding publication of the Declaration (-Syed Dilawar Hussain v. Collector of Madras, 1955)- mentioning particulars of the land, mandatory - when a Plan is prepared for the land, opportunity for inspection ought to be provided -where a part of the money , though insignificant , required for acquisition is paid by the govt., the acquisition will be for a public purpose ,even though the balance portion comprising a substantial portion there of is paid by a pvt. Organisation, if the other requirements of the law are satisfied(- Shyam Behari v. M.P, 1965 S.C)

 Bona fides of acquisition: Act visualizes expeditious finalization of acquisition. Unexplained and inordinate delays which tend to hold claimants at ransom, whose properties are sought to be acquired and are further denied compensation with in a reasonable time, would be sharp and pointed pieces of evidence to establish the lack of bona fides for the exercise of power- unexplained delay operates only to the hardship and prejudice of the citizen alone and not to the state which has the power at any time to withdraw from acquisition either by virtue of s.48 or on the broader provisions of the General Clauses Act (- Radhey Sham Gupta v. St. of Haryana,1982) -if more suitable alternative lands are available, acquisition of topes, wetlans and lands, especially of small farmers, used for intensive cultivation should be avoided (- A.Subbaiah v.Dy.Secy.T.N.Govt, Social Welfare Dept.,1989)

 - PP specified must be real and continue to subsist, as well until the land vests with the govt.- if the purpose gets altered or ceases to exist, there would be no further jdn. to continue the proceedings for acquisition (-Industrial Dev.and Investment Co.Pvt.Ltd.v. St. of Maharashtra, 1989) Diversion of land for a PP other than the one stated in the Decln.- once the original acquisition is valid and the title gets vested in the State, how the state uses the excess land is no concern of the original owner and can not be the basis for invalidating the acquisition Land acquired for village marketMunicipal Council later sold away excess land making them in to separate plots for a housing colony-valid(-Gulam Mustafa V. St. of Mah.,S.C, 1977) -The govt. cannot change the original PP till the acquisition is

Complete- After the land gets vested in it, the govt. will have the power to change the use to which, it will put the land- during the period of acquisition, it cannot change the PP from one to another at its will or fancy as it did in UoI v. Nand Kishore,1982 Del.(- building Fire Station-Planned development of DelhiConstruction of Staff Quarters- Widening of Road in connection with Asiad, 1982) -There might be exceptional circumstances in which the public welfare could be gained by acquiring a persons land and by giving it to another person - A private body may be engaged in a work of public utility, and circumstances may arise when assistance to that body may attain public welfare and if that be so there is no reason why acquisition for that purpose cannot be made - - expansion of the only school , a pvt. Instn., in the

locality ,is for public benefit and in the general interest of the community(-Mohan Kori v.St. of W.B,1974) -Govt. has no power to issue a notn. for acquisition of land for a PP, where compensation is to be entirely paid by a co. -issuance of a second notn., u/s.6, by providing for acquisition, at public expense valid as it corrected the earlier defect (- St. of Guj. V. Bhogilal Keshavlal, S.C,1980) Acquisition for a co.: The wordings for a co. do not by themselves create a category of purpose- the purpose for which acquisition can be made is necessarily only for a PP- it is open for the govt. to acquire land for a co. for a PP- cost of acquisition should, wholly or in part, come out of public funds (-Pratibha Nema v. St. of M.P, S.C, 2003)

DECLARATION:- No requirement under the Act that the

acquisition should be for a pmt. PP or for a Pmt. Co.- only land actually declared under this sn. can be acquired and no other where the acquisition was made of the land adjacent to the Bank of Bengal for the extn. Of Banks business and the same was challenged, the ct. had the following observation to make: In making the acquisition the wishes of the owner of the land are wholly irrelevant ..(the Act) does not contain any provision for any objection on the part of the owner to the acquisition itself. All his objections are limited to the amount of compensation and matters connected therewith, such as measurement and area. The Act vests the Local Govt. with absolute discretion in the matter of acquisition, irrespective of any consideration of the willingness (or otherwise) of the owner to part with his property.. Or his concern with the question whether the acquisition will be pmt. (-Ezra v. Secy. Of St. I.L.R, 1902)

 -The Decln. Amounts only to a decn. on the part of the govt. to acquire; the actual acquisition only comes in later(-Iyer Bader v. St. of Madras, 1965) Particulars of land given in the decln. Should be clear and sufficient to enable an owner of land to know with reasonable effort whether or not and how much of his property is being covered by the Decln.(-Hareendran v. St. of Kerala, 2005 (3))

 2. S.7: AFTER DECLN. GOVT. SHOULD DIRECT COLLECTOR TO TAKE ORDER FOR ACQUISITION OF LAND 3. S.8: THEREUPON, THE COLLECTOR SHALL CAUSE THE LAND TO BE MARKED OUT, MEASURED AND PLANNED

 4. S.9: NOTICE TO PERSONS INTERESTED: Notice : 2 classes of notice to be issued by DC :i) a general notice on or near the land and ii) a special notice on the occupier and other persons known or believed to be interested -Must state the particulars of the land needed and must require the persons interested to state their objections to the measurements made and to make claims for compensation, to the DC - Shall require all such persons to appear personally/ through agent before the DC and make their claims, at a time and place mentioned therein, not before lapse of 15 days after the publication of notice DC may require require the statements to be in writing

 And signed by such person

- No scope for piece-meal acquisition of one holding- there should be one notice, one proceeding and one award, regarding one holding and one ownership (-R.K.Sen v. Trustees for the Improvement of Calcutta and the LA Collector ,1921) -Very necessary that the claimants should state the nature of their respective interests in the land as well as the amount and particular claims of compensation-S.25 (1) makes it clear that when the applicant has made a claim to compensation the amt. awarded to him by the ct. shall not exceed the amount so claimed or be less than the amt. awarded by the Collector Mandatory Nature of the Notice: - service on interested parties, a must- failure to comply, renders the subsequent proceedings illegal and invalid (-Mani Ram v.St. of Punjab,1975)- duty to serve notice on

 those who are known or believed to have an interest in the property and the Collector is under no obligation on any other- non-service to others claiming an interest in the land can neither make the award void to any extent- this is because, such a person, who was so prevented from making a claim or for establishing it, would still have a right to challenge the Award by adopting suitable steps for the same(- like, applying to Ct. by which the latter may direct the Collector to make a reference u/s.18, as to facilitate disposal of that reference on merits(-Hunuikeri Brs. V.A.C,Dharwar, 1962) -If the Collector wilfully and perversely refused to give notice to the persons interested, his proceedings should be held inoperative in vesting the land in the govt.(-Gungaram Marwari v.Secy. Of St. I.L.R. 30 Cal)

 S.10:Power to require and enforce the making of statements as to names and interests- vested in the Collector

ENQUIRY & AWARD

S.11. ENQUIRY & AWARD BY COLLECTOR

S.11-A: PERIOD WITHIN WHICH AN AWARD SHALL BE MADE S.12: AWARD OF COLLECTOR WHEN TO BE FINAL S.13 : ADJOURNMENT OF ENQUIRY S.13-A : CORRECTION OF CLERICAL ERRORS S.14: SUMMONING AND ENFORCEMENT OF ATTENDANCE OF WITNESSES & PRODUCTION OF DOCUMENTS S.15 : MATTERS TO BE CONSIDERED & NEGLECTED S.15-A: POWER TO CALL FOR RECORDS

TAKING POSSESSION
1. S. 16 :POWER TO TAKE POSSESSION

When the Collector has made an award u/s.11, he may take possession of the land , which shall thereupon vest absolutely in the govt., free from all encumbrances
No time limit has been laid down for the Collector to take possession after the decln. of the award- the claimant is not expected to keep his land uncultivated till the Collector decides to take possession of it (-Daya prakash Trikambhai v. Spl. Land ACQUISITION Offcr.,Baroda,1969)-so long as the possession is not taken the title does not vest in the st.- As under s.48 the govt. is free to withdraw from acquisition till the Collector actually takes the possession of the land

 2. S.17: SPECIAL POWERS IN CASES OF EMERGENCY

(a) In an emergency situation, when so directed by the govt., the Collector may take possession of any land with in 15 days of the publication u/s.9, even though no Award has been made . Such land shall thereupon vest in the government free from all encumbrances. (b) (i) When there is a sudden change in the channel of any navigable river or other unforeseen emergency compelling the Railway administration to take possession of any land immediately for the maintenance of their traffic etc., or (ii) when the government considers it necessary to acquire and possess any land immediately, for the purpose of maintaining any structure or system

pertaining to irrigation, water supply, drainage, road communication or electricity - the Collector may, after s.9 notn., take immediate possession of such land. - such a possession of any building cannot be taken by the Collector with out giving the occupier thereof at least forty-eight hours notice of his intention to do so from such building; this is to enable such occupier to remove his movable property with out unnecessary inconvenience (c) The Collector, at the time of taking possession, shall offer compensation to the persons interested for the

 standing crops and trees on such lands and for any other damage sustained by them caused by such dispossession. In case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed fr awarding compensation (d) Before taking possession, the Collector shall tender payment of 80% of the compensation for such land estimated by him to the persons interested entitled thereto and pay it to them/ deposit with the Court in circumstances as provided in S.31

 (e) The amount so paid/ deposited, shall be taken into account for determining the amount of compensation required to be tendered u/s.31 and where this amount exceeds the compensation amount awarded u/s.11 by the Collector, the excess may, unless refunded within 3 months from the date of Collectors Award, be recovered as the arrears of land revenue (f) The government, in the said emergency situation, may direct that the provisions of S.5-A ( -hearing objections) shall not apply. Whereupon, the declaration u/s. 6 may be made any time after the date of publication of the notn. u/s.4

 URGENCY:-It is impossible to state in exhaustive detail all the instances where an emergency exists-the question as to what would constitute an urgency, will have to be determined on the facts of each case(-Adarsha Nagar Co-operative Housing Society v. St. of U.P, 1981)- twin conditions ought to be satisfied: urgency coupled with the need to possess immediately- subjective satisfaction of the govt. requiring objective assessment and review by High Court (-supervisory jdn.under A.226 : Thandrala Narasaiah v.Pastapurapu Bhadraiah, 1973, A.P)- Initial burden of proof on the govt.Discretion of the govt. to direct the Collector Any land: - position after 1984 - earlier it referred only to arable or waste land

V. REFERENCE TO COURT & PROCEDURES

A. REFERENCE TO COURT: S.18: (a) Any person interested who has not accepted the award may, by written application to the Collector , require that the matter be referred by the latter for the the determination of the court. The objection may be (i) to the measurement of the land; (ii) to the amount of compensation; (iii) the persons to whom it is payable or (iv) the apportionment of the amount of compensation among the persons interested The application shall state the grounds of objection

 (b) Every such application shall be made, (i) within 6 weeks of the Collectors award, if the person making it was present/represented before the Collector at the time when he made his award and (ii) in other cases , within 6 weeks of receipt of notice from the Collector u/s.12(2), or within 6 months from the date of Collectors award, whichever period shall first expire first
COLLECTORS REFERENCE:If the said conditions are fulfilled, the collector is bound make the reference. Collector would have no other choice in this regard.(- Chintada Kasiviswanadham v. SubCollector, Behrampur, 1961)

 -S.18 contains no provision whatsoever requiring the Collector to make a reference on his own- but, if an application for reference is made after the expiry of the prescribed time, the Collector would have the discretion to either refer it to court or not- there is no express provision of law forbidding a reference on a time-barred application(- St. of U.P v. Sri Abdul Karim, 1963)-It is open to the District Judge to go behind the reference and examine its validity (-Sant Singh v.St.of Punjab,1983) Reference under S.18 & S.30- No power given to the Collector to make a reference suo motu u/s.18 . But, such a power is available to him u/s.30 (-Hazara Singh v.St.of Punjab,1971) Both the provisions refer to apportionment of compensation or as to the persons to whom it is payable- under the former, it is upon application within time by person interested who was

present when the award was made and did not accept the award, Collector makes the Reference- U/S.30, when a person who has not appeared in the acquisition proceeding before the Collector and/or if he is not served with the notice of the filing, raises a dispute as to the apportionment or as to the persons to whom it is payable , the Collector may refer the dispute to the Court -The Court of reference is enjoined to go into the objections raised by the claimants in making enquiry u/s. 20 and to pass orders u/s.26-Reference Court cannot go beyond the reference and give a decln. that notn. u/s.4 and decln u/s.6 are null and void & illegal (-Balram Chandra v. St. of U.P, 1995 S.C) - Basically in a reference the award is under challenge- the initial burden of proving that the award is wrong is always on the claimant-Once the proceedings commence before the ct.

they are strictly judicial- they are not a continuation of the proceedings before the Collector and the earlier record does not form part of the case before the ct. except by agreement of the parties (-Collector, Raigarh v. Chaturbhuj Panda, 1964, M.P) B. COLLECTORS STATEMENT TO THE COURT:- (S.19) - To be in the prescribed form, including all that are to be stated in the award u/s11 along with the objections and the grounds on which the amount of compensation was determined. A schedule giving particulars of the notices served and the statements made to the parties be attached to the said statement

The reference can only be after the award (-St.of Raj.v.L..DSilva 1957)

 C. SERVICE OF NOTICE (S.20):

After the Collectors reference, the Court causes a notice to the served, for appearance before it, on a day fixed by it, for its determination on the objection, to the applicant, all the persons interested in the objection (- except those who have consented with out protest to receive payment of compensation awarded) and to the collector, if the objection is with regard to the area of land or to the amount of compensation
The objection u/s. 18 alone has to be determined by the court D. RESTRICTION ON SCOPE OF THE PROCEEDINGS (S.21)-

Scope of enquiry in the proceedings is restricted to a consideration of the interests of the persons affected by

the objection, u/s.18

A person interested is not debarred, on the ground that he had not appeared before the collector, whether he received notice from the collector or not, from appearing on the reference to the court

E. PROCEEDINGS TO BE IN THE OPEN COURT (S.22) F. DETERMINATION OF COMPENSATION: (a) MATTERS TO BE CONSIDERED(S.23):- 6 in no.:(i) Market value of the land at the date publication s.4 notn.- in every case, the court shall award 12% p.a to such market value up to the date of award or the date of taking possession, which ever is earlier- in addition,

the court shall award another 30% on such market value in consideration of the compulsory nature of acquisition (Solatium)

(ii) Damage sustained by the person interested for the loss any standing crops/trees on the land, at the time of taking possession by the Collector (iii) Damage sustained by the person interested, at the time of collectors taking possession of the land, by reason of severing such land from his other land (iv) Damage sustained by the person interested at the time of collectors taking possession of land, by reason of acquisition injuriously affecting his other movable or immovable property, in any other manner, or his earnings

(v) reasonable expenses incidental to changing of residence or business by the interested person, if compelled to do so , as a consequence of acquisition (vi) Bona fide damage, resulting from diminution of profits of the land between the time of publication of decln. u/s.6 and taking possession by the collector *While computing the period under this provision, the period during which the proceedings for acquisition was held up ,on account of stay or injunction of a court, shall be excluded (b) MATTERS TO BE NEGLECTED (S.24): 8 in no.:-

(i) (ii)

Degree of urgency that had led to the acquisition Any disinclination on the part of the person interested to part with the land (iii) Any damage sustained by him which, if caused by a pvt. Person, would not render such person liable to a suit (iv) Any damage likely to be caused to the land acquired after the date of publication of the decln. u/s.6, by or in consequence of the use to which it will be put (v) Any increase in value to the land acquired that is likely to accrue from the use to which it will be put after acquisition

(vi) Any increase in value to the other land of the person interested likely to accrue from the use to which the land acquired will be put (vii) Any outlay or improvements on, or disposal of , the land acquired commenced, made or effected with out the sanction of the collector after the the publication of S.4 notn. ,or (viii) Any increase in value to the land on account of its being part to any use which is forbidden by law or opposed to public policy

 - Deal with matters to be considered/not considered by the ct. in determining compensation- These are exactly the aspects that guide the collector (-s.15) and the ct., in a way, checks and verifies their meticulous observance by the Collector -Limit the liberty & scope of enquiry by the ct. Constitutional Challenge: - Acquisition of property ought to pass the test of procedural reasonableness (A.19(5)), that would include an opportunity to be heard- since Ss.23 & 24 do not deal with procedures and so not open to this challenge (R.C.COOPER v. UOI,1970; Ratni Devi v. Chief Commissioner, 1975,S.C; Aflatoon v. Lt. Gov. of Delhi, 1974 S.C) Compensation: 3 methods of valuation are to be adopted in determining the compensation : capitalization (-the method used to convert future benefits to present value by discounting such future benefits at an appropriate rate of return- a process

of converting the net income of a property into its equivalent capital value-rate of return tat an ordinary investor would ordinarily get on his investment, having due regard to all relevant circumstances- determination of the reasonable rate of return in respect of investment in various types of properties, is the most crucial aspect of the exercise- ); valuation by experts and valuation of similar lands with reference to the sales effected at or about the date of the s.4 notn. (-Spl. Land Acquisition Offcr. v. P. Veerabhadrappa, 1984, S.C)compensation payable to the owner of the land is the market value which is determined by reference to the price which a seller might reasonably expect to obtain from a willing purchaser, but this may not be possible to ascertain with any amt. of precision , the authority charged with the duty to award compensation is bound to make an estimate judged by an objective std.- reasonable and just compensationamount etc.- Constitutional cases

 Market Value(MV):- fair market-value exclusive of solatiumordinarily, is the price the property may fetch in the open market if sold by a willing seller unaffected by the special needs of a particular purchase- the amt. of compensation cannot be ascertained with mathematical accuracy. A comparable instance ought to be identified having regard to the proximity from time angle as well as proximity from situation angle- determination on future possibilities and not on its realised possibilities- MV does not merely mean, the value which the land has on a/c of the manner in which it is actually being used for the time being, but also its value in relation to further posiibilities (Collector, Bilaspur v.Lachhman, 1965 H.P)such future utility which an owner of land can take advantage of , ought not to be conjectural, but should reasonably be based on normal busines principles (-Revenue Divnl.Offcr.,

 Chidambaram v. Damodara Mudaliar, 1978, Mad.) Solatium:-A statutory right in addition to compensation which an objector can claim for the compulsory acquisition of his land- no discretion is left to the deciding authority as regards the quantum of solatium to be awarded- it is part of the amt. of compensation to be awarded (-Chandulal Pitamberdas . Spl. Land Acquisition Offcr., Eastern Rly. ,1967, Guj.)- When the acquisition is not of a compulsory nature like, when it is on the basis of an agrmt. between the owner of the land and the govt., no obligation exists to the pay the addl. Sum (-Lily Ghosh v. St. of W.B, 1979) G. Form of Wards (s.26): H. Costs (s.27): I. AMOUNT OF COMPENSATION , NOT TO BE LOWER THAN AWARDED BY COLLECTOR (S.25)

 - (i) When the applicant has made a claim, the amt. awarded shall not exceed the claim amt., nor be less than the amt. awarded by the Collector; - (ii) When the applicant has refused to make a claim or omitted to do so with out sufficient reason, the amt. awarded shall never exceed the amt. awarded by the collector; - (iii) When the judge thinks there was sufficient reason for such omission, the amt. awarded shall not be less than, and may exceed, the amt. awarded , by the collector - Amendment of the claim made in claim petition, not barred (Bikram Singh v. St. of Punjab,1984)

J.COLLECTOR MAY BE DIRECTED TO PAY INTEREST ON EXCESS COMPENSATION -S.28: @ 9% P.A, from the

date on which he took possession of the land to the date of payment of such excess into court if such payment is made beyond one year of taking possession, the ct. may direct payment of interest @ 15%, on that amount from the expiry of the said period of 1 year

K. RE-DETERMINATION OF THE AMT. OF COMPENSATION ON THE BASIS OF THE AWARD OF THE COURT -S.28-A: (i) Upon the determination of compensation amount by the ct. through an award, in excess of the amt. determined by the collector, the persons interested in all the other land covered by the same notn. and who are also aggrieved by the collectors award may, notwithstanding

that they had not applied for reference earlier, by written appln. to the collector with in 3 months of the award by the ct., require that the amt. of compensation be redetermined on the basis of the amt. of compensation awarded by the ct. (ii) On receipt of such an appln., the collector shall , after conducting the necessary enquiries, make an award determining the compensation amt. (iii) Any person who has not accepted such an award, may apply to the collector for making a reference to the ct. , where by the process of ref. starting with s.18 get applied

 - Provision inserted in 1984, with the sole object of giving the same benefits to the poor people who by reason of their poverty and ignorance have failed to take advantage of the rt. Of ref. u/s. 18 (-Raghu Sao UoI, 2006 Jhar.) - It is not material whether the petitioner received the amt. awarded by the collector , in the first place,with or with out protest.S.28-A has been inserted, on the touch stone of A.14 of the Constn.(-UoI v.Hansoli Devi 2002,S.C)

L. APPORTIONMENT OF COMPENSATION (a) S.29: Upon an agreement of the several persons interested, the particulars of apportionment shall be specified in the award. As between such persons the award shall be conclusive evidence of the correctness of the apportionment

 (b) S.30: When the amount of compensation has been settled u/s.11, if any dispute arises as to the apportionment of the same, the collector may refer such dispute to the decision of the court
- Reference here, is subject to the discretion of the Collectorreference can also be suo motu if there exists a dispute and not necessarily because the parties have asked for it - The DC can either himself decide the question of apportionment or, in the alternative refer it to the ct. - No bar for a new person not previously appearing before the collector to apply for any reference- the dispute need not be limited to the persons to whom the compensation is payable

under the award- the collector may refer the dispute raised by any person other than those mentioned as persons interested in his award ( Ka Kriksibon Kharkongor v.D.C, Khasi Hills,1981 Gau.) -Existence of a dispute, a pre-condition for reference EXAMINE: (i)-The collector is not authorised to decide finally conflicting rights of the persons interested in the amt. of compensation- the scheme of apportionment by the collector does not finally determine the rights of the persons interested in the amt. of compensation. The award is conclusive between the collector and the persons interested ( -Gaffar Masih v. Mohan Lal, 1986, Kash.)

 (ii) Where the collector has made an award u/s 11 of the Act and before payment has been made, if a new person, not previously appearing before him appears then he can make a reference to the ct. for the determination of that claim , and the ct., to which the reference is made, will be competent to decide the question between them(-St. of Bihar v. G.H.Grant, 1959 Pat.) (iii) Reference u/s. 30 can be made only before the award is made- It presupposes inability on the part of the collector to give a decn. on the qn. Of apportionment of the compensation settled by him, or on the qn. of the title to its claimant to receive the same (- Custodian Evacuee Property v.Amarnath, 1981,J.&K)

VI. PAYMENT (Ss.31-34)

A. PAYMENT/DEPOSIT(S.31):

1. Collector to make payment to persons interested consequent to award 2. Absence of consent to receive/ absence of person to make a valid alienation/dispute as to title to receive compensation/or apportionment of it- collector to deposit the amount in the ct. of reference u/s.18 ( there can be receipt of payment under protest as to the sufficiency of amt.) 3. The Collector, instead of paying compensation may, enter into any arrangement with a person having limited interest, that may include, grant other lands in exchange or remission of land revenue in other lands held under the same title, etc.

B. S.32: In the case of money deposited in respect of the lands belonging to persons incompetent to alienate, the court shall order that the money be invested in the purchase of other lands held under similar circumstances or when such a purchase was not possible, to invest it in such securities as it deems fit and enable such persons to derive benefits accruing there from. C. S.33:When any money is deposited in the ct. for any cause other than the one mentioned in s.33, the ct. may, on an application of the interested party, order the same be invested in such govt. or other approved securities as deemed fit by it.

 D.S.34: Where the amount of such compensation is paid/deposited on /before taking possession, the collector shall pay interest @9%p.a from the time of taking possession to actual payment.- delay by over an year, enhances the interest to 15%

VII.TEMPORARY OCCUPATION(Ss.35-37)
A. S.35: TEMPY. OCCUPATION OF WASTE/ ARABLE LAND, for a public purpose/co., 1.- the govt. may direct the Collector to procure the occupation and use of the same, for such purpose and period as it deems fit but not exceeding 3 years; 2. the collector shall there upon give notice in writing to the persons interested about the same and pay such compensation, as shall be agreed upon between him and the interested parties and 3. in the event of a difference between them as to the sufficiency of compensation/ apportionment thereof, the collector shall refer the difference to the decn. Of the ct.

 B. S.36:Collectors power to take possession, and upon expiration of the term , obligation to restore to the person interested.
-Collector has also the obligation to pay compensation for the damage done to the land that is not provided for in the agreement- if the land becomes permanently unfit to be used for the purpose for which it was used immediately before acquisition and if the person interested so requires then the govt, shall proceed to acquire the land as if it was needed permanently for a public purpose or for a co.

C.S.37: In case the collector and persons interested differ as to the condition of the land at the expiration of the term or as to any matter connected with the said

 Agreement, the colector shall refer such difference to the decn. Of the ct.

VIII. ACQUISTION FOR COMPANIES Ss.38A-44B

A.S.38A: INDUSTIAL CONCERNS SHALL BE DEEMED TO BE A COMPANY , when such an entity employs at least one hundred workmen , desires to acquire land for erection of dwelling houses for its workmen or for provision of amenities directly connected therewith B.S.39: WITHOUT THE PREVIOUS CONSENT OF THE GOVT. AND EXECUTION OF AN AGREEMENT WITH IT NO LAND CAN BE ACQUIRED FOR A CO. UNDER THIS ACT C.S.40: CONSENT OF THE GOVT. SHALL NOT BE GIVEN UNLESS IT IS SATISFIED, EITHER ON A REPORT BY COLLECTOR U/S.5A OR BY AN

 HELD BY AN OFFICER APPOINTED FOR THE PURPOSE, THAT THE PURPOSE OF ACQUISITION IS (i)FOR ERECTION OF DWELLING HOUSES FOR WORKMEN EMPLOYED BY THE CO. OR (ii) FOR CONSTRUCTION OF SOME BUILDING OR WORK FOR A CO. ENGAGED IN AN ACTIVITY FOR A PUBLIC PURPOSE OR (iii)THAT WHICH IS USEFUL TO THE PUBLIC D. AGREEMENT: AFTER GETTING SO SATISFIED AS ABOVE, THE GOVT. SHALL REQUIRE THE CO. TO ENTER INTO AN AGREEMENT WITH IT FOR,(i) PAY - OF THE COST OF ACQUISITION ,(ii) TRANSFER OF

 SUCH LAND ON PAYMENT TO THE CO.,(iii)TERMS ON WHICH THE LAND SHALL BE HELD BY THE CO.(iv) AND FOR THE PURPOSES STATED IN S.40 (a),(aa) and (b) SUCH AGRMTS. SHALL BE PUBLISHED IN THE OFFICIAL GAZETTE(S.42) S.43: WHEN THE SECY.OF THE GOVT. WAS BOUND BY AN AGRMT. TO PROVIDE LAND TO RAILWAYS OR OTHER CO. , Ss.39-42 SHALL NOT APPLY S.44A: SUCH CO. CANNOT TRANSFER THE SAID LAND EXCEPT WITH THE PREVIOUS SANCTION OF GOVT.

 S.44B : LAND NOT TO BE ACQUIRED UNDER THIS PART EXCEPT FOR CERTAIN PURPOSES FOR PVT. Cos. OTHER THAN GOVT. Cos.

IX. MISCELLANEOUS
S.48: COMPLETION OF ACQUISITION NOT COMPULSORY (-except. u/s 36), BUT COMPENSATION TO BE AWARDED WHEN NOT COMPLETED S.49:ACQUISITION OF PART OF HOUSE / BUILDING S.54: APPEALS- H.C