Synopsis
Much of the
privately-owned land in the country is used for cultivation and is recorded as
agricultural land. Land owners are free to transfer land to other users but a
change in use from agricultural to commercial, industrial or any other purpose
usually requires the permission from revenue authorities; such permission is
generally accorded easily on the payment of a fee. When large parcels of land
are needed for the construction of roads, railways, canals or other public
infrastructure, urban housing or any other public purpose, land is acquired
compulsorily by the government on payment of compensation in accordance with
land acquisition laws. There is a provision in these laws for acquisition of
land for the establishment of industry owned by the private sector as well.
Since the British
days, the framework of law for compulsory acquisition of private land has been
provided mainly by the Land Acquisition Act, 1894. In 1973, a Supreme Court
judgement (Kesavanand Bharati and Others vs. State of Kerala), which pronounced
the doctrine of the basic structure of the Constitution, put in doubt the
constitutionality of the land acquisition law. The case raised the issue
whether compulsory land acquisition could be construed an infringement on the
right to property, which was one of the fundamental rights guaranteed by the
Constitution. The situation was remedied after the right to property was
removed from the list of fundamental rights by the 44th Amendment to the
Constitution. Although the constitutional validity of the land acquisition law
is no longer in doubt, legal challenges in individual cases have continued. In
these cases, the main points of challenge have been on the adequacy of
compensation, genuineness of public purpose and the area of land proposed to be
acquired being more than necessary.
The
acquisition under the law could be for the use of land not only for the central
or state governments or for companies or corporations owned by them but also
for privately owned companies. Some
specific examples of public purpose were mentioned in the law such as town or
rural planning, providing residences to the poor and landless persons,
“carrying out any educational, housing, health or slum clearance schemes
sponsored by Government” and provision of land for a corporation owned by
government. The Act also provided for acquisition of land for “the construction
of some building or work for a Company which is engaged or is taking steps for
engaging itself in any industry or work which is for a public purpose”. Purpose of land acquisition: Land can
be acquired for land needed by the government for its own use, including public
sector undertakings and for any public purpose including strategic purposes,
infrastructure projects, or urbanisation or housing projects. Land acquisition
under the Act can also be made for public private partnership (PPP) projects
and for private companies for public purposes, but prior consent of 70 per cent
of landholders is required for the former and 80 per cent for the latter.
Procedure for acquisition
Notification:
The first step was the issuance of a preliminary notification in the Official
Gazette informing the public of the proposal to acquire the land. Such
notification was intended to alert the public of the government’s intention for
acquisition and generally resulted in freezing the development of the land as
well as its ownership.
Hearing
of objections: Any person interested in the land notified for acquisition could
file an objection within 30 days of the date of publication of the notification
and every such person had to be given a hearing by the Collector.
Declaration:
After hearing the objections and making further inquiry where necessary, the
collector was required to make a report with his recommendations on the
objections for a decision by the government. After consideration of the report,
if the government was satisfied that any particular land was needed for a
public purpose, it would issue a declaration to that effect. There was a
requirement in the Act as amended in 1984 that the declaration should be made
within one year of the initial notification.
Procedure
for compensation: After the declaration, the Collector proceeded to mark out
the land and measure it and then give notice that the government intended to
acquire the land and invite claims for compensation for all interests in the
land. At the same time, notice had to be given to the occupiers of any of the
land and to all persons known to have an interest in the land. After making enquiries
on the claims, the Collector made the award, specifying the area of land,
compensation to be paid and “the apportionment of the compensation among the
persons known or believed to be interested in the land”. The award had to be
made within a period of two years of the declaration, failing which the entire
proceeding was deemed to have lapsed. If any person did not accept the award on
the basis of “measurement of land, amount of compensation, or the person to
whom it was payable”, or to the apportionment of the compensation, he had the
right to ask for the matter to be referred to a court.
Determination
of compensation: The main compensation to be paid to the interested persons was
the market value of land that prevailed at the time of the initial notification.
To this had to be added interest @ 12 per cent for the period between the
publication of notification and the date of award or possession, whichever was
earlier. More importantly, the compensation was to be enhanced by 30 per cent
of the market value, “in consideration of the compulsory nature of the
acquisition”. There was also an entitlement to compensation on account of
damage to standing crops or the damage caused to other property at the time of
taking possession. There was provision also for payment of reasonable expenses
incidental to change of residence or place of business if such a change was
necessitated by the acquisition.
Possession:
After the award had been made, the Collector would take possession of land, “which
thereafter vested absolutely in the government free from all encumbrances”. In
cases of urgency, the Collector would take possession of the land even before
the award of compensation once notice had been given of the intention of the
government to acquire the land. In cases of urgency, the declaration of
acquisition could be made even without hearing of objections. A criticism of
the relevant provision is that the law did not define urgency and the
determination of what constituted urgency was left to the subjective determination
of the government.
Other pre-existing laws:
Two
legislations for specific purposes, with provisions on the acquisition of land,
were enacted in the British era, namely the
Land Acquisition (Mines) Act, 1885, and the Indian Tramways Act, 1886.
Several laws relating to infrastructure, enacted after independence e.g., the Damodar Valley Corporation Act, 1948, the
National Highways Act, 1956, the Coal
Bearing Areas Acquisition and Development Act, 1957, the Petroleum and Minerals Pipelines
(Acquisition of Right of User of Land) Act, 1962, the Metro Railways (Construction of Works) Act, 1978, the Railways Act, 1989, also contain
specific provisions for acquisition of land. The essential features of these
laws were the same as those of the Land Acquisition Act, 1894.
Shortcomings of
pre-existing land acquisition laws
Land
is a scarce resource, with the majority of the population having very small
parcels of agricultural land on which their livelihood is dependent. In such a case,
compulsory acquisition of land can create a deep sense of deprivation. Since
farming is the only occupation to which the rural folks are accustomed,
compensation for the lost land cannot really be enough for most of them. The
money was spent very quickly and, without an alternative means of livelihood,
the erstwhile landholder became a destitute.
LIST OF MAHARASHTRA ENACTMENTS REGULATING LAND ACQUISITION
IN THE STATE OF MAHARASHTRA
1.
The
Maharashtra Highways Act (LV of 1955).
2.
The
Maharashtra Industrial Development Act, 1961 (Mah. III of 1962).
3. The
Maharashtra Regional and Town Planning Act, 1966 (Mah. XXXVII of 1966).
4.
The
Maharashtra Housing and Area Development Act, 1976 (Mah. XXVIII of 1977)
5.
The Right
to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013
6.
Maharashtra
Regional and Town Planning Act, 1966
On 26th April 2018 The Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
have
been amended.
In the year 2018 The Maharashtra government has suspended
introduction of a land acquisition bill that would have allowed the state to
acquire land by paying four to five times the ready reckoner rate even without
the consent of the land owner. The farmers’ rally in the state of
Maharashtra as the reason the bill was
put off. Thousands of farmers had walked from Nashik to Mumbai on March 11 2018
to protest against what they allege is the state government’s failure to
address their issues. They were mainly demanding implementation of the Forest
Land Rights Act, 2006, which will give farmers the right to the forest land on
which they till, and that the state should not forcibly acquire land for the
High-speed Mumbai- Ahmedabad rail project and the Mumbai-Nagpur eight-lane
Samruddhi corridor.
While the state has accepted their demand regarding implementation
of the Forest Land Rights Act, it’s yet to move on the second issue i.e.The Bill
would have allowed the state to procure land for infra projects, especially
like the Mumbai-Nagpur Samruddhi corridor. However, in the wake of the farmers'
protest, it has been decided to not introduce the Bill for that period of tim.
Many of the state Government’s big projects have been facing
delays over land acquisition. Construction of the Mumbai-Nagpur eight-lane
super expressway was to start early in 2018. However, work has not started on
it yet as only 68% of the land has been acquired. Banks have told the state
government that while they are ready to commit funds for the project, the state
would need to have in its possession at least 80% of the land before loans are
disbursed. The Mumbai-Ahmedabad Bullet Train project too is facing issues, with
farmers in Thane and Palghar districts not ready to cede land for the project.
