The Land Acquisition Act, 1894 and You

PRELIMINARY NOTIFICATION, SECTION 4(1)

On 4th January, 1988 your State Government issues a notification ("notice") stating that the land mentioned in the Schedule is likely to be needed for a public purpose viz. for planned development of the area. This notification is published in the Official Gazette of the State Government.

The Schedule sets out the names of 20 villages in which the land is likely to be needed. Neither the survey numbers nor the approximate area and boundaries of the land likely to be needed by Government is given. At this stage it is not required to mention them.

On 6th January 1988 this notification is published in two newspapers which circulate in your area and in the other 19 villages. One of these newspapers is a Hindi newspaper and the other in the language of your region.

On 11th January 1988, officials from the office of the Collector come to your village and put up a notice in the Panchayat Ghar. This notice contains a summary of the contents of the notification issued by the State Government. You read this notice and realise that your village is one of those named in the Schedule.

11th January 1988 is the effective date of publication of notification under S. 4(1).

Note : At this stage unless the State amendments require it no individual notice will be served on you informing you of the proposed acquisition. (See Appendix I).

When you learn that your land may be acquired by the Govt. your first reaction is to try and sell the land as soon as possible. You should remember that once the notification u/s 4(1) is published it is not lawful to sell, mortgage, lease or gift your land without first obtaining the permission of the Collector. Any such disposal without the Collector's sanction will not be recognised or taken into consideration for the purpose of determining the compensation payable for such land. Nor should you effect any improvements on such land without the prior consent of the Collector. S. 24 seventhly.

What then should you do? You and all the other persons whose land may be acquired should concentrate on finding out the details of the proposed acquisition and see how you can best safeguard your interests.

OBJECTIONS, SECTION 5-A

The effective date of publication of the notice u/s 4 (1) is 11th January, 1988. Therefore within 30 days from this date i.e. by 10th February, 1988 at the latest you and all the other persons interested in the land mentioned in the Schedule must file your written objections to the proposed acquisition in the Collector's office.

Your brother, Giridhar and you jointly own half an acre (i.e. 2,420 sq. yards) of agricultural land, which you have inherited from your father. Out of this 420 sq. yds. of land have been let out by you to a tenant Yashwant.

Giridhar and you will be considered to be persons interested under the Act and will therefore be entitled to object to the proposed acquisition. S. 3(b).

Yashwant, by virtue of his leasehold interest in your land will also be considered to be a "person interested".

You have several labourers who work on your land. None of these labourers will be entitled to object to the proposed acquisition although they will be deprived of their source of livelihood if your land is acquired.

Nature of Objections

You cannot object to the proposed acquisition unless you are aware of the purpose for which the acquisition is contemplated. All that the notification dated 4th January, 1988 states is that land might be needed for "planned development of the area". It does not indicate whether the development is to be of residential and building sites or of commercial and industrial plots. Therefore, the first thing that you will have to do is to find out from the Collector what kind of development is contemplated and whether there exists any scheme or master plan in respect of such planned development that can be inspected.

Since the time given for filing your objections is only 30 days you may find that you spend the better part of this time in just trying to get information from the Collector about the purpose of the acquisition.

If despite your attempts to elicit information you fail to get a definite response from the Collector, then you should at least file an objection on the ground that since the public purpose mentioned in the notification is not specific you are not able to file an effective objection against the proposed acquisition.

In such a case the only alternative is to approach the High Court under its writ jurisdiction and ask for the acquisition proceedings to be quashed. This is time-consuming and expensive process. File a public interest litigation (see Appendix II).

SURVEY OF LAND PROPOSED TO BE ACQUIRED, SECTION 4(2)

While you are busy trying to gather information to enable you to object effectively to the acquisition. Mr. Gajanan, an authorised officer of the Government enters upon your land for the purpose of surveying it and taking levels of the land to enable him to ascertain whether it is suitable for the purpose that the Government has in mind. He digs and bores into the sub-soil. For the purpose of setting out a boundary he cuts and clears away a part of your fence.

He offers to pay you a sum of Rs. 500/- for the damage caused to your fence. You are not satisfied with this amount and he therefore refers the dispute to the Collector who upholds his decision. You have no choice but to accept this amount.

PENALTY FOR OBSTRUCTION, SECTION 46

If you were to deliberately displace any marks that Mr. Gajanan has made or prevent him from cutting down your fence then you could be arrested and tried by a Magistrate for this offence. If you were found guilty you could be imprisoned for a maximum period upto a month or fined upto Rs. 500/- or both.

Entry into Your Home: Proviso, S. 4(2)

Mr. Gajanan wants to enter into the garden attached to your house. He cannot do so unless he first gives you notice of his intention to do so. Such a notice has to be in writing and given 7 days in advance.

Hearing of Objections by Collector, S. 5A(2)

Meanwhile, the Collector has heard all those who wish to object to the proposed acquisition and has submitted his report to the Government.

You can apply to the Collector for a copy of his report though he is under no obligation to give you a copy.

In the alternative, you should seek permission to inspect the report in his office.

Go in a group. Take a lawyer with you.

Declaration of Intended Acquisition, Section 6(1)

The Government considers the Collector's report and decides to go ahead with the acquisition. On 15th December, 1988 it issues a declaration that the land mentioned in the Schedule is needed for development and use as an industrial and residential area. The Schedule sets out the districts and the approximate area of the land which is to be acquired. Of the twenty villages mentioned in the Schedule to the notification dated 4th January, 1988, fifteen feature in this declaration. Your village is also one of those included in the declaration.

Once the Government has made up its mind that your land is needed for a public purpose there is little that you can do to stop the acquisition proceedings. The Government is the sole judge as to whether a public purpose exists and whether your land is needed for such a purpose.

On 27th February, 1989, the Government issues another declaration - this time in respect of the five villages left out earlier. Can the Government do this?

Yes the Government has the right to issue successive declarations in respect of land covered by a single notification u/s 4(1) but since the coming to force of the Land Acquisition (Amendment) Act, 1984 (the Amendment Act) these successive declarations have to be issued before the expiry of one year from the date of publication of the S. 4(1) notification. In this case the second declaration should have been issued at the latest by 10th January, 1989.

Therefore, this second declaration is not valid and the Government cannot proceed to acquire any land in the five villages covered by this declaration.

Publication of Declaration, S. 6(2)

The declaration is published in the Official Gazette on 15th December, 1988.

It is published in at least two newspapers on 7th January 1989. One of them must be in a regional language newspaper which circulates in the 15 villages covered by the declaration dated 15th December, 1988.

On January 31st 1989 a summary of the declaration is put up at various landmarks in the 15 villages by officials from the Collectorate.

The effective date of publication of this declaration will be 31st January, 1989.

Order for Acquisition and Marking out, Measurement of Land etc.: Ss. 7 & 8.

Once the declaration has been published the Government will direct the Collector to take an order for acquiring the land specified in the Schedule to such declaration.

The Collector obtains the order from the Government. He now sends his officials to mark out the actual boundaries of the land that is to be acquired. The officials will also measure the areas of such land and make a plan of it unless all these operations have already been carried out at the time of the preliminary investigation u/s 4.

This is a very important part of the proceedings because it will let you know exactly how much of your land is going to be acquired.

NOTICE TO PERSONS INTERESTED, SECTION 9

On 3^rd April, 1989 an official from the Collector’s office comes to your residence with two notices for Giridhar and you. Neither of you are present at home at the time. He refuses to hand over the notices to your wife who is at home stating that she cannot accept service on behalf of Giridhar and you:

Only an adult male member of the family can accept service on your behalf if you are habitually absent from your home or place of business.

He says that he will return a few days later.

On 8th April, 1989 the official comes again and serves the notice on you. Giridhar refuses to accept the notice. This will not prevent the Government from going ahead with the acquisition. The Collector will direct that such notice should be affixed to the outer door of Giridhar's residence and this will be considered to be good service. In law, Giridhar will be considered to have knowledge of the contents of the notice.

The notice from the Collector states that the Government intends to take possession of your land and that claims for compensation for the land should be filed in his office. If you have any objections to the measurement made of your land then these should also be mentioned. The notice further states that you are to present yourself before the Collector on 25th April 1989 and submit your claim and objections in writing. You may also authorise another to appeal on your behalf.

Notices to the same effect are also put up in the Panchayat Ghar and other prominent places in your village.

Your tenant, Yashwant does not receive an individual notice but through you and the public notices put up in the village he is aware of its contents. Therefore, though he has not been served with an individual notice it is in his interest to submit his claim for compensation. Even if he fails to do so the Collector will include him in his award: the Collector can call upon Giridhar and you to give him a list of the other persons who possess an interest in your land such as any co-sharers, tenants; mortgagees etc. (S. 10). He will then determine the compensation payable to Yashwant on the basis of the data available with him.

If you fail to furnish this information or if you furnish false information then you may be penalised by a term of simple imprisonment which may extend to six months or a fine upto Rs. 1,000/ or both (S. 10 read with Ss. 175 to 177 of the Indian Penal Code 1860).

ENQUIRY BY THE COLLECTOR, SECTION 11

The Collector fixes 1st August, 1989 as the day on which he will conduct an enquiry to the claims filed by Giridhar and you for compensation.

Since you do not have any objections to the measurements made of your land, the Collector proceeds to enquire into the market value of your land on the date of the publication of the notification u/s 4(1) viz. 11th January, 1988.

CLAIM FOR COMPENSATION, SECTIONS 23 & 24

Of the 2,420 sq. yards of land owned by Giridhar and you 1,620 sq. yards are to be acquired leaving you with 800 sq. yards. Your home and one shed for storing farming equipment are situated on the portion which is to be acquired. The area which is not being acquired is not very fertile and is accessible only by way of a dirt track. It will not be easy to find a purchaser for it. You will have to think of moving elsewhere and starting from scratch.

The area that you had leased to Yashwant is also included in the 1,620 sq. yards that are being acquired. However, after the notice u/s. 9(1) Yashwant decided that he no longer wished to continue as a tenant and gave you notice of his intention to vacate the land as of 1st May, 1989. This act has resulted in depriving you of the rent that you would otherwise have received from him.

Note: If Yashwant had been a tenant of the portion of land that is not being acquired then he would not have been a person interested and would not be entitled to any compensation even if his part of the land had been rendered inaccessible because of the acquisition of your land. However, if he decided to terminate his lease on this ground, you would be entitled to claim compensation for the loss of rent and the decline in the value of your unacquired land because of its inaccessibility.

Giridhar and you are entitled to claim compensation under the following heads:

¨ market value of 1,620 sq. yards as on 11.1.88 including the buildings, crops and trees on such land S. 23(1) first.

¨ the decrease in the value of the 800 sq. yards not being acquired as a result of the splitting of your plot into two S. 23(1) secondly.

¨ loss of earnings because you will not be able to carry on farming in the portion not being acquired S. 23(1) thirdly.

¨ expenses incurred by you in shifting all the farming equipment and your other property to your new place of residence S. 23(1) fourthly.

¨ loss of rent as a result of the termination of the lease by Yashwant S. 23(1) fifthly,        

However, you will not be entitled to claim any compensation on the ground that you are reluctant to part with your land S. 24, secondly; or that the land will be put to profitable non-agricultural use after it is acquired. Under the existing law you could not convert it to such use and therefore this potential use is not to be taken into consideration while determining its market value. Section 24 fifthly. Nor will you be entitled to compensation for a well that has been dug/bored by you after the date of the notification u/s 4(1) without the permission of the Collector. S. 24, seventhly.

THE COLLECTOR'S AWARD, SECTIONS 11 & 11A

The Collector makes his award on 11.1.1991. His award is within the period prescribed by law viz. within 2 years from the date of publication of the declaration u/s 6. The latest date on which he could have made his award is 31-1.91-S.11 A.

Both of you are present at the time when the Collector pronounces his award. The Collector awards Giridhar and you Rs. 30,000/- as the market value of your property. Under the remaining heads of compensation he awards you a total of Rs. 6,000/-.

By way of interest you are awarded a sum of Rs. 10.800/- at the rate of 12 per annum of the market value awarded for a period of three years i.e. from the date of publication of the notification u/s 4(1), 11.1.88 to the date of his award, 11.1.91. S. 23 (1-A).

By way of solatium he awards Rs. 9.000/- i.e. 30 of the market value awarded. S. 23(2).

Thus, you receive the following sum of money under the Collector's award:

(i) market value of your property on 11.1.88                  Rs. 30.000/-

(ii) compensation under the other heads of S. 23(1)        Rs.   6.000/-

(iii) interest at the rate of 12% per annum on               
Rs. 30,000/- for 3 years                                              Rs. 10.800/-

(iv) solatium                                                                       Rs.   9,000/-

                                                                             ---------------
                                                                             Rs. 55,800/-
                                                                             ----------------

This amount has to be apportioned in accordance with your personal law. Under the Hindu law on a partition you would be entitled to equal shares of the property. The Collector will do the same with the total compensation awarded. Therefore, each of you will be entitled to a sum of Rs. 27,900/-.

In this case, it is quite clear how the compensation should be apportioned J between you. But if it was not so evident as to how the money should be apportioned then the Collector could refer the matter to the Court for its decision u/s. 30.

Since Yashwant is no longer your tenant the question of awarding him any compensation does not arise.

Correction of Clerical Errors S. 13-A

On inspecting a copy of the Collector's award you find that the solatium payable to you has been wrongly calculated/stated as Rs. 900/- instead of Rs. 9.000/-. How can you get this corrected?

You can make an application to the Collector pointing out that such a mistake has been made and ask him to have it rectified. Such an application must be made within 6 months from the date of the Collector's award.

Taking Possession of Your Land S. 16.

Once the Collector has made his award he is at liberty to take possession of your land provided he has either paid or offered to pay to you the compensation to which you are entitled under his award, it the Collector fails to make such payment or to deposit in Court the compensation awarded than he becomes liable to pay interest on such amount. S. 34.

On 15.1.91 the Collector offers to pay you the amount awarded which you accept. On the next day you receive payment by cheque at the Collector's office.

On 17.1.91 the Collector takes possession of your land. Now your land is the absoiuie property of the Government. Any interests or claims that you or any other person may have had in or upon such property come to an end.

Reference to the Court S.18

Although Giridhar and you do not dispute the Collector's apportionment of the compensation awarded, you are not satisfied with the quantum awarded as the market value of your property.

What can you do ?

You could initiate reference proceedings in respect of the compensation awarded to both of you as co-owners. This would be considered to be a reference by both of you. However, if either of you applied only in respect of your own share then this would not be treated as a reference by both of you.

You cannot approach the Court directly. You must make an application in writing to the Collector demanding a reference. Your application must clearly mention that you are objecting to his award on the amount of compensation awarded to you u/s 23(1) first by way of the market value of the property on 11.1.88.

You can demand a reference only if you have accepted payment of the compensation under protest. On the reverse of the receipt you should have written the following words: "Received under protest", or "I do not agree with the award" etc.

Secondly, your application for a reference should be made within six weeks from the day following the date on which the award was made. The Collector's award was made on 11.1.91. Therefore, six weeks will be counted from 12.1.91. You should make your application at the latest by 22.2.91.

Your neighbour Rajgopal is an affluent farmer. He has availed of this right of reference. You learn from him that he has had to incur a lot of expenses in connection with the reference proceedings. So, you decide not to seek a reference.

The Award of the Court

In the reference proceedings the Court finds that the market value of Rajgopal's property on 11.1.88 was not correctly assessed by the Collector. It enhances the market value of Rajgopal's property to Rs. 80,0007- instead of Rs. 50.000/-. Since the market value of his property has been enhanced this will also result in increasing the solatium payable to him as solatium is calculated at the rate of 30 per cent of the market value assessed. Therefore Rajgopal will now receive Rs. 24.000/- instead of Rs. 15.000/- by way of solatium, .a total of Rs. 39.000/-.

Interest on Excess Compensation S. 28

In addition to these sums the Court may also decide to grant Rajgopal
interest on the excess sum of.Rs. 39,0007- at the rate of 9 per annum. This interest will be payable for the period commencing with the Collector's taking possession of your land up to the date when he pays such excess into the Court.

For, instance, the Collector has taken possession of Rajgopal's land on 1.2.91. On 1.8.91 he deposits in Court the excess amount of Rs.39,000/-.This means that he will be entitled to interest on this sum at the rate of 9 per cent p.a. for six months.

Costs

Since the Court did not uphold the Collector's award it may also direct the Collector to pay the costs incurred by Rajgopal in the reference proceedings. These will be calculated according to the prescribed tables and not the actual costs incurred by him.

Redetermination of the Amount of Compensation on the Basis of the Court's Award S. 28A.

Your friend, Mody was also dissatisfied with the amount of compensation awarded to him by the Collector and the manner in which this compensation was apportioned between his tenant and himself. He too failed to make a reference within the prescribed time.

When Mody and you hear of the enhanced compensation awarded to Rajgopal by the Court, you wonder if there is any way in which the question of the compensation awarded to you can be reopened even though the period for seeking a reference has already expired.

Both Mody and you can take advantage of the provisions of S. 28-A and make an application to the Collector asking him to redetermine the amount of compensation on the basis of the Court's award in Rajgopal's case Such an application must be made within 3 months from the date of the Court's award.

If you are still dissatisfied with the amount of compensation redetermined by the Collector then you can have the matter referred to the Court u/s 18.

However, as regards the question of apportionment of the compensation between Mody and his tenant, Mody will have to be satisfied with the Collector's decision. The question of the proportion in which the compensation is to be divided between them cannot be reopened under S.28A. The right to seek a reference on this issue should have been exercised within the time prescribed by S.18.

Proceeding under S. 28-A is not as expensive a proposition as a reference proceeding and you should certainly take advantage of its provisions.