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One can safely assert that land is perhaps the greatest gift that God has bestowed on human beings. All activities of man whether social, political or economic, revolve around the beneficial enjoyment of land. Similarly, all endeavours of the Govt. in infusing growth and development into the economy are also closely linked to land.
Acquisition of land by the Govt. is something that has existed since the British Raj. The British Govt. forcibly acquired several acres of lands to facilitate their plans of introducing the railway system in India. Back then, the compensation to be paid for such acquisition of land was under the control of an arbitrator, whose decision on the compensation would be final. The law makers at that time understood the fact that the arbitrator could have been incompetent and also that there were no rules laid down to govern the procedure of work of the arbitrator. To circumvent such lacunas taking its toll on the public revenue, the Land Acquisition Act, 1870 was enacted. Under this Act also, the controller was bound to refer all cases in which either the owners of land complained against the compensation or one failed to come before him, to the court. This took lot of time and wasted money. Thus the 1984 Act was enacted, whereby, inter alia, the controller’s award of compensation could not be challenged except under certain circumstances.
Land Acquisition – what is?Land Acquisition can be defined as the action of the government whereby it acquires land from its owners in order to pursue certain public purpose or for any company. This acquisition may be against the will of the owners but compensation is paid to the owners or persons interested in the land. This can be distinguished from an outright purchase of land from the market. Land acquisitions by the government generally are compulsory in nature, not paying heed to the owner’s unwillingness to part with the land.
The procedure is simple: - The Appropriate Govt – i.e. State Govt. or Central Govt. – identifies that it requires a piece of land for public purpose or for a company. It publishes a notification to that effect in the official gazette and the substance thereof is published by the collector in a notice that he places in a conspicuous place of the land ought to be acquired. The notification of the Govt. is also published in 2 newspapers one of which is the regional language of the place where the land to be acquired is situated (section 4). Within 30 days of such notification, the persons interested in the land can raise their objection to the Collector, in writing, of any of issue related to the acquisition of the land. The collector shall after making his comments forward it to the Central Govt, whose decision on the matter shall be final.(section 5A).
After having gone through the report filed by the Collector u/s 5A (as mentioned above), the appropriate government shall publish a declaration of the intention to acquire land in the same manner as mentioned before (Section 6).
The collector shall then issue a notice to the persons interested to an enquiry to be held before him regarding the key aspects on to area of land, compensation etc to make claims and stating that the Govt. intends to acquire the land (Section 9).
Section 11 states that the collector shall make an award under his hand of:-# The true area of the land
# The compensation, which in his opinion should be allowed for the land, and
# The apportionment of the said compensation among the persons interested.
This award shall be made only after conducting an enquiry as per section 9 and after obtaining the prior approval of the appropriate government.
After having made compensation, the govt. can take possession of the land. The land shall then vest with the govt. without any encumbrances (section 16).
Section 17 states that in cases of urgency, the Govt. can acquire the land without paying compensation- though compensation will have to be paid eventually.
The compensation to be paid is the market value of the land as it exists on the date of the 1st notification u/s 4 of the Act. Also, it is important to mention here that the land has to be acquired within a period of 2 years from the date of the first notification under section 4, failing which, the whole procedure will have to followed again (Section 11A).
Right to PropertyThe constitution, as it stood before the 44th Amendment in 1978, provided for the right to own property as a fundamental right. These provision were explicit in articles 31 & 19(1) (f). The constitution also provided that in case of any breach or an attempt thereof of any fundamental right, the aggrieved person can approach the Supreme Court for its redressal. This was viewed as a hurdle by the Government that could impede its ambitious plan of acquiring land for public purpose pr for a company.
Thus, ever since 1951, the Govt. started, through the 1st & 4th amendment, to incorporate various land reform acts. This it did by incorporating schedule 9 of the Constitution. Time and again, the government felt that the right to property was a roadblock for it. It therefore sought to amend the constitution and aimed at abolishing the right to property. It did so in the year 1978 by the 44th amendment to the Constitution of India. The road to this amendment was not very easy through. The Supreme Court had constantly held that the legislature did not have the power to amend the constitution thereby altering its basic structure. This could be seen in the case of:- Shankari Prasad V/S Union of India- Where the Court held that the legislature had ultimate power to amend the constitution even the fundamental rights. The decision was upheld in the case of Sajjan Singh v/s State of Rajasthan.
Then, in Golak Nath v/s State of Punjab, the Supreme Court held that the Parliament did not have any power to amend the constitution and that article 368 of the Constitution only provided the procedure for amendment.
This was then finally overruled in the Keshavanandi Bharati case where it was held that the Parliament has power to amend the Constitution but not doing so to the basic structure of the constitution.
Thus as mentioned above, the 44th Constitution Amendment Act, abolished the right to own property as a fundamental right but it declared that it would remain to be ‘legal right’. Thus it could have been now possible for the Government to acquire land without apprehending any litigation challenging its act of acquisition in the Supreme Court under Article 32 of the Constitution of India.
The constitution al validity of the Act can be demarcated in to the following two periods.
· Before the 44th Amendment of the Constitution.
· After the 44th Amendment of the Constitution.
Before the 44th AmendmentIt would come as a shock but it was legitimate, even before the 44th amendment, for the govt. to have acquired land for its public purpose or for a company. This it could have done under the principle of ‘Eminent Domain”. This term was coined by Hugo Groitus in 1625 and means the Supreme control over the property of the subjects enjoyed by the sovereign.
“ the property of subjects is under the eminent domain of the state, so that the state or he who acts for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that when this is done the state is bound to make good the loss to those who lose their property."
Thus in other words, it can be said that the Govt. -the sovereign- enjoyed the complete authority over the land of its subjects and could acquire the same for public purpose or for a company. It would have been completely legitimate for the government to do so even against the wishes of the owners of the land.
After the 44th amendment.
As mentioned above, the 44th amendment did away with the right to property as a fundamental right and converted it only as a ‘legal right’. Thus, now the Govt. could acquire the lands of any person in India without apprehending any legal action under the provisions of the constitution. This was so because the right to property was merely a legal right and ceased to be a fundamental right and hence, its breach could not be redressed by the Supreme Court under article 32.
Thus, it can be said that it would have been completely legitimate for the Govt. to have acquired land either before or after the 44th amendment. The only hurdle that it would have faced is of litigation in the Supreme Court.
The Court too would have justified Govt’s. act of acquiring the land under its principle of eminent domain, thus leaving the owners of the land without any remedy. To conclude, I would like to state that the Act confers too much power to the Government and with great power comes great responsibility. Apart from using the power judiciously, the duty vests in the courts to assess whether the govt. is using its power arbitrarily or trying to achieve oblique motives or to do something indirectly which it was precluded from doing directly.
At the end of all this, what can be said is whether constitutional or not, the Act is quite draconian. So because of the fact that while acquiring land, the Govt. does not look into the sentiments, emotions of its owners attached to the land and acquires it forcibly. Also, the compensation paid to the persons interested is nowhere near the price that the owners could have actually received for their piece of land.
Also, there are thousands of millions of people whose sole income comes from the money earned through these lands. Compulsory acquisition of land would be snatching the livelihood of these people. Though, for development of the nation, a fair balance needs to be achieved between the legitimacy of the ‘public purpose’ and the needs of the people who are interested in the land to be acquired. All action of the government to acquire the land should be governed by such balance and due circumspection.
 All sections mentioned are that of The Land Acquisition Act, 1894
The author can be reached at: firstname.lastname@example.org / Print This Article
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ISBN No: 978-81-928510-0-6