Legal Service India - Temporary Occupation of Land
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Temporary Occupation of Land

Written by: Sidhartha Mohapatra - 4th Year BA LLB (Hons.) Student, Hidayatullah National Law University
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Land Acquisition can be referred to as the acquisition of land by the State. Land is a finite factor of production and the state has the responsibility and the right to make optimal use of this factor.[1] This power of eminent domain of the state exists universally; recognizing that public purpose may occasionally take precedence over individual rights.[2] The concept of eminent domain speaks about the inherent power of the state to seize a citizen’s private property or rights in property with due monetary compensation, but without owner’s consent.[3] The most common uses for which the state acquires the property are for public utilities, highways and railroads. The Land Administration Act also provides for the acquiring authority to directly negotiate for the acquisition of land for a public work and the acquiring authority has powers to compulsorily take interests in land, the land owner must be informed of taking that interest in land with the purchase monies. Article 19 of the Indian Constitution also guarantees to all citizens the right to acquire, hold and dispose off property. It also provided that compensation would be paid to the person whose property has been taken for public purposes.

So what can be inferred from the above paragraph is that a land can be acquired by the state for the below mentioned reasons:
(i) for public purposes,
(ii) for urgency purposes,
(iii) for temporary purposes,
(iv) for companies.

In this project I will be dealing with (iii), i.e, land acquired temporarily by the state that has been discussed in Chapter VI of the Land Acquisition Act, 1894. It deals with the temporarily occupation of land for a period of not more than three years and states about the compensation that is to be awarded at different conditions.

Historical Approach
The scheme in this part is analogous to the position arising under the English Railways Clauses Act. In India, legislation (1857) has entitled temporary acquisition of land for construction of canals, roads or railways. In 1861, a special Act was passed for that purpose. Section 9 of the Indian Railways Act, confers special powers on Railway authorities to enter upon adjoining lands for purposes of repair or prevention of accident. Section 10 of the same Act provides for the payment of compensation in all such cases.

Part VI of the Land acquisition act pertains to the temporary occupation of land by the Government for temporary purposes as opposed to permanent acquisition by the Government under the preceding part of the Act under which the land vest absolutely in the Government free from all other estates, rights, titles and interest[4] for public purpose, or for a company. Part VI is subject to Part VII as stated by the phrase ‘subject to the provisions of Part VII’. So any acquisition for a temporary purpose including acquisition for a company has to observe the procedure outlined in Section 38 to 44, inclusive of the inquiry under Section 40 and the ‘agreement’ referred to in Section 40.

Procedure and Scope of Temporary Occupation

This Chapter comes into picture when the land is waste or arable and the said land is needed for a public purpose or for a company. The expression ‘arable’ does not only mean land actually ploughed up or in tillage, but also land capable or fit to be so.[5] The expression ‘waste land’ applies to lands which are desolate, un habituated and uncultivated as a result of natural barrenness or rendered unfit for cultivation by reason of material ravages, etc. But when the matter comes to urban areas then the waste land in addition to above mentioned conditions also includes those pieces of land which are not ordinarily fit for any use as building sites.

The scope of section 35 which speaks about the temporary occupation of waste or arable land[6] has been succinctly described in the Allahabad case of Mankeshwar Nath v Collector, Agra[7]. It says that whenever the Government requires any waste or arable land for temporary occupation for more than three years it can give permission to the Collector who on the strength of such permission, is required to give a notice in writing to the interested persons intimating to them the purpose for which the land was needed. But where the acquiring body intends to acquire the land permanently but an order under section 35 is issued acquiring the land for temporary occupation, the order is valid and cannot be termed as fraud on the statute.[8] The compensation can be paid either in a gross sum of money or by monthly or other periodical payments for occupying and using the land, for the term, for which the Government needs it, and for taking material, if any from such land.

It is also to be noted that until the procedure contained in section 35 has been duly followed, the Collector has no right to either enter upon or to occupy the land or to use the same even for the purpose for which the Government has been given permission. Further, when the land has been used for the purpose for which it has been occupied, the Collector is liable to tender an amount as compensation to the landowners, for any damage done to the land not covered under the agreement, and to restore possession over the land to the owners thereof. If the land that was occupied becomes unusable then the land can be acquired permanently for public purpose provided that the owner of the land so demands. The language and spirit behind section 36 requires that the Collector should strictly abide by the terms on which the land has been temporarily occupied and also confine strictly to the user of the same within the terms agreed upon.
Also it cannot be said that temporary occupation of land amounts to acquisition by the Government. The tenure-holder continues to be the tenure-holder of the said land. He only remains out of possession for the period during which the land is temporarily occupied by the Government and is paid compensation for being so kept out of possession. He, however, continues to be the tenure-holder.[9]

Compensation For Temporary Occupation

Compensation is awarded to the owners ---
(i) for the use and occupation of the land for the term fixed, and
(ii) for the material to be taken from the land.

The compensation can be paid in gross sum or in monthly or other periodical payments as agreed upon between the parties. If there remains any dispute regarding the sufficiency of the compensation or apportionment, the Collector has to make a reference for the decision of the court.

Compensation should be offered for the standing crops which were grown before the giving of the notice of occupation unless and until the tenant is in a position to cut them in a ripe condition. While assessing the compensation for standing crops, the loss of net profit of the first year, and if another harvesting of crop is possible within that year, compensation has to be awarded on the net loss of the whole year.

Judicial Pronouncements
In Secretary of State vs Abdul Salam Khan[10], the cultivable land was temporarily acquired for a period of two years for the purpose of quarrying kankar. The zamindar was paid a certain sum and was assured of further compensation in case of any damage to land falling under section 36(2) of the Act. The zamindar object to the compensation and asked for the larger payment in advance. The court held that the zamindar can only be compensated for relevelling the land and making it fit for use but it is not possible to say how much will be the damage caused and even the value of kankar unearthed cannot be hypothetically reckoned in advance.

In another case of Samalia Ram v PWD, Agra[11], the land that was acquired under section 35 was restored and compensation was awarded by the Collector under section 36(2) for the damage that was caused to the land. The petitioner objected to it but the Collector refused to interfere and directed the petitioner to withdraw the amount deposited in his name. Thereafter a writ was filed under Article 226 in the High Court contending upon the cast of the duties on the opposite parties to refer the matter to court for determination of amount of compensation in case of dispute under section 35. The High Court held that: (i) the dispute as to the amount of compensation awarded under section 35 had to be raised at the time of acquisition. As no dispute at that time was raised so a writ of mandamus cannot be enforced by the court. (ii) the petitioner has no right to ask for mandamus for reference to any court because no dispute as to the condition of land was raised at the time of expiration of the term, nor there was there any allegation that there was any dispute connected with the agreement which could be referred to any court.

Further in the recent case of Dy. General Manager v Patel Anil Bachubhai [12] certain agricultural lands were acquired for drilling oils. It appeared to the appropriate government that the land was needed for public purpose and the proposal was accepted. After that rental compensation was granted the owner was dissatisfied with the quantum of compensation for which the matter went to the Collector and thereby it was directed from the collector to the reference court. A distinction was brought out as to that, damages that is to be paid for temporary occupation is different from that of the permanent acquisition and it does not depend upon the market price. When the matter came to the High Court, the court quashed the decision of the Reference Court and directed the appellant the additional amount of compensation that he was entitled to.

A similar case as to the previous case was discussed by the Gujarat High Court in the matter of Patel Shambhubhai Bhaichanddas v State of Gujarat [13] Here also the agricultural lands were occupied for drilling purposes. The owner of the land being dissatisfied with the compensation given by the Reference Court approached this High Court. The High Court decided in favour of the respondents declaring that the compensation was adequate and hence they are not liable for additional compensation but they can be awarded interest for the period at the rate of 9%.

The land can be put in temporary occupation for any public purpose. The maximum period for invoking this section to make the person concerned to occupy the land cannot exceed a period of three years.[14] Also according to the proviso of section 36 clearly provides that if the land has become permanently unfit to be used for the purpose for which it was used immediately before the commencement of such term and if the persons interested shall so require, the appropriate government shall proceed under this Act to acquire the land as if it was needed permanently for a public purpose or for a company.[15] But a situation arises as to whether the Government can or cannot withdraw form acquisition when acquisition is under section 36? Answering this question the Gujarat High Court[16] observed that:
“This provision makes it abundantly clear that except in two cases the State Government is at liberty to withdraw from the acquisition of any land. Under sub-section (1) of section 48, the State Government cannot be withdraw from the acquisition of any land of which possession has been taken. Secondly, under proviso to section 36, it cannot withdraw from the acquisition of a land which has become permanently unfit to be used for the purpose for which it was used immediately before the commencement of the acquisition.”

This part of the Act is a beneficial legislation keeping in mind regarding the public interest at large. The State acting as an eminent domain has been given full authority to acquire land if it finds that the acquisition of land for temporary occupation is for a public purpose. This temporary occupation which is for a maximum period of three years is one of the methods of providing income to those who have lands but may not have enough resources to reap the benefits which might have arisen out of land. What has been seen on this project is that the controversy mainly revolves around the additional compensation that comes after the damage has been caused due to the temporary occupation. Here the courts have to find out a safeguard formula of stopping this dubious behaviour of asking for more income with less effort. If the court ensures that the amount of compensation that is paid is adequately made then it can help in reducing the burden mainly on the courts.

[2] Ibid
[4] Select Committee, para 10 of report dated 23rd march, 1893
[5] Ishwarlal Girdharlal v State, AIR 1968 SC 870
[6] A land which can be profitably ploughed. See Ranaga Reddi v State of Hyderabad where it has been held that the land in disute containing guinea grass plantation is not arable land and the Government have no jurisdiction to temporarily acquire the same under section 30 of the Act.
[7] 1983 AllLJ 975
[8] Shivlalbhai Vallabhbhai v Oil & Natural Gas Commission, AIR 1988 Guj 263
[9] Sheo Chandra Pathak v State of Uttar Pradesh, 1978 AllLJ 408
[10] AIR 1915 All 477
[11] (1957) AllWR (HC) 96
[12] Decided on 11.04.2008 by the Gujarat High Court, MANU/GJ/0369/2008
[13] (2007) 1 GLR 713
[14] Oil & Natural Gas Corporation Ltd. v. Pandya Prahladbhai Manilal and Ors. reported in MANU/GJ/8347/2006
[15] Ibid
[16] Trustees B.S.J.S.M.G, Trust v State of Gujarat, AIR 1981 Guj 107(DB)

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