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Rules And Procedures Regarding Land Acquisition And Compensation Awarded As Per Land Acquisition Act, 2013

This is a paper on the rules and procedures regarding Land Acquisition and Compensation awarded as per The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

The Act
The purpose of this Act is to provide transparent rehabilitation and resettlement processes and equitable compensation in the event of land acquisition. It is an Act to ensure a humane participative ie. informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanisation.

It aims to cause the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement.

The provisions of this Act relating to Land acquisitions, compensation, rehabilitation and resettlement will apply when the appropriate government acquires land for public sector undertakings and public purpose. This is discussed in S.2 of the Act.

The Rules
As per S.109 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013, the appropriate governments can make rules to carry out the provisions of the above Act. As per S.112 of the Act this power of the government will be subject to the previous publications made. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Kerala) Rules, 2015 are the rules published by the Government of Kerala as per S.109 and S.112 of the Act.

Land Acquisations
Land acquisition is the power of the union or a state government in India to take private land for public, and to compensate the original owners and other persons affected due to such acquisition. The Act defines and directs a land acquisition process that involves consultation with local self-government and the Gram Sabha and is transparent, educational, and participatory. This land acquisition process's goal is the development of vital infrastructure.

The process of land acquisition with the relevant sections of the Act are as follows:
Relevant Provisions Remarks
Preparation of Social Impact Assessment study
(4) The Social Impact Assessment study referred to in sub-section (1) shall, amongst other matters, include all the following, namely:
(a) assessment as to whether the proposed acquisition serves public purpose.
(b) estimation of affected families and the number of families among them likely to be displaced.
(c) extent of lands, public and private, houses, settlements and other common properties likely to be affected by the proposed acquisition.
(d) whether the extent of land proposed for acquisition is the absolute bare- minimum extent needed for the project.
(e) whether land acquisition at an alternate place has been considered and found not feasible.
(f) study of social impacts of the project, and the nature and cost of addressing them and the impact of these costs on the overall costs of the project vis-a-vis the benefits of the project:
Provided that Environmental Impact Assessment study, if any, shall be carried out simultaneously and shall not be contingent upon the completion of the Social Impact Assessment study.
When the Government intends to acquire land for a public purpose, they will consult with the concerned local self-government in the affected area and will carry out a Social Impact Assessment study with respect to S.4(4). This will be notified in the local language and published in the affected areas.

While conducting the Social Impact Assessment Study, the on various components such as livelihood of affected families, public and community properties, assets and infrastructure particularly roads, public transport, drainage, sanitation, sources of drinking water, sources of water for cattle, community ponds, grazing land, plantations, public utilities such as post offices, fair price shops, food storage godowns, electricity supply, health care facilities, schools and educational or training facilities, anganwadis, children parks, places of worship, land for traditional tribal institutions and burial and cremation grounds etc. must be considered.

A Social Impact Assessment plan should also be prepared.
Public hearing for Social Impact Assessment
Publication of Social Impact Assessment study
Government shall ensure that a public hearing is held at the affected area, after giving adequate publicity about the date, time and venue for the public hearing, to ascertain the views of the affected families to be recorded and included in the Social Impact Assessment Report.

The Social Impact Assessment study report and the Social Impact Management Plan are to be prepared and made available in the local language to the Local self-government and the offices of the District Collector, the Sub-Divisional Magistrate and the Tehsil. It shall be published in the affected areas and uploaded on the website of the appropriate Government.
Appraisal of Social Impact Assessment report by an Expert Group.
(2) The Expert Group constituted under sub-section (1) shall include the following, namely:
(a) two non-official social scientists.
(b) two representatives of Panchayat, Gram Sabha, Municipality or Municipal Corporation, as the case may be.
(c) two experts on rehabilitation; and
(d) a technical expert in the subject relating to the project.

Examination of proposals for land acquisition and Social Impact Assessment report by appropriate Government.
The social impact assessment report must be evaluated by a multi-disciplinary Expert group constituted as per S.7(2), S.7(3) & S.7(4). This expert group opines that the project will serve a public purpose and the potential benefits outweighs the social cost, it shall publish its recommendations within two months as per S.7(5) & S.7(6)

The government must ensure that there is a legitimate public purpose, the potential benefits outweigh the social costs, only the minimum area for the purpose is acquired and ensure that there is no unutilised acquired land.
Publication of preliminary notification
(1) (a) in the Official Gazette;
(b) in two daily newspapers circulating in the locality of such area of which one shall be in the regional language;
(c) in the local language in the Panchayat, Municipality or Municipal Corporation, as the case may be and in the offices of the District Collector, the Sub-divisional Magistrate and the Tehsil;
(d) uploaded on the website of the appropriate Government;
(e) in the affected areas, in such manner as may be prescribed.
The government must publish notifications regarding the acquisitions and a meeting must be arranged to inform about the notification to the local authorities.
No transaction regarding the land specifies in the notification may be made after publication of the notification except the permission of the collector.
Preliminary survey of land and power of officers to carry out survey.
(1) (a) to enter upon and survey and take levels of any land in such locality;
(b) to dig or bore into the sub-soil;
(c) to do all other acts necessary to ascertain whether the land is adapted for such purpose;
(d) to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; and
(e) to mark such levels, boundaries and line by placing marks and cutting trenches and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle:

Hearing of objections
(1) (a) the area and suitability of land proposed to be acquired.
(b) justification offered for public purpose;
(c) the findings of the Social Impact Assessment report.
The authorised officer can exercise his powers under S.12(1) but in the presence of the owner or person appointed by the owner of the land nor shall enter any building or upon any enclosed court or garden attached to a dwelling-house without prior permission.

Any objections [S.15(1)] by the interested person must be made to the collector in writing and such person shall be a given an opportunity to be heard following to which a report is prepared. The decision is left to the appropriate government authorities.
Preparation of Rehabilitation and Resettlement Scheme by the Administrator
(1)(a) particulars of lands and immovable properties being acquired of each affected family;
(b) livelihoods lost in respect of land losers and landless whose livelihoods are primarily dependent on the lands being acquired;
(c) a list of public utilities and Government buildings which are affected or likely to be affected, where resettlement of affected families is involved;
(d) details of the amenities and infrastructural facilities which are affected or likely to be affected, where resettlement of affected families is involved; and
(e) details of any common property resources being acquired.
(2) (i) a list of Government buildings to be provided in the Resettlement Area;
(ii) details of the public amenities and infrastructural facilities which are to be provided in the Resettlement Area.

Review of the Rehabilitation and Resettlement Scheme

Approved Rehabilitation and Resettlement Scheme to be made public.

Publication of declaration and summary of Rehabilitation and Resettlement
(4) Every declaration referred to in sub-section (1) shall be published in the following manner, namely: �
(a) in the Official Gazette.
(b) in two daily newspapers being circulated in the locality, of such area of which one shall be in the regional language.
(c) in the local language in the Panchayat, Municipality or Municipal Corporation, as the case may be, and in the offices of the District Collector, the Sub-Divisional Magistrate and the Tehsil;
(d) uploaded on the website of the appropriate Government.
(e) in the affected areas, in such manner as may be prescribed.
(5) Every declaration referred to in sub-section (1) shall indicate, �
(a) the district or other territorial division in which the land is situated; 18
(b) the purpose for which it is needed, its approximate area; and
(c) where a plan shall have been made for the land, the place at which such plan may be inspected without any cost.
Administrator for Rehabilitation and Resettlement shall conduct a survey and undertake a census of the affected families as per S.16(1) and prepare a draft Rehabilitation and Resettlement Scheme as per S.16(2).

The scheme must include a time limit for implementation and must be publicised in the concerned local government bodies and a meeting & public hearing must be made after notifying it with the relevant details.

The collector shall review the scheme and submit it to the Commissioner Rehabilitation and Resettlement along with suggestions.

The approved scheme must be made public through publications and websites of the concerned local self-governments.

The collector shall publish a summary of the scheme along with a declaration with the details mentioned in S.19(4) & S.19(5).
Land to be marked out, measured and planned to include marking of specific areas
Notice to persons interested.
Enquiry and land acquisition award by Collector
The collector shall publish a notice stating the government's interest in acquiring the land and the compensation, rehabilitations and resettlement offered to the interested persons.
The notice must include the particulars of land and a time and date for all the interested persons to meet the collector at the same time (between 30 days and 6 months after the publication of the notice).
The collector shall ensure that all the interested persons are notified.

On a day fixed by the collector, an enquiry on to the objections raised to the notice under S.21 of the Act.
Powers to take possession of land to be acquired The collector shall take possession of the land after ensuring full payment of compensation as well as rehabilitation and resettlement entitlements are paid or tendered to the entitled persons, as well as be responsible for his actions.

In a nutshell, the process of land acquisition include:
  1. Preparation of Social Impact Assessment study, a public hearing on the assessment made and publication of the study.
  2. Appointment of an expert group to assess the Social Impact Assessment and further the government's examination of proposals for land acquisition.
  3. Publication of preliminary notification and appointment of officers.
  4. Preliminary survey of land.
  5. Hearing of objections.
  6. Preparation of Rehabilitation and Resettlement Scheme by the Administrator and its review thereafter.
  7. Approval and publication of the above scheme.
  8. Intimating the interested parties through notification.
  9. A meeting of the interested parties with the collector at a time, date and place fixed by the collector.
  10. Enquiry to objections of the interested parties by the collector.
  11. Land Acquisition.

In Black's Law Dictionary, the word 'compensation' has been defined as "money given to compensate loss or injury".
This Act guarantees that the landowners whose property is being acquired will receive equitable and fair compensation while considering all the economic and social factors. It also guarantees appropriate procedures and rules for the same.

The process of awarding compensations with the relevant sections of the Act are as follows:
Provision Remarks
Determination of market value of Land by collector
(1) (a) the market value, if any, specified in the Indian Stamp Act, 1899 (2 of 1899) for the registration of sale deeds or agreements to sell, as the case may be, in the area, where the land is situated; or
(b) the average sale price for similar type of land situated in the nearest village or nearest vicinity area; or
(c) consented amount of compensation as agreed upon under sub-section (2) of section 2 in case of acquisition of lands for private companies or for public private partnership projects,
whichever is higher:
The collector shall assess and determine the market value of the land as per S.26(1).

In case the market value cannot be determined, the State government shall specify the floor price or minimum price per unit area. In this case, the collector shall take steps to revise and update the market value of the land on the prevalent market rate in that area.
Determination of amount of compensation.

Parameters to be considered by Collector in determination of award.

Determination of value of things attached to land or building.

Additional compensation in case of multiple displacements.

Determination of award by authority

Particulars of apportionment to be specified
After assessing the market value of land, the collector shall calculate the total amount of compensation by including all assets attached to the land.
The market value of the land, damages sustained by the interested parties at the time of acquisition(standing crops and trees, severance from other land), damages to the interested party's property on the land, the expense incurred in the change of residence or place of business as the case may be, the damage caused due to the diminution of the profits of the land due to the notification any other ground in the interest of equity, justice and beneficial to the affected parties must be considered in determining the amount of compensation.
The collector shall use the assistance of experienced and professionals in determining the value of the properties such as buildings, crops, trees etc.
The Collector shall, as far as possible, not displace any family which has already been displaced by the appropriate Government for the purpose of acquisition under the provisions of this Act, and if so displaced, shall pay an additional compensation equivalent to that of the compensation determined under this Act for the second or successive displacements.
The concerned authority shall in every case award an amount calculated at the rate of twelve per cent. per annum on such market value for the period commencing on and from the date of the publication of the preliminary notification under S.11.
When several persons are interested and they agree in the apportionment of the compensation. The particulars of such apportionment must be specified in the award.
Award of solatium
(2) The Collector shall issue individual awards detailing the particulars of compensation payable and the details of payment of the compensation as specified in the First Schedule.
(3) In addition to the market value of the land provided under section 26, the Collector shall, in every case, award an amount calculated at the rate of twelve per cent. per annum on such market value for the period commencing on and from the date of the publication of the notification of the Social Impact Assessment study under sub-section (2) of section 4, in respect of such land, till the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.
After determining the total compensation to be paid, the collector arrives at the final award, 'solatium' adhering to S.30(2) and S.30(3) of the Act.
Awards of Collector when to be final The collector can exercise his powers under S.33, S.35 and S.36 and after having the final and conclusive documents and agreement between the interested parties and file the awards and issue notice.

These records will be summarised and be made open to the public.
Re-determination of amount of compensation on the basis of the award of the Authority

Appeal to High Court
If the concerned Authority the applicant any amount of compensation in excess of the amount awarded by the Collector under S.23, the persons interested in all the other land covered by the same preliminary notification under S.11, and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector, by written application to the Collector within three months from the date of the award of the Authority concerned require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the Authority.
The aggrieved party could file an appeal to the High Court if the award passed by the authority under S.69 is not satisfactory within 60 days from the date of the award.
Payment of compensation or deposit of same in Authority On making the award under S.30, the collector shall tender payment to the entitled persons and shall pay it to them by depositing the amount in their bank accounts

Rehabilitation And Resettlement
Rehabilitation and Resettlement of the affected landowners and other families that depend on the property either directly or indirectly are also discussed in the Act. Some of the relevant sections of the Act on the rehabilitation and resettlement of the interested parties are:
S.31 Rehabilitation and Resettlement Award for affected families by Collector.
(1) The Collector shall pass Rehabilitation and Resettlement Awards for each affected family in terms of the entitlements provided in the Second Schedule.
(2) The Rehabilitation and Resettlement Award shall include all of the following, namely:
(a) rehabilitation and resettlement amount payable to the family;
(b) bank account number of the person to which the rehabilitation and resettlement award amount is to be transferred;
(c) particulars of house site and house to be allotted, in case of displaced families;
(d) particulars of land allotted to the displaced families;
(e) particulars of one time subsistence allowance and transportation allowance in case of displaced families;
(f) particulars of payment for cattle shed and petty shops;
(g) particulars of one-time amount to artisans and small traders;
(h) details of mandatory employment to be provided to the members of the affected families;
(i) particulars of any fishing rights that may be involved;
(j) particulars of annuity and other entitlements to be provided;
(k) particulars of special provisions for the Scheduled Castes and the Scheduled Tribes to be provided:
Provided that in case any of the matters specified under clauses (a) to (k) are not applicable to any affected family the same shall be indicated as not applicable:
S.43 Appointment of Administrator:
The government shall appoint an administrator subject to the superintendence, directions and control of the appropriate Government and the Commissioner for Rehabilitation and Resettlement regarding the formulation, execution and monitoring of the Rehabilitation and Resettlement Scheme.
S.44 Commissioner for rehabilitation and resettlement:
The state government shall appoint an officer of the rank of Commissioner or Secretary of that Government for rehabilitation and resettlement of affected families. Commissioner shall be responsible for formulation of schemes and the post implementation of social audits
S.45 Rehabilitation and resettlement committee at project level:
The State government shall constitute a committee in the case of land acquisitions equal to or over 100 acres.
S.48 National Monitoring Committee for rehabilitation and resettlement:
The Central government may constitute a committee in the implementation or Nation or inter-state schemes.

Relevant Judgements
In G. Padmanabhan and Others v. Tamil Nadu State and Others (W.P.No.11275 of 2014) before the High Court of Judicature at Madras, the lands were bought by the government for the Tamil Nadu Housing Board's Krishnagiri Scheme. On May 9 1991, a Notification under Section 4(1) of the Land Acquisition Act was issued, and on July 31, 1992, a declaration under Section 6 of the Act was made.

The petitioners filed a writ petition before this Court in 1994, and while hearing the writ petition, this Court granted a stay of the dispossession order on May 18, 1994. The petitioners are said to be in their possession to this day. The award was made on August 3 1994, and it is the petitioners' specific argument that the award sum has yet to be deposited with the Civil Court. Finally, on July 10, 2001, this Court rejected the Writ Petition filed in 1994.

As a result, the interim order of dispossession was vacated. However, the petitioners claim that even after the stay was lifted, they are still not being evicted. Thereafter the petitioners have filed a petition seeking a determination that land acquisition procedures commenced under the Act of 1984 with respect to the properties in issue have lapsed with respect to Section 24(2) of the Act of 2013. The issue before the court was whether land acquisition proceedings were deemed to have lapsed as per Section 24(2) of Act, 2013.

The court held that since the petitioners were still in control of the land; they were not evicted, and the compensation payment was not made through the civil court, acquisition procedures were deemed to have ceased in accordance with Section 24(2) of the Act of 2013.

In Guru Nanak Vidya Bhandar Trust vs Union Of India & Ors (W.P.(C) 8273/2014) before the High Court of Delhi, Respondent No. 1 is the property's lessor. The land was first leased to Sardar Ram Singh Kabli, and afterwards, ownership of the property was transferred to the petitioner. It is also undisputed that the petitioner's land was encroached upon by the NDMC (New Delhi Municipal Council), and that possession was obtained illegally. In accordance with that provision, the petitioner filed a petition for possession in 1979, which was decreed by a learned single judge of this Court in a decision and decree dated March 8, 2006.

The NDMC's appeal to the Division Bench and then to the Supreme Court likewise failed. Following that, the NDMC asked that the Land Acquisition Authority acquire land, and the current acquisition processes were launched. The issue raised before the court was whether Section 24 of the 2013 Act can be applied to the facts of the present case.

A review of the facts reveals that the compensation was deposited in the court unilaterally and without being offered to the persons interested, and no facts have been brought to the court's attention to suggest that the same was offered to the petitioner. As a result, compensation for a "majority" of land holdings has not been put in the accounts of the "beneficiaries." The court held that the petitioner would be eligible for compensation under the 2013 Act.

In Indore Development Authority v. Manohar Lal and Ors. (S.L.P. (C) NOS.9036-9038 OF 2016) before the Supreme Court of India, the landowners contended that acquisitions made under the Land Acquisition Act of 1894 had lapsed and that new processes under the Land Acquisition Act of 2013 were required.

The Supreme Court declared in this significant decision that outstanding cases under the 2013 Act will expire under two conditions, and the acquisition procedure will have to be restarted.

The Supreme Court declared that new procedures under the Land Acquisition Act of 2013 will be required only if the following conditions are met:
  1. Possession of land has not happened.
  2. Landowners have not received compensation. According to the court, payment of compensation includes not only money given to landowners or put in court, but also money deposited in a government treasury. This implies that, even if the compensation payment was deposited with the government, the 2013 law will not apply to new acquisitions.
The 5-judge bench also ruled that landowners cannot seek compensation under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013, if they declined the supplied compensation or requested for greater compensation. However, if compensation is not made under the provisions of Section 24(1)(a) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013, as of the date of the 2013 Act's commencement, the proceedings will not be deemed to have lapsed, and compensation must be awarded in accordance with the provisions of the Act of 2013.

The Court issued the following rulings and interpretations:
  1. If the award was made within the five-year window period, except the period covered by an interim order of the court, then proceedings shall continue as provided in Section 24(1)(b) of the Act of 2013 under the Act of 1894 as if it had not been repealed.
  2. In Section 24(2), the term 'or' between possession and compensation must be interpreted as 'nor' or 'and.' The assumed lapse of land acquisition procedures occurs under Section 24(2) of the Act of 2013, where possession of land has not been obtained or compensation has not been paid owing to the inaction of authorities for five years or more before the beginning of the said Act.
  3. The term 'paid' does not include a deposit of compensation in court in the main section of Section 24(2) of the Act of 2013.
  4. If a person is offered compensation under Section 31(1) of the Act of 1894, he cannot argue that the acquisition has expired under Section 24(2) owing to non-payment or non-deposit of compensation in court. By presenting the sum specified in Section 31(1), the obligation to pay is fulfilled.
  5. The proviso to Section 24(2) of the Act of 2013 is to be considered part of Section 24(2), not Section 24(1)(b).
  6. Under the Act of 1894 and as envisioned by Section 24(2), the way of obtaining possession is by drawing an inquest report/memorandum. Once an award is made on taking possession under Section 16 of the Act of 1894, the land vests in the State; there is no divesting provided under Section 24(2) of the Act of 2013, as there is no lapse under Section 24(2).
  7. Section 24(2) provides for a considered lapse of proceedings in cases where authorities failed to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a land acquisition procedure continuing with the responsible authority as of 1.1.2014. The period of court-issued interim orders must be excluded from the five-year computation.
  8. Section 24(2) of the Act of 2013 does not provide a new cause of action to challenge the legitimacy of completed land 319 acquisition actions. Section 24 applies to any case that is continuing the date of the Act of 2013, 1.1.2014. It does not reopen finished processes or allow landowners to contest the legality of the way of taking possession to reopen proceedings or mode of depositing compensation in the treasury instead of the court to invalidate acquisition.

In Pune Municipal Corporation v. Harakchand Misirimal Solanki (civil appeal no. 877 of 2014) before the Supreme Court of India, a three-judge bench held that acquisition proceedings initiated under the 1894 Act, which were initiated five years before the 2013 law was enacted (in 2014), would lapse if the land in question was not taken control of or if compensation was not paid to displaced farmers.

Related Cases
In Balakrishnan v. UOI (civil appeal no(s). 344/2017) before the Supreme Court of India, the Kerala State Government acquired around 27 acres of agricultural land for the expansion of a Technopark in South Kerala. The landowner was dissatisfied with the compensation provided, so he negotiated with the concerned party for more compensation; nonetheless, in order to avoid litigation, he decided to sell the land at the price offered by the state.

Following payment of the compensation, the state revenue agency assessed capital gains tax on the sum received from the landowner, claiming that the transaction was a "voluntary sale" and so did not qualify for exemption under Section 10 of the Income-Tax Act as a compelled acquisition. The landowner then challenged this judgment in the High Court, which dismissed the appeal.

The case was then heard by the Supreme Court, which decided that the owner "succumbed to the measures taken by the government" in order to avoid litigation. Since the transaction was not a "voluntary sale," but rather a "compulsory acquisition," the court held that it should be excluded from capital gains tax.

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