Land acquisition in India still follows the century old colonial Land Acquisition Act of 1894.
The land acquisition process in India has lately assumed a controversial and debatable dimension. The recent uproar against the land acquisition in Nandigram at Singur and Greater Noida and the verdict of the apex court has brought the Land Acquisition Act and the process of land acquisition under a general discussion.
Land Acquisition may 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 is subject to payment of compensation to the owners or to persons interested in the land. Land acquisitions by the government generally are compulsory in nature, not paying heed to the owner’s unwillingness to part with the land.
The process of land acquisition is initiated by the government and the land owners have no role to play in it except for filing of objections while collecting compensation of the land. Various state governments come with several kinds of schemes for the people whose land is acquired by the state. The predominant purpose of any acquisition of land by the government has remained “public welfare” which can be development related activity or construction of various industrial, housing schemes. By and large the land acquisition by the state government is upheld by the courts whenever challenged because the “public purpose” is always kept in mind by the courts dealing with such cases.
The challenge to the award and the filing of objections is in the designated revenue courts and the matters are dealt specifically by such courts. Acquisition and requisition of property falls in the concurrent list, which means that both the centre and the state government can make laws on the matter. There are a number of local and specific laws which provide for acquisition of land under them but the main law that deals with acquisition is the Land Acquisition Act, 1894.
Land Acquisition Act, 1894
Legacy of the colonial British, the Land Acquisition Act of 1894 is a law still prevailing in India and Pakistan that allows the government to acquire private land in those countries.
The land acquisition act of 1894 was created with the expressed purpose of facilitating the government’s acquisition of privately held land for public purposes and for the companies. The word “public purpose”, as defined in the act, refers to the acquisition of land for putting up educational institutions or schemes such as housing, health or slum clearance, apart from the projects for rural planning or formation of sites. The expression “land” includes benefits that arise of land and things attached to the earth or permanently attached to the anything fastened to the earth.
The word “government” refers to the central government if the purpose for acquisition is for the union and for all other purposes it refers to the state government. It is not necessary that all the acquisition has to be initiated by the government alone. Local authorities, societies registered under the societies registration act, 1860 and co-operative societies established under the co-operative societies act can also acquire the land for developmental activities through the government.
Such land is typically acquired by the government through payment of compensation to landowners as per market value. Moreover if the compensation given is under protest than as per the enactment the awardees are entitled to refer the matter to the court for determination of requisite amount of compensation.
After independence in 1947, the Indian government adopted “Land Acquisition Act-1894” as a tool for land acquisition. Since then various amendments have been made to the 1894 act from time to time. However, despite amendments the administrative procedures have remained same. The Ministry of Rural Development being the Nodal Union Government to administer the Land Acquisition Act, 1894, processes the proposals for amendment of various provisions of the said Act from time to time.
Land acquisition in Scheduled Areas is not possible!
As there are number of Protective Land Laws, Legislations, Regulations, Forest Laws, Government Policies, Court Orders and Judgments, and Government Orders (GOs) which prohibit the land transfer in Scheduled Areas. In spite of all these protective and welfare laws made by the government for the welfare of tribals, the Governmental agencies have been acquiring the tribal lands in the name of National interest in contravention to all the Constitutional Provisions. Clearly the protective laws of the tribal areas are being manipulated where the legal access to tribal lands and resources is denied.
Key Problems with the Land Acquisition Act, 1894
Designed by the British to serve their only purpose of taking-over land to serve their colonial interests, the law is too narrow and lacks humanitarian touch and sense of justice that any modern law should have.
Method of fixing the monetary compensation: The land owner is entitled to the compensation determined on the basis of the market value of the land on the date of preliminary notification – no consideration of rising future values as a result of the development project. It is determined by the Collector, and for any objections under Section-5 and Section-9 of the Act, the Collector and Government act as the Quasi-Adjudicatory Body, and the suits to a civil court are specifically barred. There is no provision for an independent judicial body to fix the amount of compensation calculated and hear the objections.
No consideration of rehabilitation – reconstructing the lives of displaced and affected people – is clearly the most glaring short-coming of the 1894 Act, which instead emphasizes cash compensation for loss of land and that too without specifying any time limit. This has allowed considerable laxity to the officials further annoying the already affected people. Even with some time limit, the larger issue of rehabilitation would remain.
A lack of rehabilitation policy violates Right to Life under Article 21 and Right to Equality under Article 14 (interpreted as right against arbitrariness) of the Constitution of India.
No provision for dialogue with the affected people: The government does everything arbitrarily, the only thing the dissatisfied land owner can do is to file objection regarding compensation (and wait for decision). This is nothing but a mockery of democracy – one is losing not just property but age-honored lifestyle and the law offers no platform to express one’s opinion.
The only way an affected person can say something is by way of filing an objection within thirty days from the date of notification in the gazette. The objections will be valid on one or more of the following grounds:
- That the purpose for which the land is proposed for acquisition is not a public purpose.
- That the land is not or less suitable than another piece of land for the said purpose.
- That the area under acquisition is excessive.
- That the acquisition will destroy or impair historical or artistic monuments or will desecrate religious buildings, graveyards and the like.
The collector after hearing the objections will submit his report to the government who will finally declare the land for acquisition under the Section 6 of the Act. After notification the collector proceeds with the claim. Needless to say, this undemocratic situation is loaded against the poor tribals.
Total silence about project affected landless people: They often survive working for land owners and collecting natural produce from the CPR land. In fact, a self sufficient infrastructure of small workers doing various useful things automatically develops in any settlement. By allowing acquisition of common property like wells, grazing fields, etc it renders them without means of sustenance and survival. In tribal areas such facilities fall under traditional community rights – the 1894 Act is blind towards such rights; thus the government does not have to pay any compensation for CPR land.
Vague and wide Definition of “Public Purpose”: Under Section-4 of the Act, the Government is required to make a public notification of the intention to take over the land for a “public purpose.” Its definition under Section-3(f) is quite vague and is often interpreted very liberally to include a variety of uses such as housing schemes, roads, play grounds, offices and factories, benefiting only a portion of the society by the Collector and State Government taking advantage of the wide definition. In fact, the Supreme Court in various cases has laid down that the “Public Purpose” is hard to define and the Government is the best judge to decide whether a purpose falls under this definition. Under the existing legislation, even private corporations are granted the right to acquire land under certain sections.
After independence, the constitutional interpretations sought to make the State supreme reflecting the then popular socialistic sentiments. Parliament added the Ninth Schedule to the Constitution through the very first amendment in 1951 in order to immunize certain laws against judicial review. Under the provisions of Article 31, which themselves were amended several times later, laws placed in the Ninth Schedule pertaining to acquisition of private property and compensation payable for such acquisition cannot be challenged in a court of law on the ground that they violated the fundamental rights of citizens. Therefore, the government can use these laws and easily infringe upon the basic rights of citizens.
You may also like to read about the recently proposed Land Acquisition, Resettlement and Rehabilitation Bill of 2011 and a detailed report on Tribal displacement in India.