In the case of Munshi Singh and Ors. v. Union of India, in the earlier notification it was mentioned that the Governor of Uttar Pradesh was pleased to notify for general information that the land mentioned in the schedule is likely to be needed for a public purpose. Their Lordship held that owing to the vagueness and indefiniteness of the public purpose stated in the notifications under Section 4(1) and in the absence of any proof that the appellants were either aware of or were shown the scheme or the Master Plan in respect of the planned development of the area in question the appellants were wholly unable to object effectively and exercise their right under Section 5A of the Land Acquisition Act.
H.G. Sheela vs State Of Karnataka And Ors. Decided on 24/1/2006 ORDERED by Justice V. Gopala Gowda, J. “Before parting with the judgment, it is felt that some observation has to be made so that the future action of the officers shall be in accordance with the provisions of statutory enactments with proper application of mind to the relevant aspects. It is to be noted that when some area is earmarked for residential or other purposes in the CDP, the Board or any other authority cannot make use of such area to other purposes. If that is done, the very object and purpose of preparing the CDP is defeated. In other words, the areas earmarked by the Planning Authority in the CDP remains as such but practically the said areas are permitted to be used for some other purpose by other authorities without revising the CDP. That is wholly impermissible in law.”
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IMPROPER EXERCISE OF STATUTORY POWERS
In Dr. Ram Manohar Lohia v. State of Bihar & Ors., [1966] 1 S.C.R. 708, it was laid down that the Courts had always acted to restrain a misuse of statutory power and more readily when improper motives underlie it. Exercise of power for collateral purpose has similarly been held to be a sufficient reason to strike down the action. In State of Punjab v. Ramjilal & Ors., [1971] 2 S.C.R. 550, it was held that it was not necessary that any named officer was responsible for the act where the validity of action taken by a Government was challenged as mala fide as it may not be known to a private person as to what matters were considered and placed before the final authority and who had acted on behalf of the Government in passing the order. This does not mean that vague allegations of mala fide are enough to dislodge the burden resting on the person who makes the same a though what is required in this connection is not a proof to the hilt as held in Barium Chemicals Ltd. & Anr. v. Company Law Board, [1966] Supp. S.C.R. 311, the abuse of authority must appear to be reasonably probable.
FRAUDULENT EXCERCISE OF POWER BY STATUTORY AUTHORITIES
. Professor de Smith in his monumental work the Judicial Review of Administration Action, 4th edition at pp.335-36 says in his own terse language : "The concept of bad faith eludes precise definition, but in relation to the exercise of statutory powers it h may be said to comprise dishonesty (or fraud) and malice. A power is exercised fraudulently if its repository intends to achieve an object other than that for which he believes the power to have been conferred...... A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. He then goes on to observe : "If the Court concludes that the discretionary power has been used for an unauthorized purpose it is generally immaterial whether its repository was acting in good or bad faith. But there will undoubtedly remain areas of administration where the subject matter of the power and the evident width of the discretion reposed in the decision maker render its exercise almost wholly beyond the reach of judicial review. In these cases the courts have still asserted jurisdiction to determine whether the authority has endeavoured to act in good faith in accordance with the prescribed purpose. In most instances the reservation for the case of bad faith is hardly more than a formality. But when it can be established, the courts will be prepared to set aside a judgment or order procured or made fraudulently despite the existence of a generally worded formula purporting to exclude judicial review. Bad faith is here understood by the learned author to mean intentional usurpation of, power motivated by considerations that are incompatible with the discharge of public responsibility. In requiring statutory powers to be exercised reasonably, in good faith, and on correct grounds, the Courts are still working within the bounds of the familiar principle of ultra vires. The Court assumes that Parliament cannot have intended to authorize unreasonable action which is therefore ultra vires and void. This is the express basis of the reasoning in many well-known cases, on the subject. A necessary corollary is that, as usual throughout administrative law, we are concerned only with acts of legal power i.e. acts which, if valid, themselves produce legal consequence. In general, however, the Courts adhere firmly to the wide meaning of 'jurisdiction' since this is the sheet- anchor of their power to correct abuses. They appear to be willing to stretch the doctrine of ultra vires to cover virtually all situations where statutory power is exercised contrary to some legal principles. There are many cases in which a public authority is held to have acted for improper motives or irrelevant considerations, or have failed to take account of relevant considerations, that its action is ultra vires and void.
The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S. Pratap Singh v. State of Punjab, [1964] 4 S.C.R. 733. A power is exercised maliciously if its repository is motivated by personal Animosity towards those who are directly affected by its exercise. Use of a power for an 'alien' purpose other than the one for which the power is conferred in mala fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power and it was observed as early as in 1904 by Lord Lindley in General Assembly of Free Church of Scotland v. Overtown, L.R. [1904] A.C. 515, 'that there is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bona fide for the purpose for which they are conferred'. It was said that Warrington, C.J., in Short v. Poole Corporation, L.R. [1926] Ch. D.66, that : "No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative. In Lazarus Estates Ltd. v. Beasley, [1956] 1 Q.B. 702 at pp.712-13, Lord Denning, LJ. said : "No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. See also, in L Lazarus case at p.722 per Lord Parker, CJ : "'Fraud' vitiates all transactions known to the law of however high a degree of solemnity. All these three English decisions have been cited with approval by Supreme Court of India in Partap Singh's case.
The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S. Pratap Singh v. State of Punjab, [1964] 4 S.C.R. 733. A power is exercised maliciously if its repository is motivated by personal Animosity towards those who are directly affected by its exercise. Use of a power for an 'alien' purpose other than the one for which the power is conferred in mala fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power and it was observed as early as in 1904 by Lord Lindley in General Assembly of Free Church of Scotland v. Overtown, L.R. [1904] A.C. 515, 'that there is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bona fide for the purpose for which they are conferred'. It was said that Warrington, C.J., in Short v. Poole Corporation, L.R. [1926] Ch. D.66, that : "No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative. In Lazarus Estates Ltd. v. Beasley, [1956] 1 Q.B. 702 at pp.712-13, Lord Denning, LJ. said : "No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. See also, in L Lazarus case at p.722 per Lord Parker, CJ : "'Fraud' vitiates all transactions known to the law of however high a degree of solemnity. All these three English decisions have been cited with approval by Supreme Court of India in Partap Singh's case.
PUBLIC AUTHORITIESS SHOULD SHOW UNDER WHICH PROVISION THEY ARE ACTING
Wazir Chand v. State of H.P., [1955] 1 S.C.R. 408, where it was held that the State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts, and to Ram Prasad Narayan Sahi v. State of Bihar, [1953] S.C.R. 1129, where the Court said that nothing is more likely to drain the vitality from the rule of law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability which is not imposed upon the others, and concluded : "We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority. Even if the property was trust property it is difficult to see how the Municipal Committee, Barnala, can step in as trustee on an executive determination only.
ACQUISITION WHEN POLITICALLY MOTIVATED
. STATE OF PUNJAB Vs. GURDIAL SINGH & ORS. AIR 1980 SC 319 “Allegation by land owner that statutory power misused to satisfy personal ends of an individual with political influence - No attempt to contradict allegation despite opportunity being afforded.”
STATE OF PUNJAB Vs. GURDIAL SINGH & ORS. AIR 1980 SC 319 “After a long interval, the State initiated acquisition proceedings in respect of the same land a second time…………… On a conspectus of the material on the record it does seem that the impugned acquisition proceeding cannot be sustained. There is reason to believe that the statutory power to acquire land has been misued to satisfy the personal ends of the Respondent No. 22, an individual who appears to be not without considerable political influence. Despite an opportunity afforded to controvert the allegations made by the Respondents Nos. 1 to 21, no attempt has been made by him to contradict the allegations……………… It is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and preemptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons…………………….. The power to select land for acquisition proceedings is left to the responsible discretion of Government under the Act, subject to Articles 14, 19 and 31 (then). The Court is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom in administrative action is the property of the Executive and judicial circumspection keeps the court lock-jawed save where power has been polluted by oblique ends or is otherwise void on well-established grounds…………………………… Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Bad faith which invalidates the exercise of power-sometimes called colourable exercise or fraud on power and often times overlaps motives, passions, and satisfactions-is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legal object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested, the court calls it a colourable exercise and is undeceived by illusion……………………. Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action, mala fides or fraud on power vitiates the acquisition or other official act…………………………. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in Law when he stated: "I repeat...that all power is a trust-that we are accountable for its exercise-that, from the people, and for the people, all springs, and all must exist".
STATE OF PUNJAB Vs. GURDIAL SINGH & ORS. AIR 1980 SC 319 “After a long interval, the State initiated acquisition proceedings in respect of the same land a second time…………… On a conspectus of the material on the record it does seem that the impugned acquisition proceeding cannot be sustained. There is reason to believe that the statutory power to acquire land has been misued to satisfy the personal ends of the Respondent No. 22, an individual who appears to be not without considerable political influence. Despite an opportunity afforded to controvert the allegations made by the Respondents Nos. 1 to 21, no attempt has been made by him to contradict the allegations……………… It is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and preemptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons…………………….. The power to select land for acquisition proceedings is left to the responsible discretion of Government under the Act, subject to Articles 14, 19 and 31 (then). The Court is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom in administrative action is the property of the Executive and judicial circumspection keeps the court lock-jawed save where power has been polluted by oblique ends or is otherwise void on well-established grounds…………………………… Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Bad faith which invalidates the exercise of power-sometimes called colourable exercise or fraud on power and often times overlaps motives, passions, and satisfactions-is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legal object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested, the court calls it a colourable exercise and is undeceived by illusion……………………. Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action, mala fides or fraud on power vitiates the acquisition or other official act…………………………. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in Law when he stated: "I repeat...that all power is a trust-that we are accountable for its exercise-that, from the people, and for the people, all springs, and all must exist".
PUBLIC PURPOSE DISCUSSED ELABORATELY WITH CITATIONS BY SUPREME COURT
CASE NO.: Appeal (civil) 6756 of 2003
PETITIONER: Daulat Singh Surana & Others
RESPONDENT: First Land Acquisition Collector & Others
DATE OF JUDGMENT: 13/11/2006
BENCH: JUSTICE ASHOK BHAN & JUSTICE DALVEER BHANDARI
Judgement can be seen in http://judis.nic.in/supremecourt/chejudis.asp
BELOW STATED DECISIONS ARE RELIED BY PARTIES FOR DIFFERENT CONTENTIONS AND PLACED BEFORE HON'BLE COURT
1. Sri Nripati Ghoshal v. Premavati Kapur & Ors. [(1996) 5 SCC 386 (para 4)]
2. First Land Acquisition Collector & Ors. v. Nirodhi Prakash Gangoli & Anr. [(2002) 4 SCC 160 (para 6)]
3. Raghunath & Ors. v. State of Maharashtra & Ors. [AIR 1988 SC 1615 (para 9)]
4. Hindustan Oil Mills Ltd. & Anr. v. Special Deputy Collector (Land Acquisition) [AIR 1990 SC 731 (paras 8 & 9)]
5. State of West Bengal v. Bireshwas Dutta Estate (P) Ltd. [(2000) 1 Calcutta Law Times 165(HC) (para 37)].
6. Sailendra Narayana Bhanja Deo v. State of Orissa [AIR 1956 SC 346 (para 8)
Public Purpose has been defined in the Land Acquisition Act as under:-
"(f) the expression "public purpose" includes
(i) the provision of village-sites, or the extension, planned development or improvement of existing village sites;
(ii) the provision of land for town or rural planning;
(iii) the provision of land for planned development of land from public funds in pursuance of any scheme or policy of Government and subsequent disposal thereof in whole or in part in lease, assignment or outright sale worth the object of securing further development as planned;
(iv) the provision of land for a corporation owned or controlled by the State;
(v) the provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced to affected by reason of the implementation of any scheme undertaken by Government, any local authority or a corporation owned or controlled by the State;
(vi) the provision of land for carrying out any educational, housing, health or slum clearance scheme sponsored by Government, or by any authority established by Government for carrying out any such scheme, or, with the prior approval of the appropriate Government, by a local authority or a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a State, or a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State;
(vii) the provision of land for any other scheme of development sponsored by Government or, with the prior approval of the appropriate Government, by a local authority;
(viii) the provision of any premises or building for locating a public office;
but does not include acquisition of land for Companies."
Public purpose will include a purpose in which the general interest of community as opposed to the interest of an individual is directly or indirectly involved. Individual interest must give way to public interest as far as public purpose in respect of acquisition of land is concerned.
In the Constitution of India, some guidelines can be traced as far as public purpose is concerned in Article 37 of the Constitution. The provisions contained in this Part (Directive Principles of the State Policy) shall not be enforceable by any Court, but the principles therein laid down are nevertheless fundamental in the governance of the country. It shall be the duty of the State to apply these principles in making laws.
According to Article 39 of the Constitution, the State shall, in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. The laws made for the purpose of securing the constitutional intention and spirits have to be for public purpose.
The term 'public purpose' has been defined in Black Law Dictionary (Fifth Edition) as under: "A public purpose or public business has for its objective the promotion of the public health, safety, morals, general welfare, security, prosperity and contentment of all the inhabitants or residents within a given political division, as, for example, a state, the sovereign powers of which are exercised to promote such public purpose or public business."
Public purpose is bound to vary with times and prevailing conditions in the community or locality and, therefore, the legislature has left it to the State (Government) to decide what is public purpose and also to declare the need of a given land for the purpose. The legislature has left the discretion to the Government regarding public purpose. The Government has the sole and absolute discretion in the matter.
In State of Bihar v. Kameshwar Singh reported in AIR 1952 SC 252 at page 259, a Constitution Bench of this Court considered the expression 'public purpose'. Mahajan, J. explained the expression 'public purpose' in the following manner:"The expression "public purpose" is not capable of a precise definition and has not a rigid meaning. It can only be defined by a process of judicial inclusion and exclusion. In other words, the definition of the expression is elastic and takes its colour from the statute in which it occurs, the concept varying with the time and state of society and its needs. The point to be determined in each case is whether the acquisition is in the general interest of the community as distinguished from the private interest of an individual."
In that case, S. R. Das, J. observed as under:"We must regard as public purpose all that will be calculated to promote the welfare of the people as envisaged in the Directive Principles of State policy whatever else that expression may mean."
Almost a century ago, in Hamabai v. Secretary of State reported in (1911) 13 Bom LR 1097, Batchelor, J. observed: "General definitions are, I think, rather to be avoided where the avoidance is possible, and I make no attempt to define precisely the extent of the phrase 'public purpose' in the lease; it is enough to say that, in my opinion, the phrase, whatever else it may mean, must include a purpose, that is, an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned" received the approval of the Privy Council".
The definition of public purpose has been relied in number of subsequent decisions including the Constitution Bench judgment of this Court.The concept of public purpose was dealt in great detail in a leading American case Munn v. Illinois reported in (1877) 94 US 113: 24 L. Ed 77 and in some other cases. The doctrine declared is that property becomes clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large and from such clothing the right of the legislature is deduced to control the use of the property and to determine the compensation which the owner may receive for it. Field, J. observed as follows: "The declaration of the Constitution of 1870, that private buildings used for private purposes shall be deemed public institutions, does not make them so. The receipt and storage of grain in a building erected by private means for that purpose does not constitute the building a public warehouse. There is no magic in the language, though used in a constitutional convention, which can change a private business into a public one, or alter the character of the building in which the business is transacted."
In United Community Services v. Omaha Nat. Bank 77 N.W.2d 576, 585, 162 Neb. 786, the Court observed that a public purpose has for its objective the promotion of the public health, safety, morals, security, prosperity, contentment, and the general welfare of all the inhabitants.
In People ex rel. Adamowski v. Chicago R.R. Terminal Authority, 151 N.E.2d 311, 314, 14 III.2d 230 the Court observed that public purpose is not static concept, but is flexible, and is capable of expansion to meet conditions of complex society that were not within contemplation of framers of Constitution.
In Green v. Frazier, 176 N.W. 11, 17, 44 N.D. 395, the Court observed that a public purpose or public business has for its objective the promotion of the public health, safety, morals, general welfare, security, prosperity, and contentment of all the inhabitants or residents within a given political division, as, for example, a state, the sovereign powers of which are exercised to promote such public purpose or public business.In the words of Lord Atkinson in Central Control Board v. Cannon Brewery Co. Ltd. (1919) A.C. 744, the power to take compulsorily raises by implication a right to payment.
The power of compulsory acquisition is described by the term "eminent domain". This term seems to have been originated in 1525 by Hugo Grotius, who wrote of this power in his work "De Jure Belli et Pacis" as follows : "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." The Court observed that the requirement of public purpose is implicit in compulsory acquisition of property by the State or, what is called, the exercise of its power of 'Eminent Domain'.The Court further observed that the principle of compulsory acquisition of property, says Cooley (in Vol. II at p. 113, Constitutional Limitations) is founded on the superior claims of the whole community over an individual citizen but is applicable only in those cases where private property is wanted that public use, or demanded by the public welfare and that no instance is known in which it has been taken for the mere purpose of raising a revenue by sale or otherwise and the exercise of such a power is utterly destructive of individual right.
In The State of Bombay v. R.S. Nanji (1956) SCR 18, the Court observed that it is impossible to precisely define the expression 'public purpose'. In each case all the facts and circumstances will require to be closely examined in order to determine whether a public purpose has been established. Prima facie, the Government is the best judge as to whether public purpose is served by issuing a requisition order, but it is not the sole judge. The courts have the jurisdiction and it is their duty to determine the matter whenever a question is raised whether a requisition order is or is not for a public purpose. In the said case, the Court observed that the phrase 'public purpose' includes a purpose, that is, an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals is directlyand vitally concerned. It is impossible to define precisely the expression 'public purpose'. In each case all the facts and circumstances will require to be closely examined to determine whether a public purpose has been established. In that case, the Court also referred to the following cases: The State of Bombay v. Bhanji Munji & Another (1955) 1 SCR 777 and The State of Bombay v. Ali Gulshan (1955) 2 SCR 867.
In Somawanti v. State of Punjab (1963) 2 SCR 774, the Court observed that public purpose must include an object in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned. Public purpose is bound to change with the times and the prevailing conditions in a given area and, therefore, it would not be a practical proposition even to attempt an extensive definition of it. It is because of this that the legislature has left it to the Government to say what is a public purpose and also to declare the need of a given land for a public purpose.
The Constitution Bench of this Court in Somawanti (supra) observed that whether in a
particular case the purpose for which land was needed was a public purpose or not was for the Government to be satisfied about and the declaration of the Government would be final subject to one exception, namely that where there was a colourable exercise of the power the declarations would be open to challenge at the instance of the aggrieved party.
In Babu Barkya Thakur v. The State of Bombay & Others (1961) 1 SCR 128, the Court observed as under: "It will thus be noticed that the expression 'public purpose' has been used in its generic sense of including any purpose in which even a fraction of the community may be interested or by which it may be benefited."
The Constitution Bench in Satya Narain Singh v. District Engineer, P.W.D., Ballia and Anr. reported in AIR 1962 SC 1161 while describing public service observed :-"It is undoubtedly not easy to define what is "public service" and each activity has to be considered by itself for deciding whether it is carried on as a public service or not. Certain activities will undoubtedly be regarded as public services, as for instance, those undertaken in the exercise of the sovereign power of the State or of governmental functions. About these there can be no doubt. Similarly a pure business undertaking though run by the Government cannot be classified as public service. But where a particular activity concerns a public utility a question may arise whether it falls in the first or the second category. The mere fact that that activity may be useful to the public would not necessarily render it public service. An activity however beneficial to the people and however useful cannot, in our opinion, be reasonably regarded as public service if it is of a type which may be carried on by private individuals and is carried on by government with a distinct profit motive. It may be that plying stage carriage buses even though for hire is an activity undertaken by the Government for ensuring the people a cheap, regular and reliable mode of transport and is in that sense beneficial to the public".
In Arnold Rodricks v. State of Maharashtra, reported in (1966) 3 SCR 885, while Justice Wanchoo and Justice Shah dissenting from judgment observed that there can be no doubt that the phrase 'public purpose' has not a static connotation, which is fixed for all times. There can also be no doubt that it is not possible to lay down a definition of what public purpose is, particularly as the concept of public purpose may change from time to time. There is no doubt however that public purpose involves in it an element of general interest of the community and whatever furthers the general interest must be regarded as a public purpose.
In Bhim Singhji v. Union of India (1981) 1 SCC 166, as per Sen, J., the concept of public purpose necessarily implies that it should be a law for the acquisition or requisition of property in the interest of the general public, and the purpose of such a law directly and vitally subserve public interest. Broadly speaking the expression 'public purpose' would however include a purpose in which the general interest of the community as opposed to the particular interest of the individuals is directly and virtually concerned.
In Laxman Rao Bapurao Jadhav v. State of Maharashtra reported in (1997) 3 SCC 493, this Court observed that "it is for the State Government to decide whether the land is needed or is likely to be needed for a public purpose and whether it is suitable or adaptable for the purpose for which the acquisition was sought to be made. The mere fact that the authorized officer was empowered to inspect and find out whether the land would be adaptable for the public purpose, it is needed or is likely to be needed, does not take away the power of the Government to take a decision ultimately".
In Scindia Employees' Union v. State of Maharashtra & Others reported in (1996) 10 SCC 150, this Court observed as under:"The very object of compulsory acquisition is in exercise of the power of eminent domain by the State against the wishes or willingness of the owner or person interested in the land. Therefore, so long as the public purpose subsists the exercise of the power of eminent domain cannot be questioned. Publication of declaration under Section 6 is conclusive evidence of public purpose. In view of the finding that it is a question of expansion of dockyard for defence purpose, it is a public purpose."
The right of eminent domain is the right of the State to reassert either temporarily or permanently its dominion over any piece of land on account of public exigency and for public good.
In the case of Coffee Board v. Commissioner of Commercial Taxes reported in (1988) 3 SCC 263, the Court observed that the eminent domain is an essential attribute of sovereignty of every State and authorities are universal in support of the definition of eminent domain as the power of the sovereign to take property for public use without the owner's consent upon making just compensation.
The power of eminent domain is not exercisable in Anglo-Saxon jurisprudence except on condition of payment of compensation. In V.G. Ramachandran's Law of Land Acquisition and Compensation (Eighth Edition) by G.C. Mathur, it is stated (at page 1)-"In United States, the power of eminent domain is founded both on the Federal (Fifth Amendment) and on the State Constitutions. The scope of the doctrine in America stands considerably circumscribed by the State Constitutions. Now, the Constitution limits the power to taking for a public purpose and prohibits the exercise of power of eminent domain without just compensation. The process of exercising the power of eminent domain now is commonly referred to as 'condemnation' or 'expropriation'."
A seven-Judge Bench of this Court in The State of Karnataka & Another v. Shri Ranganatha Reddy & Another reported in (1977) 4 SCC 471, explained the expression 'public purpose' in the following words: "6. It is indisputable and beyond the pale of any controversy now as held by this Court in several decisions including the decision in the case of His Holiness Kesavananda Bharati Sripadagalaveru v. State of Kerala [1973] Supp. 1 S.C.R. 1 - popularly known as Fundamental Rights case - that any law providing for acquisition of property must be for a public purpose. Whether the law of acquisition is for public purpose or not is a justifiable issue. But the decision in that regard is not to be given by any detailed inquiry or investigation of facts. The intention of the legislature has to be gathered mainly from the Statement of Objects and Reasons of the Act and its Preamble. The matter has to be examined with reference to the various provisions of the Act, its context and set up, the purpose of acquisition has to be culled out therefrom and then it has to be judged whether the acquisition is for a public purpose within the meaning of Article 31(2) and the law providing for such acquisition.
ROAD EXTENT AND ENCROACHMENT – SC CASE LAW
ROAD EXTENT AND ENCROACHMENT – SC CASE LAW
More than a century ago in Attorney General v. Corporation of Sunder Land, 1875-76(2) Ch.D 634, the position of the municipal authorities with regard to public parks, gardens, squares and streets was put at par with a trustee, and it was held that the municipal authorities would be guilty of breach of trust in employing any part thereof for purposes other than those contemplated by the relevant statute
1. Supreme Court of India in K.R. Shenoy v Udipi Municipality, AIR 1974 SC 2177. In the above case, the Municipality of Udipi had granted permission for construction of Cinema Hall in a place which was reserved for residential purposes. This action of the Municipality was struck down by observing that the Municipal authorities are supposed to enforce a scheme and not to act in breach thereof. It would be apt to quote what was said by the Supreme Court :- "Where the Municipality acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess. The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within its limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the like of its authority and infringes or violates the rights of others, it becomes like all other of the Courts. If sanction is given to build by contravening a bye-law the jurisdiction of the Courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative."
2. The same concern was shown by the Supreme Court of India in Bangalore Medical Trust v. B.S. Muddappa, AIR 1991 SC 1902. In this case action of the local authority which was destructive of environment was set at naught.
3. The decisions given by the Supreme Court of India be also noticed. In Municipality v. Mahadeoji, AIR 1965 SC 1147 it observed that inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. It was observed : "The width of the highway so dedicated depends upon the extent of the user. The side land are ordinarily included in the road for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent landmark and the manner and mode of its maintenance usually indicate the extent of the user." In Manglore Municipality v. Mahadeoji, AIR 1965 SC 1147, it was observed that :- "Inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. The width of the highway so dedicated depends upon the extent of the user. The side lands are ordinarily included in the road for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent landmark and the manner and mode of its maintenance usually indicate the extent of the user."
4. State of U. P. v. Ata Mohd., AIR 1980 SC 1785, it was held that street would vest in the Corporation only qua the street and not as absolute property. What is vested in the Municipality is not general property or a species of property known to the common law but a special property created by a statute and vested in a corporate body for public purposes. Such vesting enables the Corporation to use the Street as a street and not for any other purpose. Not only pavements but verandahs in front of the shops are part of streets and public streets. State of U. P. v. Ata Mohd.. AIR 1980 SC 1785. The Supreme Court held if the municipality put the street to any other user than that for which, it was intended, the State as its owner, was entitled to intervene and maintain an action to get any person in illegal occupation evicted.
5. Supreme Court in the case of M/s Gobind Pershad v. New Delhi Municipal Committee, AIR 1993 SC 2313. In this case verandahs in Connaught Circus in New Delhi were held to be part of public streets. In para 12 of the judgment it was observed as under : "We see no ground to differ with the concurrent findings of the Court below and hold that the appellant has dedicated the Verandah in dispute to the public-use. It is being used for passing and repassing by the public at large and as such is a "street" in terms of section 3(13)(a) of the Act. The appellant has thus surrendered his rights in the property for the benefit of the public. The user of the property is and always shall be with the public. Any space, passage, verandah, alley, road or footway dedicated to public by the owner for passing and repassing, partakes the character of a "street" and no longer remains under the control of the owner has no right at all times to prevent the public from using the same. When the owner of the . property has, by his own violation permitted his property to be converted into a "street", then he has no right to claim any compensation when the same property is made "public street" under section 17(4) of the Act. The "streets" are meant for public use. It is necessary that the "streets" which are being used by the public are frequently repaired and are also saved from public abuse. It is common knowledge that in the absence of any regulatory control the hawkers and squatters are likely to occupy the "streets" thereby creating nuisance for the public. In a situation like this it is necessary for the committee to step in and exercise its powers under section 17(4) of the Act. The Committee exercises regulatory control and is responsible for the repair and upkeep of the "public streets". The verandah in dispute is a "street". It has been declared as a "public street" for the better enjoyment of the public right in the said street. We hold that when a "street" is declared as "public street" the owner of the property comprising the said "street", has no right to claim compensation."
6. In another case, the Zoning Authority had prevented the spread of a commercial venture as a hotel in and around a lake in the State of Tamilnadu. The local administration did not permit it. The Chief Minister interfered with the local self-government in the district. The Supreme Court was not appreciative of the fact that in such matters of discipline in urban construction and environment protection instructions should be given from the top which result in for violation of planned urban habitats. Pleasant Stay Hotel v. Pilani Conservation Council. 1995 (6) SCC 127.
7. In the case of Bombay Hawkers' Union v. Bombay Municipal Corporation. AIR 1985 SC 1206. the Supreme Court held that "No one has any right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public. Public Streets, by their very nomenclature and definition, are meant for the use of the general public. They are not laid to facilitate the carrying on of private trade or business. If hawkers were to be conceded the right claimed by them, they could hold the society to ransom by squatting on the centre of busy thoroughfares, thereby paralysing all civic life. Indeed, that is what some of them have done in some parts of the city. They have made it impossible for the pedestrians to walk on footpaths or even on the streets properly so-called".
8. In the case of Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, the Supreme Court held that a municipality is empowered to cause to be removed encroachments on footpaths or pavements over which the public have a right of passage or access. In this case the Supreme Court also observed that "...............In the first place, footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets". The Supreme Court was also dismissing misplaced arguments resting on life and liberty by those who were claiming occupation of public streets. In this regard, the Supreme Court observed that ".....There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing and repassing, are competing claims and that, the former should be preferred to the latter".
9. In the case of Delhi Municipal Corporation v. Gumam Kaur, AIR 1989 SC 38, the Supreme Court reiterated the law that to remove an encroachment of a public road is the obligation of a municipality and that an injunction could not be granted to suffer an encroachment of a public place like a street which is meant for the use of the pedestrians.
10. In the case of Ahmedabad Municipal Corporation v. D. Balwantsingh. JT 1992 (2) SC 363, the Supreme Court negatived the plea of an occupier of a public street when he obtained an injunction in a suit to prevent the removal of an encroachment. The Supreme Court reiterated its earlier decisions. Removal of encroachment was upheld ; so was the action of the municipal corporation to shift the hawkers to an alternate site.
11. In the case of Gobind Pershad Jagdish Pershad v. New Delhi Municipal Committee, AIR 1993 SC 2313, the Supreme, Court extended the public street into the verandhas in front of a shop which by long user had been used by the public as a passage. Thus, shopping arcades or verandhas adjoining public streets were given the declaration of a public street. Encroachment of such verandhas in front of public streets was held as illegal.
12. Case of Dr. G.N. Khajuria and Ors. Appellants v. Delhi Development Authority and Ors. AIR 1996 SC 253 In paragraph 10, Hon'ble Apex Court observes: --Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of Courts, the illegality is not taken care of fully inasmuch as the Officers of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the Officer which lies at the root of the unlawful act of the concerned citizen, because of which the Officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent Officer has also to be punished in accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the Officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined, retains the hay, which tempts other to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite.
13. In Municipal Committee, Karnal, Appellant v. Nirmala Devi , Hon'ble Apex Court has considered encroachment on public street and has held that Municipal Committee had power to have said unauthorised encroachment and construction removed and to recover the costs thereof from such encroacher. Thereby, the Municipal Committee has necessary power to have the unauthorised construction removed and encroacher ejected. If the encroacher does not voluntarily remove the unauthorised construction, the Municipal Committee has power to have it removed by exercise of the power vested under Section 181(2) of the Act. Since the Committee has exercised the statutory power, the award of damages is clearly illegal, unwarranted and unsustainable.
14. In case of Cantorment Board, Jabalpur v. S.N. Awasthi reported at 1995 Supp (4) SCC 595, Hon'ble Apex Court has in paragraph 5 held that construction made in contravention of law cannot be a premium to extend equity so as to facilitate violation of mandatory requirements of law and High Court was not justified in extending equity on this ground.
15. In Debashis Roy v. Calcutta Municipal Corporation reported at 2005 (12) SCC 317, Hon'ble Apex Court has held that the issue about legality or otherwise of conversion of user of parking space in residential area for commercial purposes permitted by Municipal Corporation was not a dispute between private parties and essentially involved an element of public interest.
16. In M.I. Builders v. Radhey Shyam Sahu Hon'ble Apex Court 1996(6) SCC 464 has observed that any commercial activity in unauthorised constructions puts additional burden on locality and it is the primary concern of Court to eliminate the negative impact which it will have on environmental conditions in the area and the congestion that will aggravate on account of increased traffic and people visiting such complex. It is also observed that while directing demolition of unauthorised construction, the Court should also direct an inquiry as to how the unauthorised construction came about and to bring the offenders to book and it is not enough to order demolition only.
17. Observations of Hon'ble Apex Court in M.C. Mehtav. U.O.I. 2006(2) SCALE 364 Judgement dated 16-02-2006, reveal that user, commercial residential is very relevant and occupation load has large impact on various facilities including water, sanitation and drainage. Master plans are prepared to take care of future needs by experts after looking into various aspects like healthy living, environment, Lung space need, land use intensity, areas where residential houses are to be built and were commercial buildings are to be located, need of household industries etc.. Hon'ble Apex Court has also observed that though task of implementation may be difficult, the Court cannot remain the mute spectator when the violations also affect the environment and healthy living of law abiders. The enormity of the problem cannot be a deterrent factor in this respect. It is observed that various laws are enacted, master plans are prepare by expert planners, provision is made in the plans also to tackle the problem of existing unauthorised constructions and misusers and, still such illegal activities go on unabated openly under the gaze of everyone without having any respect and regard for law and other citizens. Hon'ble Court has also observed that laws are not enforced and the orders of the Court are not properly implemented resulting into total lawlessness. It has observed that therefore it is necessary to identify and take appropriate action against officers responsible for this state of affairs because such blatant misuse of properties at large-scale do not take place without connivance of concerned officers. Hon'ble Court therefore found it proper to constitute a Monitoring Committee and the issue of accountability of officers and also the exact manner of applicability of "Polluters Pay Principle" to owners and officers could be taken up after misuser is stopped at least on main roads in New Delhi. The Hon'ble Apex Court has thereafter in last paragraph issue directions about giving of individual notices for stopping of misuser, filing of affidavit to that effect by owners and sealing of premises in default.
18. Constitutional Bench judgment Sodhan Singh v. New Delhi Municipal Committee (AIR 1989 SC 1988) has laid down that “poverty cannot be the reason to permit encroachments on public lands/roads”. “Street trading-An age old vocation adopted by human beings to earn living--No justification to deny citizens right to earn livelihood using public streets for trade or business--Regulatory measures and reasonable restrictions can be imposed”. “A member of the public is entitled to legitimate user of the road other than actually passing or re-passing through it, provided that he does not create an unreasonable obstruction which may inconvenience other persons having similar right to pass and does not make excessive use of the road to the prejudice of the others. Liberty of an individual comes to an end where the liberty of another commences”. “ What will constitute public nuisance and what can be included in the legitimate user can be ascertained only by taking into account all the relevant circumstances including the size of the road, the amount of traffic and the nature of the additional use one wants to make of the public streets. This has to be judged objectively and here comes the role of public authorities”. “The right to carry on trade or business mentioned in Article 19(1)(g) of the Constitution, on street pavements, if properly regulated, cannot be denied on the ground that the streets are meant exclusively for passing or re-passing and for no other use. Proper regulation is, however, a necessary condition as otherwise the very object of laying out roads--to facilitate traffic--may be defeated. Allowing the right to trade without appropriate control is likely to lead to unhealthy competition and quarrel between traders and travelling public and sometimes amongst the traders themselves resulting in chaos. The right is subject to reasonable restrictions under clause (6) of Article 19”. “The proposition that all public streets and roads in India vest in the State but that the State holds them as trustee on behalf of the public and the members of the public are entitled as beneficiaries to use them as a matter of right, and that this right is limited only by the similar rights possessed by every other citizens to use the pathways and further that the State as trustee is entitled to impose all necessary limitations on the character and extent of the user, should be treated as of universal application. The provisions of the Municipal Acts should be construed in the light of the above proposition and they should receive a beneficent interpretation”. “The petitioners do have the fundamental right to carry on a trade or business of their choice, but not to do so on a particular place, as circumstances are likely to change from time to time. But that does not mean that the licence has to be granted on a daily basis; that arrangement cannot be convenient to anybody, except in special circumstances”. “Some of the hawkers in big cities are selling very costly luxury articles including sophisticated electronic goods, sometimes imported or smuggled. The authorities will be fully justified to deny to such hawkers any facility. They may frame rules in such manner that it may benefit only the poor hawkers incapable of investing a substantial amount for starting the business. Attempt should be made to make the scheme comprehensive, dealing with every relevant aspect, for example, the charges to be levied, the procedure for grant and revocation of the licences, etc”. “Street trading is an age-old vocation adopted by human beings to earn living. It is one of the traditionally recognised business or trade in England. This is so in spite of the fact that there is a complete social security in that country and as such no compulsion on the citizens to be driven to street trading out of poverty or unemployment. On the other hand, abysmal poverty in India warrants outright rejection of the argument that nobody has a right to engage himself in 'street trading”.
19. Hon'ble Apex Court in case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan Judgement dated 11-10-1996.It is observed as follows: “It is apparent that plaintiff or applicant who wants his encroachments on Public Road to be protected by any interim order has to satisfy the court about existence of any legal right in his favour to maintain such encroachment during pendency of suit and for that purpose, he has to point out some title in him authorising him to occupy the portion of public Road or footpath etc.. In the absence of any such legal right, the encroacher cannot be permitted to obstruct the free flow of traffic or cause inconvenience to public at large. Mere long possession or user cannot be an answer to tilt the balance in his favour when in other pan of balance, the Court has to weigh interest of public at large. Even the threat of loosing source of livelihood cannot be, by itself a circumstance in favour of such applicant. He encroached upon public road or footpath knowing fully well that nobody can clothe him with authority to occupy and use it for his private gain. He cannot feign ignorance of provisions of Law and try to raise equity in his favour. Court of Law cannot permit such wrongdoer to continue to injure public at large during pendency of suit. Hence, his plaint itself must contain sufficient material and facts to satisfy the court that the convenience & interest of public at large must suffer because of legal right in his favour, which will be a very rare case”.”Encroachment of public property undoubtedly obstructs and upsets planned development, echology and sanitation. Public property needs to be preserved and protected. It is but the duty of the State and local bodies to ensure the same. This would answer the second question. As regards the fourth question, it is to reiterate that judicial review is the basic structure of the Constitution. Every citizen has a fundamental right to redress the perceived legal injury through judicial process. The encroachers are no exceptions to that Constitutional right to judicial redressal. The Constitutional Court, therefore, has a Constitutional duty as sentinel qui vive to enforce the right of a citizen when the he approaches the Court for perceived legal injury, provided he establishes that he has a right to remedy. When an encroacher approaches the Court, the Court is required to examine whether the encroacher had any right and to what extent he would be given protection and relief. In that behalf, it is the salutary duty of the State or the local bodies or any instrumentality to assist the Court by placing necessary factual position and legal setting for adjudication and for granting/refusing relief appropriate to the situation. Therefore, the mere fact that the encroachers have approached the Court would be no ground to dismiss their cases. The contention of the appellant-Corporation that the intervention of the Court would aid impetus to the encroachers to abuse the judicial process is untenable. As held earlier, if the appellant-Corporation or any local body or the State acts with vigilance and prevents encroachment immediately, the need to follow the procedure enshrined as a inbuilt fair procedure would be obviated. But if they allow the encroachers to remain in settled possession sufficiently for long time, which would be a fact to be established in an appropriate case, necessarily suitable procedure would be required to be adopted to meet the fact situation and that, therefore, it would be for the respondent concerned and also for the petitioner to establish the respective claims and it is for the Court to consider as to what would be the appropriate procedure required to be adopted in the given facts and circumstances”. “It is true that in all cases it may not be necessary, as a condition for ejectment of the encroacher, that he should be provided with an alternative accommodation at the expense of the State which if given due credence, is likely to result in abuse of the judicial process. But no absolute principle of universal application would be laid in this behalf. Each case is required to be examined on the given set of facts and appropriate to the facts of the case. Normally, the Court suitable to the facts of the case. Normally, the Court may not, as a rule, directs that the encroacher should be provided with an alternative accommodation before ejectment when they encroached public properties, but, as stated earlier, each case required examination and suitable direction appropriate to the facts requires modulation”.
20. Syed Muzaffar Ali v. Municipal Corporation of Delhi reported at 1995 Supp (4) SCC 426 shows that Hon Apex Court has observed that mere departure from the authorised plan or putting up the construction without sanction does not ipso facto and without more necessarily and inevitably justify demolition of structure. Some cases may be amenable to compounding while the other cases of grave & serious breaches of licensing provisions or building regulations may warrant demolition. Therefore the burden is entirely upon plaintiff or applicant to satisfy the court with material as mentioned above or other relevant material to show that his structure does not violate zoning regulations or development control rules or building bylaws. If after considering such material and after considering the provisions of relevant Law, the Court is satisfied that the unauthorised structure forming subject matter of suit before it can be compounded legally, it can proceed to grant temporary injunction.
21. Bombay High Court in case of Vinayak S Bhapat Vs SP Chandrapur (AIR 2005 Bom R 328) has quoted the Judgement of Shiv Kumar Chadha v. Municipal Corporation of Delhi reported at 1993(3) SCC 161 the Hon'ble Apex Court has considered the issue of grant of temporary injunction in detail from paragraph 30 onwards. The observations made also show that such plaintiff is interested only in getting an order of interim injunction and Hon'ble Apex Court has pointed out that normally such relief is not to be granted without issuing notice to the other side. Hon'ble Apex Court has observed that on many occasions even public interest suffers because of such interim orders. In view of these detail observations of Hon'ble Apex Court, it is not necessary for us to repeat the same again here. However, we have pointed out some of the circumstances which may be relevant for trial court to find out whether applicant has approached it with clean hands and whether there exists any prima facie case in his favour. The encroacher or person who has raised unauthorised structure wants to perpetuate his illegality or irregularity as long as possible and for that purpose wants to engage himself in long drawn legal battle. If in such situation any officer of sanctioning authority who has to defend the action of local body before Court is acting in collusion with such applicant, the local body may avoid to file reply or avoid to defend itself effectively and take adjournments. In that event, the proceedings in court can easily be delayed by applicant and he can continue to enjoy the shelter of interim order. The local body or executive can thereafter defend its inaction by pointing out such pendency in Court as is being done before us. The Court granting such temporary injunction therefore cannot forget its role as custodian and guardian of public interest and it has to safeguard such larger interest independently. Hence, if such temporary injunctions are granted, Court granting it must fix an outer limit beyond which it will not operate. Not only this, if it finds that local body/authority is not co-operating in the matter, it can record an order to that effect and impose heavy costs upon such local authority or officer prima facie found guilty in the matter. In appropriate cases, it can also direct that such costs should be recovered from the officer concerned personally and it can also proceed in contempt against such body or officer. Simultaneously it can also forward copy of its order to concerned Collector or R.D.M.A.for initiation of disciplinary proceedings against such person. If such order is received by Collector or R.D.M.A., the latter shall be under obligation to immediately proceed departmentally against the officer named in the order. The steps about asking the applicant/plaintiff to submit his actual plan for consideration of sanctioning authority as suggested above, in the meanwhile, will also subserve the ends of justice. The advocates appearing for contesting parties before such Court must also ensure that no blame for long pendency can be put upon Court and no adjournment should be asked on the ground of nonavailability of advocate by party in whose favour interim order is operating. No doubt, the subordinate Court has got discretion in the matter of grant of adjournment, however, it has to be conscious of abuse of its process by colluding parties or by influential party and take all precautions to curb or avoid it. The guiding factors mentioned above, if followed, will definitely help the subordinate Court in achieving this goal.
22. Those observations of Hon'ble Apex Court in Maharashtra Ekta Hawkers Union v. Municipal Corporation Greater Bombay (Judgement dated 12-02-2007) The restrictions/conditions on which the hawkers shall do the business are :
(1) an area of 1 mtr x 1 mtr on one side of the footpath wherever they exist or on an extreme side of the carriage way, in such a manner that the vehicular and pedestrian traffic is not obstructed and access to shops and residences is not blocked. We further clarify that even where hawking is permitted, it can only be on one side of the footpath or road and under no circumstances on both sides of the footpaths or roads. We however clarify that Aarey/Sarita stalls and sugar cane vendors would require and may be permitted an area of more than 1 Mt. by 1 Mt. but not more than 2 Mt. by 1 Mt;
(2) Hawkers must not put up stalls or place any tables, stand or such other thing or erect any type of structure. They should also not use handcarts. However they may protect their goods from the sun, rain or wind. Obviously this condition would not apply to Aarey/sarita stalls;
(3) There should be no hawking within 100 meters from any place of worship, holy shrine, educational institutions and hospitals or within 150 meters from any municipal or other markets or from any railway station. There should be no hawking on foot-bridges and over-bridges. Further certain areas may be required to be kept free of hawkers for security reasons. However outside places of worship hawkers can be permitted to sell items required by the devotees for offering to the deity or for placing in the place of worship e.g. flowers, sandalwood, candles, agarbattis, coconuts etc.;
(4) The hawkers must not create any noise or play any instrument or music for attracting the public or the customers;
(5) They can only sell cooked foods, cut fruits juices and the like. We are unable to accept submission that cooking should be permitted. We direct that no cooking of any nature whatsoever shall be permitted. Even where cooked food or cut fruits or the like are sold, the food must not be adulterated or unhygienic. All municipal licensing regulations and the provisions of the Prevention of Food Adulteration Act must be complied with;
(6) Hawking must be only between 7.00 am and 10.00 pm;
(7) Hawking will be on the basis of payment of a prescribed fee to be fixed by BMC. However the payment of prescribed fee shall not be deemed to authorize the hawker to do his business beyond prescribed hours and would not confer on the hawker the right to do business at any particular place;
(8) The hawkers must extend full co-operation to the municipal conservancy staff for cleaning the streets and footpaths and also to the other municipal staff for carrying on any municipal work. They must also co-operate with the other Government and public agencies such as Best undertaking, Bombay Telephones, BSES Ltd. etc. if they require to lay any cable or any development work;
(9) No hawking would be permitted on any street which is less than 8 meters in width. Further the hawkers also have to comply with Development Control Rules thus there can be no hawking in a areas which are exclusively residential and where trading and commercial activity is prohibited. Thus hawking cannot be permitted on roads and pavements which do not have a shopping line;
(10) BMC shall grant licences which will have photos of the hawkers on them. The licence must be displayed, at all times, by the hawkers on their person by clipping it on to their shirt or coat;
(11) Not more than one member of a family must be given a licence to hawk. For this purpose BMC will have to computerize its records;
(12) Vending of costly items e.g. electrical appliances, video and audio tapes and cassettes, cameras, phones etc. are to be prohibited. In the event of any hawker found to be selling such items his licence must be cancelled forthwith.
(13) In areas other than the Non-Hawking Zones, licences must be granted to the hawkers to do their business on payment of the prescribed fee. The licences must be for a period of 1 year. That will be without prejudice to the right of the Committee to extend the limits of the Non-Hawking Zones in the interests of public health, sanitation, safety, public convenience and the like. Hawking licences should not be refused in the Hawking Zones except for good reasons. The discretion not to grant a hawking licence in the Hawking Zone should be exercised reasonably and in public interest.
(14) In future, before making any alteration in the scheme, the Commissioner should place the matter before the Committee who shall take a decision after considering views of all concerned including the hawkers, the Commissioner of Police and members of the public or an association representing the public.
(15) It is expected that citizens and shopkeepers shall participate in keeping non-hawking zones/areas free from hawkers. They shall do so by bringing to the notice of the concerned ward officer the presence of a hawker in a non hawking zone/area. The concerned ward officer shall take immediate steps to remove such a hawker. In case the ward officer takes no action a written complaint may be filed by the citizen/shopkeeper to the Committee. The Committee shall look into the complaint and if found correct the Committee will with the help of police remove the hawker. The officer in charge of the concerned police station is directed to give prompt and immediate assistance to the Committee. In the event of the Committee finding the complaint to be correct it shall so record. On the Committee so recording an adverse remark re failure to perform his duty will be entered in the confidential record of the concerned ward officer. If more than three such entries are found in the record of an officer it would be a ground for withholding promotion. If more than 6 such entries are found in the records of an officer it shall be a ground for termination of service. For the work of attending to such complaints BMC shall pay to the Chairman a fixed honorarium of Rupees 10,000/- p.m.
(16) The scheme framed by us will have a binding effect on all concerned. Thus apart from those to whom licenses will now be issued, no other person/body will have any right to squat or carry on any hawking or other business on the roads/streets. We direct the BMC shall bring this judgment to the notice of all Courts in which matters are now pending. We are quite sure that the concerned Court/s shall then suitably vacate/modify its injunction/stay order."
ACQUIRING FERTILE LAND QUASHED BY SUPREME COURT
CASE NO.:
Appeal (civil) 4843 of 2007
PETITIONER:
Devinder Singh & Others
RESPONDENT:
State of Punjab & Others
DATE OF JUDGMENT: 12/10/2007
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
[Arising out of S.L.P. (Civil) No. 9954 of 2006]
W I T H
CIVIL APPEAL NO. 4844 OF 2007
[Arising out of S.L. P. (Civil) No. 10182 of 2006]
S.B. SINHA, J :
1. Leave granted in both the Special Leave Petitions.
2. Appellants herein are owners of various tracts of agricultural lands
situate in Village Chak Gujran, Tehsil and District Hoshiarpur in the State of
Punjab. Respondent No. 5, M/s International Tractors Limited, is a
Company incorporated under the Companies Act, 1956. It intended to set up
a project named Ganesha Project . It requested the State to acquire lands in
question in terms of the provisions of the Land Acquisition Act, 1894 (for
short, the Act ). A notification was issued by the State purported to be
under Section 4 of the Act on 15.02.2002, stating :
Whereas it appears to the Governor of Punjab that
Land is likely to be required to be taken by the
Government at the public expense, for a public purpose
namely for setting up of Ganesha Project, M/s.
International Tractors Ltd. at Village Chak Gujran, Tehsil
& Distt. Hoshiarpur, it is hereby notified that the land in
locality described below is likely to be required for the
above purpose.
This notification is made under the provisions of
Section 4 of the Land Acquisition Act, 1894 to all whom
it may concern.
In exercise of powers conferred by the aforesaid
section, the Governor of Punjab is pleased to authorize
the officers for the time being engaged in undertaking
with their servants and workmen to enter upon and
survey any land in the locality and do all other acts
required or permitted by that section.
Any person interest who has any objection to the
acquisition of any land in the locality may within thirty
days of the publication of this notification file an
objection in writing before the Collector, Land
Acquisition Department of Industries & Commerce,
Punjab, 17-Bays Building, Chandigarh.
3. Objections having been called for, the appellants herein filed their
objections in terms of Section 5A of the Act, inter alia, stating :
5. That the proposed acquisition by the Punjab
Government is unconstitutional, uncalled for and
against law and fact of the case, just in order to
cause loss to the objectors and to give unlawful
gain to other party, i.e., the proposed Ganesha
Projectors M/s. International Tractor Ltd.
7. That the acquisition of the proposed land
belonging to the objectors is against the interest of
the objectors keeping in view the policies of the
State. The land in question is cultivable fertile
land and the proposed project if any can be shifted
some where else at some barren land as well as in
the industrial zone according to Industries Master
Plan and in this way, it is in the interest of the
Pollution Control Department.
9. That the objectors are cultivating the land for the
last over 25 years, it is consolidated at one place
where in the objector has installed electric motors
and planted popular trees around the fields. The
objectors do not want that the land in question be
acquired since it is against their interest and
objectors are dependent on this Acquisition land.
The Agriculturist/Farmer is entirely dependent on
his land for his livelihood. There are various
projects in the name of Escorts Tractors, Mohindra
Tractors, Massy Furgon Tractors and so many
other tractors companies/industries fulfilling the
needs of the public and as such there is no need at
all of the proposed industry to be set up in the
lands of the objectors.
10. That in any way the proposed acquisition is against
the rules of the acquisition and the act itself
keeping in view the interest of the objectors thus
causing wrongful loss to the objectors and causing
wrongful gain to the proposed objectors.
4. Indisputably, a declaration was issued in terms of Section 6 of the Act
and an agreement was entered into by and between the Company and the
State on 27.02.2003.
5. Writ petitions were filed by the appellants herein questioning the said
purported acquisition proceedings praying, inter alia, for the following
relief :
(b) Quash the notifications dated 15.02.2002
(Annexure P-2) and 27.02.2003 (Annexure P-5)
issued by the respondent No.1 under Sections 4
and 6 of the Land Acquisition Act, 1894,
respectively.
6. During the pendency of the said writ petitions, notices in terms of
Section 9 of the Act were issued on 31.05.2004. An award was made on
18.02.2005. Allegedly, during the pendency of the said writ petitions, a sum
of Rs.100/- was deposited by the State as a token amount for acquisition of
the said lands in question.
7. By reason of the impugned judgment, the High Court opined :
(i) The acquisition was for a public purpose in view of the report
submitted under the Act, relevant portion whereof is as under :
In case of M/s. International Tractors Ltd. the
company has entered into an agreement with a Fresh
company named M/s. Renault Agriculture France for
manufacture of latest technology tractors. M/s. Renault
Agriculture France holds 20% equity in the company.
Production of these latest technology tractors will boost
export, which will contribute to the general welfare and
prosperity of the whole community.
Therefore, in view of the facts and the relevant law
as mentioned above, it is proved beyond doubt that the
profits have actually gone to the general public......
(ii) Acquisition of the lands in question was not a colourable exercise of
power.
(iii) Acquisition was made in terms of the provisions contained in Part II
of the Act and not Part VII thereof, as the State had also contributed a
sum of Rs.100/- for the purpose of acquisition of lands.
(iv) Execution of the agreement with Respondent No.5-Company and
declaration made under Section 6 of the Act although were made on
the same day, the same did not suffer from the vice of non-application
of mind.
(v) Respondent No. 5 being not a private company, statutory limitations
contained in Section 44B of the Act are not attracted.
(vi) Rule 4 of the Land Acquisition (Companies) Rules, 1963 (for short,
the Companies Rules ) being directory in nature, it was not necessary
to comply with the provisions thereof.
8. Mr. P.N. Lekhi, learned Senior Counsel appearing on behalf of the
appellants, in support of these appeals, would, inter alia, submit :
i) The High Court erred in opining that the lands in question could be
compulsorily acquired for a company, other than private company, in
accordance with the provisions of Part II of the Act.
ii) In view of the insertion of clause (viii) of sub-section (f) in Section 3
by Act No. 3 of 1984, provision of Part II were not available for
acquisition of land for companies.
iii) Action on the part of the State in entering into the agreement and
issuing a declaration under Section 6 of the Act on the same day was
in excess of its power under the Act.
9. Mr. Soli J. Sorabjee, learned Senior Counsel appearing on behalf of
Respondent No.5, on the other hand, submitted :
i) Acquisition having been made for a public purpose, and a part of the
expenses having been made from the public exchequer, provisions of
Part VII of the Act were not attracted.
ii) Principles of natural justice as contained in Section 5A of the Act
having been complied with, the State was not required to carry out
any inquiry as envisaged under Rule 4 of the Companies Rules.
iii) Declaration made under Section 6 of the Act in regard to the existence
of public purpose being conclusive in nature, the court cannot go
beyond the same.
(iv) Rule 4 of the Companies Rules being directory in nature, strict
compliance thereof was not necessary.
10. The Act was enacted to amend the law for the acquisition of land for
public purposes and for companies. Section 3 of the Act provides for
interpretation clauses. Clause (cc) of Section 3 of the Act defined the
expression corporation owned or controlled by the State in the following
terms :
(cc) the expression corporation owned or controlled
by the State means any body corporate established by or
under a Central, Provincial or state Act, and includes a
Government company as defined in Section 617 of the
Companies Act, 1956 (1 of 1956), a society registered
under the Societies Registration Act, 1860 (21 of 1860),
or under any corresponding law for the time being in
force in a State, being a society established or
administered by Government and a co-operative society
within the meaning of any law relating to co-operative
societies for the time being in force in any State, being a
cooperative society in which not less than fifty-one per
centum of the paid-up share capital is held by the Central
Government, or by any State Government or
Governments, or partly by the Central Government and
partly by one or more State Governments.
11. The expression company has been defined under clause (e) of
Section 3 of the Act to mean :
(i) a company as defined in section 3 of the
Companies Act, 1956 (1 of 1956), other than a
Government company referred to in clause (cc);
(ii) a society registered under the Societies
Registration Act, 1860 (21 of 1860), or under any
corresponding law for the time being in force in a
State, other than a society referred to in clause
(cc);
(iii) a co-operative society within the meaning of any
law relating to co-operative societies for the time
being in force in any State, other than a co-
operative society referred to in clause (cc))
The expression Public purpose has been defined in Section 3(f) of
the Act to mean :
(f) the expression public purpose includes
(i) the provision of village-sites, or the extension,
planned development or improvement of existing
village-sites;
(ii) the provision of land for town or rural planning;
(iii) the provision of land for planned development of
land from public funds in pursuance of any scheme
or policy of Government and subsequent disposal
thereof in whole or in part by lease, assignment or
outright sale with the object of securing further
development as planned;
(iv) the provision of land for a corporation owned or
controlled by the State;
(v) the provision of land for residential purposes to the
poor or landless or to persons residing in areas
affected by natural calamities, or to persons
displaced or affected by reason of the
implementation of any scheme undertaken by
Government, any local authority or a corporation
owned or controlled by the State;
(vi) the provision of land for carrying out any
educational, housing, health or slum clearance
scheme sponsored by Government, or by any
authority established by Government for carrying
out any such scheme, or, with the prior approval of
the appropriate Government, by a local authority,
or a society registered under the Societies
Registration Act, 1860 (21 of 1860), or under any
corresponding law for the time being in force in a
State, or a co-operative society within the meaning
of any law relating to co-operative societies for the
time being in force in any State;
(vii) the provision of land for any other scheme of
development sponsored by Government or, with
the prior approval of the appropriate Government,
by a local authority;
(viii) the provision of any premises or building for
locating a public office,
but does not include acquisition of land for companies.;
12. Indisputably, the Land Acquisition Act is an expropriatory legislation.
The State ordinarily can acquire a property in exercise of its power of
Eminent Domain subject to existence of public purpose and on payment of
reasonable compensation in terms of the provisions of the Act. However,
the State has been empowered to acquire land also for companies and for
purposes other than public purpose.
13. Companies Act, 1956 provides for different types of company. A
Government Company is defined in Section 617 thereof. Respondent No. 5
may be a public limited company, but it is not a Government Company.
When it filed an application requesting the State to acquire the lands for its
purpose evidently an inquiry was caused to be made.
14. It its counter affidavit, the State has, inter alia, contended that
Respondent No. 5 is an existing unit for manufacturing tractors and lands
sought to be acquired are adjoining their factory. The State appointed a Sub-
Committee of Land Acquisition Committee constituted by the State
recommending acquisition of 30 acres of lands. Approval of the State,
therefor was sought for. Ganesha Project was not a project of the State but
one undertaken by Respondent No. 5. Such a project would come within the
purview of clause (aa) of Section 40(1) of the Act.
15. When a request is made by any wing of the State or a Government
company for acquisition of land for a public purpose, different procedures
are adopted. Where, however, an application is filed for acquisition of land
at the instance of a company , the procedures to be adopted therefor are laid
down in Part VII of the Act. Although it may not be decisive but the
conduct of the State as to how it intended to deal with such a requisition, is a
relevant factor. The action of the State provides for an important condition
to consider as to whether the purpose wherefor a company requests it for
acquisition of land is a public purpose and/or which could be made at public
expenses either as a whole or in part, wherefor evidently provisions laid
down in Part II shall be resorted to. On the other hand, if the State forms an
opinion that the acquisition of land at the instance of the company may not
be for public purpose or, therefor the expenses to be incurred therefor either
in whole or in part shall not be borne by the State, the procedures laid down
in Part VII thereof have to be resorted to. The procedures laid down under
Part VII of the Act are exhaustive. Rules have been framed prescribing the
mode and manner in which the State vis-`-vis the company should proceed.
It provides for previous consent of the Appropriate Government, execution
of the agreement, previous inquiry before a consent is accorded, publication
of the agreement, restriction on transfer, etc. It also provides for statutory
injunction that no land shall be acquired except for the purpose contained in
clause (a) of sub-section (1) Section 40 of the Act for a private company
which is not a Government company. For the purpose of Section 44B of
the Act, no distinction is made between a private company and a public
limited company.
16. The Land Acquisition (Companies) Rules, 1963 for acquisition of
land for the companies have been framed by the Central Government in
exercise of its power under Section 55 of the Act. It is not in dispute that the
guidelines provided thereunder are followed by the State Government.
Concept of constitution of a Land Acquisition Committee appears only from
the Companies Rules; no other provision in respect thereof has been made
either under the Act or the rules framed thereunder. A bare perusal of sub-
rule (1) of Rule 4 of the said Rules categorically states that the same shall
be applicable where acquisition of land is to be made for the company
envisaged under Part VII. The State, as indicated hereinbefore, before this
Court has categorically stated that advice rendered by a Sub-Committee of
the Land Acquisition Committee had been taken into consideration by it
with a view to proceed further in the matter. Rule 4 mandates the
appropriate Government to arrive at a satisfaction in regard to the factors
enumerated therein. Rule 4 of the Rules reads as under :
4. Appropriate Government to be satisfied with regard
to certain matters before initiating acquisition
proceedings (1) Whenever a company makes an
application to the Appropriate Government for
acquisition of any land, that Government shall direct the
Collector to submit a report to it on the following
matters, namely:
(i) that the company has made its best endeavour to
find out lands in the locality suitable for the purpose of
acquisition;
(ii) that the company has made all reasonable efforts to
get such lands by negotiation with the persons interested
therein on payment of reasonable price and such efforts
have failed;
(iii) that the land proposed to be acquired is suitable for
the purpose;
(iv) that the area of land proposed to be acquired is not
excessive;
(v) that the company is in a position to utilise the land
expeditiously; and
(vi) where the land proposed to be acquired is good
agricultural land, that no alternative suitable site can be
found so as to avoid acquisition of that land.
(2) The Collector shall, after giving the company a
reasonable opportunity, to make any representation in
this behalf, hold an inquiry into the matters referred to in
sub-rule (1) and while holding such enquiry he shall
(i) in any case where the land proposed to be acquired
is agricultural land consult the Senior Agricultural
Officer of the district whether or not such land is good
agricultural land;
(ii) determine, having regard to the provisions of Secs.
23 and 24 of the Act, the approximate amount of
compensation likely to be payable in respect of the land,
which, in the opinion of the Collector, should be acquired
for the company; and
(iii) ascertain whether the company offered a
reasonable price (not being less than the compensation so
determined), to the persons interested in the land
proposed to be acquired.
Explanation For the purpose of this rule good
agricultural land means any land which, considering the
level of agricultural production and the crop pattern of
the area in which it is situated, is of average or above
average productivity and includes a garden or grove land.
(3) As soon as may be after holding the enquiry under
sub-rule (2), the Collector shall submit a report to the
Appropriate Government and a copy of the same shall be
forwarded by the Government to the Committee.
(4) No declaration shall be made by the Appropriate
Government under Sec. 6 of the Act unless
(i) the Appropriate Government has consulted the
Committee and has considered the report submitted under
this rule and the report, if any, submitted under Sec. 5-A
of the Act; and
(ii) the agreement under Sec. 41 of the Act has been
executed by the company.
17. The State is also enjoined with a duty to make an inquiry wherefor an
opportunity of hearing to the company is required to be given. When the
State intends to proceed with the acquisition of land it must form an opinion
that the lands which are going to be acquired are not good agricultural lands.
The rules by and large lay down a statutory policy in that behalf and
question of ignoring the same by the State does not arise.
18. We would consider the question as to whether Rule 4 aforementioned
is mandatory or directory or at what stage an inquiry is required to be made,
a little later. But we must record that it is not the case of the State that Rule
4, despite the fact that acquisition is made in terms of Part VII of the Act,
can be ignored.
19. The High Court proceeded on the basis that as the State formed an
opinion that the purpose for which the provisions of the Act were taken
recourse to is a public purpose, the provisions of Part II would apply in the
instant case. We are not unmindful of the fact that the definition of public
purpose as contained in Section 3(f) of the Act is an inclusive one.
Therefore, the said definition need not be kept confined to the matters
referred to therein. But with a view to ascertain as to what should be a
public purpose, we may notice its dictionary meaning as contained in
Black s Law Dictionary, Fifth Edition which is as under :
Public purpose: In the law of taxation, eminent domain,
etc., this is a term of classification to distinguish the
objects for which, according to settled usage, the
government is to provide, from those which, by the like
usage, are left to private interest, inclination, or liberality.
The constitutional requirement that the purpose of any
tax, police regulation, or particular exertion of the power
of eminent domain shall be the convenience, safety, or
welfare of the entire community and not the welfare of a
specific individual or class of persons.
The term is synonymous with governmental purpose. As
employed to denote the objects for which taxes may be
levied, it has no relation to the urgency of the public need
or to the extent of the public benefit which is to follow;
the essential requisite being that a public service or use
shall affect the inhabitants as a community, and not
merely as individuals. A public purposeor public
business has for its objective the promotion of the public
health, safety, morals, general welfare, security,
prosperity, and contentment of all the inhabitants or
residents within a given political division, as, for
example, a state, the sovereign powers of which are
exercised to promote such public purpose or public
business.
20. General meaning of the word public policy has always been held to
be an unruly horse by this Court. [See Gherulal Parakh v. Mahadeodas
Maiya and Others [See AIR 1959 SC 781].
21. Our attention has been drawn to a recent decision of this Court in
Pratibha Nema and Others v. State of M.P. and Others [(2003) 10 SCC
626]. Therein, for establishment of a diamond park, 73.3 hectares of dry
land was to be acquired. The proposal emanated from the General Manager
of the District Industries Centre. Sanction in principle for acquisition was
given by the Government of Madhya Pradesh; even Section 17 of the Act
was taken recourse to. The State contributed a token sum of Rs.100/-
towards the cost of acquisition. This Court clearly noticed that where the
acquisition is for a company, its cost is to be borne entirely by the company
itself, provisions of Part 7 would apply. But we must hasten to add that the
Bench did not have any occasion to consider the question as to whether the
State is entitled to take recourse to the provisions of both Part II and Part VII
of the Act simultaneously. The Bench furthermore proceeded to consider the
requirements to hold that a public purpose need not be ascertained only from
the point of view of applicability of Part II but also the provisions of Part
VII, stating :
22. Thus the distinction between public purpose
acquisition and Part VII acquisition has got blurred under
the impact of judicial interpretation of relevant
provisions. The main and perhaps the deceive distinction
lies in the fact whether cost of acquisition comes out of
public funds wholly or partly. Here again, even a token
or nominal contribution by the Government was held to
be sufficient compliance with the second proviso to
Section 6 as held in a catena of decisions. The net result
is that by contributing even a trifling sum, the character
and pattern of acquisition could be changed by the
Government. In ultimate analysis, what is considered to
be an acquisition for facilitating the setting up of an
industry in the private sector could get imbued with the
character of public purpose acquisition if only the
Government comes forward to sanction the payment of a
nominal sum towards compensation. In the present state
of law, that seems to be the real position.
22. We need not go into the nicety of the question, keeping in view the
fact that there are binding precedents in that behalf that in a case of
acquisition for a public company, public purpose is not to be assumed and
the point of distinction between acquisition of lands under Part II and Part
VII would be the source of funds to cover the cost of acquisition. This Court
in Pratibha Nema (supra) held :
In other words, the second proviso to Section 6(1) is
the main dividing ground for the two types of
acquisition
23. The undisputed fact is that apart from the inquiry conducted by the
Land Acquisition Committee in terms of the provisions of Part VII of the
Act, admittedly an agreement had also been entered into on 27.02.2003.
24. The agreement in terms of the provisions referred to above by the
Company and the Government, a satisfaction of the Government in that
behalf for acquisition of the piece of land described in therein was arrived
at on the premise that the said work is likely to be useful for the company.
25. Section 41 of the Act has specifically been mentioned for the purpose
of entering into the agreement. The terms and conditions of the agreement
envisaged : (i) the company was to pay to the Government of Punjab the
amount of compensation; (ii) it was to deposit all the sums demanded by the
Collector in anticipation, which may be necessary therefor; (iii) only on
payment by the company it was to get possession wherefor also the
Government reserved its discretion; (iv) use by the company of the land only
for the purpose for which acquisition was made was insisted.; (v) provision
in regard to time for completion of the project.
26. The Government reserved the right of resumption of the land, if time
schedule prescribed therein is not adhered to; in which event land shall vest
in the Government. The opinion of the Government in that behalf is said to
be final.
27. Whether in the aforementioned situation, the provisions of Part II can
be said to have been complied with, is the question.
28. Submission of Mr. Sorabjee is that any declaration that the land has
been acquired for public purpose is conclusive.
29. We would proceed on the said assumption but it is a well-settled
principle of law that where an action taken is without jurisdiction, even an
order which is conclusive may be subject to judicial review. Jurisdictional
errors, as is well-known, are divided in two broad categories (i) an order
passed which is wholly without jurisdiction; and (ii) Although the action is
not ultra vires, the jurisdictional error has been committed while exercising
jurisdiction. [See John v. Rees and Others (1969) 2 All ER 274].
30. In R.L. Arora v. State of U.P. [(1962) Supp 2 SCR 149], this Court
held :
Then it was urged on behalf of the respondents that s.
6(3) makes the purpose noted in the notification under s.
6(1) not justiciable. We have not been able to understand
how that provision helps the respondents. All that s. 6(3)
says is that the declaration shall be conclusive evidence
that the land is needed for a public purpose or for a
company. In this case the declaration was that the land
was needed for a company and that according to s. 6(3) is
conclusive evidence that the land is so needed. Now it is
not the case of the appellant that the land was not needed
for the Works in the present case, nor does the appellant
say that though the land was needed for some other
purpose, the notification falsely declares that it was
needed for the Works. In the circumstances the
conclusiveness envisaged by s. 6(3) is of no assistance to
the solving of the problem with which we are concerned
in the present case.
31. Mr. Sorabjee has strongly relied upon a decision of this Court in Smt.
Somawanti and Others v. The State of Punjab and Others [AIR 1963 SC 151
: 1963 (2) SCR 774].
In Somawanti (supra), this Court opined :
Though we are of the opinion that the courts are
not entitled to go behind the declaration of the
Government to the effect that a particular purpose for
which the land is being acquired is a public purpose we
must emphasise that the declaration of the Government
must be relatable to a public purpose as distinct from a
purely private purpose. If the purpose for which the
acquisition is being made is not relatable to a public
purpose then a question may well arise whether in
making the declaration there has been, on the part of the
Government a fraud on the power conferred upon it by
the Act. In other words the question would then arise
whether that declaration was merely a colourable
exercise of the power conferred by the Act, and,
therefore, the declaration is open to challenge at the
instance of the party aggrieved. To such a declaration the
protection of s. 6(3) will not extend. For, the question
whether a particular action was the result of a fraud or
not is always justiciable, provisions such as s. 6(3)
notwithstanding.
[Emphasis supplied]
32. When an order is passed without jurisdiction it amounts to colourable
exercise of power. Formation of opinion must precede application of mind.
Such application of mind must be on the materials brought on records. The
materials should be such which are required to be collected by the
authorities entitled therefor. The authorities must act within the four-corners
of the statute. An opinion formed even on the basis of an advice by an
authority which is not contemplated under the statute render the decision bad
in law. A statutory authority is bound by the procedure laid down in the
statute and must act within the four-corners thereof.
33. The effect of contribution of a sum of Rs.100/- by the State purported
to be towards the amount of compensation, may not be noticed.
In Somawanti (supra) although this Court while upholding that
contribution of sum of Rs.100/- as a part of the cost of acquisition may
subserve the requirement of law, proceeded to opined :
We would like to add that the view taken in
Senga Naicken's case [I.L.R. 50 Mad. 308 : AIR 1927
Mad. 245] has been followed by the various High Courts
of India. On the basis of the correctness of that view the
State Governments have been acquiring private
properties all over the country by contributing only token
amounts towards the cost of acquisition. Titles to many
such properties would be unsettled if we were now to
take the view that 'partly at public expense' means
substantially at public expense. Therefore, on the
principle of stare decisis the view taken in Senga
Naicken's case [I.L.R. 50 Mad. 308 : AIR 1927 Mad.
245] should not be disturbed. We would, however, guard
ourselves against being understood to say that a token
contribution by the State towards the cost of acquisition
will be sufficient compliance with the law in each and
every case. Whether such contribution meets the
requirements of the law would depend upon the facts of
every case. Indeed the fact that the State's contribution is
nominal may well indicate, in particular circumstances
that the action of the State was a colourable exercise of
power. In our opinion 'part' does not necessarily mean a
substantial part and that it will be open to the Court in
every case which comes up before it to examine whether
the contribution made by the State satisfies the
requirement of the law. In this case we are satisfied that it
satisfies the requirement of law. What is next to be
considered is whether the acquisition was only for a
company because the compensation was to come almost
entirely out of its coffers and, therefore, it was in reality
for a private purpose as opposed to public purpose. In
other words, the question is whether there was on the part
of the Government a colourable exercise of power.
Elaborating the point it is said that the establishment of a
factory for manufacturing refrigeration equipment is
nothing but an ordinary commercial venture and can by
no stretch of imagination fall within the well-accepted
meaning of the expression 'public purpose', that even if it
were to fall within that expression the factory is to be
established not by the Government, nor by Government
participation but solely by the respondent No. 6, a public
limited concern and that, therefore, the concern could
acquire land for such a purpose only after complying
with the provisions of Part VII and that the use of the
provisions of s. 6(1) is merely a colourable device to
enable the respondent No. 6 to do something which,
under terms of s. 6(1), could not be done.
[Emphasis supplied]
34. Strong reliance has also been placed by the High Court in Jage Ram
and Others v. The State of Haryana and Others [AIR 1971 SC 1033 : (1971)
1 SCC 671] for the proposition that once the Government had contributed
any sum towards the cost of the acquisition of land, it was not necessary for
the Government to proceed under Part VII of the Act and, therefore, does not
lie in the mouth of State that acquisition was under Part II.
35. In this case we may notice that purported contribution had been made
only after the writ petitions were filed. Ordinarily, this Court would not
have gone into the said question but the agreement provides for payment of
entire compensation by the company. We do not know as to at what stage
the State thought it fit to meet a part of the expenses for acquisition of land.
Such an opinion on the part of the State having regard to the statutory
scheme should have been formed prior to entering into the agreement itself.
The agreement does not mention about any payment of a part of
compensation by the State. We, in absence of any other material on record,
must hold that the State had not formed any opinion in that behalf at least
when the agreement was executed. The wisdom in all probabilities dawned
on the officers of the State at a later stage.
36. Satisfaction on the part of the State required to be arrived at upon
formation of opinion on the basis of materials brought on records for the
purpose of Part II of the Act are different from that of Part VII. Once the
appropriate Government arrives at a decision that the land sought to be
acquired is needed for a public purpose, the court would not go behind it, as
the same may furnish a valid argument for upholding an acquisition under
Part II. But when an acquisition is made under Part VII, the conditions
precedents therefor as contained in the Companies Rules must be satisfied.
On the face of record, if it can be shown that the Government had ignored
the mandatory provisions of the Act, the acquisition would have to be struck
down.
37. In Shyam Behari and Others v. State of Madhya Pradesh and Others
[1964 (6) SCR 636], it was held :
In the second place, the declaration under s. 6 may be
made that land is needed for a company in which case the
entire compensation has to be paid by the company. It is
clear therefore that where the entire compensation is to
be paid by a company, the notification under s.6 must
contain a declaration that the land is needed for a
company. No notification under s. 6 can be made where
the entire compensation is to be paid by a company
declaring that the acquisition is for a public purpose, for
such a declaration requires that either wholly or in the
part, compensation must come out of public revenues or
some fund controlled or managed by a local authority
38. Distinction between acquisition under Part II and Part VII are self-
evident. The State was not only obligated to issue a notification clearly
stating as to whether the acquisition is for a public purpose or for the
company. Section 6 categorically states so, as would appear from the
second proviso appended thereto.
39. A declaration is to be made either for a public purpose or for a
company. It cannot be for both.
40. It is furthermore trite that Land Acquisition Act is an expropriatory
legislation. [See Hindustan Petroleum Corporation Ltd. v. Darius Shapur
Chenai & Ors. (2005) 7 SCC 627; and Chairman, Indore Vikas Pradhikaran
v. M/s Pure Industrial Cock & Chem. Ltd. & Others [2007 (8) SCALE 110]
41. Expropriatory legislation, as is well-known, must be strictly
construed. When the properties of a citizen is being compulsorily acquired
by a State in exercise of its power of Eminent Domain, the essential
ingredients thereof, namely, existence of a public purpose and payment of
compensation are principal requisites therefor. In the case of acquisition of
land for a private company, existence of a public purpose being not a
requisite criteria, other statutory requirements call for strict compliance,
being imperative in character.
42. Another question which arises for our consideration is as to whether
Rule 4 of the Companies Rules is mandatory or directory in nature. The
High Court held it to be directory.
43. Rule 4 of the Rules employs the word shall not once place but twice.
Ordinarily, it is imperative in character. No reason has been shown before
us as to why it should be held to be directory provision particularly when the
Land Acquisition Act is an expropriatory legislation.
44. In State of Gujarat and Another v. Patel Chaturbhai Narsibhai and
Others [AIR 1975 SC 629], this Court held :
15. The contention of the State that the enquiry
under Rule 4 is administrative and that the owner of the
land is not entitled to be given an opportunity to be heard
at the enquiry cannot be accepted for these reasons. The
enquiry under Rule 4 shows that the Collector is to
submit a report among other matters that the Company
has made all reasonable efforts to get such lands by
negotiation with the persons interested therein on
payment of reasonable price and such efforts have failed.
The persons interested therein are the owners of the land
which is proposed to be acquired. The Company at such
an enquiry has to show that the company made
negotiations with the owners of the land. The owners of
the land are, therefore, entitled to be heard at such an
enquiry for the purpose of proving or disproving the
reasonable efforts of the company to get such land by
negotiation. The contention on behalf of the State that the
owners of the land will get an opportunity when an
enquiry is made under Section 5A of the Act is equally
unsound. Section 17 of the Act provides that the
appropriate Government may direct that the provisions of
Section 5A shall not apply, and if it does so direct a
declaration may be made under Section 6 at any time
after the publication of the notification under Section 4 of
the Act. Therefore, the enquiry under Section 5A may not
be held.
45. In General Government Servants Cooperative Housing Society Ltd.,
Agra etc. v. Sh. Wahab Uddin and Others etc. [(1981) 2 SCC 352], this
Court held :
13. Sub-rule (1) requires the Government to direct
the Collector to submit a report to it on the matters
enumerated in Clauses (i) to (vi) of the Sub-rule (1)
which is for the benefit of the Company. The purpose is
to avoid acquisition of land not suitable for a Company.
Clause (ii) of Sub-rule (1) requires that the Company has
to make all reasonable efforts to get such lands by
negotiation with the person interested therein on payment
of reasonable prices and that such efforts have failed. The
purpose of Clause (ii) seems to be to avoid unnecessary
land acquisition proceedings and payment of exorbitant
prices. The purpose of Clauses (iii), (iv) and (v) is
obvious. The purpose of Clause (vi) is to avoid
acquisition of good agricultural land, when other
alternative land is available for the purpose. Sub-rule 2 of
Rule 4 requires the Collector to give reasonable
opportunity to the Company so that the Collector may
hold an inquiry into the matters referred in Sub-rule (1).
The Collector has to comply with Clauses (i), (ii) and (iii)
of Sub-rule 2 during the course of the inquiry under Sub-
rule (1). The Collector under Sub-rule 3 then has to send
a copy of his report of the inquiry to the appropriate
Government and a copy of the report has to be forwarded
by the Government to the Land Acquisition Committee
constituted under Rule 3 for the purpose of advising the
Government in relation to acquisition of land under Part
VII of the Act, the duty of the Committee being to advise
the Government on all matters relating to or arising out
of acquisition of land under Part VII of the Act (Sub-rule
(5) of Rule 3). No declaration shall be made by the
appropriate Government under Section 6 of the Act
unless the Committee has been consulted by the
Government and has considered the report submitted by
the Collector under Section 5A of the Act. In addition,
under Clause (ii) of Sub-rule (4) of Rule 4, the Company
has to execute an agreement under Section 41 of the Act.
The above consideration shows that Rule 4 is mandatory;
its compliance is no idle formality, unless the directions
enjoined by Rule 4 are complied with, the notification
under Section 6 will be invalid. A consideration of Rule 4
also shows that its compliance precedes the notification
under Section 4 as well as compliance of Section 6 of the
Act.
46. In M/s Fomento Resorts and Hotels Ltd. v. Gustavo Ranato Da Cruz
Pinto and Others [(1985) 2 SCC 152], a three-Judge Bench of this Court
categorically held :
17. Reading the Act and the Rules and keeping in
view the scheme of the Act, it is apparent, in our opinion,
that before the issuance of Section 4 notification, there is
no requirement as such of compliance with the procedure
contemplated by Rule 4 of the Rules. We are therefore
unable to subscribe to the view that enquiry by Rule 4
must precede the issuance of notification under Section
4(1) of the Act. Furthermore as indicated before certain
matters which are required to be done under Rule 4 can
not be done because the officer or the person authorised
by him would have no authority unless notification under
Section 4 is issued.
47. Repelling a contention that the provisions of Sections 6 to 37 are not
required to be complied with in view of Section 39 thereof, it was held :
This Section, in our opinion, has no relevance for
determining whether to be a proper acquisition, enquiry
contemplated under Rule 4 must precede issuance of the
notification under Section 4 of the Act
48. The lands in question are recorded as Shahi lands. It is not in dispute
that they are agricultural lands. The Act contemplates that such lands may
not be acquired.
49. We may notice that in Collector (District Magistrate) Allahabad and
Another etc. v. Raja Ram Jaiswal etc., (1985) 3 SCC 1] this Court held that
such a contention requires an indepth study, stating :
27. The validity of the impugned notification was
also challenged on the ground that even though the
acquisition is for the Sammelan, a company, the
notification was issued without first complying with the
provisions of Rule 4 of the Land Acquisition
(Companies) Rules, 1963. The High Court has negatived
this challenge. We must frankly confess that the
contention canvassed by Mr. Nariman in this behalf
would necessitate an indepth examination of the
contention. However, we consider it unnecessary in this
case to undertake this exercise because the judgment of
the High Court is being upheld for the additional reason
that the acquisition in this case was mala fide. Therefore,
we do not propose to examine the contention under this
head.
It is, on that premise, we have undertaken some study in this behalf.
50. The decision of this Court in Somawanti (supra) holding that the stage
at which Rule 4 is required to be complied with is not the stage prior to
issuance of a notification under Section 4 of the Act, but declaration under
Section 6 does not appear to be correct from the decisions of this Court in
Patel Chaturbhai Narsibhai (supra) and Wahab Uddin (supra), the earlier
binding precedent, with utmost respect, having not been taken into
consideration in its entirety.
51. In Abdul Husein Tayabali & Others v. State of Gujarat & Others
1968 (1) SCR 597], this Court observed :
Next it was urged that the inquiry under Rule 4 has to
be held after the notification under section 4 is issued and
not before and therefore the inquiry held by Master was
not valid. We do not find anything in Rule 4 or in any
other Rule to warrant such a proposition. The inquiry, the
report to be made consequent upon such inquiry,
obtaining the opinion of the Land Acquisition
Committee, all these are intended to enable the
Government to come to a tentative conclusion that the
lands in question are or are likely to be needed for a
public purpose and to issue thereafter section 4
notification .
52. In Srinivasa Cooperative House Building Society Ltd. v. Madam
Gurumurthy Sastry and Others [(1994) 4 SCC 675], noticing Somavanti
(supra) wherein it was held that the manufacturing of the articles was for the
benefit of the community and to save substantive part of foreign exchange
and staff quarters to workmen, it was held :
On the other hand, in the case of an acquisition for a
company, the compensation has to be paid by the
company. In such a case there can be an agreement under
Section 41 for transfer of the land acquired by the
Government to the company on payment of the cost of
acquisition, as also other matters. The agreement
contemplated by Section 41 is to be entered into between
the company and the appropriate Government only after
the latter is satisfied about the purpose of the proposed
acquisition, and subject to the condition precedent that
the previous consent of the appropriate Government has
been given to the acquisition. Section 6 is in terms, made
subject to the provisions of Part VII of the Act. The
declaration for acquisition for a company shall not be
made unless the compensation to be awarded for the
property is to be paid by a company. In the case of an
acquisition for a company simipliciter, the declaration
cannot be made without satisfying the requirements of
Part VII. But that does not necessarily mean that an
acquisition for a company for a public purpose cannot be
made otherwise than under the provisions of Part VII, if
the cost or a portion of the cost of the acquisition is to
come out of public funds. In other words, the essential
condition for acquisition is for a public purpose and that
the cost of acquisition should be borne, wholly or in part,
out of public funds. Hence an acquisition for a company
may also be made for a public purpose, within the
meaning of the Act, if a part or the whole of the cost of
acquisition is met by public funds. If, on the other hand,
the acquisition, for a company is to be made at the cost
entirely of the company itself, such an acquisition comes
under the provisions of Part VII
53. The approach of the High Court in this behalf, in our opinion, is
totally erroneous. A provision of a statute is either mandatory or directory.
Even if a provision is directory, the same should be substantially complied
with. It cannot be ignored in its entirety only because the provision is held
to be directory and not an imperative one.
54. In this case admittedly there has been no compliance of Rule 4. If
Rule 4 has not been complied with, the exercise of jurisdiction under Part
VII must be held to have been erroneous.
55. For the reasons aforementioned, the impugned judgment cannot be
sustained, which is set aside accordingly. The appeals are allowed with
costs. Counsel s fee assessed at Rs.25,000/- (Rupees twenty five thousand
only).
CASE LAW TO RECONVEY PROPERTY IF IT IS NOT USED FOR THE PURPOSE OF ACQUISITION
Tamil Nadu Housing Board v. Keeravani Ammal and Others (SUPREME COURT OF INDIA)Date of Judgment : 15/3/2007Land Acquisition Act, 1894 - s. 48B - Appeal against High Court's order directing the State of Tamil Nadu, its officers and the Tamil Nadu Housing Board to re-convey the suit property - Suit property acquired by government left idle for 21 years - Held, once a piece of land has been duly acquired under the Land Acquisition Act, the land becomes the property of the State, it is doubtful whether the Government can withdraw from the acquisition, since the case of the State and the Housing Board is that possession has been taken and plans finalised to fulfill the purpose for which the acquisition was made, further there is no plea in the writ petition that a request for re- conveyance was made in terms of Section 48B of the Act as amended in the State of Tamil Nadu - Appeal allowed....
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VALUATION OF TREES IN LAQ CASES
Sl No 1265
Circular Number LAW 31 LSB 66
Date 04/14/66
Section Land Acquisition
Subject Valuation of trees in Land Acquisition Cases
Body GOVERNMENT OF MYSORE
No. LAW 31 LSB 66. Mysore Government Secretariat,
Vidhana Soudha,
Bangalore, dated 14th April 1966.
C I R C U L A R
Sub : Valuation of trees in Land Acquisition Cases.
Ref : Govt. Circular No.LAW 29 LSB 63, dated 18-3-1964.
---
In paragraph (1) of the Circular No. LAW 29 LSB 63 dated 18-3-65 cited above the Land Acquisition Officers were instructed to have the value fixed for the trees, wells and other structures by setting their estimates prepared by the Public works Department Officers, so as to put the matter beyond all rasons of speculation etc., It has been brought to the notice of Government that the Executive Engineers who were requested to evaluatethe trees as indicated in the circular have expressed their nability on the ground that they have no data for the same. The subject was discussed by the Divisional Commissioner, Belgaum in the meeting of the Deputy Commissioners, and it was resolved to request the Government to modify the order in regard to the valuation of trees, and the such valuation may be directed to be made by the Land Acquisition officers with the help of the local Forest Officers.
Therefore, in partial modification of the circular above cited, it is directed that the Land Acquisition Officers, may have the value of the trees and other details thereof prepared and fixed with the help of the local Forest Officers, instead of by the Public Works Department Officers.
(R. Sanjeevulu)
Under Secretary to Government,
Law Department.
NOTABLE DEFECTS IN ACQUISITION PROPOSALS
Sl No 1211
Circular Number RDH-92-LQM-60
Date 08/29/60
Section Land Acquisition
Subject CIRCULAR
Body
GOVERNMENT OF MYSORE
No. RDH-92-LQM-60 Mysore Government Secretariat,
Vidhana Soudha,
Bangalore, dated 29th August 1960.
Bhadrapada (Saka) 1882.
C I R C U L A R
It has been noticed that the proposals sent by the Revenue Officers in Land Acquisition cases, are not accompanied with full information in respect of the proposed acquisition in spite of clear circular instructions issued vide circular No.RDF-64-LQU-58 dated 9-10-1958. These incomplete proposals add to avoidable correspondence and delay in the disposal of cases. Some of the noticeable defects are as noted below:-
a) Not having competent sanction for the land acquisition.
b) No indication to show whether there is adequate provision towards
acquisition charges.
c) No indication of the Budget Head to which the cost
of acquisition is to be debited.
d) Not insisting upon payments of deposit in advance of
Acquisition charges from the Company, Society,
Local Bodies etc.
e) Non-execution of the Agreement from the Company,
Society or other Bodies on whose behalf acquisition
proceedings are undertaken.
f) Writing of draft notifications in pencil, and in some
Cases even if they are written in ink, duplicate
copies are not being sent.
With a view to facilitating speedy disposal of cases pertaining to the acquisition of lands, it is directed that in future, proposals for acquisition of lands should be sent with all the relevant information and particulars as directed in Circular dated 9-10-1958 and also with particulars as in Form D (enclosed).
It is further made clear that such of the proposals which are not accompanied with the above proforma and in which the above noticed defects are existing, in future, will not receive consideration and would be returned.
By Order and in the name of the
Governor of Mysore,
(K. SESHAGIRI RAO),
Under Secretary to Government, Revenue Dept.
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BIG HOLDERS TO BE PREFERRED RATHER THAN SMALL HOLDERS
Sl No 1210
Circular Number RDH 112 LQM 60
Date 08/19/60
Section Land Acquisition
Subject CIRCULAR
Body
GOVERNMENT OF MYSORE
No. RDH 112 LQM 60. Mysore Government Secretariat,
Vidhana Soudha,
Bangalore, Dated the 19th August 1960.
C I R C U L A R
In Circular No. RDH 82 LQM 59 dated 24-09-1959 instructions have been issued to the effect that if it becomes necessary to acquire agricultural lands as between two or more lands having equal suitability, lands belonging to persons owning larger extents should be preferred in the selection of lands for the initiation of acquisition proceedings. It has however been observed in some cases that inspite of the above instructions, proposals are being submitted to Government for acquisition of lands belonging to persons who own smaller extent although the lands belonging to persons who own larger extents and of equal suitability are available for acquisition.
The Deputy Commissioners of all Districts are, therefore, requested to instruct all the Officers dealing with land acquisition in their districts to ensure that the instructions issued in the circular mentioned above are strictly followed in all cases of land acquisition.
(K. Seshagiri Rao)
Under Secretary to Government
Revenue Department.
TAKING POSSESSION OF PRIVATE LANDS WITHOUT INITIATING LAND ACQUISITION PROCEEDINGS IS ILLEGAL
Sl No 1209
Circular Number RD 10 GMD 60
Date 04/06/60
Section Land Acquisition
Subject CIRCULAR
Body
GOVERNMENT OF MYSORE
Mysore Government Secretariat,
"VIDHANA SOUDHA",
No. RD 10 GMD 60.
Bangalore, Dated 6th April 1960.
Chaitra, 17th Saka 1882.
C I R C U L A R
It has come to the notice of Government that in good many cases where Agricultural lands have been acquired on behalf of either the State or a Local Body and for which compensation has not been paid, the owners of such lands are not given any relief in respect of the assessment over such lands although they are not in actual possession and enjoyment of the land. Similarly, there have been some instances where agricultural lands, though not regularly acquired, are used for non-agricultural purposes, but the proportionate abatement of assessment over such lands is not given effect to with the result that the assessment is booked in the names of the Khatedars although they are not in possession of the land. Government have examined the position and feel that such a course would mean a great hardship to the Khatedars. As such, Government is pleased to direct as under.
All the officers concerned should note that taking possession of private lands without initiating land acquisition proceedings is illegal and may involve Government in litigation. Therefore, no private land should be taken possession of without initiating land acquisition proceedings. As regards the cases wherein possession of land has already been taken, prior to the issue of this Circular, the assessment will have to be brought on demand every year until acquisition proceedings are completed and the land is shown in Government accounts as Government land or the land of the person on whose behalf it is acquired. At the same time, it would not be correct to ask the former owners to pay the assessment for the periods during which they have not been in possession of the lands. The best course, therefore, is to allow the demand to be shown in accounts until the acquisition proceedings are completed and then the amount may be written off by the Deputy Commissioner.
As regards the cases wherein land acquisition proceedings are initiated and the possession of the land is taken without passing the award and paying the compensation, Kami Eksala (annual abatment) to the extent of assessment over the land taken possession of should be granted by the Nazim Jamabandi (Jamabandi Officer) at the time of annual Jamabandi after ascertaining the fact. When the entire land acquisition proceedings are Finalised and the phodi work is also completed and Kami Jasti Patraks (intimation of rectification of Survey records) are issued then, on the strength of these papers, permanent abatement, in respect of the total assessment over the lands acquired, should be sanctioned by the jamabandi officer.
(D. NAGSETTI)
Under Secretary to Government,
Revenue Department.
Instructions regarding submission of proposals for land acquisition.
Sl No 1195
Circular Number RDF-64-LOU-58
Date 10/09/58
Section Land Acquisition
Subject Instructions regarding submission of proposals for land acquisition.
Body GOVERNMENT OF MYSORE
Mysore Government Secretariat,
Revenue Department,
VIDHANA SOUDHA,
NO.RDF-64-LOU-58 Bangalore, Dated 9-10-1958.
Asvija 17 Saka 1880-
C I R C U L A R
SUBJECT :- Instructions regarding submission of proposals for land acquisition.
* * * * * * * *
It has been noticed that the proposals sent by the Revenue Officers in Land Acquisition cases are not accompanied by full information in respect of the proposed acquisition. In most of the cases there is no indication whether the estimated cost of acquisition has been verified by a responsible officer with reference to the statistics of the sales and leases of lands in the locality. There have been instance where the amount of compensation as per firal award had no relation at all to the estimate furnished while submitting proposals for the acquisition. This has resulted in acquisition being undertaken without a complete examination of al implications. Many cases where Government would have dropped the proceedings or selected some other lands if the estimated cost had been worked out correctly in the fist instance, have come to notice at a very late stage of the proceedings, when it was too late to withdrawn from acquisition. The initiating Departments and the Revenue Officers are therefore requested to furnish full information on the points detailed in the Appended Forms A,B and C while submitting their proposals for acquisition.
The proposal for land acquisition should be sent to the Administrative Department concerned as directed in Government Circular No. RDF-207LQU-57 dated 13-1-1958.
(B.T.NAYAK)
Under Secretary to Government,
Revenue Department.
F O R M -A-
PART I: Preliminary to issue of notification under Section 4 of the Land
Acquisition Act.
* * *
(a) Information to be furnished by the Initiating Department and verified by Revenue Department wherever necessary.
1. District : (d) Other description and also
2. Taluk : description of buildings &
3. Village: other structures, trees etc.
4. Land to be acquired : on the land.
(a) Survey No. or C.T.S.No. or Municipal Number
(b) Assessment.
(c) Extent of land required (Acres & Guntas)
5. Purpose for which land is to be acquired.
6. For whom acquired :-
(a) Department, if acquisition is on behalf of a Government Department.
(b)Person or authority liable to pay compensation, if acquisition is for a Company or local authority or industry.
7. Is the permanent acquisition proposed when temporary acquisition under Sec. 35 (Sec.30 of Hyderabad L.A. Act.) will suffice for the whole or any part?
(b) Information to be furnished by Revenue Department: Action to be taken by Revenue Inspector. Revenue Inspe - Tahsildar's Ctro's Report opinion
1. Whether the area asked for
is genuinely required and has
not been selected out of malice etc..?
2. Is the area asked for palpably
in excess of requirements?
If so, what should be the ade-
quate requirement and why the
acquiring body does not accept that much area?
3. Whether a sketch of the land with boundaries showing :
i) Land under acquisition
ii) Alternative site, if any, suggested either by the interested persons or Revenue Dept.
iii) Fragments; buildings, severance, rights of way, railway track, religious or other public building etc..,
4. Can very much less expensive land be got for the purpose in the Vicinity? If so, why the acquiring body is not according it and insists on the acquisition of the land proposed by it ?
5. Whether the land purposed for acquisition is or is not required for any public, Department or semi-Government purposes e.g. Principal, State Transport etc..?
6. Does the boundary intersect any building or the premises of any building in such a way that section 49 (1) or Sector 40 of Hyderabad Land Acquisition Act might be invoked ? If so, whether the parties will invoke this Section?
7. Does the boundary leave any fragments of land such that excessive demands for severance might arise?
8. Is any religious building, grave-yard, or ancient monument affected?
9. Does the proposal interfere with any public right of way or streams, or water-courses, or drainages, channels for which provision must be made?
10. In urban areas, are there any rights of private access to buildings or rights of light and/or air or drainage likely to be interfered with?
11. Is any of the land occupied either by Military, other Department Court of Wards, Local Board etc.., or is it unoccupied, at the disposal of Government?
12. Whether any of the land belongs to the Harijans, and whether they are opposed to the acquisition and if so, what is the opinion of the social welfare Department.
13. Panch or Mahazar valuation.
14. Is data or leases in five years and valuation of lands in the vicinity on the basis of such leases furnished?
15. Is data of leases in five years and valuation of lands in the vicinity on the bases of such leases furnished?
NOTE : Replies to questions 14 and 15 should be furnished with reference to the entries in Records of Rights where such Records exist. In all areas information regarding unregistered sales and leases should be ascertained locally and furnished. In areas where R.R.Scheme has not yet been introduced information regarding registered transactions should be got from Sub-Registrar's office.
(c) Action to be taken by Tahsildar.
1. If the land is in the vicinity of a Railway, date on which intimation was sent regarding proposed acquisition to Railway Authorities informing them that further action will be taken if no objections are received from them within a fortnight.
2. Whether any replay has been received from the Railway Authorities.
3. Has reference to Social Welfare Department been made if necessary (vide item 12 above)
4. What is final accepted value of land having regard to ( b (13), b(14) and b(15).
(d) Replies to be furnished by Assistant
Commissioner.
1. Has the information furnished by the Revenue Inspector and Tahsildar been checked by the Assistant Commissioner.
2. What is the Assistant Commissioner's opinion regarding the value of the land.
3. (a) Date on which amount in deposited in case of Adquisition for Companies, Industries or local Authority.
(b) Date on which counter-signature is given by Government-Officer in respect of acquisition of land for Government Department.
4. Date of publication of preliminary notification under section 4 when proposals are for issue of notification under Section6.
(e) Additional Information when Section 17 is sought to be applied.
1. Reasons for applying urgency clause To be furnished by
and not resorting to normal procedure Asst. Commissioner.
2. Whether there are any standing To be furnished by
crops and f so, whether possession Revenue Inspector and
will be taken after crops are harvested Tahsildar.
3. Whether the land does not contain
any structures and comes within the ------Do-----
definition of arable or waste land.
* * * * * * * * *
F O R M "B"
Following information (in addition to the information in Form "A") Should be furnished when acquisition is one behalf of a company or a Society :-
( Tobe furnished by Tahsildar and Assistant Commissioner)
(i) Whether the company/Society is a "Company" within the meaning of Section
3 (e) of the Land Acquisition Act?
(ii) Whether it is willing to execute the agreement in the prescribed form? And if so, whether a draft execution of the agreement?
(iv) In case the compensation awarded by the Acquiring Officer or the court, exceeds the estimated cost, whether it would be possible to recover the same from the company, taking into account its financial position?
In case the land is required for housing by the Company/Society additional following additional information should be furnished :-
(v) Whether the housing scheme has been approved by Government and if not, whether it should be approved by Government?
(vi) Whether Government has agreed to bear either the whole or part of the cost of acquisition? If so, Government orders should be quoted.
(vii) What is the number of families to be housed/members of the Society?
(viii) Whether any of them have houses and or house sites, if so, where?
(ix) (Whether the site has been approved by Public Health Department.
F O R M "C"
Following information ( in addition to the in Form "A") should furnished when acquisition is for a new or extension of the present village site :-
( To be furnished by Tahsildar and Assistant Commissioner)
(i) The number of applicants
(ii) Whether any of them have houses and/or houses sites and if so, where?
(iii) Whether they have deposited the cost of acquisition and if the compensation that may be awarded either by the Acquiring officer or the Court exceeds the amount of Deposit? Whether it would be possible to recover the excess amount?
(iv) Whether they are willing to surrender their present house sites? And if not why?
(v) Whether Government has agreed to bear the whole or part of the cost of acquisition ? If so, Government order should be quoted.
(vi) Whether the site has been approved by the Public Health Department?
In case the land is required for housing the Harijans, following information should be furnished : -
(vii) Whether they are willing to form a Co-operation Housing Society? If not, why?
(viii) Whether they are prepared to surrender their present house sites? If not, why?
(ix) Whether they are so poor and destitute that inspite of (vii) and (viii)
Above, should the acquisition be at the cost of Government has agreed to bear the cost and if not, why? ; or in that case should the land be acquired, and how the expenditure should be met?
(x) The Health Officer's certificate regarding suitable of the land for habitation should be enclose
Selection of lands in the initiation of acquisition proceedings under the Land Acquisition Act.
Sl No 1204
Circular Number RDH.82 LQM 59
Date 09/24/59
Section Land Acquisition
Subject Selection of lands in the initiation of acquisition proceedings under the
Land Acquisition Act.
Body
GOVERNMENT OF MYSORE
No. RDH.82 LQM 59. Mysore Government Secretariat,
"Vidhana Soudha"
Bangalore, Dated 24th Sep. 1959.
C I R C U L A R
Sub:- Selection of lands in the initiation
of acquisition proceedings under the
Land Acquisition Act.
---
While initiating acquisition proceedings in the selection of sites it is desirable, that generally, as far as possible, lands which are already brought under cultivation and on which food crops are grown should not be selected if waste land or any other land is available. If it becomes necessary to acquire agricultural lands, as between two or more lands having equal suitability, lands belonging to persons who are owning larger extents should be preferred in the selection of lands for the initiation of acquisition proceedings.
The Deputy Commissioners of Districts are requested to issue necessary instructions to all the officers dealing with land acquisition work within their jurisdiction.
(K. Balasubramanyam)
SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT.
Urban Expansion – Acquisition of Agricultural Lands for non-agricultural purposes.
Sl No 1197
Circular Number RD 37 LCF 58
Date 12/12/58
Section Land Acquisition
Subject Urban Expansion – Acquisition of Agricultural Lands for non-agricultural purposes.
Body GOVERNMENT OF MYSORE.
No. RD 37 LCF 58 Mysore Government Secretariat,
Vidhana Soudha,
Dated, Bangalore 12 December 1958.
Agrahayana 21 Saka 1880.
C I R C U L A R
Subject: Urban Expansion – Acquisition of Agricultural
Lands for non-agricultural purposes.
-------
Acquisition for good agricultural land for non-agricultural purpose affects the
objective of increased food production. In some cases, near urban areas there may be no alternative land suitable for the specific purpose for which agricultural land is being acquired. However, there may be other cases where the acquisition for fertile agricultural land for non-agricultural purpose could be avoided and alternative land which is not so valuable for agricultural purposes could be acquired. Fertile agricultural lands should not normally be acquired for non-agricultural purposes unless there is no other alternative.
(K. Balasubramanyam)
Secretary to Government,
Revenue Department.
Legislation to ban allotment of Fertile Land for Industrial purposes
Sl No 869
Circular Number RD 125 AQW 70
Date 04/01/71
Section Land Acquisition
Subject Legislation to ban allotment of Fertile Land for Industrial purposes -
Body RD. 125 AQW 70 Dt. – 4-71 [L]
[Letter from The Secretary to the Government of Mysore, Revenue Department to All Divisional Commissioner/Deputy Commissioner]
Subject:- Legislation to ban allotment of Fertile Land for Industrial purposes -
I am directed to forward herewith for information a copy of the letter No.
F 4-1/70 - Lands dated 11-6-70, from the Government of India, Ministry of Food, Agriculture, Community Development and Co-operation (Department of Agriculture) New Delhi, along with its enclosures, in regard to the steps to be taken for preventing acquisition of good Agricultural land.
Further, I am to request you to forward your considered views to Government immediately, so as to enable Government to send their views to the Government of India, urgently.
COPY
of the letter No. F-4-3/70, Lands, dated 11th June 1970 from the Secretary to the Government of India, Ministry of Food Agriculture, Community Development and Co-operation, (Department of Agriculture), New Delhi addressed to the Chief Secretaries of all States and Union Territories.
Subject:- Acquisition of land - steps to be taken for preventing acquisition of
good agricultural land.
I am directed to refer to the enclosed copy of this Ministry's letter No. 4-5/65-General II, dated the 30th March, 1965 (Annexure I) regarding the prevention of diversion of agricultural land to non-agricultural purposes. The Land Acquisition Review Committee, which went into all aspects of land acquisition, has made the following observations and recommendations on this subject in Chapter 12 of its Report:-
(i) The Land Acquisition Committee constituted under the Land Acquisition (companies) Rules, 1963 plays an important role in advising the Government against excessive acquisition of land and taking of good agricultural land for companies. However, there is no provision either in the Land Acquisition Act, 1894 or Rules made thereunder for preventing excessive acquisition of land or acquisition of good agricultural land where acquisition is sought to be made by the Government for public purpose under Part II of the Act.
(ii) It would not be practicable to impose a total ban on the acquisition of good agricultural land. Acquisition of Good Agricultural Land might become necessary in certain cases because of its strategic importance and also for the development of agriculture itself. However, there can be no two opinions on the question that good agricultural land should not be acquired unless it is absolutely necessary. It is thus essential to provide for a statutory device for preventing the acquisition of good agricultural land and acquisition if excessive land agricultural or non-agricultural.
(iii) A Land Acquisition Committee should be set up under the Act for advising Government in respect of Land use Policy in the matter of large scale acquisition for public purpose including implementation of projects. The function of the Committee would be to ensure that:-
a) the land which is already in the possession of the acquiring body is put to optimum use before permitting the proposed acquisition.
b) An excessive acquisition does not take place;
c) the acquisition of good agricultural land does not take place where it can be avoided; and
d) the proposed acquisition is justified on the basis of high density norms.
The committee should tender advice to the Government before issue of the notification under section 4(1) of the Land Acquisition Act. While the composition of the committee has been left to be decided by the appropriate Government, it has been recommended in the Report that its members should include experts on the subject and representatives of the people. In this connection it may be mentioned that a copy of the Report in full has already been forwarded to your Government (Revenue Department) under this Ministry's letter No. 2.7/70 – lands dated the 5th May 1970.
2. I am to request that the relevant portion of the Report may be examined by the State Government at the earliest and guidelines issued to the authorities concerned with land acquisition, in case this has not been already done, emphasising the need for preventing as far as possible good agricultural land from being acquired. It is requested that action or proposed to be taken on this matter may please be intimated to this Ministry.
A N N E X U R E I
Copy of the letter No. F4-5/65-Generl-II dated 30th March 1965, from the Under Secretary to the Government of India, Ministry of Food and Agriculture, (Department of Agriculture) New Delhi, addressed to the Revenue Secretaries of all State Government and Union Territories -
Subject:- Diversion of agricultural land to non-agricultural uses-
I am directed to say that as the State Governments are aware, the Land Acquisition (Companies) Rules, 1963 framed by the Central Government contain provisions to ensure that good agricultural land not acquired for a company except where it is unavoidable. In D.O. letter No. 4-16/62-C (G), dated 12th July, 1963 from the Union Minister for Food and Agriculture to the Chief Ministers of all States and Administrators of the Union territories. The Union Minister had specifically drawn attention to the need to ensure that even in other cases i. E, where land is acquired for Government good agricultural land is not acquired except in unavoidable circumstances. Earlier, in 1958 also this Ministry has written to the State Government or avoiding as far as possible acquisition of good agricultural land for non-agricultural purposes (copy of letter No. 3-7/58-LRU, dated 22nd March, 1958 enclosed for ready reference.)
However, the point remains that the owner of land may himself, or when he transfers land, the transferee, may divert good agricultural land to non-agricultural use and the question for consideration is whether some safeguard are necessary to prevent good agricultural land being converted to non-agricultural use except where it is essential or unavoidable. In this connection a suggestion received from on Shri, L.M. Bhattacharjee, LL.B., is also attached. It will be highly appreciated if the State Governments could kindly supply information about the existing position in this regard and the action, if any proposed to be taken.
ANNEXURE – I
Copy of letter No. 4-16/62-C(G) dated the 12th July 1963, from the Minister of Food and Agriculture (Shri S. K. Patil) to the Chief Ministers of all States and Administrators of Union Territories.
Land Acquisition Act, 1894 :-
During the debate on the Land Acquisition (Amendment) Bill, 1962 in the Parliament, several members were highly critical of the administration of the Land Acquisition Act. The main points which received the attention of the critics were the acquisition of good agricultural land for non-agricultural purposes, the acquired lands lying unused over long period, inadequacy of compensation and delays in the payment of compensation. It was also emphasised during the debate that the Government should actively assist in the rehabilitation of the person whose lands was acquired. These suggestions have been kept inview in framing the Rules under Part VII of the Land Acquisition Act. I enclose a copy or these in forwarding these rules to the State Governments, several suggestions have been made about the administration of the Act.
I should like to draw your attention to rule 9 which required that acquisition of lands for a company, other than a company owned or controlled Government, or a State Government shall ordinarily be made in accordance with the provisions of Part VII of the Act so that the procedures which have been set out in the Rules may be made applicable to all such acquisitions. Although this Rule has been left flexible it is the intention that the acquisition of land for the use of a privately owned company left flexible it is the intention that the acquisition of land for the use of a privately owned company should be made only under Part VII of the Act, except where you are satisfied that it would be in public interest to depart from this general practice in any particular case. Ordinary processes of land acquisition Act for acquiring land for "Public Purposes" should not be used in such cases, save in exceptional circumstances.
These Rules are applicable only to the acquisition of lands for companies under part VII of the Act and not to acquisitions made under the general provisions of the Act for the purpose of the State or for companies owned or controlled by the Central Government or any State Government. The main points which attracted the criticism is the Parliament apply equally to the acquisition of land for the purpose of the State or for companies owned or controlled by the State Government. Even in these cases, it is important to ensure that good agricultural land is not acquired except in unavoidable circumstances, that acquired land is not kept unused over unduly long period, that compensation paid is both prompt and adequate and that necessary arrangements are made to rehabilitate persons seriously affected by the acquisition proceedings.
Several members of the Parliament asked that the entire Land Acquisition Act 1894, be amended. While this question is under separate consideration, I shall be grateful if the procedures and practices prevailing in your State are reviewed, taking into consideration the criticisms made in the parliament and revised to the extent necessary.
I shall be glad to know in due course the action by your Government.
COPY
of the letter No.3-7/58-LRU, dated 22nd March, 1958, from the Under Secretary to the Government of India, Ministry of Food, Agricultural (Department of Agricultural), New Delhi, addressed to All the States and Union Territories.
Sub : URBAN EXPANSION - ACQUISITION OF AGRICULTURAL LANDS
FOR NON-AGRICULTURAL PURPOSES.
I am directed to say that acquisition of good agricultural land for a non-agricultural purpose affects our objective of increased food production. In some cases there may be no alternative land suitable for the specific purpose for which agricultural land is being acquired. However, there may be other cases where the acquisition of fertile agricultural land for a non-agricultural purpose could be avoided and alternative land which is not so valuable for agricultural purpose could be acquired. It will be highly appreciated if the State Government would kindly intimate whether any precautions are taken to minimise the acquisition of good agricultural lands for urban purposes.
It is also suggested that a representative of the State Agricultural Department may be associated with the selection of sites for non-agricultural purposes so that agricultural needs may also be kept in view and wherever possible the acquisition of good agricultural lands and their conversion to a non-agricultural use is avoided.
An early reply will be appreciated.
Copy of suggestion from Shri.L.M. Bhattacharjee, LL.B., 7, Earle street, Calcutta - 25.
"The permission to transform cultivated agricultural lands for residential purpose or for excavating tanks should be taken from Government to prevent hoarders to invest their unaccounted money in lands speculation thereby reducing the area of cultivated land".
Foot Notes
Acquisition of lands under the urgency clause of the Land Acquisition Act - Instructions regarding.
Sl No 1010
Circular Number RD 1324 LPW 66
Date 05/05/67
Section Land Acquisition
Subject Acquisition of lands under the urgency clause of the Land Acquisition Act - Instructions regarding.
Body RD 1324 LPW 66 Dt. 5-5-67 [C]
Subject: Acquisition of lands under the urgency clause of the
Land Acquisition Act - Instructions regarding.
Government have observed that, of late, there is a steady increase in the number of proposals that are being received from the Deputy Commissioners recommending for invoking the urgency clause for land acquisition, on the ground that a particular irrigation project, formation of a road, construction of tank etc., has to be executed according to the time schedule fixed.
In this connection, it may be stressed that the power of dispensing with the provisions of Section 5A of the L.A. Act cannot be arbitrarily exercised. The Hon'ble High Court of Mysore in the case of Sri. K. Shivappa Vs. Chief Secretary (reported in 1965 Mysore LAW J. 275) have observed that "normally compliance with Section 5A which enjoius a hearing to a person who is entitled to oppose the acquisition is indispensible, and a direction dispensing with adherence to the provision of Section 5A can be issued only in exceptional cases in which the case is so urgent that the time that is likely to be spent for the hearing directed by Section 5A would produce such harm or public mischief, that a direction dispensing that hearing is imperative."
In view of the above ruling, the Deputy Commissioners and the Land Acquisition Officers are requested to examine each case and recommend the use of the urgency clause only if there is adequate justification. The reasons for invoking the urgency clause should be setforth in full.
It is always safe to issue preliminary notifications under normal clause except in exceptional cases.
Foot Notes
To furnish a copy of the Enquiry Report under Section 5-A of the L.A. Act.
Sl No 1006
Circular Number RD 1 AQP 68
Date 01/17/68
Section Land Acquisition
Subject To furnish a copy of the Enquiry Report under Section 5-A of the L.A. Act.
Body RD 1 AQP 68 dt. 17-1-68 [C]
Subject:- To furnish a copy of the Enquiry Report under Section 5-A
of the L.A. Act.
In the Writ Petition No. 1653/65, the Hon'ble High Court of Mysore have held that the purpose of the requirement under Sec. 5-A[2] of the L.A. Act is that the objectors should have an opportunity to make suitable representation to the Government, if the recommendation of the Deputy Commissioner is adverse to them. No useful purpose is served by merely intimating the objectors that the Deputy Commissioner has sent his report to Government. The reason why the objector is informed about the sending of the report is to enable him to effectively make a representation to the Government under Section 15-A of the Act, if the report is adverse to him. It is obvious that the objector cannot canvass the correctness of the report unless a copy of the same is given to him. The ruling of the High Court is based on the observations of the Supreme Court reported in AIR 1967 - Supreme Court 1269, that it is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and the orders to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends he significance of a decision in many a particular case.
Consequently, the objectors are entitled to a copy of the enquiry report. Suitable instructions may be issued immediately to all the officers concerned to adhere to this procedure strictly.
Factors to be taken into consideration before initiation of Acquisition Proceedings - Issue of INSTRUCTIONS
Sl No 1005
Circular Number RD 1324 LPW 66
Date 02/01/68
Section Land Acquisition
Subject Factors to be taken into consideration before initiation of Acquisition Proceedings - Issue of
instructions.
Body RD 1324 LPW 66 dt. 1-2-68 [C]
Subject:- Factors to be taken into consideration before initiation
of Acquisition Proceedings - Issue of instructions.
Several instances have come to the notice of Government in which the omission to observe important rules of procedure relating to Land acquisition and appreciation of several factors to be taken into consideration in determining the suitability or otherwise of a particular land for acquisition, has often led to the necessity of either cancelling the preliminary notification or withdrawing the final notification. The following are some of the reasons generally adduced for cancelling/withdrawing the Land acquisition notifications already published:-
1. Among the applicant who has requested for sites in the village, none is there who does not own a site or a house. Therefore the preliminary notification be cancelled.
2. There are plenty of vacant sites in the village which can be disposed of to the persons who are really in need of sites for the construction of houses. Hence the acquisition proceedings be dropped.
3. The land already notified for the purpose of manure pits is not suitable, as the dirty water would flow into the village close by and the sanitary condition would worsen.
4. The Acquisition of land for burial ground, already notified, is close to building sites and Industrial Training Centre and Estate, and therefore unsuitable.
5. The land notified is not fit for the extension of village site, since it is a garden land and the land is hypothecated to Government in connection with Taccavi loan.
6. That the present land bearing certain S. Nos. plus land available in a particular S. No. is sufficient and therefore the present acquisition of notified land may be cancelled or dropped.
7. The notified land is being cultivated with ragi crops with mulberry and cocoanut trees standing on the lands.
8. The land notified is not liked by the party/village Panchayat for the purpose of village extension.
9. The occupants are not actually in possession or living on the lands notified for acquisition but are in possession of some other lands. Therefore the lands in actual possession will have to be notified.
10. That the lands selected is low lying and likely to become marshy during the rainy season, as the water rushes to the village which is just adjacent to the stream.
11. That the land is owned on behalf of a limited company and that conversion fine has already been paid and the acquisition would cause great hardship to the company if the lands are acquired.
12. That the portions to be acquired are found to vest already with the Municipality.
13. That the notification was not immediately followed by a public notice in the village.
14. That the persons to be provided with sites are few and they could be provided with sites out of the land available with the Panchayat.
15. That the lands are very fertile.
16. That Government would have to pay heavy compensation if acquired.
17. That the concerned Village Panchayat has not credited or failed to credit the balance of cost despite sufficient opportunity given to the Village Panchayat.
18. That the proposed lands are at a distance of about a furlong from the existing colony and not continuous and therefore unsuitable for acquisition.
19. That there are khanas with valuable tamarind trees of over 2- to 25 years standing.
20. Only one person is in need of site and that such a person will be provided with a site out of the gramtana and therefore acquisition be dropped.
21. That the lands have already been acquired by private schools and buildings have also come up and in the circumstances the notification already published be withdrawn.
22. The Land Acquisition Officer has not published the substance of the notification immediately following its publication in the Gazette as required under the provisions of the Land Acquisition Act.
23. Owing to change in the alignment of the road, the acquisition may be dropped.
24. That a transmission line of the Electricity Board runs in the land already notified for acquisition and therefore the acquisition proceedings may be dropped.
25. The Acquiring Body has not provided the funs. Therefore the acquisition proceedings may be dropped.
It is needless to point out that if only the Acquisition Officers had examined and appreciated the state of affairs before initiating the acquisition proposals properly, the need for cancellation/withdrawal of a notification already published would not have arisen at all. In this context, it should be noted by all concerned that re-issue of land acquisition notification would entail the liability of the State, while passing the award, as the value of property on the date of preliminary notification is significant, apart from causing avoidable waste of time and labour at all levels. Government would therefore desire that the Land Acquisition Offices should thoroughly examine the position obtaining at the time of initiating the acquisition proposals in the light of 25 points cited above and scrupulously avoid such situations enumerated at para 1 above. If instances of lapse on the part of the Land Acquisition Officers to examine the acquisition cases as above are observed, or are brought to the notice of Government, Government will be constrained to take disciplinary action against such defaulting officers under rules in force.
Determination of the quantum of compensation-valuation of Buildings and structures by the P.W.D.-Instructions
Sl No 723
Circular Number RD 10 AQH 78
Date 01/21/80
Section Land Acquisition
Subject Determination of the quantum of compensation-valuation of
Buildings and structures by the P.W.D.-Instructions reg:
Body RD 10 AQH 78 Dt. 21-1-80 ©
SUB : Determination of the quantum of compensation-valuation of
Buildings and structures by the P.W.D.-Instructions reg:
Ref: 1) Govt. Circular No. RDH 184 LQM 63 dt: 12-7-63.
2) Govt. Circular No. RD 139 AQW 73 dt: 10-5-74.
3) Govt. Circular No. RD 20 AQW 79 dt: 20-6-79.
Detailed instructions have been issued earlier in Government Circulars stated above as to how the Land Acquisition Officers should determine the quantum of compensation payable for the lands acquired under the Land Acquisition Act. Inspite of these instructions, Govt. have observed that the awards are still made in an arbitrary fashion. They are often based on insufficient data. Hence, Government feel it necessary to issue further instructions for the guidance of the Field Officers.
It has been made clear in the Government in the Government Circular cited at (3) above that the valuation report of the Public works Department and the basis on which they value the buildings and structures should from part of the award. This implies that the Land Acquisition Officers should not blindly accept the valuation reports of the Public Works Department's Officers on the ground that it is technical in nature. The Land Acquisition Officers should carefully go through the valuation reports furnished by the technical Department and satisfy themselves that the valuation made is reasonable and is acceptable with reference to the details furnished in the valuation statement. For instance, in the case of buildings and structures, the particulars such as the site area, the plinth area of the building, the nature of foundation and superstructure, type of roofing, the approximate age of the building will have to be looked into. As far the superstructure, all the necessary particulars such as the nature of construction, the number and measurements of Doors & Windows, the type of the Timber used should be verified. Regarding roofing also, the particulars whether it is modern R.C.C. roofing old terraced roof or tiled roof should be stated. In case of tiled roof, it should be stated whether it is country-tiled roofing or Mangalore-tiled roofing. The type of Timber used for the tiled-roofing should also be stated. The valuation of the buildings or structures as on the date of the issue of the Preliminary Notification should have been arrived at on the basis of the above. The depreciation value depending upon the age of the building and its total expected life should also be deducted out of the total value of the building. If there are any omissions or the required details are not forthcoming in the valuation reports furnished by the Public Works Department's Officers, the same should be obtained or got clarified from the concerned officers before they accepted.
The Land Acquisition Officers should be careful in handling the public funds. They should see that well-reasoned awards which should be fair to all parties, based on full and proper data are drafted. They should follow strictly and scrupulously the norms laid down in the Land Acquisition Act and the rules framed thereunder. The award-approving authorities should see that the Land Acquisition Officers pass the awards on the basis of such full data after proper verification and personal satisfaction about the reasonableness of the same.
Enquiry u/s 5 of the Mysore Land Acquisition Rules 1965 – instructions
Sl No 841
Circular Number RD 42 AQP 69
Date 12/04/72
Section Land Acquisition
Subject LAND ACQUISITION – Enquiry u/s 5 of the Mysore Land Acquisition Rules 1965 – instruction
issued –
Body RD 42 AQP 69 Dt. 4-12-72[C]
Subject :- LAND ACQUISITION – Enquiry u/s 5 of the Mysore Land
Acquisition Rules 1965 – instruction issued –
It is generally observed that the Land Acquisition Officers are not following the rules prescribed in conducting the enquiry under Section 5-A of the Land Acquisition Act. After giving a hearing to the objection petitioner or his legal representative, the objection petition is sent to the acquiring body and their remarks are obtained. Based on these remarks, the enquiry report, as contemplated under Section 5-A of the Land Acquisition Act is submitted to Government. This is an incorrect procedure. If the remarks of the acquiring body are taken into consideration after the public inquiry, it may vitiate the enquiry altogether since such a procedure would violate the principles of natural justice. The objection petitioner should known the remarks of the acquiring body and should have an opportunity to rebut the same if he so desire. In Writ Petition No 1247 of 1969, the High Court of Mysore and held that the Department, at whose instance the land is said to be acquired, has to file its answer to the objections on or before the date fixed for enquiry and the representatives of the Department can be heard only at the said enquiry and not after. The hearing contemplated is a public hearing in the presence of both the parties. The Land Acquisition Officer is not entitled to hear or receive any representation from the Department behind the back of the objector to his prejudice.
It is therefore impressed on all the Land Acquisition Officers that they should follow to the above decision of the High Court of Mysore strictly in the disposal of the Land Acquisition cases. The final enquiry should be conducted only after getting all the information necessary from the Government Departments, which are the acquiring bodies, and the objector should be informed of the remarks of the acquiring body at the time of the final hearing. In the case of acquisition of the lands in favour of local bodies, other than Government Departments, the procedure laid down in Rule 5 of the Land Acquisition Rules, 1965, should be strictly followed and no correspondence should be entertained with the acquiring bodies subsequent to the hearing.
Conducting enquiry under section 5-A of the Land Acquisition Act
Sl No 721
Circular Number RD 16 AQW 80
Date 02/07/80
Section Land Acquisition
Subject Conducting enquiry under section 5-A of the Land Acquisition Act
And Rule 5 (2) of the Land Acquisition Rules-Submission of report
U/s 5-A of the Land Acquisition Act.
Body RD 16 AQW 80 Dt. 7-2-80 ©
SUB : Conducting enquiry under section 5-A of the Land Acquisition Act
And Rule 5 (2) of the Land Acquisition Rules-Submission of report
U/s 5-A of the Land Acquisition Act.
Ref : i) Govt. circular No. RD 107 AQP 69 dated 20-2-1970.
ii) Govt. circular No. RD 42 AQP 69 dated 4-12-1972.
iii) Govt. circular No. RD 423 AQM 73 dated 29-11-1973.
iv) Govt. Order No. RD 400 AQM dated 1-3-1975.
1. Government have issued detailed instructions from time to time as to how the Land Acquisition Act, in the circulars and the Government Order cited under reference. Specific forms & Check Memos have also been prescribed for the submission of the 5-A Enquiry reports. Despite these instructions, it is observed that the 5-A enquiry reports are not being submitted in the proper form. This results in unnecessary correspondence and abnormal delays. Besides, different procedures are being followed in different parts of the State. It is also observed that defective notification u/s (1) of the L.A. Act are being issued in certain Districts. With a view of avoiding unnecessary correspondence and delay and also to achieving uniformity throughout the State, Government feel it necessary to issue further instructions in this behalf for the guidance of the field officers.
2. First of all, Preliminary Notifications u/s 4 (1) of L.A. Act should be issued in proper form. The number and date of the Notification should be clearly mentioned in the Notification which will be cited in the final notification. The public purpose for which the lands are acquired and the last date cited in the final notification. The public purpose for which the lands are acquired and the last date fixed for filling objections should also be clearly indicated in the notification, as otherwise the L.A. Proceedings will get vitiated. It should be noted that no Erratum or Corrigendum can be issued in respect of public purpose or the last date fixed for filing objections. In this connection attention of all Land Acquisition Officers is also invited to instructions contained in Government Cirular No. RD 107 AQW 74 dated 29-9-1975 on this issue.
3. As soon as the Notification u/s 4 (1) is published in the Gazette, the substance of the 4(1) Notifications should be published in the village under a proper Mahazar or Panchanamma. These Mahazars or Panchanamas should be sent along with records while sending proposals for 6-1A directions. This is a mandatory provision in the Land Acquisition Act. The certifications furnished by the Village Accountant or the Tahsildar for having published the substance of the 4(1) Notification in the village chawadi is no substitute for the Mahazar. A Mahazar should therefore, necessarily be drawn up as proof of publication. It should be ensured that there are clear 30 days between the date of publication of the 4 (1) Notification in the Village and the last date fixed for filling objections. The individual notices should also be served on the persons known or believed to be interested in the lands proposed for acquisition simultaneously, and it should be ensured that such persons are given telecast clear 15 days time for putting in their objections in pursuance of the 4 (1) Notification.
4. If there are any objections in response to the 4(1) Notification, the enquiry u/s 5-A of the Land Acquisition Act should be held as per rule 5(2) of the L.a. Rules 1965. This is also mandatory in nature. The copies of the objections petit on should be sent to the Acquiring body and their specific remarks obtained on each objection on or before the date fixed for enquiry. The objections should be allowed to go through the remarks of the Acquiring body, so that they will have an opportunity to rebut the same, if they so desire. A representative of the Acquiring body should also be called upon to attend the enquiry. On the day fixed for the enquiry the Land Acquisition Officer should hear the objections in the presence of both the parties. After that, the spot inspection should be done, if found necessary, by the Land Acquisition Officer An order sheet should be maintained invariably, which should reflect each stage from the date of publication of the 4 (1) Notification in the Official Gazette to the date of submission of the 5-A enquiry report to the Government. This order sheet should also be sent along with records for reference, while seeking 6-1 A directions from Government. The order sheet should also indicate that the objectors have been intimated of the fact of submission of 5-A enquiry report to Government. It should also be noted that a copy of the 5-A enquiry report must be furnished to the objectors, if they so desire.
5. The 5-A inquiry report should be submitted to Government in complete form after the enquiry is held as above. It is observed that the check-memo prescribed in the Government order cited at (iv) under reference is not properly filled up. The remarks of the acquiring body and the specific opinion of the Land Acquisition Officer on each objection are not furnished properly. With a view to enabling Land Acquisition Officers to furnish full information, the check-memo and the enclosure to the 5-A enquiry report are hereby revised. The revised check-memo and the enclosure are appended to this circular for reference. In the enclosure to the 5-A report, each objection raised by the objector should be mentioned individually in the appropriate column. The remarks of the Acquiring body and the specific opinion of the Land Acquisition Officer, should be furnished against each objection separately. After that the 5-A enquiry report should be submitted to the government along with the enquiry records of the Land Acquisition Officer's office pertaining to the case.
6. The 5-A Enquiry report should be submitted to Government within the time prescribed in the L.A. Act. If there is any delay in the submission of 5-A enquiry report, full justification with specific reasons must be furnished for the same to enable Government to consider on merits the question of condoning the delay. It should be noted that even the Government have no power to condone the delay beyond one year from the last date fixed for filling objections.
7. All the Assistant Commissioners and Land Acquisition Officers, are requested to study these instructions carefully and adhere to them strictly. Any slackness in this behalf by the Assistant Commissioners and Land Acquisition Officers will be viewed seriously by the Government. It is hereby made clear that Government will not accept the 5-A reports, if they are sent to Government in any manner other than the one stated above and if any proceedings are allowed to be vitiated due to delays etc., caused on account of back reference for non-compliance with these instructions in the submissions of such reports, the Land Acquisition Officer, will be held personally responsible. This should be borne in mind by all the concerned while sending 5-A enquiry report.
8. All the Deputy Commissioner and special Deputy Commissioners are hereby requested to ensure that the Assistant Commissioners, and Land Acquisition Officers under their control comply with the above instructions fully.
CHECK MEMO TO BE SENT ALONG WITH THE 5-A ENQUIRY REPORT.
Note : 1) Please furnish full particulars to the questions.
2) Please indicate the page number of the connected record
Wherever possible.
I L.A. No. Villages Taluk District
(1)
(2) Purpose of Acquisition
(3) Name of the Acquiring body
II. Particulars of 4 (1) Notification Date Refer to page
No. of the records
1. (a) Mention the No. and Date of Issue of 4(1)
Notification by the Deputy Commissioner.
(b) The date of publication of 4(1) Notification
In the Gazette.
(c) Last date for filling objection as fixed in the
Gazette Notification.
(d) The date of publication of the substance of 4(1)
Notification in the
(i) Village Chavadi etc.,
(ii) Office of the Tahsildar,
(iii) Office of the Deputy Commissioner,
2. Mention whether interested persons have been
Served with individual notices or not?
3. The date on which the last of such notice was served
4. Have 30 clear days been allowed to file objections
From the date of publication of the notifications?
(vide Sec.4 (1) of the L.A. Act, 1961 read with Rule 3
of the L.A. Rules, 1965).
III. Particulars of 5-A Report :
4. (a) Date of 5-A Reports to Government.
(b) The date on which the interested persons were
Intimated the fact of submission of 5-A report to
Government (in the cases in which there are objec-
tions to the proposed acquisition).
(c) The last date fixed for filing objections.
(d) The interval between (a) and (c).
(e) In case the interval is more than six weeks,
Mention whether the delay caused is within one
Year from the last day of the six weeks.
(f) Give in brief the reasons for the delay in submitting
the report to Government.
(Vide Sec. 5-A (2) of the L.A. Act)
5. Have you enclosed a detailed sketch showing the
Lands proposed to be acquired?
6. What is the object of the proposed acquisition?
(a) For a public purpose.
(b) For a company.
IV. Particulars to be given if the land acquisition
Is for a company.
7. (a) Mention whether you have inspected the spot?
(If so, enclose your spot inspection note to the
records)
(b) Is the Company a public or Private one.
(c) Whether the Company is a registered one?
(d) Whether the company has made its best endeavor
To find out lands in the locality suitable for its
Purpose?
(e) Whether there are any Government lands available
Which are suitable for the purpose for which the Company
Seeking to acquire land?
(f) Whether the Company has made all reasonable efforts to
Purchase lands through private negotiations and has not
Succeeded inspite of the same?
(g) Compared with the Company's requirements whether the
Lands proposed to be acquired are in excess, or just equal
Or in deficit.
(h) Whether the Company is in a position to utilise the lands
Expeditiously, if acquired?
(i) Is the land owner, whose lands are proposed to be acquired
An insufficient holder?
(j) If so, Is it possible or not to acquire some other lands for
The Company even though it may be less advantageous?
(k) Whether the agreement entered into by the Special
Land Acquisition Officer/Assistant Commissioner
And the Company is enclosed to the records for pub-
Lication of the same in the Gazette ?
(Answers to questions D to K may be given in the
narrative form).
(Vide Sections 39 to 42 of the L.A. Act read with
Rule 4 of the Company Rules, 1973).
V. Whether the entire records of this case together with the
Order sheet are enclosed.
Land Acquisition Officer.
ENCLOSURE TO REPORT UNDER SECTION 5-A OF THE LAND
ACQUISITION ACT
No. LAQ.SR. Village Taluka District
Name of the Sy. Nos. under Interest of the Type of land Total extent
objector (With acquisition to objector in the (dry, wet etc. of the survey
reference to which the land i.e. whether or non-agri- number
Sl.No. page No. of objections that of landlord cultural) and
the records relates tenant, occupant nature of occu-
where obje- inamdar, or pancy(i.e. inam,
tion petition anubhavadar ryatwari etc.)
is filed.)
1 2 3 4 5 6
Extent of land Nature of objection raised Remarks of the Land Acquisition
Under Acquis- by the person (each point Acquiring body Officer's recom-
Ition to be specified under a in respect of mendation on
Separate Sl. Number) each objection. each objection.
7 8 9 10
Land Acquisition procedure-Avoidance of lapses-instructions for
Sl No 713
Circular Number RD 99 AQB 80
Date 11/21/80
Section Land Acquisition
Subject Land Acquisition procedure-Avoidance of lapses-instructions for
Body RD 99 AQB 80 Dt. 21-11-80 ©
SUB : Land Acquisition procedure-Avoidance of lapses-instructions for
REF : 1. Circular NO. RD 42 AQP 69, dated 4-12-1972.
2. Circular No. RD 16 AQW 80, dated 7-2-1980.
The Land Acquisition Act (Karnataka Extension and Amendment Act, 1961), the Karnataka Land Acquisition Rules 1965 and the Karnataka Land Acquisition (Companies) Rules 1973 have clearly laid down the procedure to be followed in acquiring the private properties for public purpose. Besides, in the Hand Book on Land Acquisition and the circular cited above, the procedural aspects are made clear so that there may not be any lapses or lacunae in the proceedings.
Inspite of the above, it is seen that some of the Land Acquisition Officers are not careful in observing the instructions properly while building up the records, and in sending their proposals to Government for orders. Some such lapses observed are as follows :-
1. The time schedule fixed for various stages of the Land Acquisition in Circular No. RD 22 AQP 69, dated 17-4-1969 (P. 52 of the Land Acquisition Hand Book) are not abhered to.
2. Gazette copy of 4(1) Notification is not made available in the records and in some cases where it is available, the page number and date of the Gazette is not for the coming.
3. The 4 (1) Notification is not served on the Khatedars/anubhavadars, and even if served, the dated acknowledgements to that effect are not available in the records. They are also not arranged in the order in which they appear in the Notification, which is necessary for verification.
4. The records do not contain Mahazar for having published the substance of the 491) Notification in the village chawadi; but in some cases merely the certificates of the Village Accountants are furnished, which is not enough.
5. The enclosures to 5-A reports are not properly filled up and in cases where the objections are to be over-ruled such proposals are not fully justified.
6. The remarks of the acquiring body are not obtained by sending a copy of the objection petition prior to holding the enquiry. On the other hand, the remarks of the acquiring body are obtained, after the conclusion of the enquiry. In such case, the objectors are deprived or rebutting the remarks of the acquiring body during enquiry, which is against the principles of natural justice. This is highly irregular and it moved be ensured that the remarks of acquiring boby are obtained before holding the 5-A enquiry and the objectors are given an opportunity to rebut the same.
7. While requesting for condonation of delay in submitting the 5-A report after a period of Six weeks, reasons are not given and where given they are vague and not convincing. Precise and convincing reasons should invariably be given in such cases.
8. Though there are separate forms prescribed for submitting draft declarations under ordinary clause and urgency clause, some of the draft notifications are submitted in the wrong proforma, which should be avoided.
9. The Joint Measurement Certificate and comparative statements which have to be enclosed variably are not sent.
10. A copy of printed erratum or cancellation notification if any, to the 4(1) Notification are not sent with the records unless there are sent with records, final declaration U/S 6 will not be issued in future. A mere mention or a copy of the proposal sent to Deputy Commissioners for issue of such Erratum Cancellation Notification will not do.
11. The errate to the 6(1) Notifications, if any, are not proposed and issued for long periods.
12. The records submitted to Government are not arranged and stitched properly with pherist and page numbers.
13. The check memo is prescribed to avoid lengthy noting and to facilitate proper scrutiny of the proposals. But the entries made therein are vague and incomprehensible, with the result the purpose is not served.
14. Where the land is proposed to be acquired for any company, the procedure laid down in part VII of the Land Acquisition Act read with Rule 4 of Company Rules is not scrupulously followed.
15. All the prescribed checklists and statements are often not properly filled up. For example, in the statements of objections prescribed in Circular No. RD 16 AQW 80, dt. 7-2-80 a mer reference is made to the report made U/s 5-A without filling up the columns as intended. This is not correct and should positively be avoided.
It is therefore impressed upon all the officers dealing with the acquisition work that they should not give room for such lapses. They are requested to adhere strictly to the requirements of law and standing instructions in the interest of expeditious and correct disposal of land acquisition cases at all stages.
Service of Notice U/s 4(1) of Land Acquisition Act on interested
Section Land Acquisition
Subject Service of Notice U/s 4(1) of Land Acquisition Act on interested
Persons-clarification of.
Body RD 69 AQW 81 Dt. 25-4-81
SUB : Service of Notice U/s 4(1) of Land Acquisition Act on interested
Persons-clarification of.
An instance has come to the notice of Government wherein the land which was acquired without serving notice on all the concerned persons interested in the land notified under Sub Section (1) of Section 4 of the Land Acquisition Act, even when the documents based on which such persons claim title over the land in question were registered in the Sub-Registrar's Office and the intimation of the transaction was sent by the Sub-Registrar to the Tahsildar concerned. Apparently, such a situation arose because the Record of Rights were not updated by mutating the entries of the above transactions. The acquisition was consequently challenged in the court successfully and both the preliminary and final Notifications were struck down on account of the above lapse. This is a high undesirable state of affairs and could have been avoided had the land acquisition officer taken due precaution to ascertain as to who are all the parties interested in the land to be acquired before initiating the acquisition proceedings.
In this connection, attention of all the officers in drawn to Sub Section (1) of Section 4 and Sub Section (3) of Section 5A of the Land Acquisition Act 1984 as amended by the Land Acquisition (Karnataka Extension and Amendment) Act, 1961 which clearly lay down that the copies of the Notification under Section 4(1) should be served on the owner, or where the owner is not the occupier, on the occupier of the land and also clearly define as to who are all the persons interested in the land indicating that a person shall be deemed to be interested in the land who will be entitled to claim an interest in compensation if the land were acquired under the Act. The expression "Person interested" has also been defined under Section 3(b) of the Act. Therefore, all persons claiming an interest in the compensation to be made on account of the acquisition of land under the Act would have to be notified before finally acquiring the land. In order to achieve this objective, it would not be sufficient if reliance is placed only on the entries made in the RTCs, since it is likely that these entries may not always be uptodate for various administrative and other reasopns. It is the bounden duty of the acquisition officers to satisfy themselves that notice of acquisition is served on all persons who are interested in the land to be acquitted, particularly when they derive or claim any title inpursuance of a document registered in the Sub Registrar's office. It is therefore necessary that before initiating any acquisition proceedings, the records in the Sub Registrar's office are also checked up in respect of all the survey numbers under acquisition and the necessary encumbrance certificate obtained from the Sub Registrar and the same counter-checked with the Tahsildar to see whether the necessary mutations have been effected in the RTCs.
All the officers concerned with acquisition of land are therefore requested to ensure that the above instructions are strictly complied with and adhered to scrupulously in all acquisition cases invariably in future. Failure to do so will be viewed very seriously by Government.
Acquisition of land – hearing of objections under Section 5 (A) of the Land Acquisition Act.
Sl No 1262
Circular Number RD 97 LCI 65
Date 11/25/65
Section Land Acquisition
Subject Acquisition of land – hearing of objections under Section 5 (A) of the Land Acquisition Act.
Body GOVERNMENT OF MYSORE
No.RD 97 LCI 65. Mysore Government Secretariat,
Vidhana Soudha,
Bangalore, dated 25th Nov. 1965.
From
The Secretary to the Government of Mysore,
Revenue Department,
Bangalore.
To
The Deputy Commissioners of all Districts.
The Special Deputy Commissioners of Mandya
& South Kanara, Mangalore districts.
The Special Officer for Rehabilitation,
Shimoga.
Sir,
Sub : Acquisition of land – hearing of
objections under Section 5 (A) of
the Land Acquisition Act.
Ref : Letter No. RDH 162 LVP 63, dated 10-11-64.
---
I am directed to state that under Section 4 of the Land Acquisition Act, notification of the intended acquisition can be issued by the Government or the Deputy Commissioner. On the publication of such notification, it is lawful for any officer, either generally or specially authorised by such Government or Deputy Commissioner in this bhalf and for hisservants and workmen to enter upon and survey and take levels of the land etc. as mentioned in Section 4(3). Under sub-section (4) of Section 4, such officer should complete his investigation and submit his report to the Deputy Commissioner. Such Officer, to carry on the duties as specified in sub-section (2), can be authorised by the Government or the Deputy Commissioners as the case may be, by whom the notification under section 4(1) may be issued.
But as regards 5(A) (2), objections have to be made to the Deputy Commissioner and he is the authority to hear the objections. This function he cannotdelegate to another authority and the Act does not cnfer a power on him to authorise any other person to perform his statutory functions. Only the Government can, by virtue of the provisions in Section 3(c), specially appoint an officer to perform the functions of a Deputy Commissioner under the Act.
Therefore, it is directed that the proposals for issue of preliminary notifications under Section 4(1) of the Land Acquisition Act to be issued in future may be submitted to Government.
Yours fai thfully,
(A.M. Shyamprasad)
Under Secretary to Government,
Revenue Department.
New policy on land acquisition gets Cabinet nod
The Union Cabinet today gave its approval for the National Policy on Rehabilitation and Resettlement, 2007 to replace the National Policy on Resettlement and Rehabilitation for Project Affected Families, 2003.
A gazette notification will be issued shortly to bring into effect the new policy.
The Cabinet has also decided to bring a legislation on the lines of the new Rehabilitation and Resettlement Policy and to suitably amend the Land Acquisition Act, 1894. Necessary steps shall be taken in this regard as per the established procedure.
The new policy and the associated legislative measures aim at striking a balance between the need for land for developmental activities and protecting the interests of the land owners, and others such as the tenants, the landless, agricultural and non-ag ricultural labourers, artisans and others whose livelihood depends on the land involved.
The benefits under the new policy shall be available to all affected persons and families whose land, property or livelihood is adversely affected by land acquisition or by involuntary displacement of a permanent nature due to any other reason, such as n atural calamities, etc.
The policy will be applicable to all these cases irrespective of the number of people involved.
A special provision has been made for providing lifetime monthly pension to vulnerable persons, such as the disabled, destitute, orphans, widows, unmarried girls, abandoned women or persons above 50 years of age (who are not provided or cannot immediatel y be provided with alternative livelihood).
A National Rehabilitation Commission shall be set up by the Central Government, which will be duly empowered to exercise independent oversight over the rehabilitation and resettlement of the affected families.
Under the new policy, no project involving displacement of families beyond defined thresholds can be undertaken without a detailed 'Social Impact Assessment,' which among other things shall also take into account the impact that the project will have on public and community properties, assets and infrastructure.
The policy also provides that land acquired for a public purpose cannot be transferred to any other purpose but a public purpose, and that too only with prior approval of the Government.
If land acquired for a public purpose remains unutilized for the purpose for five years from the date of taking over the possession, the same shall revert to the Government concerned.
When land acquired is transferred for a consideration, eighty per cent of any net unearned income so accruing to the transferor shall be shared with the persons from whom the lands were acquired, or their heirs, in proportion to the value of the lands ac quired.
LAND ACQUISITION A NOTE COLLECTED
The acquisition of land for different public purposes has become not only a blood-letting political question in recent weeks but also a legal one. The Supreme Court is currently hearing a large number of appeals from Karnataka, where the land owners have challenged the take-over of vast chunks of urban tracts in Bangalore by the government. They allege, among other things, discrimination in the selection of land for acquisition and the amount of compensation.
There has been an unusually large number of judgements on land acquisitions in recent weeks. In one such, Nelson Fernandes vs Special Land Acquisition Officer, Goa, the Supreme Court held that the state must take into consideration the purpose of acquisition of private land while fixing the quantum of compensation to be awarded to the land owner.
This ruling is bound to have a deep impact on the policy of setting up special economic zones. If the purpose is commercial, the compensation must be proportionate to the size of the project.
The land in this case was acquired for building a new broad gauge line of the Konkan Railways. The acquisition authorities gave Rs 4 per sq metre. The award was challenged in the district court, which fixed the compensation at the rate of Rs 192 per sq metre. The high court reduced the figure to Rs 38.
The Supreme Court fixed the compensation at the rate of Rs 250 after criticising the high court's evaluation. "In our opinion, the compensation awarded by the high court had no basis whatsoever and was not supported by cogent reason and it did not consider the future prospect of the development of the land in question," the judgement said.
According to the Supreme Court, the other parameters for arriving at a just figure for compensation are the market value, location of the land and the loss of income suffered by the land owner and availability of basic amenities such as water and electricity. If these points are taken care of in a fair manner, a lot of bitterness could be avoided.
In another recent case, Viluben Jhalejar Contractor vs State of Gujarat, the lands were acquired because they were submerged under dam water. The owners claimed a compensation of Rs 40 per sq ft.
They were in fact awarded a compensation ranging from Rs 35 to Rs 60 per sq metre. The subordinate court fixed the market value of the land at Rs 200. On appeal, the high court awarded a compensation of Rs 180.
Another judgement delivered last week again raised questions regarding the assessment of the compensation figure. This case, Numaligarh Refinery Ltd vs Green View Tea & Industries Ltd, was an appeal against the decision of the Gauhati high court.
The Supreme Court found that the compensation awarded by the high court was inadequate and it modified the formula, observing that "fixation of compensation under the Land Acquisition Act involves an element of rational guess work."
These cases were decided after more than a decade of litigation over the compensation amounts. The Supreme Court put a stop to another long-standing litigation in HMT Ltd vs Mudappa last week, which might be a sort of record in land acquisition cases. The land was taken over in 1978 for establishing the watch factory of the public sector undertaking.
The Karnataka high court found that the notification for acquisition was issued in violation of the Karnataka Industrial Areas Development Act and it was a mala fide exercise of its power. The Supreme Court set aside the high court judgement and allowed the authorities to take appropriate proceedings.
The question of 'public purpose' in acquiring land is another thorny issue and it has been unsatisfactorily settled by the Supreme Court in recent judgements. The decision in Pratibha Nema vs State of Madhya Pradesh (2003), dealt with the phrase 'public purpose', which has not been defined in the Land Acquisition Act. The issue of the government taking over land for private industries by giving compensation was dealt with in detail.
It then came to a controversial conclusion: "By contributing a trifling sum, the character and pattern of acquisition could be changed by the government. In the ultimate analysis, what is considered to be an acquisition for facilitating the setting up of an industry in the private sector could get imbued with the character of public purpose acquisition if only the government comes forward to sanction the payment of a nominal sum towards compensation."
All these point to a disquieting state of affairs. The parameters for assessing the compensation, complicated procedures, delay in the courts and the meaning read into public purpose are some of the impediments in quickly solving disputes over land acquisition. As a result, infrastructure projects are delayed and political interests step in. The country can hardly afford this when the projects are already delayed by decades.
The archaic Land Acquisition Act 1894 has now come under the scanner of the Supreme Court. The Court has for the first time asked the Centre and all states to furnish their responses on a petition raising question on the clause of "public purpose" besides posing other challenges to provisions of the said Act.
The Bench headed by Chief Justice of India K G Balakrishnan, acting on a public interest petition filed by an association of landless farmers of Karnataka, issued notices to chief secretaries of all states besides seeking response from the Union Ministries of Commerce and Agriculture.
The petition filed under Article 32 of the Constitution has raised a rather crucial question as to what constitutes the "public purpose" citing which the Government is authorised to acquire large pieces of agriculture land, owned and acquired by farmers and cultivators under provisions of the statute under question.
The petitioner has thereby challenged the legality and constitutional validity of the sections including Section 3(f), 4 and 6 of the said Act, which authorises the Government to acquire land under the guise of "public purpose" terming it as unconstitutional and violative of the Articles 14 (Right to Equality), 19 (1) (g), 21 (Right to life and personal liberty) besides others rights enshrined in the
Constitution.
The petitioner asked the Bench, also comprising Justice R V Raveendran and Justice H S Bedi, for a direction to the Government and all states from going ahead with the acquisition proceedings of the agricultural land.
Besides, the petition, citing figures of how much land has been acquired in states like Karnataka and West Bengal, seeks a direction to rehabilitate all displaced farmers.
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