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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.






CASE LAW ON LAND LAWS

KARNATAKA LAND LAWS