26-07-2012, 10:11 AM
Acquisition of land
2.2 Aquition of land.ppt (Size: 701 KB / Downloads: 29)
Introduction
The requirement of public purpose in a statute cannot be merely added by subsequent averments or affidavits by its authors but it is something which must spring from or be inherent in the statute itself. [Lalit Narayan v. State, AIR 1987 Pat 53 (FB)]
Procedure to acquire land
I Preliminary notification by the Government that the land is required for public purpose or a company.
II Issuance of Declaration (after any objection raised under Section 5) by the Government under Section 6 for stating that the land is required for public purpose or company. Such declaration to be made within one year of notification made under Section 4 of the Act
III The Collector shall mark out or measure the land.
IV The possession of land may be taken after making of an award by the Collector.
Essential elements for acquisition of land
Land
Acquisition
Public purpose
Companies
Explain the procedure under S-4 of the Act for preliminary notification for the land acquisition by the Appropriate Govt. ?
What procedure can be followed by the authorised officer after the publication of preliminary notification for the land?
Publication of Preliminary notification
Whenever it appears to the appropriate Government that
land in any locality is needed or is likely to be needed
for any public purpose or for a company
a notification to that effect shall be published in
the official Gazette and in
two daily newspapers circulating in that locality of which at least one shall be in the regional language, and
the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality
the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of die notification.
Powers of officers
After publication of notification, it shall be lawful for any officer, either, generally or specially authorised by such government in this behalf, and for his servants and workers, to enter upon, survey, and take levels of any land in such locality
But, no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven day’s notice in writing of his intention to do so.
Powers of officers
The official is empowered to do the following activities -
To dig or bore in the sub-soil;
To do all other acts necessary to ascertain whether the land is adapted for Such Purposes;
To set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon;
To mark such levels, boundaries and line by placing marks and cutting trenches and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence and jungle.
Points to be remember
It is first step towards acquisition of the land
Publication of preliminary notification is mandatory
Purpose of the acquisition has to be legal
No condition precedent before issuance of notification U/S-4.
Detail of purpose not needed for valid notification
Absence of publication in the locality would vitiate the entire proceedings
Being needed or likely to be needed :
It was held by the Gujarat HC that the expression “likely to be need” has reference to a foreseeable future. S-4 requires that whenever it appears to the Appropriate Govt. that particular land was acquired or was likely to be need for public purpose, the expression “is needed”, will have reference to existing needed, whereas the expression “is likely to be needed” has a reference to future need but if the land is not needed in a foreseeable future or is likely to be needed at a distant point of time and the anticipated need may not come in existence, the provision of S-4 will not apply. [Patel Shankerbhai Mahajibhai V. Gujarat, AIR 1981 Guj 67]
Public purpose or for a company:
The Gujarat HC held that this Act contemplates two types of acquisition, for the State and for a company – in both cases acquisition is by the State, in exercise of powers contemplated by Art –31 (2) and (2A), therefore the contention is that such law permitting such acquisition resulting in ultimate transfer of the property to a company is not a law of acquisition U/Art –31 (at that time) of the Constitution. [Patel Mangal Bhai V. Gujarat, AIR 1964 Guj 82]
Payment for damage
The officer so authorised shall at the time of such entry pay or tender payment for all necessary damage to be done as aforesaid, and in case of dispute as to the sufficiency of the amount so paid or tendered, he shall at once refer the dispute to the decision of the Collector or other Chief Revenue officer of the district and such decision shall be final. [S.5]
Hearing of objections [S.5A]
Any person interested in any land which has been notified under Section 4 (1) - within thirty days form the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.
Every objection shall be made to the Collector in writing and the Collector shall give the objector, an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified, or make different reports in respect of different parcels of such land, to the appropriate Government containing his recommendations on the objections, together with the record of the proceedings held by him. for the decision of that Government. The decision of the Appropriate Government on the objections shall be final.
Points to remember
Hearing of objection, if any, before declaration is necessary
It is not necessary that the objection must be written, it may be personally also
Withdrawal of partial notification by Govt. is Violative of Art –14
Pending writ quashed the declaration illegal
Govt. decide to acquire the land after objection settled and recommended by the Collector
Gap between the notification and declaration :
It was held by the SC that even though after the Amendment Act 1984, there should be a gap of time at least, a day between the notification U/S-4 and Declaration U/S-6, but publication of notification is mandatory at the convenient locality. The expression “hereinafter” and “last of the dates of publication” shall be for the purpose of computation of limitation of one year U/S-6 and further to determine the amount of the compensation U/S-23. [Mohan Singh V. International Airport Authority of India, 1997 (6) SCC 169]
Explain the procedure required to be followed for the notifications and its effects under S-6 of this Act.
Declaration of the land [S.6]
When the Appropriate Government is satisfied after considering the report, if any, made under Section 5A(2), that any particular land is needed for a public purpose, or for a company,
a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under Section 4 (1), irrespective of whether one report or different reports has or have been made (wherever required) under Section 5-A, sub-section (2).
No such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.
Method of declaration
Every declaration shall be published in –
the Official Gazette, and
in two daily newspapers circulating in the locality in which the land is situate of which at least on, shall be in the regional language, and
the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality.
(the last of the date of such publication and the giving of such public notice, being herein after referred to as the date of publication of the declaration), and
such declaration shall state the district or other territorial division in which the land is situate,
the purpose for which it is needed, its approximate area, and where a plan shall have been made of the land, the place where such plan may be inspected.
Declaration is conclusive proof
The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as the case may be; and, after making such declaration the Appropriate Government may acquire the land in a manner hereinafter appearing. [S.6(3)]
Points to be remember
Declaration to be issued after the satisfaction of the Govt.
The declaration beyond statutory period of one year is liable to be quashed
District adjudicating on reference has no jurisdiction to declare notification of declaration null and void
Declaration U/S-6 and notification U/S-4 is necessary for acquisition of the land
Acquisition must not be colourable
No jurisdiction of district adjudication
It was held by the Hon’ble SC that the district adjudicating upon the reference under the Land Acquisition Act has no jurisdiction to declare the notification U/S-4 and declaration U/S-6 to be null and void. [Balram Chandra v. State of U.P., 1995 (3) SCC 723]
After declaration, Collector to take order for acquisition
Whenever any land shall have been so declared to be needed for a public purpose or for a company, the Appropriate Govt. or some officer authorised by the Appropriate Govt. in it’s behalf, shall direct the Collector to take step for the acquisition of the land. [S-7]
The effect of this notification :
The effect of this notification would be that a declaration is made to the effect that land is needed either for a public purpose or for a company and nothing more. Though such notifications are needed and to be limited extent affects rights of the owner, but it offers no impediment with the rights of the property for keeping that land in his possession.
A decision cannot be claimed if he does not take steps soon after publication of the notification. And the persons whose land is being acquired shall wait before approaching the court till his title is extinguished and vested in the State.
[Dau Dayal V. State of UP, AIR 1966 All 237]
Land to be marked-out, measured and planned :
The Collector shall thereupon cause the land (unless it has been already marked out U/S-4) to he marked out. He shall also cause it to be measured, and (if no plan has been made thereof) a plan to be made of the same. [S-8]