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Recognition of the Land Rights of The Scheduled Tribes in India

Recognition of the Land Rights of The Scheduled Tribes in India

INTRODUCTION

The question of land is not just result of the existing situation but its origin may be traced to the periods of deprivation of tribal lands or to periods of the withdrawal of their rights to exploit forest. Gradually, due to various structural changes within and outside the tribal systems, the more advanced groups forced the tribals either to retreat to the nearest jungles or to become landless labourers. Though land is the only source of their livelihood, as their other assets being extremely meagre, tribals were severally deprived. Basically, moneylenders, traders, the feudal lords, or the rich peasants exploit the tribals most. It is an established fact that there is a large scale alienation of lands which belong to the tribes and grabbers invariably in all cases are the non-tribes. This phenomenon has further been ruined by the emergence of new forces of production. Commenting on this, the National Commission on Backward-Areas Development (1980) says, “In a number of areas new industrial and mining complexes, many major irrigation projects were located in the tribal areas resulting in the submergence of extensive lands belonging to the tribals”.

Also in the operations of denudation of forest on a massive scale tribal labour had been used to a great extent to clear off the forest area which was a method of the land lords to alienate the tribals from the forests. This further widened the gap between the tribal landless and landed gentry of the non-tribal communities.

Commenting on the problem of land alienation in tribal areas, the Committee on Plan Projects, Planning Commission, presented a report on the Tribal Development Programmes in 1969. The committee noticed that tribal lands in many areas passed into the hands of non-tribals, the legal prohibitions against such transfers notwithstanding. Sample studies in Andhra Pradesh, Orissa and some other States have shown that transfers have taken place on large scale without the permission of the collector or other competent authorities as required by law. The loopholes were exploited by the money lenders and others and they continue to circumvent the legal provisions by entering into ‘benami’ or other clandestine transactions with the native tribals. The impotency of legislation to arrest this growing menace to the economic advancement of the tribal in such a situation is thus obvious.

DEVELOPMENT OF LAW FOR LAND ACQUISITION

The first land acquisition legislation in India was enacted by the British government in 1824.[1] It enabled the British government to “obtain, at a fair valuation of land or other immovable property required for developmental works such as building of roads, canals and other public purposes. The Bengal Regulation I of 1824 was replaced by Act I of 1850, by which the provision for land acquisition was extended to Calcutta town. By 1857, various laws on land acquisition were consolidated as Act VI of 1857 and it was made applicable to the whole of British India. The 1857 Act was replaced by the Land Acquisition Act (Act X of 1870). However, as noted by the Hon’ble Supreme Court in Radhey Shyam(D) Through LRs and Others v. State of U.P. and Others[2], the Act was made ineffective. The Act of 1870 was repealed and the Land Acquisition Act, 1894 (Act I of 1894) which was said to be enacted for the purpose of facilitating acquisition of private land by the Government for public purposes. After India gained independence in 1947, it adopted the Land Acquisition Act of 1894 by the “Indian Independence (Adaptation of Central Acts and Ordinances) Order” in 1948.

Since 1947, land acquisition in India has been done through the British-era act. It was in 1998 that the rural development ministry initiated the actual process of amending the act. The Congress-led United Progressive Alliance (UPA) in its first term (2004-09) sought to amend the act in 2007 introduced a bill in parliament. It was referred to the standing committee on rural development, and subsequently, cleared by the group of ministers in December 2008, just ahead of its eventual passage. The 2007 amendment bill was passed in Lok Sabha as the “Land Acquisition (Amendment) Act, 2009″ in February 2009, and the UPA returned to power for a second term in May that year. However, with the dissolution of the 14th Lok Sabha soon after, the bill lapsed. The government did not have the required majority in the Rajya Sabha to pass the bill.

The Bill of 2007 called for a mandatory Social Impact Assessment (SIA) study in case of large-scale “physical displacements” in the process of land acquisition.[3] The act ensured the eligibility of tribals, forest-dwellers and persons having tenancy rights under the relevant state laws. As per the bill, while acquiring the land, the government had to pay for loss or damages “caused to the land and standing crops in the process of acquisition” and additionally, the costs of resettlement and rehabilitation of affected persons or families. This cost or compensation would be determined by the “intended use of the land” and as per prevailing market prices.

The above mentioned Bill of 2007 in 2011 as the “Land Acquisition Rehabilitation and Resettlement Bill, 2011″ or LARR, 2011.[4] The bill proposed that for a private project, land could be acquired only if 80% of the affected families agree to its acquisition.[5] For a public-private partnership (PPP) project, 70% affected families must agree. Besides, it proposed compensation for the affected parties—four times the market rate in rural areas and two times of the market rate in urban areas. It also sought to compensate artisans, traders and other affected parties through a one-time payment, even if they didn’t own land in the area considered for acquisition. The bill was passed in August 2013 as “The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013″ and came into effect on 1 January 2014.[6]

In 2014, the government stated in Parliament that it is difficult to execute the projects, including the “Make in India” programme, which seeks to revive and boost domestic manufacturing hence, the land acquisition is also central to the government’s thrust in infrastructure development. To facilitate the same, the land acquisition amendment ordinance in December 2014 was framed with a view to introducing legislation in the Budget session of parliament.[7]

Under the proposed 2015 bill, there will be five categories which will be exempt from certain provisions of the previous act, including consent for acquisition. They are: national security and defence production; rural infrastructure including electrification; affordable housing for the poor; industrial corridors; and PPP (public private partnership) projects where the land continues to vest with the central government.[8]

These categories are also exempted from the SIA provisions, as provided for in the 2013 Act.

The 2013 act facilitated land acquisition by private companies, which the 2015 bill has changed to “private entities.” As per its definition, a “private entity” is “an entity other than a government entity” and includes “a proprietorship, partnership, company, corporation, non-profit organisation, or other entity under any other law.”[9]

THE LAND ACQUISITION ACT 1894

This Act was enacted by the British with the definite objective of building infrastructure like railways, roads, bridges, canals, communication network and means to transfer their army and weaponry to different parts of the country. Their basic intention was to extend, control and further consolidate their rule throughout the country. Hence, land belonging to rural landowners was acquired under the Act. The ownership and control of the infrastructure and communication network built after land acquisition remained completely with the Government for utilization in public purpose. After independence, the process of acquisition of land from farmers for building steel plants, fertilizer plants, defence related plants and dams (number of villages were submerged to create dams) continued, all for public purposes. Thereafter, the government entered into housing, urban development and industrial sector and resorted to acquisition of land from farmers for developing housing colonies, laying electricity poles, and industries. All these activities were for public purposes.

In the past few years prior to the enactment of LAAR Act, 2013, large scale acquisition of land has been made for companies under Part VII of the 1894 Act.[10]

DRAWBACKS OF THE ACT

  • Urgency clause’ is the most criticised and misused section of the 1894 Act. The blatant misuse of Section 17[11] by the state governments is a serious cause for concern. The Land Acquisition Act, 1894 has been referred to as a draconian law, because the landowner whose land is proposed to be acquired cannot seek injunction against it. He can only file objections under Section 5A[12] against the proposed land acquisition which is a basic right of the landowner under the principles of Natural justice – ‘audi alterem partem’. But there have been a number of cases where various state governments have acquired land by misusing the provision of Section 17(4)[13] of the ‘urgency clause’. Under this provision, the state government may direct that the provisions of Section 5A shall not apply and take away the basic rights of the landowners to file his objections. Hence, the state power is used to misuse the provisions of ‘urgency’. The acquisition of land under Section 4(1) read with Section 17(1) and 17(4) has generated substantial litigation in the last 50 years. One such example could be traced from the judgment of the Supreme Court in Radhey Shyam (D) through LRs and others v. State of U.P. and Others[14] wherein it was held as under:

“In cases where the acquisition is made by invoking Section 4 read with Section 17(1) and 17(4)…excluding the application of Section 5A is likely to make the landowner a landless poor and force him to migrate to the nearby city only to live in a slum. A departure from this rule should be made only when the land is required to meet really emergent situations like those enumerated in Section 17(2). If the acquisition is intended to benefit private person(s) and the provisions contained in Section 17(1) and/or 17(4) are invoked, then the scrutiny of the justification put forward by the State should be more rigorous in cases involving the challenge to the acquisition of land.”[15]

Thus, according to the Supreme Court, Section 5A represents the statutory embodiment of the rule of audi alteram partem and the urgency provision under section 17(1) should not be invoked unless there is real and substantive urgency. Apart from the misuse of the urgency clause, there are certain other drawbacks of the 1894 Act which are mentioned below:

  • Rehabilitation and ResettlementThere is no provision for rehabilitation and resettlement of persons displaced due to acquisition of land. This generates a lot of discontentment amongst the people.
  • Low Rates of Compensation – The compensation paid under the Act is at prevailing circle rates in the area which are not even remotely indicative of the actual rates. As a result the government pays at their own market rate which is nowhere near to the actual prevailing market rates. According to Professor Ram Singh of the Delhi School of Economics:

“Market value is always hard to ascertain. Market rate is decided on the basis of ‘circle rates’ (the registry rate or the stamp duty rate is the minimum rate decided by the government for valuation of land for determining the tax imposed at the time of registration of sale deed of a property), or ‘ sale deeds’ of a similar property, whichever is higher. But people often under quote prices in the sale deeds to avoid paying a high tax. As a result, the government only pays a certain amount as compensation, which is well below the market price of the property.”[16]

  • Forced Acquisition – Once the government develops an intention that a particular piece of land may be acquired, nothing can stop the government from acquiring that land without sparing any thought for the person whose land is being acquired. The individual so deprived cannot go to the Court and seek injunction against the proposed acquisition. What he can do is file objections in the written form under Section 5A and to appear before the Collector under Section 5A (2). The Collector shall prepare a report on the basis of his objections which shall be submitted to the appropriate government, the decision of the appropriate government shall be final. The government can overrule the objections on the ground that land is required for a public purpose under Section 6. Thereafter, the acquisition cannot be challenged. The landowner can only challenge the amount of compensation decided by the government. Under the Act, the collector’s award of compensation is final, unless altered by a decree of a Civil Court in a regular suit.

In Rajiv Saran v. State of Uttarakhand[17] the Constitution Bench of the Supreme Court held:

“The incident of deprivation of property within the meaning of Article 300A of the Constitution normally occurred mostly in the context of public purpose. Clearly, any law, which deprives a person of his private property for private interest, will be amenable to judicial review. In just sixty years, though the concept of public purposes has been given quite interpretation, nevertheless, the “public purpose” remains the most important condition in order to invoke Article 300A of the Constitution.”[18]

Finally, the Supreme Court in Ramji Veerji Patel and Others v. Revenue Divisional Officer[19] held that:

“The provisions contained in the Act, of late, have been felt by all concerned, do not adequately protect the interest of the landowners/persons interested in the land. The Act does not provide for rehabilitation of persons displaced from their land although by such compulsory acquisition, their livelihood gets affected. For years, the acquired land remains unused and unutilised. To say the least, the Act has become outdated and needs to be replaced at the earliest by fair, reasonable and rational enactment in tune with the constitutional provisions, particularly, Article 300A of the Constitution. We expect the lawmaking process for a comprehensive enactment with regard to acquisition of land being completed without any unnecessary delay.”[20]

NEED FOR NEW LAND ACQUISITION ACT 

The Government of India believed that a combined law was necessary, one that requires rehabilitation and resettlement necessarily and simultaneously to follow the government acquisition of land for public purposes.

Hence, the 44th Amendment Act of 1978 omitted article 19 (1) (f)[21] with the net result being:-

  • The right not to be deprived of one property saved by authority of law has since been no longer a fundamental right. property saved by authority of law. the amendment ensure that the right to property is no more a fundamental right but rather a constitutional legal right and statutory write and in the event of preach the remedies available to decrease percent is too high court under article 226 of Indian Supreme court under article 32 of the Constitution.
  • Moreover, no one can challenge the reasonableness of the restriction imposed by any law the legislature made to deprive the person of his property.

The Supreme Court while dealing with cases pertaining to land acquisition has stated that the state must pay compensation at the market value of such land, building or structure acquired and the same can be found in the earlier rulings where ‘property right’ was a fundamental right.[22] It propounded that the word ‘compensation’ deployed in article 31(2) implied full compensation, that is the market value of the property at the time of the acquisition. The legislature must ensure that what is determined as payable must be compensation that is just equivalent of what the owner has been deprived of.[23]

THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013

This Act[24] is enacted to ensure, in consultation with Institutions of local self-Government and Gram Sabha established under the constitution, a humane, participative, informed and transparent process for land acquisition for industrialisation, development of  essential infrastructural facilities and urbanization with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or and make adequate provisions for such affected persons for their rehabilitation and resettlement.

AIM AND OBJECTIVES

  • to ensure, in consultation with Institutions of local self Government and Gram Sabha was established under the constitution of India coma human participative, informed and transparent process for land acquisition for industrialization and development of essential infrastructural facilities and urbanization with the least disturbance to the owners of the land and other affected families
  • provide just and fair compensation to the affected families whose land has been acquired are proposed to be acquired or affected by search acquisition
  • make adequate provisions for such affected persons for their rehabilitation and resettlement
  • to ensure that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post-acquisition social and economic status and for matters connected therewith or incidental thereto.

PURPOSE AND SCOPE

 the act aims to establish the law on land acquisition as well as the rehabilitation and resettlement of those directly affected by the land acquisition in India full stop the scope of this act includes all the land acquisition whether it is done by the central government of India or by any State Government of India.

AVAILABILITY OF THE ACT

  • The government acquire land for its own use, Hold and control, including land for public sector undertakings
  • Government acquires land with the ultimate purpose to transfer it for the use of private companies for stated purposes for stop the purpose of the i.a. Land Acquisition Bill of 2011 includes public private partnership projects but excludes land required for state or National Highway project
  • For immediate usage and declared usage by private companies for public purpose

The provisions of this Act do not apply to acquisitions under section 316 existing legislations including the special economic zones Act 2005 the atomic energy act 1962 to the Railways act 1989 etc.

SALIENT FEATURES OF THE NEW ACT

 Following are the salient features of the new act-

  • Compensation: Given the inaccurate nature of circle rates, the act proposes the payment of compensations that is up to 4 times the market value in the rural areas and two times the market value in the urban areas
  • Resettlement and Rehabilitation: This is the very first law that links land acquisition and the accompanying publications for resettlement and Rehabilitation over 5 chapters have been dedicated to outline the elaborate process for resettlement and Rehabilitation.  the second schedule in particular outlines the benefits that shall accrue in addition to the one-time cash payment.
  • Retrospective operation: To address historical Injustice the act applies retrospectively to cases where no land acquisition award has been made full stop specifically in cases where the land was acquired five years or more ago but no compensation has been paid on operation has taken place then the land acquisition process will be started a fresh in accordance with the provisions of this act.
  • Multiple checks and Balances: Comprehensive coma participative and meaningful process involving the participation of local Panchayat Raj institutions has been put in place prior to the start of any acquisition proceedings stop the monitoring committee is at the national and state level to ensure that resettlement and Rehabilitation applications are met have also been established.
  • Specific Safeguards for Tribal Communities and Other Disadvantaged Groups: No land can be acquired in schedule areas without the consent of Gram sabhas. the laws and laws that all rights guaranteed under such legislations as the panchayat extension to Scheduled Areas act 1996 and the forest rights act 2006 are taken care of. it has special enhancement benefits outlined in a dedicated chapter for those belonging to the scheduled caste and Scheduled Tribes.
  • Safeguards Against Displacement: The law provide that no one shall be dispossessed until and unless all payments are made and Alternative sites for the resettlement and Rehabilitation have been prepared. the third schedule even list the infrastructural amenities that I have to be provided to those that have been displaced.
  • Compensation for Livelihood Losers: In addition to those using land, the act provides compensation to those who are dependent on the land acquired for their livelihood
  • Exemption from Income Tax and Stamp Duty: No Income Tax shall be levied and no stamp duty chal be charged on any amount that accrues to an individual as a result of the provision of the new law
  • Share in Appreciated Land Value: Where the acquired land is sold with third-party for higher price than 40% of the appreciated land value will be shared with original owners
  • Caps on Acquisition of Multi-crop and Agricultural Land: In order to safeguard food security and to prevent arbitrary acquisition, that directs the states to impose limits on the area under agricultural cultivation that can be acquired
  • Return of Unutilised Land – In case the land remains unutilized after acquisition the new at empowers the states to return the land is the to the owner of the state land Bank
  • Consent: In cases where II PPP projects are in volt or acquisition is taking place for private companies the new act requires the consent of less than 70% and 80% respectively of those whose land is short to be acquired full stop this ensures that no forcible acquisition can take place

PROTECTION OF INTEREST OF SCHEDULED TRIBES

 The Act provides for as under-

  • Separate Chapter: A separate chapter has been carved out to protect interest of tribals and those belonging to scheduled castes. Where acquisition does take place it shall be done as a demonstrable last resort  
  • Approval: As far as possible no acquisitions will take place in schedule areas. and where such acquisition does take place it has to be done with the approval of the consent of local Institutions of self-governance including the autonomous councils where they exist
  • One third to be Paid Upfront: In case of land being acquired from members of scheduled caste or Scheduled Tribes, at least one third of the compensation amount due shall be paid to the affected families at the outset as first instalment and the rest shall proceed by taking over possession of the land.
  • Resettlement in the same Scheduled Area: The Schedule tribes affected families shall be resettled preferably in the same schedule area in 1 compact block so that they can retain their ethnic linguistic and cultural identity.
  • Land for Community: Predominantly inhabited by the scheduled caste and Scheduled Tribes sell get land to such extent as may be decided by the appropriate government free of cost for community and social gathering.
  • Development Plan: Development plan laying down the details of procedure for settling land rights due but not settled and  restoring titles of tribals on alienated land by undertaking a special drive together with land acquisition the plan must also contain a program for development of alternate fuel and non-timber forest produce resources on forest lands within a period of 5 years sufficient to meet the requirement of tribal communities as well as Schedule Caste.
  • Alienation of Tribal Land to be Void: Any alienation of tribal lands on land belonging to members of Schedule Caste is in disregard of the laws and regulations for the time being in force shall be treated as null and void and in the case of acquisition of such clients, the rehabilitation and resettlement benefits shall be available to the original tribal landowners on the landowners belonging to scheduled caste.
  • Higher land for land area for SC ST: In every project those losing land and belonging to the SC and ST will be provided land equivalent to land acquired for two and a half acres which is lower.
  • Payment of Additional Amount: In addition to a substance amount of rupees 3000 per month for year which all affected families get, just dual caste and Scheduled Tribes displaced from schedule areas shall receive an amount equivalent to rupees 50000/- 
  • Granting of Fishing Rights: The affected scheduled tribes other traditional forest dwellers and the scheduled caste families having fishing rights in a river or pond aur Dam in the affected area shall be given fishing rights in the Reserve area of the irrigation for Hydel projects.
  • If Resettled Outside Scheduled Area then Additional Benefits: Where the affected families belonging to the scheduled caste and Scheduled Tribes are located outside the district then there shall be paid and additional 25% rehabilitation and resettlement benefits to which they are entitled in monetary terms along with a one-time entitlement of 50000 rupees. 

PROTECTION OF INTEREST OF PANCHAYATI RAJ INSTITUTIONS

 The Act provides as follows- 

  • SIA in consultation with PRIs: The social impact assessment has to be carried out in consultation with the representatives of the Panchayati Raj institutions in fact, the appropriate government is required by the law to ensure adequate representation of these institutions during the discharge of the process.
  • SIA Reports to be Shared: Report under the social impact assessment with these individuals in the local language along with the summary
  • Consent of Gram Sabha: The consent of the gram sabha if necessary before any acquisition can be given in Scheduled Areas and it also has to be in accordance with the provisions of PESA act 1996.
  • Representation of Panchayat Chairperson on R&R Committee at a Project Level: The rehabilitation and resettlement committees at project level has to have the chairperson of the panchayat located in the affected area or their nominees as representatives.
  • Panchayat Ghar: Panchayat have to be provided as per the list of infrastructural amenities given in the third schedule 
  • Representation in Expert Group: Group has to have two members belonging to the Panchayati Raj institutions. this is a powerful body that has the power to reject a project
  • Hearings in all Gram Sabhas: In case where an affected area involves more than one gram panchayat and municipality public hearings shall be conducted in every Gram Sabha where more than 25% of land belonging to Gram Sabha is being acquired

ISSUE OF RETROSPECTIVE APPLICATION OF THE ACT

Section 24(1) of the 2013 Act provides that the Act will not be applicable in cases where an award has been made under section 11 of the old Act. Further, section 24(2) of the 2013 Act starts with a non-obstante clause and provides-

“Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:

Provided that where an award has been made and compensation in respect of a majority of land holding has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.”

Hence, the benefit under the provisions of the 2013 Act as per the above-stated statutory provision is being given in the cases wherein the award has been made under the provisions of the old Act five years (5) or more prior to the commencement of the 2013 Act (i.e. on or before 01.01.2009) but the compensation has not been paid or the physical possession of the property has not been taken.

In the recent case of Delhi Development Authority v. Sukhbir Singh & Others[25], the Hon’ble Supreme Court has granted the benefit of sec. 24(2) of the 2013 Act to the land owners, as the award under section 11 of the Land Acquisition Act, 1894 was passed in the year 1997, i.e., prior to 01.01.2009.

The Hon’ble Supreme Court, while deciding above mentioned case, has found that it is squarely covered by the ratio of another Supreme Court judgement, i.e. Pune Municipal Corporation v. H.M. Solanki[26]. In Pune Municipal Corporation case, the date of award passed under section 11 of the Land Acquisiton Act, 1894 was 31.01.2008, i.e. prior to 01.01.2009

Conditions for availing the benefit of section 24(2) of the 2013 was noted in the case of Delhi Development Authority:

  1. Land Acquisition should have been initiated under Land Acquisition Act, 1894;
  2. Award under Section 11 should have been made 5 years or more prior to the commencement of the 2013 Act, i.e. award should have been made on or before 01.01.2009;
  3. Physical possession has not been taken or the compensation has not been paid.

However, the issue which remains contentious is the interpretation of 5 year period, i.e. whether the above stated provision will benefit the land losers, whose lands have been acquired after 01.01.2009. Till date there is no precedent of any court which provides clarity over this issue.

Liberal Interpretation of 5-year term

The Government of India on the basis of the Solicitor General’s opinion came out with a circular which clarified the position with respect to interpretation of section 24(2) of the Act. The said circular states that a landowner becomes eligible to the benefit available under sec. 24 (2) of the Act in cases where the award under section 11 of the 1894 Act is passed after 01.01.2009 and the period of 5 years has not lapsed from the date of passing of this award and the date of commencement of this Act and if the said period of 5 years gets lapsed on any date after the commencement of the Act and the compensation is not paid till such date.

Further the Hon’ble Supreme Court in numerous instances including cases, Union of India v. Shiv Raj & Others[27] and Ram Kishan & Ors .v. State of Haryana & Others[28] has considered the above said circular of Government of India while deciding the cases. In Delhi Development Authority case, court while explaining the object of s. 24(2) observed:

“The picture that therefore emerges on a reading of Section 24(2) is that the State has no business to expropriate from a citizen his property if an award has been made and the necessary steps to complete acquisition have not been taken for a period of five years or more. These steps include the taking of physical possession of land and payment of compensation. What the legislature is in effect telling the executive is that they ought to have put their house in order and completed the acquisition proceedings within a reasonable time after pronouncement of award. Not having done so even after a leeway of five years is given, would cross the limits of legislative tolerance, after which the whole proceeding would be deemed to have lapsed.”

As per the liberal interpretation and keeping in mind clause 18 of the objects of the 2013 Act, it seems clear that the benefit of section 24 (2) must be given to the land loser whose land have been acquired by an award passed under the old Act after 01.01.2009, i.e. within 5 years of the commencement of the 2013 Act.

Strict Interpretation of 5 year term

In M/s Competent Automobiles Limited v. UOI & Others[29]  (Civil Appeal No. 5054 of 2008), the apex court observed:

“The said award must predate the commencement of the Act i.e. 1-1- 2014; by at least five years (or more) i.e. the award must have been passed on or before 1-1-2009…Each and every deeming operation under Section 24(2) requires unambiguously and unvaryingly that a factual conclusion be drawn about the passing of the award under Section 11 of the 1894 Act, on or before 1-1-2009.”

Further, the Hon’ble Supreme Court in case of Ratan Singh v. Union of India & Others[30], reiterated the same. In case of Athena Demwe Power Limited[31] of the Hon’ble Gauhati High Court while considering the fact that the award in question was passed on 11-5-2012, while possession was taken on 22-6-2012. Thus, it does not satisfy the test of sec. 24(2), as the award was made after 01.01.2009. Thus, Court while allowing the appeal on behalf of the appellant-company, on whose behalf, the lands were acquired held that

this section cannot obviously deal with a situation if the award is passed within five years of the commencement of the Act of 2013.”

However, the question which remains unanswered is the incidence of the said Provision in cases where the award is passed within 5 years of the commencement of the 2013 Act and the possession has not been taken or the compensation for such acquisition has not been paid even after the expiry of 5 year period from passing of such award.

Conclusion of this Issue

The decisions of the Hon’ble Apex Court cited above have created confusion with regard to applicability of section 24(2) in cases where the award under Sec. 11 of 1894 Act has been passed after 01.01.2009 and the compensation has not been paid even after 5 years. As per the strict interpretation of the 5 year period, as envisaged under Section 24(2) of the 2013 Act, the land losers whose lands have been acquired by an award passed under the old Act after 01.01.2009 and the compensation has not been paid till date shall be kept devoid of the benefits of the 2013 Act, while the same benefit shall be given to the land losers whose lands have been acquired by an award passed under the old Act on or before 01.01.2009. It is well settled principle under the law that a beneficial piece of legislation has to be given a liberal interpretation.

Recommendation on this Issue

There exists a need that the apex court must step in and give a liberal interpretation with regard to interpretation of `5 year period’ under section 24(2). Hence, the land losers whose lands have been acquired after 01.01.2009 should be accorded with the benefits under the 2013 Act.


[1] The Bengal Resolution I of 1824, the law applied “to the whole of Bengal province subject to the presidency of Fort William.

[2] Division Bench comprising S Sighvi and Asok Kumar Ganguly Radhey Shyam(D) Through LRs and others v. State of U.P. and others Civil Appeal No. 3261 decided on April 15, 2011.

“The history of land acquisition shows that in Eighteenth century, Bengal Regulation I of 1924, Act I of 1850, Act VI of 1857, Act XXII of 1863, Act X of 1870, Bombay Act XXVIII of 1839, Bombay Act XVII of 1850, Madras Act XX of 1852 and Madras Act I of 1854 were enacted to facilitate the acquisition of land and other immovable properties for roads, canals and other public purposes by paying the amount to be determined by Arbitrators. The Act of 1870 provided for proper valuation of the acquired land. In case of a dispute on the amount offered in lieu of acquisition, the Collector could make a reference to the Civil Court who were assisted by the assessors. In case of disagreement between the Civil Court and assessors, then an appeal can be filed in the High Court. The mechanism proved ineffective because a lot of time was consumed in litigation.”

[3] Insertion of new section 3A vide Clause 8 of the Land Acquisition (Amendment) Bill, 2007, Bill No. 97 of 2007. Mandatory Social Impact Assessment (SIA) prior to acquisition of land under this Act.

[4] The Land Acquisition, Rehabilitation And Resettlement Bill, 2011 introduced in Lok Sabha, Bill No. 77 of 2011

[5] Statement of Objects and Reasons, Bill of 2011 at page 44. Available at https://www.prsindia.org/sites/default/files/bill_files/Land_Acquisition%2C_Rehabilitation_and_Resettlement_Bill_2011.pdf

“Public purpose” has been comprehensively defined, so that Government intervention in acquisition is limited to defence, certain development projects only. It has also been ensured that consent of at least 80 per cent.”

[6] Enacted by Parliament of India on 1st January 2014 vide Bill Citation No. 77-C of 2011.

[7] The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Second Amendment) Bill, 2015, Bill Citation No. 152 of 2015.

[8] Amendment of Section 2 of LAAR Act, 2013 vide Clause 3 of the Bill of 2015.

[9] Ibid at page 5 available at

https://www.prsindia.org/uploads/media/Land%20and%20R%20and%20R/LARR%20(2nd%20A)%20Bill,%202015.pdf.

[10] Part VII of the 1894 Act provides for the Acquisition of Land for Companies. (Sections 38A-44B)

[11] Section 17- Special powers in cases of urgency. Clause (1) In cases of urgency, whenever the [appropriate Government] so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section (1), [take possession of any land needed for a public purpose]. Such land shall thereupon [vest absolutely in the [Government]], free from all encumbrances.

[12] Section 5A- Hearing of objections. Clause (1) Any person interested in any land which has been notified under section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, [within thirty days from 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.

[13] Section 17(4) – In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the provisions of section 5A shall not apply where the appropriate Government so directs to where possession of the land has been taken with the consent of the person interested.

[14] Supra Note 2.

[15] Ibid at page 9.

[16] Namita Kohli, “Landing in Trouble”, The Sunday Hindustan Times of India, New Delhi, March 01, 2015, page 4.

[17] Civil Appeal No. 4772 of 1998 decided on August 09, 2011.

[18] Ibid.

[19] 2011 (2) SCALE 364.

[20] Ibid.

[21] Vide Clause 2 (ii) of the The Constitution (Forty-Fourth Amendment) Act, 1978 enacted on 30th April 1979.

[22] 1954 AIR 170

[23] 1954 SCR 558

[24] Enacted by Parliament of India on 1st January 2014, Bill Citation No. 77-C of 2011.

[25] Delhi Development Authority v. Sukhbir Singh & Others, MANU/SC/0986/2016

[26] Pune Municipal Corporation v. H.M. Solanki AIR 2014 SC 982

[27] Union of India v. Shiv Raj & Others (2014) 6 SCC 564

[28] Ram Kishan & Ors .v. State of Haryana & Others (2015) 4 SCC 347

[29] M/s Competent Automobiles Limited v. UOI & Others, AIR 2015 SC 3186.

[30] Ratan Singh v. Union of India & Others Civil Appeal No. 2852 OF 2009.

[31] Athena Demwe Power Limited, W.A. No. 175 of 2015.

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