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Sunday, March 6, 2011

Land Acquisition Act 1894




Q: What is Reference and its Procedure about the Presentation of Reference?

A: REFERENCE AND PROCEDURES are as under:
Reference to the Court.
Collector’s statement to the court.
Service of notice.
Restriction on pleadings.
Proceeding to open court.
Cross objection.
Matters to be considered in determining compensation.
Judgment.
As the person interested shows his intention in writing to the Collector to refer the case to the Court of competent jurisdiction for determination of the compensation sum of the land or measurement of the land, the Collector sends the reference to the Court of competent jurisdiction.
The court after examining the said reference services the notice to the applicant as well as the collector and fix the date and place for the hearing. The Court examines the information supplied by the collector about his award and frames the issues in the light of details of the award and objection place in open court and all persons entitled to practice in civil court are entitled to appear, appeal and act such proceedings.
The Provincial Government or a local authority or a company for which the land is acquired may file a cross objection to the objections made by any person interested and the court may reduce the amount awarded by the collector, if it considers just and proper.
The court can enhance the amount of compensation awarded by the Collection, if it thinks proper under Section 23 and 24 of the Land Acquisition Act.

Q: 2 What is the Object of Preliminary Notification as Couched in the Land Acquisition Act?
A: Land Acquisition Act, 1894, is a law for the acquisition of land needed for public purposes and for companies and for determining the amount of compensation to be paid on account of such acquisition. The purpose of this piece of legislation is thus, two fold:
1. To fulfill the need of Government and companies for land acquired by them for their projects.
2. To determine and pay compensation to those private persons or bodies whose land is so acquired.
  The exercise of the power of acquisition has been limited to public purposes. The principles laid down for the determination of compensation, as clarified for judicial pronouncements made from time to time reflect the anxiety of the law-giver to compensation those who have been deprived of property; adequately enough in the sense that they are to be given gold for gold and not copper for gold. In other words the compensation has to be adequate compensation. It is with this end in view that the association of the persons interested in the property with the process of determination of its market value by the collector is a highlight of the statute a bare reading of the Act leads one with the strong impression that one of the main intentions of the Legislature was to ensure the protection of the rights of the persons whose property was being acquired. The Legislature intended protection of the rights of land owners. Strict compliance with the provisions of the Act is essential to take away any right.
The object of the law is to empower Government to acquire land only for a public purpose or for a company, and, for where it is for the company, it is confined only to cases where the Government is satisfied that the purpose of obtaining the land is errection of dwelling house for workmen employed by the directly connected therewith or for the construction of some work which is likely to prove directly useful to the public.
PRILIMINARY INQUIRY FOR ACQUISITION OF LAND: Section 4 is a preliminary step towards the commencement of acquisition proceedings which do not commence until the notification under Section 6 is issued.
The expression ‘public purpose’ has been used in its generic sense of including any purpose in which even a fraction of a community may be interested or by which it may be benefited. But the determination by the State as to whether or not the purpose for which the land is being acquired is for public purpose is not final and the court can determine the nature of the purpose when the question of the Provincial government on the question is correct is a rebut-able presumption.
From the scheme of the Land Acquisition Act, it is amply clear that in arriving at the satisfaction as to whether private property must be compulsorily acquired for a public purpose, there must be a fixity of purpose in the mind of the government because it is in relation to that purpose that the Government explores and arrives at its satisfaction. Prima facie, the Government is the best Judge as to whether an acquisition is for a public purpose. But it is not the sole Judge. Courts have the jurisdiction and it is their duty to determine whenever a question is raised whether an acquisition is or is not for a public purpose. In so determining, courts have to proceed on the basis of the purpose declared under Section 6 and try to find out if the declared purpose is a public purpose at all. In finding out whether the purpose is really a public purpose, the court has to apply two tests. Firstly, whether the purpose benefits the community at large or section thereof and, secondly whether the government is satisfied about the need of the land acquisition for the declared purpose. The public purpose need not be expressly stated in the notification or declaration but if the purpose be challenged, before a court of law, as not a public purpose the same has to be established by evidence aliunde. But when the purpose is expressly stated in the notification or the declaration and that is challenged as not a public purpose, It does not become permissible to add to that purpose other purpose or purposes, not notified or declared and try to support the land acquisition both the notified and declared purpose and also on the un-notified and undeclared purpose.

Q: 3 Write a short not as Mentioned below:

1. THE EXPRESSION LAND: The definition of land given in Section 3 of the Land Acquisition Act is neither exhaustive nor restrictive but is extensive and besides the meaning with which it had been clothed in that section the word is capable of receiving its ordinary, popular and natural sense in which it is understood in the English language. The word “include” used in the interpretation clause does not restrict the power of the Government to acquire the totality of interest in land and it is open to the Government in a given case where it is itself the owner of the land, to acquire such other interests in it as are held by private persons and which clog the right of the Government to put the land to a particular public purpose.
“Land” as defined in Section 3(a) means land together with any  superstructure, fixtures, etc. thereon and benefits arising there from, viz, sum total of aggregate rights in land vertically done to center of earth and up to sky. Acquisition must, therefore, relate to entire vertically located property and not its horizontal slices or its constituents. Acquisition procedure with regard to only first floor of building and not for ground floor or land underneath not permissible under law.
Word “land” means totality of rights in land including tenancy rights. Suggestion that “tenancy rights” have no market value or their market value is incapable of being interpreted in terms of money is not acceptable.

2. COMPANY: The word “company” means in the clause indicates that the definition of “Company” is a complete definition, and a body desiring to apply the Land Acquisition Act must come within one or other of the categories in the definition.
Word ‘ Company’ defined under Section 3 (e) of Act, is not confined to a company in technical sense, but extends to its generic sense of being an association of persons united for a common purpose. The companies Ordinance does not apply to such societies or to the provincial societies, trade unions, ordinary partnership.
OTHER BODIES: There are certain bodies for which specific provision is made in the Acts relating to them for the application of the Land Acquisition Act, e.g. Railways Electric Corporations, tramways companies.
ROAD TRANSPORT BOARD: Provincial Transport Corporation incorporated under an Act, is company and not a local authority.
FOOD CORPORATION: Food Corporation is a statutory body and falls within the definition of ‘Company’ not Government department while acquiring land for corporation the provisions of the Land Acquisition Act, 1894 must be complied with. The land acquired for corporation under Section 4 and 17 declared without lawful authority.

3. PUBLIC PURPOSE:  The expression “Public purpose” has a wide scope under the Act. The expression is not capable of a precise definition and not a rigid meaning. ‘Public purpose’ means purpose furthering general interest of community as opposed to particular interest of individuals and to be construed according to the spirit of times in which legislation enacted. The expression “ public purpose” has been defined in the Land Acquisition Act in an inclusive manner and has been taken to mean a purpose, that is an object or aim in which the general interest of the community as opposed to the particular interest of individuals is directly and vitally concerned. The declaration under sub-section (3) of Section 6 of this Act must be taken as conclusive proof of the fact that the acquisition is being made to serve a public purpose and would prove beneficial to the public. “Public purpose” cannot be defined strictly as the same is liable to change from time to time, from place to place and matter to matter. Definition has to be used in an elastic sense so that it may satisfy changing facts, circumstances, and requirements of society and needs of public.
Anything which is useful to the public in the sense of conferring some public benefit or conducting to some public advantage is a public purpose. Though the expression “useful to the public, as occurring in Section 40 (1) (b) has to be given a narrow meaning and has to be limited to works which are directly useful to the public, there can be no doubt that the establishment such as students’ home, publication department, guest houses and pathshala which are sought to be set up come within the expression ‘public purpose’ even though it is assumed that such purposes cannot be said to be directly useful to the public. Section 3 which is the defining section does not contain any comprehensive definition of the term ‘public purpose’. It appears that the Legislature in its wisdom has deliberately not chosen to limit the term within the narrow confines of a strict legal definition. This apart judicial precedent has been equally reluctant to put the term ‘public purpose’ in a strait-jacket and it has been repeatedly affirmed that it was indeed desirable that this term should retain its elasticity. The concept of a ‘public purpose’ is not a static but a dynamic one, and it is too late in the day to contend that laudable schemes for housing the houseless weaker sections of the community would in the present items not fall within so broad a term as ‘public purpose’. With the concept of the welfare state now well enshrined, the responsibility of the community to provide something so elementary as shelter in the shape of housing to its relatively unfortunate members must now be necessarily classed as a ‘public purpose’ which is obviously conducive to the larger well-being of the society as a whole.
TEST OF A “PUBLIC PURPOSE”  Public purpose is the most essential requirement to justify the application of the Land Acquisition Act, and the Provincial Government has to make a definite declaration, after due inquiry, that the land is required for such purpose. Perhaps the best test of a public purpose would be one which would justify the expenditure of public funds within the meaning of Section 6, but the Provincial Government is the sole Judge.


4. PERSON ENTITLED TO ACT: The expression “entitled to act” is here employed in two senses. With regard to trustees, guardians and committees is clearly refers to acting for others, whereas with regard to a married woman it obviously means, acting for herself. It is used in the former sense expressly in Section 9 (3) and elsewhere by implication, in Section 31 and 32.
TRUSTEES AND EXECUTORS: Trust includes every species of express, implied, or constructive fiduciary ownership. Trustee includes every person holding expressly, by implication, or constructively a fiduciary character.
A trust is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner; the person who reposes or declares the confidence is called the author of the trust; the person who accept the confidence is called the trustee; the person for whose benefit the confidence is accepted is called the beneficiary; the subject matter of the trust is called the trust property or trust money the beneficial interest or interest of the beneficiary is his right against the trustee as owner of the trust property.
GUARDIANS OF MINORS: A ‘guardian’ means a person having the care of the person of a minor or of his property, or of both his person and property vide Section 4 92) of the Guardians and Wards Act, 1890.
A minor means a person who under the provisions of the majority Act, 1875, is to be deemed not to have attained his majority. Section 3 of the Majority Act, 1875 fixes 18 years as the age majority of persons domiciled in Pakistan, except in cases where a guardian has been appointed by the Court or the minor is under the courts of Wards, in which case the age is 21 years. In computing the age, the days on which the person was born is to be included as a whole day, and majority would be deemed to be attained on the anniversary that of the 18th or 21st year, as the case may be.
5. COLLECTOR: The expression “Collector” according to this clause, means the Collector of a district and includes a Deputy Commissioner and any officer especially appointed by the Provincial Government to perform the functions of a Collector under this Act. Even when lands are acquired for railways, municipalities and District Boards or other local bodies, or companies the land is acquired by the government and after acquisition is handed over to the local body or company concerned. The Collectors are, therefore, entirely independent of the local body which acquires the land. Local authority is not person interested. It cannot demand reference.
COLLECTOR CANNOT DELEGATE HIS DUTIES: The Assistant or Deputy Collector or an Assistant Commissioner or Extra Assistant Commissioner may be invested with the power of a Collector of a district. It does not include any officer to whom the Deputy Commissioner thinks fit to delegate his duties. An award made by such delegatee is illegal.
STATUS OF COLLECTOR – COLLECTOR NOT A JUDICIAL OFFICER: the Collector is in no sense of the term a Judicial Officer, not is the proceeding before him a judicial proceeding. The Collector as an officer or agent of the government or of the company for which Government take up the land, and they are accordingly bound by the award of their agent; while if judicial decision as to the value is desired by the owner he can obtain it by requiring the matter to be referred by the Collector are departmental in their character, a tender through him to the persons interested, and it is open to him, in waking his award as to the compensation to be offered, to consider all available information on the question.
COLLECTOR – HIS LIABILITY TO BE SUED: It cannot be suggested that the Collector should never be held liable to pay out the money again when he has once paid it out to a wrong person. There may be cases in which he has shown such negligence that he could rightly be held liable for the loss by a claimant of money which the Courts subsequently hold should have been paid to him. But to decide whether a Collector should be so liable would involve a court in an enquiry into the procedure adopted by him and finding that at least there had been some negligence or serious error on his part. There is nothing in the Land Acquisition Act to suggest that such an enquiry should be held on a reference under the provisions of Section 18 of the Act. A question of that sort is one which can only be decided satisfactorily in a separate suit.
6. COURT:  Ordinarily the principal civil court of original Jurisdiction shall be the “Court” under the Act. But the Provincial Government has power to appoint a special judicial officer within any specified local limits to perform the functions of a court. It can only be a judicial officer that can be so appointed. The Select Committee on the Bill observed. In Section 3 of the Bill we have added a clause amending the definition of Court. It appears to us that all references from the Collector’s authority should be to an independent judicial authority, and, now that the Punjab and Oudh have divided their judicial from their revenue establishments, there are few parts of India in which there are no judicial officers who have no concern with executive administration. We think, therefore, that the time has now come when the court to which reference under the Act will be made should be generally the principal civil court, we have retained the clause in the original definition which empowers the provincial Government to appoint special judicial officers to perform the functions of a Judge under the Act.
The court exercising jurisdiction under the Land Acquisition Act, 1 of 1894, is ordinarily the District Court which is the principal civil Court of original jurisdiction, but shall not include a High Court in the exercise of original civil jurisdiction.

Q: 4 Describe the Legal Requirements for the Determination of the Compensation, When the land is Acquired for Public Interest?

A: Under Section 23 of the Land Acquisition Act , the court shall take into consideration while awarding the compensation for the land acquired, as under:
1. The market value of the land at the date of the publication of notification under Section 4.
2. The damage sustained by the person interested by the reason of the taking of any standing corps or by trees by taking possession.
3. the damage sustained by the person interested at the time of Collector’s taking possession of land by reason of serving such land from his other land.
4. the damage sustained by the person interested, at the time of the Collector’s taking possession of land by reason of the acquisition injuriously effecting his other property, movable of immovable, in any other manner, of his earning.
5. The damage sustained by the person interested while taking possession of the collector and the person interested is compelled to change his residence or place of business, the reasonable expenses incidental to such change.
6. the damage sustained at the time of taking possession of land resulting from diminution of profit of the land between the time of the publication of declaration under Section 6 and the time of Collector’s taking possession of the land.
In addition to the market value of land as mentioned above, the court shall be every case award a sum of 15% on such market value in consideration of the compulsory nature of acquisition.

WHAT ARE THE MATTERS TO BE NEGLECTED IN DETERMINING COMPENSATIN: Under Section 24 of the Land Acquisition Act, the Court shall not take into consideration the following points while determining the compensation:
The degree of urgency which has led to acquisition.
The disinclination of the person interested to part with land acquired.
Any damage sustained by his which if caused by a private person, would not render such person liable to a suit.
Any damaged which is likely to be caused to land acquired after the date of publication of the declaration under Section 6 by or in consequence of the use to which it will be put.
Any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired.
Any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put.
7. Any outlay or improvement on or disposal of the land acquired, commenced, made or effected without the sanction of the Collector after the date of the publication of the notification under Section 4 (1).

Q: 5 Whether Legal Remedy is Available to an Aggrieved Person  by the Order of Collector?

A: Under Section 18 of the Land Acquisition Act, any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the court, whether his objection relater to the measurement of the land, the amount of compensation the person to whom it is payable, or the apportionment of the compensation amount the persons interested.
The application shall state the grounds on which objection to the award is taken. The application shall be filed within six weeks from the date of the Collector’s award.
In other cases, within six weeks of the receipt of the notice from the Collector under Section 12(2) or within six months from the date of the Collector’s award, whichever period shall first expire.

Q: 6 Define “INTERESTED PERSON” under the Land Acquisition Act if the Property is required for Public Interest?

A: The expression ‘person interested’ includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act. Further a person is to be deemed to be interested in land if he is interested in an easement affecting the land. A “person interested” who had not accepted the award has the right to insist on a reference to the District Court, if he had complied with the provision of sub-section (2) of Section 18. A “person interested” does not means a person whose interest the collector is prepared to admit.
Section 18 enables any person interested, who has not accepted the award to require a reference and Section 3(b) defines person interested’ as including all persons claiming an interest in the compensation. As long as the application set out a claim to an interest in the compensation, in no part of the collector’s merely because he may think it is not. Application under Section 18, has to be made by an “interested person” which expression in Section 3 (b) of the Act is defined as including person claiming an interest in the compensation. Under this definition it is immaterial whether there is any substance in the claim made by the person applying under Section 18 or not. Definition is inclusive. Person having prima facie title to land is ‘person interested’. A person who has purchased certain land prior to notification in respect of its acquisition and to whom the proposed acquisition and the consequent award are not notified is an interested person in the compensation within the meaning of Section 3 (b).
Tenant of house that is being acquired is “person interested” within Section 3(b), and can raise objection to acquisition.
A company or local authority on whose behalf the land is being acquired is a “person interested” within the meaning of Section 3 9b) of the Land Acquisition Act if it has an interest in the lands that are the subject of acquisition and it has, therefore, a right to demand a reference under Section 18 of the Act, but for that interest only. The proper interpretation of the proviso to Section 50 (2) is that it relates only to that sub-section and makes it clear that a company or local authority has not been granted a power to demand a reference as to compensation by virtue of the power given therein to appear and adduce evidence before the Collector or Court on the subject. It does not, therefore, take away the rights which the company or the local authority might enjoy as claimants or persons interested under Section 18 of the Act. The rights of making reference has been specifically given under sub-section (3) to the Provincial Government. It is the Provincial government alone which can make a reference and not the Deputy Commissioner.

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