ACQUISITION PROCEDURE AND LAWS IN KARNATAKA

COMPENSATION – COMPARITIVE METHOD AND BELTING METHOD DISCUSSED BY SC 2003 SC

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Justice S. N. Variava & Justice H. K. Sema in Smt. Lila Ghosh vs The State of West Bengal reported in AIR 2004 SC 288,

HELD: VALUATION ARRIVED AFTER COMPARING SIMILAR LAND : Regarding valuation of land acquired in the instant case, on the basis of valuation of the adjoining land, the land in the instant case had frontage of only 170 ft on less wide road, appreciation of 5% can be given for frontage. In the earlier judgment averaging price of sale instances of small plots the value was fixed at Rs.11,260. It is well known that large piece of land would never fetch the same price as small piece of land, therefore, for largeness 5% depreciation can be given. Giving the above appreciation and depreciation, the price remains Rs.11,260 per cottah. Earlier acquisition was for year 1974 and on basis of 10% appreciation per annum appreciation of 95% is given for 9+ years which is Rs.10,697. To the figure of Rs.11,260 if Rs.10,697 is added the value would be Rs.21,957 per cottah. Therefore, compensation is payable at the rate of Rs.21,957 per cottah. Further, the claimants will be entitled to solatium at the rate of 30% and additional compensation at the rate of 12% from the date of publication of notification to the date of passing of award.

BELTING METHOD: The acquisition of land was for the purposes of film studio. It was a compact block of land which was acquired for a specific purpose. The land was not acquired for development into small plots where the value of plots near the road would have a higher value whilst those further away may have a lesser value. In such cases where a compact block is acquired the belting method would not be the correct method.

POTENTIALITY INCREASE:- In the earlier judgment while determining the average market price, on the basis of the comparable units situated in a newly developed post residential locality potentiality has been taken into consideration in arriving at the figure of Rs.11,260, therefore, the grant of additional percentage towards potentiality does not arise. Thus the Reference Court and High Court erred in giving a 10% increase for potentiality.

LARGE PLOT VS SMALL PLOTS:- The normal rule is that if a plot is large, then there must be depreciation for largeness, large plots always fetch less than small plots. Therefore, there is no question of appreciation for largeness.

PAYMENT OF INTEREST Section 34 shows that interest is payable only if the compensation, which is payable, is not paid or deposited before taking possession. The question of payment or deposit of compensation will not arise if there is no acquisition proceedings. In case where possession is taken prior to acquisition proceedings a party may have a right to claim compensation or interest. But such a claim would not be either under Section 34 or Section 28. Interest under these Sections can only start running from the date compensation is payable. Normally, this would be from the date of the Award. There may be cases under Section 17 where by invoking urgency clause possession has been taken before the acquisition proceedings are initiated. In such cases, compensation, under the Land Acquisition Act, would be payable by virtue of the provisions of Section 17. As in cases under Section 17 compensation is payable interest may run from the date possession was taken. However, the instant case does not fall into this category. In the instant case, if after giving credit for the amounts paid or deposited, it is found that compensation payable has not been paid or deposited then interest thereon, either under Section 28 or 34 will be payable from the date of the Award till payment.

THE AMENDED ACT 1984 AND SOLATIUM AND INTEREST PAYMENT CLARIFIED 2003 SC

noreply@blogger.com (Sridhara Babu) — Thu, 03 Nov 2011 19:39:37 PDT

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Justice S. RAJENDRA BABU & Justice RUMA PAL. In Panna Lal Ghosh & Ors. VS Land Acquisition Collector & Ors. Reported in AIR 2004 SC 1179, The compensation @ 36,000 per acre as awarded by the L.A. Judge is upheld. The appellants are entitled to enhanced solatium @ 30% under Section 23(2) of the Land Acquisition Act, 1894 and an interest @ 9% per annum under Section 28 of the Act. The High Court in considering the case under Section 23(1-A) of the Act has committed an error. The reference by the High Court to Section 23(1-A) is irrelevant in the present case. The main aspect that arises for consideration is the rate of solatium. By an amendment in 1984, the rate was increased to 30% from the original 15% by virtue of Section 30(2) of the Amending Act. This increase was given a limited retrospectivity, in the sense that, the Amending Act, under Section 30(2) provided that the increased solatium is applicable to those awards passed by the Collector or the Court between 30.4.1982 and 29.9.1984. The award was made by the L.A. Collector in 1974. However, during the period between 30.4.1982 and 29.9.1984, the reference was pending in the Reference Court which passed its award in 1985. Therefore, the issue is whether the amendment would apply to a case pending during the period of 2 years from 30.4.1982 to 29.9.1984. It has been held by this Court that the enhanced solatium would apply even to a case pending at the time the Act came into force. Thus, the benefit of enhanced solatium would extend to the present case. ……………….. Solatium is `money comfort' quantified by the statute and given as a conciliatory measure for the compulsory acquisition of land of the citizen, by a welfare state such as India. Thus the statutory amount of solatium is intended to compensate the owner for his distinction to part with his property. The provision of solatium is mandatory and cannot be done away with. It has been held in a number of cases that the deprivation of solatium by the West Bengal Land Development and Planning Act is violative of Article 14 of the Constitution of India and Section 8(2) of the Act is held to be invalid. Therefore, the contention that Section 8(2) of the Act excludes com-pensation by way of solatium does not hold good. …………….. Compensation payable on a piece of land acquired under the Land Acquisition Act is determined by taking into account the market value of the land so acquired. The most reliable way to determine the market value is to rely on the instances of sale of portions of the same land as has been acquired or adjacent lands made shortly before or after the Section 4 notification. While determining the market value of land, it must be with reference to a piece of land which is comparable to the present lands being acquired. It must be similar in potentiality and nature. The document which the appellants seek to rely on relates to land which was acquired for the purpose of Assam-Agartala Road. It was 3 feet higher than the acquired land. Further, the two lands were not proved to be comparable in nature and potentiality. Therefore, the High Court is right in not relying on the said documents and disallow-ing the claim for enhancement for compensation.

TENANT HAVING RIGHTS TO GET COMPENSATION WHEN LEASE HOLD SUBSITING IN THE ACQUIRED PROPERTY 2004 SC

noreply@blogger.com (Sridhara Babu) — Thu, 03 Nov 2011 19:15:45 PDT

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Justice S. Rajendra Babu, Justice Dr. AR Lakshmanan & Justice G.P. Mathur. in Kiran Tandon vs Allahabad Development Authority & Anr. Reported in AIR 2004 SC 2006 HELD : The Reference Court has lost sight of Chapter V of Transfer of Property Act, 1882 which deals with leases of immoveable property. Leasehold rights being limited in nature and entirely different from ownership right, a lessee is not entitled to the entire amount of compensation for the acquired land. The lease expired on 8.6.1987 and possession was taken over on 16.6.1987. However even according to the case set up by the claimant, the possession of the land was taken over just 21 days before the expiry of the lease. In such circumstances, the claimant should get 20 per cent of the compensation amount and the balance 80 per cent is payable to the State Government. The statutory sum under sub-section (1A) and the solatium under sub-section (2) of Section 23 of the Land Acquisition Act, 1894 shall be modified accordingly……………. The Collector's award under Section 11 of the Land Acquisition Act, 1894 is nothing more than an offer of compensation made by the Government to the claimants whose property is acquired. The burden of proving that the amount of compensation awarded by the Collector is inadequate lies upon the claimant and he is in a position of a plaintiff. The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it. The claimant has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the court. The material produced and proved by the other side will also be taken into account for this purpose. On the basis of the evidence, the Reference Court has held that the market value of the land at the time of the acquisition was not less than Rs. 500 per square yard. The High Court has accepted the value of the land determined by the Reference Court. As the High Court has agreed with the view taken by the Reference Court, this Court does not consider it proper to interfere with the said finding………….. The evidence on record indicates that the acquired land is situate in a developed area and approach road to the land and also power lines are available. However, in construction of multi-storeyed residential flats a considerable portion of the land has to be left out for internal roads, sewer line, open space etc. In such circumstances the High Court was justified in directing deduction of 20 per cent from the market value of the land. ……………… The relevant documents show that when the Authority took possession of the land, the lease in favour of the claimant had already expired. Further the document does not contain any renewal clause. The plea raised by the claimant that the State Government had taken a decision to renew the lease in his favour is not established by the evidence on record……………….. The High Court has held that the report of the consulting Engineer filed by the claimant shows that while assessing the value of the building he had also taken into consideration the land underneath the same which was more than 400 square meters and consequently the value of the land had been assessed all over again. There is another fallacy in his report. He has assessed the age of the building from the time of its renovation. There is no evidence that the foundation, walls and roof had been made all over again when renovation was done, nor it appears logical. So, the whole method of calculation was faulty. The view taken by the High Court that the value of the building which was more than 90 years old is Rs. 60,000 is perfectly correct and calls for no interference. Similarly, no interference is warranted with the assessment made by the High Court regarding the value of the trees.

WHEN FRUIT YIELDING TREES ARE ACQUIRED – NO DEDUCTIONS OF EXPENSES- MULTIPLIER METHOD 2004 SC

noreply@blogger.com (Sridhara Babu) — Thu, 03 Nov 2011 18:52:19 PDT

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Justice Ruma Pal & Justice C.K. Thakker in ASSISTANT COMMISSIONER-CUM-LAND ACQUISITION OFFICER, BELLARY .Vs. S.T. POMPANNA SETTY reported in AIR 2005 SC 749, The instant case relates to fruit bearing trees and not agriculture. The trees were sufficiently old and grown up and were giving fruits. In the circumstances, there was not question of deduction of any amount towards expenses ………………………………….. Normally in the cases where compensation is awarded on yield basis, multiplier of 10 is considered proper and appropriate. In the case on hand, multiplier of 15 has been applied which is on a higher side. At the same time, however, it cannot be overlooked that the High Court considered the fact and observed that the claimant would be entitled to an amount of more than rupees six lac. Since he had restricted his claim to rupees five lac, he would not be entitled to an amount more than that.

EASEMENTARY RIGHT IN LAND CANNOT EXTINGUISH EVEN AFTER ACQUISITION 2005 SC

noreply@blogger.com (Sridhara Babu) — Thu, 03 Nov 2011 18:38:12 PDT

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Justice Shivaraj V. Patil & Justice B.N. Srikrishna in a case of H.P. State Electricity Board & Ors. Vs Shiv K. Sharma & Ors. Reported in AIR 2005 SC 954, “The High Court of Himachal Pradesh considered several judgments cited before it and drew a distinction between an easement of an ordinary nature in respect of which compensation could have been claimed in the land acquisition proceedings and an easement of necessity like a right of passage and held that right of passage by way of necessity, as enjoyed by the respondents-plaintiffs over the land of Rikhi Ram and now acquired by the appellant defendants, was not extinguished by reason of acquisition. The High Court relied on the observations of this Court made in Collector of Bombay v. Nusserwanji Rattanji Mistri and others. (AIR 1955 SC 298), wherein it is observed thus : "Under Section 16, when the Collector makes an award "he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrance". The word "encumbrance" in this section can only mean interests in respect of which a compensation was made under s.11 or could have been claimed." …………… In the peculiar facts and circumstances of the case, therefore, the distinction drawn by the High Court about non- extinguishment of the right of easement arising out of necessity appears to be justified both on principle and precedent.”

LARGE SCALE FRAUD IN AWARDING COMPENSATION SECTION 340 CRPC ENQUIRY ESSENTIAL 2006 SC

noreply@blogger.com (Sridhara Babu) — Thu, 03 Nov 2011 10:20:54 PDT

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Justice S.B. Sinha & Justice Dalveer Bhandari in the case of STATE OF A.P. .Vs. V. SARMA RAO & ORS. Reported in AIR 2007 SC 137 “ Lands situated in Pisinikada village in the district of Vishakhapatnam were acquired by the State of Andhra Pradesh for providing house-sites to the weaker sections of society. Awards in respect of the said acquisition were made by the Land Acquisition Collector. Reference thereagainst was made to the Civil Court at the instance of the owners of the land. A large scale fraud, allegedly, took place in awarding compensation wherein the Sub-ordinate Judge, Anakapalle, his staff, the advocates of the claimants, the advocates appearing on behalf of the State and other officials were said to be involved. Upon obtaining requisite permission from the High Court, the CBCID registered a case and investigation thereinto was carried on. In its report dated 4.5.1998, the Additional Director General of Police, CID, Hyderabad indicated about a large scale conspiracy and fraud committed by the accused persons. Allegations made as against the accused came within the purview of the offences specified under Section 195 of the Criminal Procedure Code as a result thereof an inquiry under Section 340 thereof was imperative. …………….. This Court had no occasion to determine the question with reference to a special statute like the Land Acquisition Act. The Civil Courts exercise their jurisdiction not only in respect of a suit filed before it, they do so under various special statutes. The hierarchy of the Courts for the purpose of Section 195 of the Criminal Procedure Code, therefore, will have to be determined, having regard to the nature of the proceedings and the statutes under which the same is required to be determined. We may immediately notice that the Act makes a distinction between filing a complaint by a public servant and a court. Whereas Clause (a) of Sub-Section (1) of Section 195 contemplates administrative subordination, Clause (b) contemplates judicial subordination. Each expression used in the Code, therefore, must be understood upon reading the provisions thereof in their entirety and not in isolation.”

CONSTITUTIONAL VALIDITY OF BDA ACT QUESTIONED BEFORE SUPREME COURT IN VAIN 2010 SC

noreply@blogger.com (Sridhara Babu) — Thu, 03 Nov 2011 09:38:37 PDT

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Justice G.S. Singhvi and Justice Asok Kumar Ganguly in K.K.POONACHA .Vs. STATE OF KARNATAKA & OTHERS reported in 2010 (10) SCR 1022, The Bangalore Development Authority Act, 1976 cannot be declared unconstitutional or void only on the ground that the same was not reserved for consideration of the President and did not receive his assent. A post Constitution law is void ab initio if it is not within the domain of the Legislature or is violative of the rights conferred by Part III of the Constitution. If the law is within the legislative competence of the Union or State and does not infringe any of the rights conferred by Part III of the Constitution, then the same cannot be declared void on the ground of non-compliance of the procedural requirement of prior recommendation or sanction, if assent is given in the manner provided under Article 255 of the Constitution. If post-enactment assent is necessary for making the law effective, then such law cannot be enforced or implemented till such assent is given. If a law is within the competence of the Legislature, the same does not become void or is blotted out of the statute book merely because post-enactment assent of the President has not been obtained. Such law remains on the statute book but cannot be enforced till the assent is given by the President. Once the assent is given, the law becomes effective and enforceable. If the provision requiring pre-enactment sanction or post-enactment assent of the President is repealed, then the law becomes effective and enforceable from the date of repeal and such law cannot be declared unconstitutional only on the ground that the same was not reserved for consideration of the President and did not receive his assent.

AWARD MADE IN ADJOINING LANDS IS RELEVANT, INTEREST ON SOLATIUM AND ADDITIONAL COMPENSATION 2010 SC

noreply@blogger.com (Sridhara Babu) — Thu, 03 Nov 2011 09:07:32 PDT

Justice Dr. Mukundakam Sharma and Justice Anil R. Dave in IYASAMY & ANR. .Vs. SPL. TAHSILDAR, LAND ACQUISITION reported in 2010 (12) SCR 489, There is also other guidance available on record to determine the valuation in the form of various awards with respect to acquisition of adjoining lands. These awards are important piece of evidence for arriving at the market value of the acquired land. ………………… As regards the interest on solatium and additional compensation, since the impugned order which was challenged in the instant appeal, was pronounced prior to judgment in Sunder vs. Union of India (2001) 7 SCC 211, and the instant appeal was pending before the Supreme Court, therefore, the ratio of Sunder's case would entitle the appellants to receive interest on solatium u/s. 23(2) and additional compensation u/s. 23(1A) in terms of the said decision. According to Gurpreet Singh's case such interest can be claimed only from the date of the judgment in Sunder's case i.e. 19.9.2001. Therefore, the appellants claiming interest on solatium shall be entitled to such interest for the period after 19.9.2001, not the period prior to the same.READ FULL JUDGMENT

DETERMINATION OF COMPENSATION IN LAND ACQUISITION PRINCIPLES DISCUSSED 2010 SC

noreply@blogger.com (Sridhara Babu) — Thu, 03 Nov 2011 06:37:58 PDT

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JUSTICE Dr. Mukundakam Sharma JUSTICE Swatanter Kumar in a case before Supreme Court of India in RADHA MUDALIYAR .Vs. SPL. TAHSILDAR (LAND ACQ.) T.N.H. BOARD reported in AIR 2011 SC 54, observed as follows “It is a well settled principle of law that comparable sale instances, subject to their satisfying the basic ingredients of law, are the best piece of evidence to be considered by the court for the purpose of determining the compensation. Even awards and transactions of the adjacent areas have been treated as best evidence. Of course, such instances must be comparable and legally admissible in evidence……………….. None of the parties to the proceedings had questioned the genuineness, legality or otherwise of those documents and, in fact, there was no objection regarding their admissibility. ……………… While determining compensation, the deduction can be applied for different aspects. If the size of the plot is very small and the same has to be taken into consideration for non-availability of other evidence and the land acquired is a large chunk of land, then it would be advisable to apply some deduction on that score. In the instant case, the land was acquired, which apparently was an agricultural land at the time of acquisition, to carry out the development scheme for the MEPZ sanctioned by the SIPCOT. The development purpose, being in public interest, is bound to result in utilization of part of the land for the purposes of roads, by- links, water and electricity lines and other infrastructural amenities of the project. This Court, depending on the facts and circumstances of the case, has taken the view that deduction on account of expenses of development of the sites could vary from 20% to 70% depending on the nature of the land, its situation, the purpose and stage of development. The courts would have to apply some guess work while determining such a question inasmuch as it is not always possible to determine the quantum of compensation with exactitude or arithmetical accuracy. Of course, this permissible guess work has to be used with great caution and within the determinants of law declared by this Court from time to time. ……………………. The High Court ignored an important aspect of the case in not awarding enhancement in the value of the land as it had come in evidence that there was increasing trend in the sale price of the land in that area. …………….. It is a compulsory acquisition and it is expected of the State to be just and fair and award the compensation to the claimants which satisfies mandate of law contained in the provisions of Section 23 of the Act. ………….. The claimants are entitled to solatium as well as the interest on the awarded amount. The court has to keep in mind that the compulsory nature of acquisition is to be distinguished from voluntary sale or transfer. In the latter, there is a willing buyer and seller. In the case of acquisition, it is compulsory and deprives the owner of an opportunity to negotiate and bargain the sale price of its land as it will entirely depend on what the Collector or the court determines as the amount of compensation in accordance with the provisions of the Act. The solatium envisaged in sub- section (2) of Section 23 is "in consideration of the compulsory nature of acquisition". Thus, the solatium is not the same as damages on account of the landowner's disinclination to part with the land acquired. If such compensation as determined in terms of Section 23 of the Act is not paid within one year from the date of taking possession of the land, then in terms of proviso to Section 34 interest shall stand escalated to 15% per annum from the date of the expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry. The person entitled to the compensation awarded is also entitled to get interest on the aggregate amount including solatium. In any case, there can be no doubt in law that the claimants are entitled to the solatium and the interest thereupon at the rate specified in proviso to Section 34 of the Act for the relevant period.”

RELIED ON THE JUDGMENTS IN

Harcharan v. State of Haryana (1982) 3 SCC 408;
Kantaben Manibhai Amin v.Special Land Acquisition Officer, Baroda (1989) 4 SCC 662;
ONGC Ltd. v. Sendhabhai Vastram Patel (2005) 6 SCC 454;
Shaji Kuriakose v. Indian Oil Corporation (2001) 7 SCC 650;
Kanwar Singh v. Union of India (1998) 8 SCC 136;
ONGC Ltd. v. Rameshbhai Jivanbhai Patel (2008) 14 SCC 745;
Sardar Jogendra Singh (dead) by LRs. v. State of Uttar Pradesh (2008) 17 SCC 133 Land Acquisition Officer v. Nookala Rajamallu (2003) 12 SCC 334;
K.S. Shivadevamma v. Assistant Commissioner and Land Acqusition Officer (1996) 2 SCC 62;
Ram Piari v. Land Acquisition Collector, Solan (1996) 8 SCC 338;
Chimanlal Hargovindas v. Special Land Acquisition Officer, Poona (1988) 3 SCC 751;
Hasanali Walimchand (Dead) by Lrs v. State of Maharashtra (1998) 2 SCC 388;
V. Hanumantha Reddy (Deceased) by Lrs. v. Land Acquisition Officer & Mandal R. Officer (2003) 12 SCC 642;
Charan Dass (Dead) by Lrs. v. H.P. Housing and Urban Development Authority, 2009 (12) SCALE 293
Sunder v. Union of India (2001) 7 SCC 211

WHEN PENDING LAND OCCUPANCY GRANT PROCEEDINGS IF LAND ACQUIRED 2010 SC

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Justice MARKANDEY KATJU and Justice T.S. THAKUR in STATE OF KARNATAKA & ORS. .Vs. MUNIKADIRAPPA & ORS. Reported in 2010 SCR 250 Disposing off the appeals, the Court held that While grant of occupancy-tenancy rights in favour of the respondents qua the parcels of land in their respective possession as on the appointed date shall stand affirmed, the question as to who is entitled to what compensation for the acquisition of said lands in question is left open to be determined in appropriate proceedings under the Land Acquisition Act, 1894 if not already determined. ….. That was a matter to be determined by the Collector in appropriate proceedings under the Land Acquisition Act and eventually by the competent Civil Court in a reference if the same became necessary. In as much as the Division Bench itself determined the extent of compensation payable to the respondents it committed a mistake. READ FULL JUDGMENT

NEW LAND ACQUISITION BILL HIGHLIGHTS

noreply@blogger.com (Sridhara Babu) — Sun, 30 Oct 2011 07:59:45 PDT

ANY ALIENATION AFTER NOTIFICATION DOES NOT BIND GOVT OR BENEFICIARY 2011 SC

noreply@blogger.com (Sridhara Babu) — Sat, 29 Oct 2011 07:55:58 PDT

JUSTICE G.S. Singhvi, JUSTICE Asok Kumar Ganguly Vasanth Sreedhar Kulkarni & Ors vs State Of Karnataka & Ors on 14 October, 2011 It is settled law that any person who purchases land after publication of the notification under Section 4(1), does so at his/her own peril. The object of publication of the notification under Section 4(1) is notice to everyone that the land is needed or is likely to be needed for public purpose and the acquisition proceedings point out an impediment to anyone to encumber the land acquired thereunder. It authorises the designated officer to enter upon the land to do preliminaries, etc. Therefore, any alienation of the land after the publication of the notification under Section 4(1) does not bind the Government or the beneficiary under the acquisition. On taking possession of the land, all rights, title and interests in land stand vested in the State, under Section 16 of the Act, free from all encumbrances and thereby absolute title in the land is acquired thereunder.

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IF NO STATUTORY RESTRICTION TO CONVERT LAND AND IF LAND IS IN PROXIMITY OF DEVELOPMENT, VALUE TO THAT OF CONVERTED LAND BE ADOPTED

noreply@blogger.com (Sridhara Babu) — Sat, 29 Oct 2011 02:32:02 PDT

Justice R.V. Raveendran, Justice P. Sathasivam, Justice A.K. Patnaik, IN Goa Housing Board vs Rameshchandra Govind Pawaskar, DECIDED on 11 October, 2011 – BEFORE SUPREME COURT OF INDIA Where an acquired land is subject to a statutory covenant that it can be used only for agriculture and cannot be used for any other purpose necessarily it will have to be sold as agricultural land as the land owner cannot sell it for any purpose other than agriculture and the purchaser cannot sell it for any purpose other than agriculture. As a consequence, the price fetched for such land will be low even if it is situated near any urban area. But if the same land is not subject to any prohibition or restrictive covenant regarding use and has the potential of being developed either as a residential layout or put to commercial or industrial use, the land will fetch a much higher price; and the market value of such other land with development potential can be determined with reference to the sale price of nearby residential plots by making appropriate deduction for development. On the other hand if the land is to be used only for agricultural purposes, it may not be possible to arrive at the market value thereof with reference to the market value of nearby residential plots. Therefore we are of the considered view that in regard to the land in question, in view of the permanent restriction regarding user, that is it should only be used for agricultural purposes, and the bar in regard to any non-agricultural use, it will have to be valued only as an agricultural land and cannot be valued with reference to sales statistics of other nearby lands which have the potential of being used for urban development.

DECISIONS QUOTED

In Administrator General of West Bengal vs. Collector, Varanasi [1988 (2) SCC 150], this court observed thus in regard to determination of market value : “The market-value of a piece of property, for purposes of Section 23 of the Act, is stated to be the price at which the property changes hands from a willing seller to a willing, but not too anxious a buyer, dealing at arms length. The determination of market-value, as one author put it, is the prediction of an economic event, viz, the price-outcome of a hypothetical sale, expressed in terms of probabilities. Prices fetched for similar lands with similar advantages and potentialities under bonafide transactions of sale at or about the time of the preliminary notification are the usual; and indeed the best, evidences of market-value. Other methods of valuation are resorted to if the evidence of sale of similar lands is not available.”

In Chimanlal Hargovinddas vs. Special Land Acquisition Officer, Poona [1988 (3) SCC 751] this court set out the principle regarding determination of market value. One of the principles mentioned is as under : “The determination has to be made standing on the date line of valuation (date of publication of notification under Section 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price.”

In Subh Ram vs. State of Haryana [2010 (1) SCC 444], this court observed : “It is in this context, in some cases, to avoid the need to differentiate the lands acquired under a common notification for a common purpose, and to extend the benefit of a uniform compensation, courts have observed that the purpose of acquisition is also a relevant factor. The said observation may not apply in all cases and all circumstances as the general rule is that the land owner is being compensated for what he has lost and not with reference to the purpose of acquisition. The purpose of acquisition can never be a factor to increase the market value of the acquired land. We may give two examples. Where irrigated land belonging to 'A' and dry land of 'B' and waste land of 'C' are acquired for purpose of submergence in a dam project, neither 'B' nor 'C' can contend that they are entitled to the same higher compensation which was awarded for the irrigated land, on the ground that all the lands were acquired for the same purpose. Nor can the Land Acquisition Collector hold that in case of acquisition for submergence in a dam project, irrigated land should be awarded lesser compensation equal to the value of waste land, on the ground that purpose of acquisition is the same in regard to both. The principle is that the quality (class) of land, the situation of the land, the access to the land are all relevant factors for determination of the market value.”

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WHETHER THE TWO LANDS CAN BE TERMED AS COMPARABLE LANDS WHICH SHOULD BE SUBJECTED TO THE SAME COMPENSATION

noreply@blogger.com (Sridhara Babu) — Sat, 29 Oct 2011 02:37:01 PDT

Justice R.V. Raveendran, Justice P. Sathasivam, Justice A.K. Patnaik, IN Goa Housing Board vs Rameshchandra Govind Pawaskar, DECIDED on 11 October, 2011 – BEFORE SUPREME COURT OF INDIA There can be no doubt that similarly situated land in the same area, having the same advantages and acquired under the same notification should be awarded the same compensation. But the question is when one land is a freehold land not subject to any restrictions in regard to user and the adjoining land though similarly situated is subject to a permanent restriction regarding user requiring it to be used only for agricultural purposes, the question is whether the two lands can be termed as comparable lands which should be subjected to the same compensation. We may give a few examples to illustrate the position:

(i) A person constructs two identical houses adjoining each other. He lets out one of them and keeps the other vacant. After some years he sells both the properties. The house sold with vacant possession will fetch a better price than the adjoining premises which is in occupation of a tenant and therefore sold without possession. The fact that both properties are situated adjoining each other and have the same area of construction and face the same road will not mean that the price they will fetch will be the same.

(ii) There are two adjoining properties belonging to the same owner. One falls under area earmarked as commercial and the other falls under area earmarked as residential. Though they are similarly situated, the land which is capable of commercial use is likely to fetch a higher price than a land earmarked for residential use.

(iii) An agricultural land with no development potential sold to another agriculturalist for agricultural purposes will fetch a price which will be lower than the price fetched by an agricultural land with potential of development into residential or commercial plots sold for development into a layout of plots.

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NOTIFICATION LAPSES IF AWARD IS NOT PASSED WITHIN TWO YEARS FROM THE DATE OF NOTIFICATION 2011 SC

noreply@blogger.com (Sridhara Babu) — Fri, 28 Oct 2011 01:36:41 PDT

Justice G.S. Singhvi, Justice Sudhansu Jyoti Mukhopadhaya in a case before Supreme Court of India in R.Indira Saratchandra vs State Of T.Nadu & Ors. Decided on on 14 October, 2011 It is observed “It may be pointed out that the stipulation regarding the urgency in terms of Section 5-A of the Act has no role to play when the period of limitation under Section 6 is reckoned. The purpose for providing the period of limitation seems to be avoidance of inconvenience to a person whose land is sought to be acquired. Compensation gets pegged from the date of Notification under Section 4(1). Section 11 provides that the valuation of the land has to be done on the date of publication of Notification under Section 4(1). Section 23 deals with matters to be considered in determining the compensation. It provides that the market value of the land is to be fixed with reference to the date of publication of the Notification under Section 4(1) of the Act. The prescription of time limit in that background is, therefore, peremptory in nature. In Ram Chand and Ors. Vs. Union of India and Ors. (1994 (1) SCC 44), it was held by this Court that though no period was prescribed, action within a reasonable time was warranted. The said case related to a dispute which arose before prescription of specific periods. After the quashing of declaration, the same became non-est and was effaced. It is fairly conceded by learned counsel for the respondents that there is no bar on issuing a fresh declaration after following the due procedure. It is, however, contended that in case a fresh notification is to be issued, the market value has to be determined on the basis of the fresh Notification under Section 4(1) of the Act and it may be a costly affair for the State. Even if it is so, the interest of the person whose land is sought to be acquired, cannot be lost sight of. He is to be compensated for acquisition of his land. If the acquisition sought to be made is done in an illogical, illegal or irregular manner, he cannot be made to suffer on that count.”

“Unreported decision of this Court in A.S. Naidu v. State of T.N. wherein a Bench of three Judges held that once a declaration under Section 6 of the Act has been quashed, fresh declaration under Section 6 cannot be issued beyond the prescribed period of the notification under sub-Section (1) of Section 4 of the Act. It has to be noted that there is another judgment of two learned Judges in Oxford English School v. Govt. of T.N. which takes a view similar to that expressed in A.S. Naidu case. However, in State of Karnataka v. D.C. Nanjudaiah view in Narasimhaiah case was followed and it was held that the limitation of 3 years for publication of declaration would start running from the date of receipt of the order of the High Court and not from the date on which the original publication under Section 4(1) came to be made.”

“The view expressed in Narasimhaiah's case (1996 SCC (3) 88) and Nanjudaiah's case ((1996) 10 SCC 619), is not correct and is over-ruled while that expressed in A.S. Naidu's case (supra) and Oxford's case (1995) 5 SCC 206 (OXFORD ENGLISH SCHOOL v. GOVERNMENT OF TAMILNADU AND OTHERS is affirmed.”

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OTHER SIMILAR JUDGMENTS

Hon'ble Apex Court in the case of Vijay Narayan Thatte vs. State of Maharashtra, reported at AIR 2009 SC (Supp) 1952, needs to be looked into. There, the matter went to the Hon'ble Apex Court from judgment of this Court only and consideration by the Hon'ble Apex Court in para 21 shows that language of Section 6 is very specific and clear, insisting application of literal rule of interpretation. Therefore, there was no scope for consideration like equity, public interest or then attempt to find out intention of legislature. There could not be any estoppel against a Statute and as the proviso prescribing period of limitation in clause (ii) of proviso to Section 6 is mandatory, the Hon'ble Apex Court found that it has to operate with all its rigour. The concession by counsel, therefore, was found not of any help to other side. The counsel for the petitioners there had made a statement that objection with respect to period within which section 6 notification has to be issued, from the date of section 4 notification, would not be raised by the petitioners, if the petitioners were finally aggrieved by fresh Section 5A report and subsequent declaration under Section 6. The Hon'ble Apex Court has stated that no statement or concession of advocate can override mandatory statutory provision.

In AIR 1997 SC 2426 (L.N. VENKATESAN v. STATE OF TAMIL NADU AND OTHERS), it was observed that the proceedings of acquisition would not lapse even if the stay granted was regarding possession only and for the purpose of application of Explanation to Section 11-A, it was not necessary that the stay must be against the award and even if the stay was only against dispossession, such period of stay has to be excluded.

M/S. Unique Butyle Tube ... vs U.P. Financial Corporation & Ors ({2003} 2 SCC 455) AIR 2003 SC 2103 While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. [See Rishabh Agro Industries Ltd. vs. P.N.B. Capital Services Ltd. (2000 (5) SCC 515)]. `The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in N.Narasimhaiah and Ors. v. State of Karnataka and Ors. etc. (1996 (3) SCC 88). In State of Karnataka and Ors. v. Nanjudaiah and Ors. (1996 (10) SCC 619) the period was further stretched to have the time period run from date of service of High Court's order. Such a view cannot be reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only clauses (i) and/or (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent.

M/S. Unique Butyle Tube ... vs U.P. Financial Corporation & Ors ({2003} 2 SCC 455) AIR 2003 SC 2103 "It is well settled principle in law that the Court can not read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a State is the determinative favour of legislative intent. The first and primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid". Judge learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them".

M/S. Unique Butyle Tube ... vs U.P. Financial Corporation & Ors ({2003} 2 SCC 455) AIR 2003 SC 2103 “Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature.”

LAND ACQUISITION – INCREASE IN LAND PRICES – HOW HIGHER RATES ADOPTED

noreply@blogger.com (Sridhara Babu) — Wed, 05 Oct 2011 04:19:15 PDT

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Manager, Oil and Natural Gas Corporation Ltd. Vs. Rameshbhai Jivanbhai Patel and Anr 2008(11) SCR927 Primarily, the increase in land prices depends on four factors: situation of the land, nature of development in surrounding area, availability of land for development in the area, and the demand for land in the area. In rural areas, unless there is any prospect of development in the vicinity, increase in prices would be slow, steady and gradual, without any sudden spurts or jumps. On the other hand, in urban or semi-urban areas, where the development is faster, where the demand for land is high and where there is construction activity all around, the escalation in market price is at a much higher rate, as compared to rural areas. In some pockets in big cities, due to rapid development and high demand for land, the escalations in prices have touched even 30% to 50% or more per year, during the nineties. ……. On the other extreme, in remote rural areas where there was no chance of any development and hardly any buyers, the prices stagnated for years or rose marginally at a nominal rate of 1% or 2% per annum. There is thus a significant difference in increases in market value of lands in urban/semi-urban areas and increases in market value of lands in the rural areas. Therefore, if the increase in market value in urban/semi-urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best be only around half of it, that is, about 5% to 7.5% per annum. This rule of thump refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, or any specific evidence relating to the actual increase in prices, then the increase to be applied would depend upon the same. ……. Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisitions), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied-on sale transactions/acquisitions precede the subject acquisition by only a few years, that is, up to four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the "rate" of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase.”

WHEN LAND ACQUISITION AMOUNTS TO FRAUD 2011 SC

noreply@blogger.com (Sridhara Babu) — Wed, 05 Oct 2011 03:13:44 PDT

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JUSTICE G.S. Singhvi, JUSTICE Sudhansu Jyoti Mukhopadhaya of Supreme Court of India in M/S. Royal Orchid Hotels Ltd & Anr. vs G. Jayarama Reddy & Ors. on 29 September, 2011 held that “The Courts have repeatedly held that in exercise of its power of eminent domain, the State can compulsorily acquire land of the private persons but this proposition cannot be over-stretched to legitimize a patently illegal and fraudulent exercise undertaken for depriving the landowners of their constitutional right to property with a view to favour private persons. It needs no emphasis that if land is to be acquired for a company, the State Government and the company is bound to comply with the mandate of the provisions contained in Part VII of the Act. Therefore, the Corporation did not have the jurisdiction to transfer the land acquired for a public purpose to the companies and thereby allow them to bypass the provisions of Part VII. The diversification of the purpose for which land was acquired under Section 4(1) read with Section 6 clearly amounted to a fraud on the power of eminent domain.”

LAND ACQUISITION SHALL NOT IMPAIR SOCIAL JUSTICE

noreply@blogger.com (Sridhara Babu) — Sat, 01 Oct 2011 11:17:50 PDT

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Justice G.S. Singhvi, and Justice Asok Kumar Ganguly in Dev Sharan v. State of U.P., (2011) “The Courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the State. If public purpose can be satisfied by not rendering common man homeless and by exploring other avenues of acquisition, the Courts, before sanctioning an acquisition, must in exercise of its power of judicial review, focus its attention on the concept of social and economic justice. While examining these questions of public importance, the Courts, especially the Higher Courts, cannot afford to act as mere umpires. In this context we reiterate the principle laid down by this Court in Authorised Officer, Thanjavur and another vs. S. Naganatha Ayyar and others reported in (1979) 3 SCC 466, wherein this Court held: “......It is true that Judges are constitutional invigilators and statutory interpreters; but they are also responsive and responsible to Part IV of the Constitution being one of the trinity of the nation's appointed instrumentalities in the transformation of the socio- economic order. The judiciary, in its sphere, shares the revolutionary purpose of the constitutional order, and when called upon to decode social legislation must be animated by a goal-oriented approach. This is part of the dynamics of statutory interpretation in the developing countries so that courts are not converted into rescue shelters for those who seek to defeat agrarian justice by cute transactions of many manifestations now so familiar in the country and illustrated by the several cases under appeal. This caveat has become necessary because the judiciary is not a mere umpire, as some assume, but an activist catalyst in the constitutional scheme”

FAIR COMPENSATION AND NEED OF REHABILITATION IN LAND ACQUISITION

noreply@blogger.com (Sridhara Babu) — Fri, 05 Aug 2011 19:49:35 PDT

As per the prevailing laws, State/acquiring body is bound to pay to the land owners, compensation on the basis of the market value of the land acquired. The State Government must also do, "what is fair and just to The Citizen" and should not, as far as possible, take up a technical plea to defeat the legitimate and just claim of the citizen. The market value of land under acquisition is being determined as on the crucial date of publication of the notification under sec. 4 of the Land Acquisition Act (dates of Notifications under secs. 6 and 9 are irrelevant). The market value reflected in the most comparable instance which provides the index of market value. Only genuine instances have to be taken into account, because sometimes instances are rigged up in anticipation of Acquisition of land. Even post notification instances can be taken into account (1) if they are very proximate,(2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects.

As per the prevailing laws the Section 23(1) of land acquisition act 1894, determines compensation. In addition to it Section 23(2) of the Act enjoins to award, in addition to the market value, 30% solatium in consideration of compulsory nature of acquisition. The Parliament having taken notice of the inordinate delay in making the award by the Land Acquisition Officer from the date of notification published under Section 4(1) till passing the award under Section 11, to offset the price pegged during that period, Section 23(1-A) was introduced to award an amount calculated @ 12% per annum on such market value, in addition to the market value of the land, for the period commencing on and from the date of the publication of Section 4(1) notification to the date of award of the Collector or date of taking possession of the land whichever is earlier. Under Section 28, interest was directed to be paid on the excess compensation at the rate specified therein from the date of taking possession of the land to the date of deposit into court of such excess compensation. These three components are in addition to the compensation determined under sub-section (1) of Section 23.

It is now a well-established principle of law that the land abutting the national highway will fetch far higher price than the land lying interior. It is also well-settled that for the purpose of determining the market value of the acquired lands, the comparable sales method i.e. the lands sought to be compared must be similar in potentiality and nature may be adopted. Every claimant is entitled to the benefit of enhanced compensation in case some other claimant establishes the case.

There are certain factors which are required to be fulfilled and on fulfillment of those factors the compensation can be awarded, according to the value of the land reflected in the sales. The factors Judicially recognised are: (1) the sale must be a genuine transaction, (2) that the sale deed must have been executed at the time proximate to the date of issue of notification under Section 4 of the Act, (3) that the land covered by the sale must be in the vicinity of the acquired land, (4) that the land covered by the sales must be similar to the acquired land, and (5) that the size of plot of the land covered by the sales be comparable to the land acquired.

In a decision of Supreme court in the State Of Kerala vs P. P. Hassan Koya reported in AIR 1968 SC 1201, it is held that “In determining compensation payable for in respect of land with building, the compensation cannot be determined by ascertaining the value of the land and the "breakup value" of the building separately. The land and the building constitute one unit, and the value of the entire unit must be determined with all its advantages and its potentialities. When the property sold is land with building, it is often difficult to secure reliable evidence of instances of sale of similar lands with buildings proximate in time to the date of the notification. Therefore the method which is generally resorted to in determining the value of the land with buildings especially those used for business purposes, is the method of capitalization of return actually received or which might reasonably be received from the land and the buildings.”

It is worth to note the philosophical observation of Supreme court of India in K. Krishna Reddy & Ors. v. Spl. Dy. Collector, Land Acqn. Unit II, LMD Karimnagar, reported in AIR 1988 SC 2123, the Court expressed grave concern on the issue observing as under: “ ...After all money is what money buys. What the claimants could have bought with the compensation in 1977 cannot do in 1988. Perhaps, not even half of it. It is a common experience that the purchasing power of rupee is dwindling with rising inflation.....The Indian agriculturists generally have no avocation. They totally depend upon land. If uprooted, they will find themselves nowhere. They are left high and dry. They have no savings to draw. They have nothing to fall back upon. They know no other work. They may even face starvation unless rehabilitated.”

The Supreme court decision in Narmada Bachao Andolan Vs. State Of M.P. & Anr. Decided on 11 May, 2011 It is observed that “It is desirable for the authority concerned to ensure that as far as practicable persons who had been living and carrying on business or other activity on the land acquired, if they so desire, and are willing to purchase and comply with any requirement of the authority or the local body, be given a piece of land on terms settled with due regard to the price at which land has been acquired from them. However, the State Government cannot be compelled to provide alternate accommodation to the oustees and it is for the authority concerned to consider the desirability and feasibility of providing alternative land considering the facts and circumstances of each case. In certain cases, the oustees are entitled to rehabilitation. Rehabilitation is meant only for those persons who have been rendered destitute because of a loss of residence or livelihood as a consequence of land acquisition.

The further observations of Supreme court in Narmada case “The authorities must explore the avenues of rehabilitation by way of employment, housing, investment opportunities, and identification of alternative lands. A blinkered vision of development, complete apathy towards those who are highly adversely affected by the development process and a cynical unconcern for the enforcement of the laws lead to a situation where the rights and benefits promised and guaranteed under the Constitution hardly ever reach the most marginalised citizens. For people whose lives and livelihoods are intrinsically connected to the land, the economic and cultural shift to a market economy can be traumatic. …… Mere payment of compensation to the oustees in such a case may not be enough. In case the oustee is not able to purchase the land just after getting the compensation, he may not be able to have the land at all.

Hence the courts are voicing their Judgements from Fair compensation principle to present trends of Rehabilitation. Both Governments at center and state has to frame policies in this regard and amend the act and rules to that effect.

BDA LAND ACQUISITION IS UNDER SCANNER BY KARNATAKA HIGH COURT

noreply@blogger.com (Sridhara Babu) — Fri, 05 Aug 2011 19:24:38 PDT

The Karnataka High court Judge D.V. Shylendrakumar has given out a judgement stating that when BDA has not implimented its scheme within 5 years, even after acquisition, and the possession is not validly taken, then the act of it itself shows acquisition and scheme lapses.

CLICK HERE TO READ 143 PAGE JUDGEMENT

KARNATAKA LAND ACQUISITION LAWS

noreply@blogger.com (Sridhara Babu) — Fri, 05 Aug 2011 19:48:03 PDT

In Karnataka following laws are under operation regarding land acquisition matters:-
1. Land Acquisition Act 1894
2. Land Acquisition (Karnataka) Rules 1965
3. Land Acquisition (Companies) Karnataka Rules 1973
4. Land Acquisition (Mines) Act 1885.
5. Land Restriction on transfer Act 1991 & Rules 1994
6. Bangalore Development Authority Act 1976
7. Karnataka Industrial Area Development Act 1966
8. The Karnataka Acquisition of Land for Grant of House sites Act 1972. & Rules 1999
9. Karnataka Urban Development Authorities Act 1987
10. Karnataka Town and Country Planning Act 1961
11. Karnataka Slum Areas (Improvement and Clearance) Act, 1973
12. Petroleum and Minmeral Pipelines (Acquisition of Right of user in land ) Act 1962.
13. Karnataka Improvement Boards Act 1976.
14. Electricity and Telegraph Acts.
15. The Requisitioning and Acquisition of Immovable Property Act 1952.

The Land Acquisition act1894 is the basic act governing all acquisitions. The above acts by name themselves indicate under which circumstances the acquisition proceedings are commenced. The process of acquisition has to start with a notification issued under Section 4 of the Act, which is mandatory, and even in cases of urgency, the issuance of notification under Section 4 is a condition precedent to the exercise of any further powers under the Act. Any serious lapse on the part of the acquiring authority would vitiate the proceedings and courts will not ignore it.

The object of issuing a notification is to have a public announcement by the government and a public notice by the Collector to the effect that the land, as specified therein, is needed or is likely to be needed by the government for the "public purpose" mentioned therein; and thereby anyone affected by such acquisition may file objections to that, the notification also authorises the departmental officers or officers of the local authority, as the case may be to do all such acts as are mentioned in the Act. The notification has to be published in the locality and particularly persons likely to be affected by the proposal have to be put on notice that such an activity is a head. The objections filed by the interested persons have to be placed on record and oral hearing has to be given to them. Later Acquiring officer has to consider such objections and give reasons either for accepting the objections or for rejecting the same in his 5-A Report to the government. The Government after evaluating the report will decide whether to go ahead of acquisition or drop the same or to modify the same. The final notification under Section 6 will be made there by further necessitating award enquiry. In award enquiry compensation and the documents for it will be considered for making award. After passing of award, the party will have opportunity to file application under section 18 seeking reference to civil court for fixing up compensation.

Possession:- Regarding taking up of possession the act is silent. The supreme court of India Laid down following principles in the matter of taking possession in acquisition proceedings in a very recent case of Banda Development authority case (26 April 2011).
a) If the acquired land is vacant, the act of the concerned State authority to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.
b) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the concerned authority will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the concerned authority will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
c) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
d) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken.

In so far as the acquisition under the Karnataka Industrial Area Development Act, 1966 is concerned the same is dealt with in Chapter-VII of the KIADB Act. Section 28(1) of the KIADB Act corresponds to Section 4(1) of the Land Acquisition Act. However, after hearing the objections of the owner or the occupier of the land if their objections are overruled and the State Government proceed to acquire the land and makes a declaration under Section 28(4) of the Act, on publication of such declaration the land shall vest absolutely in the State Government free from all encumbrances. Thereafter, the State Government by a notice in writing order the person in possession of the land to surrender or deliver possession thereof to the government. On taking such possession the government may transfer the land to the board for the purpose for which the land has been acquired.

Land Acquisition Officer is bound to pass an award setting out the true area of the land that is acquired, the amount of compensation payable for the said land and the person for whom the said amount is to be paid and if there is any dispute regarding apportionment, deposit such amount in a Civil Court and require the parties to settle the disputes inter se between them in the competent Civil Court as Section 30 of the KIADB Act makes it very clear that the provisions of the Land Acquisition Act, 1894 shall mutatis mutandis apply in respect of the enquiry and award by the Deputy Commissioner, the reference to Court, apportionment of compensation and the payment of compensation, in respect of lands acquired under the said Chapter.

Environmental concern by courts
The High court of Karnataka has said “we hold that in order to maintain ecological equilibrium and pollution-free atmosphere of the villages, the authorities under the KIADB Act are directed to leave land area of 1 k.m. as a buffer zone from the outer periphery of the village in order to maintain a 'green area' towards preservation of land for grazing of cattle, agricultural operation and for development of social forestry and to develop the area into green belt. This would measure the preservation of ecology without hindering the much needed industrial growth thus striking a balance between industrial development and ecological preservance. …………. We further direct that whenever there is acquisition of land for industrial purpose or commercial or on non-agricultural purposes, except residential area, the authorities must leave 1 k.m. area from the village limit as a free zone or green area to maintain ecological equilibrium as stated above.” (C. Kenchappa And Others vs State Of Karnataka And Others 2000 (4) KarLJ 1, ILR 2000 Kar. 1072)

In every acquisition by its very compulsory nature for public purpose, the owner may be deprived of the land, the means of his livelihood. The State exercises its power of eminent domain for public purpose and acquires the land. So long as the exercise of the power is for public purpose, the individual's right of an owner must yield place to the larger public purpose. For compulsory nature of acquisition, Sub-section (2) of Section 23 provides payment of solatium to the owner who declines to voluntarily part with the possession of land. Acquisition in accordance with the procedure is a valid exercise of the power. It would not, therefore, amount to deprivation of right to livelihood. Section 23(1) provides compensation for the acquired land at the prices prevailing as on the date of publishing Section 4(1) notification, to be quantified at later stages of proceedings. For dispensation or dislocation, interest is payable under Section 23(1-A) as additional amount and interest under Sections 31 and 28 of the Act to recompensate the loss of right to enjoyment of the property from the date of notification under Section 23(1-A) and from the date of possession till compensation is deposited.

Under Karnataka Land Laws the pro’s and con’s are many, when a company needs to acquire land on its own there are several procedures under different Acts and Rules. There are many acts which prohibits purchasing of several types of land. The Land acquisition through KIADB is seen by industrialists as safe way to avoid so many acts and rules in this regard. But still when KIADB is coming under clouds of allegations it is better, if govt frames a policy and transparent procedure in land acquisition.

SOCIO LEGAL ASPECTS OF LAND ACQUISITION

noreply@blogger.com (Sridhara Babu) — Fri, 05 Aug 2011 19:43:58 PDT

SOCIO – LEGAL ASPECT OF LAND ACQUISITION IN KARNATAKA

Today the ghost that is hunting farmers and their families security is Land Acquisition notifications. Why such aspersions are there with common man regarding land Acquisitions? The answer may be simple, because of lower rates offered in acquisition proceedings, but problems are not there with that aspect only. The farmers feel secure with their prime job and land. The acquisition is displacing them from their job and also from their emotional attachment. There are no rehabilitation programs from either acquiring body or from beneficiaries. There are no proper investment guidelines or educational awareness to farmers. When a family sells of the land and its members spend lavishly over consumer goods and lose their monetary wealth and sudden fall in their wealth and income will make the people around them to fear about their future also.
Age old central act increasing corruption
The age old Land acquisition act 1894 is making way for corrupt practices, there is no proper guidelines for making pre acquisition assessments of suitability of land. The fertile lands with good irrigational facilities and standing trees are brought under acquisition notifications without proper pre acquisition surveys and planning. Some acquisitions are purposefully made to target political rivals. Some acquisitions are made without estimating properly the burden on public money and the depth of public interest involved in it. There are major complaints regarding indiscriminate selection of land and extent. Although successive governments have framed several circulars to avoid some excesses, such circulars are not laws and it cannot be enforced. Concrete legislation is needed.
Land acquisition in Karnataka
In Karnataka at present land acquisition is being done in large scale under KIADB act. The KIADB is under severe scanner because the allegations that land allottee’s from KIADB have took the land more than what is required by them and they are selling off the land in turn as realtors, making excess profits. Many vacant Industrial areas are not seriously working with their basic established zeal. The another important act which is acquiring land is BDA act. There is similar procedures involved in three acts. The preliminary notifications are first step and final notification is next step. But KIADB act and Land acquisition act gives hearing in the middle of the above two steps, to the land owners regarding their objections, But BDA does not give such oral hearing opportunity. But the way the reasons were given to strike down the objections is a serious failure on the side of all the authorities which is increasing litigations. The objections were not properly considered in correct perspective. Consideration of the objections was mandatory in all the three cases, It is also to be noted that to 'consider' is to fix the mind upon with a view to careful examination; to ponder; study, meditate upon, think or reflect with care. It is therefore, manifest that careful thinking or due application of the mind regarding the necessity of land in question is a basic things lacking in the reports submitted by land acquisition officers to government. When law requires reasons to be recorded in a particular order affecting prejudicially the interests of any person. The violation of the principles of natural justice on account of omission to communicate the reasons by administrative authority is liable to be challenged before courts. In Karnataka several authorities are entrusted with powers to accord permission as a single window authority with several laws. For example . the Government passed an order on 1-6-1995 authorising the BDA to permit Group Housing Projects to be undertaken by landowners in association with developers/institutions, . Once the approval is given, necessary exemption would also be granted under the provisions of the Karnataka Land Reforms Act, 1961. Likewise Department of Industries and commerce is also giving such exemptions under several laws for the purchase of agricultural lands by companies and firms. Government is openly making promises to the investors of all facilities and exemptions under several statutory fields by providing suitable land, this will estoppe government from implementing any welfare statute which prohibits such land acquisitions or displacement of tribals or sc/st. This is one aspect where the litigation chances are in depth. Whether a single department is empowered under such welfare acts to give such exemption is a legal question to be decided by Judiciary. But, It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all.
De-notification Dramas
The De-notification dramas to denotify the excess land under acquisition notification is making its own roots for corruption. Although as back as in 1975 Supreme court has stated in specific words “Neither the Government nor the Commissioner could withdraw under s. 48(1) from the acquisition of any portion of the land which had been taken over by and vested in the Government.” (Balwant Narayan Bhagde vs M. D. Bhagwat & Ors AIR 1975 SC 1767) But still many De-notifications are blindly made even after taking of such possessions.

What changes needed in Karnataka to make phase out acquisition ghost:-
1. The special Judicial courts for land acquisition to be established to hear objections to the acquisitions.
2. The compensation payment and procedure to be simplified.
3. The Fertile land selection to be avoided.
4. The proper pre planning and survey to be conducted regarding the proposed project and land feasibility.
5. The Environmental considerations shall not be overlooked.
6. The awareness regarding investments and rehabilitation measures by providing alternate land and compensation shall be encouraged.
7. The displaced agricultural labour force shall be rehabilitated.
8. The participation of farmer in the form of land investment or in the form of development sharing is to be encouraged.
9. The solution is to make the land-losers also the beneficiaries of acquisition so that the land-losers do not feel alienated but welcome the acquisition.
10. Proper planning, adequate counseling, and timely mediation with different groups of land losers, should be resorted.

The final word which is to be noted by all concerned is politically motivated acquisitions and oppositions to acquisitions is to be avoided, by all political parties, it will not only hamper the progress but waste the time of party in power to make vengeance rather than to show developing attitude.

LAND ACQUISITION SURVEY IN BUSINESS ECONOMICS

noreply@blogger.com (Sridhara Babu) — Fri, 22 Jul 2011 18:55:12 PDT

Land Acquisition Issue in Busuiness Economics Magazine-2

LAND ACQUISITION PROCESS IS UNDER COMPUTERISATION IN KARNATAKA

noreply@blogger.com (Sridhara Babu) — Fri, 22 Jul 2011 18:52:51 PDT

Land Acquisition Process is Being Computerised in Karnataka

Whether actual physical possession taken? – High court cannot convert itself into revenue court to decide.

noreply@blogger.com (Sridhara Babu) — Fri, 11 Feb 2011 05:01:53 PST

In case of Larsen & Toubro Ltd. v. State of Gujarat and others reported in (1998) 4 Supreme Court Cases, 387, the Apex Court observed as under : "13. The High Court held that actual physical possession of the land subject matter of the acquisition proceeding was not handed over to the appellant while it was the contention of the appellant as well as the State Government that possession of the land was handed over to L&T Ltd. on July 5, 1989. At the time the possession was taken over a Panchanama was prepared duly witnessed by two farmers of the Village Magdalla and singed by the Circle Officer evidencing handing over of possession and also by M.H.Adhikari an officer of the L&T Ltd. for taking over possession. The possession receipt of the same date duly signed by the Circle Officer and the officer of the L&T Ltd. was given. L&T Ltd. thus took possession of the land in presence of the panchas. Panchanama recites that both the witnesses (Panchas) had been intimated in advance by Mamlatdar Choryasi and that possession of the concerned land that day taken over in their presence by the Circle Officer and that the land was an open spot and there was no construction or crops grown therein. Possession of the land was taken over along with the trees standing thereon. As noted above, possession was thereafter delivered to the representative of the L&T Ltd. at that time itself. In the High Court it was contended that no actual physical possession of the land had been taken. The petitioners filed affidavits of the Panchas who had signed the Panchanama. In these affidavits they stated that they were called to the office of the Panchayat and that their signatures were obtained on blank papers and that they had not gone to the site and that neither the landlord was present not the actual possession was delivered to the acquiring body. Ready with these affidavits High Court noticed from the recitation in the Panchanama that it was nowhere mentioned that the panchas had gone to the site from the office of the panchayat. It was not disputed that in the revenue records it was L&T Ltd. who was shown in possession of the land. Affidavits of the Panchas filed in the High Court which contained statements contrary to what was recorded in the Panchanama and against the revenue entries are quite meaningless and in our opinion High Court unnecessarily put undue reliance on the same. High Court could not convert itself into a revenue court and hold that in spite of the Panchanama and the revenue records actual physical possession of the acquired land had not been handed over to the acquiring body. High Court, in our opinion, has not correctly analysed the two judgments of this Court in Balmokand Khatri Educational and Industrial Trust, Amritsar vs. State of Punjab [1996] 4 SCC 212 and Balwant Narayan Bhagde vs. M.D. Bhagwat and Ors. [1976] 1 SCC 700 to come to the conclusion that actual physical possession of the land was not taken over by the State."