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No Land is Yours: Eminent Domain and State’s Power to Claim your Property in West Bengal and Kolkata

Introduction:

“No land is yours” is an important topic to be discussed here. There are many people who don’t have any knowledge on this topic. No land is yours means that State or Central Government can acquire private lands from the individuals of the country by providing them with the compensation that is by providing them with the market value of the land. The State and Central Government acquire private lands from their owners for the purpose of public interest.

There are different provisions mentioned under different Acts to acquire private lands of an individual by the State and Central Government. Acts which provide this facility to the government are the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR), the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Social Impact Assessment and Consent) Rules, 2014, the doctrine of eminent domain, the Constitution of India and so on.

Land Acquisition Act of India provides the process of acquiring private lands from their owners by the State and Central Government for the purpose of public interest that is industrialisation, development of infrastructure facilities and so on. It also mentions the compensation to be paid to the affected owners of the land and their settlements. The land acquisition of India is controlled by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR). This Act came into force on 1st January 2014 and before this Act came into force, there was another Act named as Land Acquisition Act, 1894 and this Act used to regulate the land acquisition of India till 2013.

There is a doctrine named as “Doctrine of Eminent Domain” which also talks about the land acquisition in India and this doctrine says that the power to take property is rooted in the concept of eminent domain. This doctrine clearly states that the sovereign can do anything if the act of the sovereign is for the public interest and this doctrine gives power to the sovereign to acquire private lands from their owners for public use. There are two Latin maxims stated in this doctrine such as:

(1) Salus Populi suprema lex (Welfare of the People Is the Paramount Law) and

 (2) Necessitas publica major est quam (Public Necessity Is Greater Than Private Necessity)

This doctrine was challenged in the history of modern India when land reforms were initiated and when banks were nationalised.

The Constitution of India also provides provisions relating to this topic. It provides right to property which also provides land under article 19 and 31. Article 19 provides right to all citizens to acquire, hold and dispose of property and Article 31 states that “no person shall be deprived of his property save by authority of law.” This article also mentions that compensation should be paid to the person whose land has been taken for public use or interest. The 44th Amendment of 1978 has deleted right to property from the list of fundamental rights and inserted another article that is Article 300-A which says that “no person shall be deprived of his property save by authority of law”. The Amendment states that the right to property is no longer a fundamental right instead it is a constitutional or legal right. So, it can be concluded that if anyone breaches this right then the aggrieved party can move to the High Court under Article 226 rather than Supreme Court under Article 32. It is mentioned under this head that compensation should be paid at the market value for such land.

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR) not only provides compensation but they extend the rehabilitation and resettlement of the aggrieved party which shall be in addition to the minimum compensation.

“Purpose of LARR As per the Act, the union or state governments can acquire lands for its own use, hold and control, including for public sector undertakings and for “public purpose”, and shall include the following purposes:”

  • “for strategic purposes relating to the naval, military, air force, and armed forces of the Union, including central paramilitary forces or any work vital to national security or defence of India or State police, the safety of the people;”
  • “for infrastructure projects as defined under the Act;”
  • “project for project affected families;”
  • “project for housing for such income groups, as may be specified from time to time by the appropriate Government;”

 “The land can be acquired for private bodies for certain purposes:”

  • “for public-private partnership projects, where the ownership of the land continues to vest with the Government, for a public purpose as defined in the Act;”
  • “for private companies for a public purpose”

The government can acquire private land for the above-mentioned purposes and these purposes are specified in the Act (The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013). There are different norms and conditions for the acquisition of land for private companies. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has great importance in India to regulate Acquisition of land by the State and Central Government and it gains importance by providing rights to the aggrieved party and one such right is the compensation paid to them at the market value and other rights are also inserted in the Act.

Case Analysis:

“Debraj Dhur & Ors vs Kolkata Municipal Corporation & on 18 September 2017 Calcutta High Court”

“Herein requested the Corporation to disclose the area of the plot of land and also to pay the compensation amount. The Corporation responded to the said query and asked the owners of the said premises to submit relevant documents relating to the title of the said premises. It was further indicated therein that the said premises were acquired for the purpose of widening of the road, which is for public benefits.”

“The Petitioners stated that they would produce all the relevant documents touching the title of the said property and further requested the Commissioner of the Corporation to provide the details of the acquisition and payment of compensation. The Mayor-in-Council vide letter dated 19.07.1999 addressed to the owner of the said premises, replied that the matter relating to the payment of compensation by the Corporation is under process and expected to be completed within a month. There was complete silence from the end of the Petitioner for nearly 8 to 10 months until a letter was caused on 31st May 2000 reiterating the earlier stand and demanding the details of the area acquired by the Corporation for widening the road and the quantum of compensation.”

“In view of the peculiar facts involved in the instant case, it is axiomatic to record that the Corporation must adopt the fair, reasonable and just compensation in determining the market value prevalent at the time of its acquisition and not in a whimsical and arbitrary manner as has been done in the instant case. The Petitioners should be allowed to produce the relevant documents touching the market value prevalent at the time of the acquisition and thereafter the Mayor-in-Council, who is otherwise competent to determine the price under sub-Section 2 of Section 536 should fix the same.”

“There also appears to be a serious dispute on the quantum of land actually acquired for such public purpose and therefore, this Court feels it necessary that a joint inspection should be held by the Senior Officers of the Corporation and the representative of the Petitioner to find out the extent of land acquired for widening the road.”

“The aforesaid inspection should be done within 8 (eight) weeks from the date of the communication of this order.”

“Thereafter, the compensation so determined by the Mayor-in- Council should be reflected in the said agreement and all endeavour shall be made to execute the same within 4 (four) weeks from the date of such joint inspection.”

“The Writ Petition is, thus, disposed of. However, there shall be no order as to costs. Urgent photostat certified copy of this order shall be given to the parties within three days from the date of the application.”

In the above case, the petitioner urges the Corporation to disclose the area of the plot of land and pay the compensation to the petitioner for the acquired land which will be used for public purposes. The Mayor-in-Council forwarded a letter to the owner of the land and stated that payment of compensation is in process and it will be completed within a month. The above-mentioned court finds dispute in the land and directs to investigate on the matter and then directs the Corporation to clear the compensation.

“Jagat Singh And Ors. vs Union Of India (Uri) And Ors. on 9 April 2008 Delhi High Court”

“A large extent of land measuring nearly 16000 bighas situated in different parts of Delhi were notified for acquisition for the public purpose of the planned development of Delhi in terms of a preliminary notification dated 24th November 1961 issued under Section 4 of the Land Acquisition Act, 1894. This was followed by a declaration under Section 6 of the Act on 6th December 1966 in respect of land situated in Village Haider Pur. Award No. 13/75-76 and 50/80-81 were made in due course determining the compensation payable to the landowners. From out of the land acquired in village Haider Pur, the respondent/DDA has developed what is known as Pritampura housing colony. The DDA appears to have allotted an area measuring 16.695 acres in terms of an allotment letter dated 11th February 1983 to the Director of Education, Government of NCT of Delhi for running three different secondary schools one of which happens to be a school meant only for girls. Possession of the said area was also delivered to the Director. It is not in dispute that the Director of Education has utilized the land in question for construction of the institutions which are currently running from there.”

“The petitioner’s case in the present writ petition is that while taking possession of 16.695 acres of land, the respondents tried to encroach upon an area measuring 4 bighas and 14 Biswas situated in survey No. 834/2 of Village Haider Pur which according to the petitioners had not been acquired in terms of the notifications mentioned earlier nor any payment towards compensation was made for the same or any award made or published by the Collector. The petitioner’s further case is that the school authorities constructed a boundary wall around the aforementioned extent of land in violation of their rights which forced them to file Suit No. 838/1988, which was disposed of finally by the Court of Civil Judge, Delhi on 6th September 2002. The operative portion of the judgment delivered by the said Court is to the following effect:”

“Thus, suit of the plaintiff regarding the relief of forcibly dispossession and enjoyment of the suit land is concerned is decreed whereas the plaintiff’s prayer regarding the direction to the defendant to remove the tin shed from the suit land is dismissed and further prayer of the plaintiff that defendants be directed not to close the passage at pt. D, as shown in the site plan to approach the plaintiff to the suit land, has further been decreed. A suit of the plaintiff is disposed of accordingly. There shall be no order as to costs. Decree sheet is prepared. File be consigned to record room.”

“There is considerable merit in both the submissions made by Mr Poddar. It is well settled that non-payment of the estimated amount of compensation does not by itself vitiate the acquisition proceedings. That aspect of the controversy is squarely covered by the decision of the Supreme Court in S.P. Jain and Ors. v. State of U.P. and Ors. At any rate, upon the petitioners making a grievance that the amount has not been received by them, this Court has granted permission to the respondents to deposit the said amount with Registrar General of this Court. The fact that the amount has been deposited in the obedience of the directions is not in dispute. We, therefore, see no failure of justice to have taken place to warrant interference with the acquisition proceedings in exercise of the powers of judicial review.”

“Similarly, the argument that the estimation of the amount of compensation by the Collector is not accurate, has not impressed us. The estimate made by the Collector for purposes of tendering 80% of the amount of compensation was at best an estimate. It can and is most likely to be on the lower side depending on the kind of material which forms the basis of the estimate. Whether or not a marginally higher estimate could have been prepared and consequently a marginally higher amount deposited or tendered to the petitioners, would not, therefore, make any material difference insofar as the validity of the acquisition proceedings is concerned.”

“In the result, there is no merit in this writ petition which fails and is hereby dismissed but in the circumstances without any order as to costs. The amount lying in deposit with the Registry shall be disbursed to the petitioners if an application to that effect is made to the Registrar General within six weeks from today failing which the amount shall be remitted back to the Collector, Land Acquisition, North-West for such action by him as may be considered necessary or proper under the law.”

The above case says that the respondent while taking possession of the land, he tried to encroach upon an area which was not mentioned in the notification and no compensation was also paid for it. The plaintiff also mentioned that the respondent has constructed a boundary wall around the above-said land. The court said that the amount which is deposited with the registry shall be given to the petitioner.

Conclusion:

The above body gives us great knowledge on the topic that “No Land is Yours”. The above explanation tells us that the State or Central government can claim any private land from their owners for the purpose of public interest. The above discussion mentions the provisions for acquiring land by the government. Sometimes there are some disputes arises between the parties while making agreements for acquiring lands or some other issues come out. So, it is better to consult with a lawyer while dealing with such types of matter.

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