AVOIDING COSTLY MISTAKES IN LAND ACQUISITION

Prabir Kumar Dutta,ACS

Principal.ASSTC

CONTENTS:

• PREREQUISITES FOR SPEEDY LAND ACQUISITION
• IMPORTANT JUDGMENTS
• ILLUSTRATIVE PROCEDURAL LAPSES IN LAND ACQUISITION EXERCISES
• SCENARIOS IN COMPENSATION DISBURSEMENT
• THE ROLE OF GEO-SPATIAL TECHNOLOGIES IN STREAMLINING LA EXERCISES

Speedy land acquisition in India is essential for timely execution of infrastructure projects, industrial development, and urban expansion. However, the process often encounters delays due to procedural, legal, and social challenges.

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To enable quicker land acquisition while ensuring fair treatment of affected parties, several prerequisites are essential:

PREREQUISITES FOR SPEEDY LAND ACQUISITION

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A. CORRECT MAPPING OF THE ALIGNMENT FIXED/PLOT IDENTIFIED 

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• The SIA report (As mandated u/s 4 of LARR Act, 2013) must include accurate mapping, surveying, and identifying the alignment for the land acquisition.
• A correct map of the area identified/alignment fixed should be  prepared.
• This will avoid missing out of any Dag from Notification.
• The preliminary Notification prepared should pass through a two or  three eye check to ensure incidence of missing Dags/plots is minimized.
• The Notification should incorporate correct Dag Nos., Patta Nos.,  area of land etc.

B. PIECEMEAL NOTIFICATIONS SHOULD BE AVOIDED

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• There should be a composite Notification / Declaration of  the alignment fixed/plot identified.
• Piecemeal Notifications/ Declaration leads to delays in the process of land acquisition.
• Notification issued u/s 11 of LARR Act, 2013 must be published simultaneously in the Official Gazette, newspapers, and locally, to prevent piecemeal or fragmented notifications.

C. DRIVE FOR UPDATING OF LAND RECORDS

Section 11(5) of LARR Act, 2013 mandates that the Collector shall, before the issue of a declaration under section 19, undertake and complete the exercise of updating of land records as prescribed within a period of two months from the date of issuance of Notice u/s/ 11(1), in this regard, the C.O. should undertake an updation drive to :

• substitute names of legal heirs in case of deceased pattadars.
• give effect to registered transactions of rights in land such as sale, gift,  partition etc. 
• record orders of partitions etc.
• record orders of Courts.
• enter the name of land owners  as per FRA, 2006 

This will lead to receipt of minimal objections/ smooth disbursement of  compensation in subsequent stages

D. ASSESSMENT OF LAND VALUE :

Section 26 of LARR Act, 2013 provides for a detailed methodology for assessing market value based on current rates, average sale prices, and other relevant factors. In this regard, the following precautions are to be taken:

• Land value should reflect the present market value of the land.
• Land value not related to the present market value will lead to objections from the pattadars and they may refuse to receive compensation.
• The zonal valuation, therefore, should be regularly updated.

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E. CORRECT ASSESSMENT OF ZIRAT :

The procedure for determining the value of building and other assets attached to the land (Zirat) in connection with payment of compensation for acquisition of land has been spelt out in section 29 of the LARR Act, 2013. While calculating Zirat, the following should be emphasized:

• Correct assessment of Zirat should be made by conducting a proper field survey along with assessing Departments and representatives of the Requiring Body so that no objection is received as to the non‐inclusion of Zirat compensation. 
• The Zirats should be carefully noted to avoid any underpayment /overpayment.
• The structure value should be as per the updated SOR of the  PWD (Bldg.)

F. APPORTIONMENT OF COMPENSATION :

Section 23(c) and Section 75 of LARR Act, 2013 provide for apportionment of the Compensation when there are several person interested, in such situation;

• If the Collector is not able to decide as to whom the amount of compensation should be paid or as to apportionment of compensation, instead of trying to resolve the issue through several hearings, they should refer the matter to the decision of the Principal Civil Court of respective jurisdiction by the CALA and to the LARR Authority (District Judge) by the Collector as per the provision of Sec 76 of LARR act, 2013.
• Deposit the amount at the Court, they should take possession of the land.

G. UTILITY SHIFTING :

• Utility shifting and tree felling take considerable time in case of NH projects. 
• The DC/ADCs should take up with the respective Deptt.s immediately after the alignment is fixed for preparation of cost of shifting etc. so that NHIDCL can place the fund with the respective Deptt.s.

H. CORRECTION OF LAND RECORDS :

• After compensation is paid and possession is taken over, the pattadars are not supposed to pay land revenue any more.. 
• Land records should be corrected as Govt. noting in the remarks column of the RoR of the L.A. case No. and the Deptt. concerned.
• In case the land is acquired for Central Govt., it should be corrected as Central Govt., noting in the remarks column the name of the concerned Ministry.

I. CORRECT CONSIDERATION OF SLIDING FACTOR :

SOME LANDMARK JUDGMENTS

Over the years, several landmark judgments by Indian courts have shaped land acquisition laws, particularly under the Land Acquisition Act, 1894, and later the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act)

Case No. 1:

Kolkata Municipal Corporation & Anr Vs. Bimal Kumar Shah & Ors.,

Supreme Court, 2024

Context of the Judgment: Seven Sub-rights are foundational components of any land Acquisition Law

Held:

1. Duty of the State to inform the person that it intends to acquire his property – the right to notice.
2. Duty of the State to hear objections to the acquisition – the right to be heard.
3. Duty of the State to inform the person of its decision to acquire - the right to a reasoned decision.
4. Duty of the State to demonstrate that the acquisition is for public purpose.
5. Duty of the State to restitute and rehabilitate.
6. Duty of the State to conduct the process of acquisition efficiently and within prescribed timelines.
7. Final conclusion of the proceedings leading to vesting – the right of conclusion.

Context of the Judgment: Adverse Possession

Held: Adverse Possesion: Physical fact of exclusive possession and the animus possidendi (intention to possess) to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show :

1. on what date he came into possession
2. what was the nature of his possession,
3. whether the factum of possession was known to the other party,
4. how long his possession continued, and
5. his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.

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Case No. 2:

Karnataka Board of Wakf V. Government of India, Supreme Court, 2004

Context of the Judgment: Procedural Lapses but Larger Public Interest Considered by Courts:

Held: In some cases, even if glaring illegalities and deficiencies were demonstrated in the manner in which the land of the petitioner was sought to be taken by the authorities, since the purpose for which the land was taken was of immense public interest of justice, direction be given to pay compensation to the petitioner by taking into consideration the date of dispossession as the date for determination of market value of the land in question.

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Case No. 3:

Ujjain Pradhikan Vs Rajkumar Johri and ors, SC-1992

Context of the Judgment: Adverse Possesion

Held: Adverse possession must be adequate in continuity, in publicity, and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for “several 12 years” or that the plaintiff had acquired “an absolute tittle” was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.

Case No. 4:

S.M. Karim Vs. Bibi Sakina, SC-1964

Context of the Judgment: Correction of the award

Held: Once the Award is passed, there is no question of any correction in the Notification Under Section 11 or Declaration Under Section 19 of the Act. The Act, Under Section 33 provides for correction of clerical mistakes in the Award and that too only within six months.

Case No. 5:

State of U.P. and Ors. vs. Abdul Ali , Supreme court, 2017

Context of the Judgment: Can different Land Acquisition Acts differ in Compensation?

Held: “………. It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts could enable the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14.”

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Case No. 6:

Nagpur Improvement Trust and Ors. Vs. Vithal Rao and Ors, SC-1972

Illustrative procedural Lapses in Land Acquisition under the rfctlarr Act,2013

1.Non compliance of Mandatory processes prior to Preliminary Notification

2.Non compliance of Mandatory processes prior to Declaration.

(Supreme Court-2018: Shiv Singh & others vs State Of Himachal Pradesh & others)

3.Non compliance of Mandatory processes prior to Award.

4.Non consideration of Section 94 and Quashing of Award.

5.Violation of Conditions Specified for Urgency Clause.

6.Incorrect assessment of Market value.

7.Consideration of the minimum value as the Market Value.

8.Consideration of Only Section 26(1) to determine the Market Value.

9.Consideration of only the market value fixed on earlier occasion.

ILLUSTRATIVE PROCEDURAL LAPSES IN LAND ACQUISITION UNDER THE RFCTLARR ACT,2013

Section 94(3) of rfctlarr act,2013

Some Circulars/Notifications issued by the Government of Assam in perspective of avoiding procedural lapses/inadvertent mistakes in the Land Acquisition Process

1. Office Memorandum No. RLA.203/2018/Pt.-II/273 dated 29/04/2021

2.Office Memorandum No. RLA.203/2018/Pt.-II/272 Dated 08/04/2022

3.Office Memorandum ECF No. 214009 dated 27/08/2022

4.Office Memorandum ECF-103494/169 dated 01/06/2023

5.Office Memorandum ECF-244968/2022/1 dated 16/06/2023

SCENARIOS IN COMPENSATION DETERMINATION under the rfctlarr Act,2013

Case 1: Shri Tapan Gogoi claims additional severance charges of 50 percent of compensation. According to him,no passage was left for the unacquired land and he has to travel long distances for going to the unacquired land,for the purpose of cultivation.Long distance will add to recurring expenses including transportation charges and the same would substantially reduce the net agricultural income for all times to come.Is this permissible? If yes,under which provision ?

CONTD…..

• Case 2: Shri Jiten Bora has a processing plant adjacent to his pineapple farm.The plant produces pineapple jelly and transports to the capital city that is 650 kms far.With more than half his land being acquired for the greenfield project,he claims additional compensation claiming breakdown of his business and losses to his earnings.He submits that with production down by half,it will not be viable for his to meet the high transportation and other miscellaneous charges.Is this permissible? If yes, under which provision?

CONTD…..

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• Case 3: Smti Kanika Barua had a power loom business that is coming in the alignment and seeks additional compensation as expenses for shifting his commercial establishment.Is this permissible? If yes,under which provision ?

Section 28 of rfctlarr act,2013

Section 94(3) of rfctlarr act,2013