Land Acquisition under the National Highways Act, 1956

Dr. Shailendra Kumar

THE NATIONAL HIGHWAYS ACT, 1956

• The national Highway Act was passed, increase infrastructure and development at pace. Due to the increase traffic and importance of the highway for the transportation this Act was passed in 1956 which come in force from 15 April 1957

Application of Act

• It extends to the whole of India. Sec 1 (2)

Sec 2. Declaration of certain highways to be national highways.

• Each of the highways specified in the Schedule declared to be a national highway.
• The Central Government may, by notification, remove any highway from the Schedule

3. Definitions

• “competent authority” means any person or authority authorised by the Central Government, by notification in the Official Gazette, to perform the functions of the competent authority for such area as may be specified in the notification

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• “land” includes benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth

Process of Land Acquisition Under NH Act 1956

• 3A. Power to acquire land, etc.—(1) Where the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land.
• (2) Every notification under sub-section (1) shall give a brief description of the land.

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• (3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language

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• As per the RFCTLARR Act of 2013 Sec. 4 appropriate Government intends to acquire land for a public purpose, it shall consult the concerned Panchayat, Municipality or Municipal Corporation, as the case may be, at village level or ward level, affected area and carry out a Social Impact Assessment study
• It means there is no requirement of Conducting a Social Impact Assessment study if Notification has been issued under the NH Act 1956

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• Surce -A Manual of Guidelines on Land Acquisition for National Highways under The National Highways Act, 1956. Government of India Ministry of Road Transport and Highways December 2018

Role of Competent Authority for Land Acquisition

• The Central Government (i the Ministry of Road Transport & Highways) appoints the Competent Authority for Land Acquisition (CALA) in exercise of its powers under Section 3(a) of the NH Act, 1956. the CALA appointed by the Central Government, is obliged to take all action for acquisition of land under the NH Act, 1956 and the guidelines issued by the Central Government on the subject.
• The CALA, while announcing the Award under Section 3G, shall append a certificate at the end of his Award that he/ she has strictly followed the legal provisions and the Ministry guidelines in determination of the compensation amount

• 3B. Power to enter for survey, etc.—On the issue of a notification under sub-section (1) of section 3A, it shall be lawful for any person, authorised by the Central Government in this behalf, to—
• (a) make any inspection, survey, measurement, valuation or enquiry;
• (b) take levels;
• (c) dig or bore into sub-soil;
• (d) set out boundaries and intended lines of work;
• (e) mark such levels, boundaries and lines placing marks and cutting trenches; or
• (f) do such other acts or things as may be laid down by rules made in this behalf by that Government.

3C. Hearing of objections

• 3C. Hearing of objections.—(1) Any person interested in the land may, within twenty-one days from the date of publication of the notification under sub-section (1) of section 3A, object to the use of the land for the purpose or purposes mentioned in that sub-section.
• (2) Every objection under sub-section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, it any, as the competent authority thinks necessary, by order, either allow or disallow the objections

Explanation

• legally speaking, publication of Notification in the Official Gazette is the correct reference point for computing the period of 21 days, however, it has been observed that expecting the landowners in remote rural areas to know about the Government's intent to acquire their land from the Gazette Notifications alone may be a very textual approach. As such, it has been decided that, from now onwards, the period of 21 days for filing objections under Section 3C is to be counted from the date of last publication of the Notification under Section 3A in the newspapers
• Surce -A Manual of Guidelines on Land Acquisition for National Highways under The National Highways Act, 1956. Government of India Ministry of Road Transport and Highways December 2018, Chapter 3, Para III

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• The possibilities of certain entries in the Land Revenue Records, which formed the basis for notification published under Section 3A, having not been updated, cannot be ruled out. Hence, in cases, where a landowner points out any such inconsistency with regard to the entry recorded in Section 3A Notification, along with conclusive supporting documents in his/ her objection filed under Section 3C, the same should be given due credence by the concerned officers/ CALA, provided such claimed change had taken place before issue of Section 3A Notification

• In case a particular landowner may have got his land use converted from "agriculture" to "non-agriculture" with the approval of competent authority, and he/she adduces evidence of having obtained such approval and also made payment of the fee prescribed for the purpose before issue of Section 3A notification, his claim would prima facie be eligible for admittance

3D. Declaration of acquisition

• (1) Where no objection under sub-section (1) of section 3C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in sub-section (1) of section 3A

Effect of no declaration under 3D (1)

• (3) Where in respect of any land, a notification has been published under sub-section (1) of section 3A for its acquisition but no declaration under sub-section (1) of section 3D has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect:

Bar of jurisdiction under 3D (4)

• (4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by any other authority.

Possession of land, Sec- 3E

• (1) Where any land has vested in the Central Government under sub-section (2) of section 3D, and the amount determined by the competent authority under section 3G with respect to such land has been deposited under sub-section (1) of section 3H, with the competent authority by the Central Government, the competent authority may by notice in writing direct the owner as well as any other person who may be in possession of such land to surrender or deliver possession thereof to the competent authority or any person duly authorised by it in this behalf within sixty days of the service of the notice

If person refuses or fails to comply notice 3E (1)

• (2) If any person refuses or fails to comply with any direction made under sub-section (1), the competent authority shall apply—
• (a) in the case of any land situated in any area falling within the metropolitan area, to the Commissioner of Police;
• (b) in case of any land situated in any area other than the area referred to in clause (a), to the Collector of a District, and such Commissioner or Collector,
• as the case may be, shall enforce the surrender of the land, to the competent authority or to the person duly authorised by it.

3G. Determination of amount payable as compensation.

• (1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority.
• (2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent, of the amount determined under sub-section (1), for that land. (Section 3G (2) of the NH Act, 1956, no longer in operation)

Explanation

• With the application of First Schedule of the RFCTLARR Act, 2013 to the NH Act, 1956 regarding payment of compensation amount, (including the additional amount calculated @ 12% on the basic market value, as provided under Sub-section (3) of Section 30 of the RFCTLARR Act, 2013), the provision contained in Sub-section (2) of Section 3G of the NH Act, 1956 ceases to operate. As such, the CAL include any such amount in his Award. A shall not.
• Surce -A Manual of Guidelines on Land Acquisition for National Highways under The National Highways Act, 1956. Government of India Ministry of Road Transport and Highways December 2018, point 2.15 page 34

• (3) Before proceeding to determine the amount under sub-section (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired
• (4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of section 3C, before the competent authority, at a time and place and to state the nature of their respective interest in such land.
• (5) If the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government

• (6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act
• (7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration
• (a)the market value of the land on the date of publication of the notification under section 3A;
• (b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;

• (c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings;
• (d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change.

Applicability of the ‘RFCTLARR Act, 2013’ with 1956 Act

• The section 105 of RFCTLARR Act, 2013, provisions not to apply in certain cases or to apply with certain modifications.–
• (1) Subject to sub-section (3), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule

• THE FOURTH SCHEDULE
• 1. The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958).
• 2. The Atomic Energy Act, 1962 (33 of 1962).
• 3. The Damodar Valley Corporation Act, 1948 (14 of 1948).
• 4. The Indian Tramways Act, 1886 (11 of 1886)
• 5. The Land Acquisition (Mines) Act, 1885 (18 of 1885).
• 6. The Metro Railways (Construction of Works) Act, 1978 (33 of 1978).
• 7. The National Highways Act, 1956 (48 of 1956).
• 8. The Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (50 of 1962).
• 9. The Requisitioning and Acquisition of Immovable Property Act, 1952 (30 of 1952).
• 10. The Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (60 of 1948).
• 11. The Coal Bearing Areas Acquisition and Development Act, 1957 (20 of 1957).
• 12. The Electricity Act, 2003 (36 of 2003).
• 13. The Railways Act, 1989 (24 of 1989).

• 106. Power to amend Schedule.–(1) The Central Government may, by notification, amend or alter any of the Schedules to this Act, without in any way reducing the compensation or diluting the provisions of this Act relating to compensation or rehabilitation and resettlement

Applicability of the ‘RFCTLARR Act, 2013’ with 1956 Act for calculation of compensation

• Provisions of RFCTLARR Act, 2013 relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules are applicable to the land acquisition under the National Highways Act, 1956. Determination of compensation, as prescribed under the First Schedule, is governed under Sections 26 to Section 30 of the RFCTLARR Act, 2013.

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• Surce -A Manual of Guidelines on Land Acquisition for National Highways under The National Highways Act, 1956. Government of India Ministry of Road Transport and Highways December 2018

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• Total compensation amount includes various components in the following order

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Determination of "basic market value of land"

• "(a) the market value, if any, specified in the Indian Stamp Act for the registration of sale deeds or agreements to sell, as the case may be, in the area, where the land is situated; or
• (b) 'the average sale price for similar type of land situated in the nearest village or nearest vicinity area
• Explanation 1 - The average sale price referred to in clause (b) shall be determined by taking into account the sale deeds or the agreements to sell registered for similar type of area in the near village or near vicinity during immediately preceding three years of the year in which such acquisition of land is proposed to be made;

• Explanation 2 - stating that 'for determining the average sale price referred to in Explanation 1, one-half of the total number of sale deeds or the agreements to sell in which the highest sale price has been mentioned shall be taken into account'

• This value is known by different connotations from state to state, such as "Collector Rate", or "Circle Rate" or "Guideline Rate" or "Benchmark Rate" as the case may be. The expression "Collector Rate" has been used in these guidelines for reference purposes, wherever required.

• 26. Determination of market value of land by Collector
• 27. Determination of amount of compensation
• 28. Parameters to be considered by Collector in determination of award
• 29. Determination of value of things attached to land or building

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• 30. Award of solatium.–(1) The Collector having determined the total compensation to be paid, shall, to arrive at the final award, impose a “Solatium” amount equivalent to one hundred per cent. of the compensation amount.
• Explanation.—For the removal of doubts it is hereby declared that solatium amount shall be in addition to the compensation payable to any person whose land has been acquired