JAMIA MILLIA ISLAMIA

FACULTY OF LAW

LAND ACQUISITION ACT, 1894, CONSTITUTIONALITY, ADVANTAGE

AND DISADVANTAGE

LAND LAW- ASSIGNMENT

Submitted by

Shayan Zafar

20182859

Roll No.:58

th
B.A.LLB (Hons.) (IX Semester) (Regular)

Batch: 2018-2023

Submitted to

Prof. Dr. Kahkashan Y. Danyal Ma’am

Professor
 INDEX
S.No CONTENTS

01. ACKNOWLEDGMENT

02. INTRODUCTION

03. HISTORY OF LAND ACQUISITION ACT IN INDIA

04. LAND ACQUISITION ACT OF 1894

05. AMENDMENTS WHICH FURTHER DEVELOPED THE ACT IN BRITISH ERA

06. OBJECT AND PURPOSE OF LAND ACQUISITION ACT

07. DOCTRINE OF EMINENT DOMAIN

08. CONSTITUTIONAL PROVISION OF LAND ACQUISITION Act

09. CONCEPT OF RIGHT TO PROPERTY & LAND ACQUISITION ACT

10. DRAWBACKS OF LAND ACQUISITION ACT

11. LAND ACQUISITION & RESTITUTION ACT, 2013

12. CONCLUSION

13. BIBLIOGRAPHY
 ACKNOWLEDGEMENT

The success and final outcome of this assignment required a lot of guidance and assistance from
many people and I am extremely fortunate to have got this along the completion of my
assignment work. Whatever I have done is only due to such guidance and assistance and I could
not forget to thank them. I respect and thank Prof. Dr. Kahkashan Y. Danyal Ma’am my Land
Law teacher for giving me an opportunity to do this assignment and providing me all support and
guidance which made me complete this assignment on time. I am extremely grateful to her for
providing such a nice support and guidance in this pandemic situation. Thank you Ma’am for
your support without your help and guidance it was impossible to bring up this assignment.

----SHAYAN ZAFAR
 INTRODUCTION

Government has a duty towards public work, for this most of the time they have to deal in
construction. And for this they need land. It is possible that at times the land they need is a
private property. In such a case the government’s power to take that land overpowers the
individuals’ right over that property. The government can acquire private land for the purpose of
public work. This is called land acquisition.

Land Acquisition is simply the process by which the Government can acquire private land. This
may include any other private property. It is usually done for the purpose of public work building
infrastructure, urbanisation, development and industrialisation. Government can also acquire
land for private firms for setting up factories or other industrial setups. Purchase of land is a
contract between a willing buyer and seller, while in case of land acquisition the land owner has
no choice. This is the reason right to property is not a fundamental right 1.

Land acquisition by a state is rooted in the concept of Eminent Domain. As per this doctrine, the
state can do anything in public interest. It is based on two latin political concepts. They are:

 Welfare of public is paramount

 Public necessity is greater than private necessity

The idea of Land Acquisition in India is based on Eminent Domain. The state has the right to
acquire any private property for the public use. Right to property was a fundamental right till
1979 when the 44th amendment reduced it to a constitutional or legal right 2 . As per the
amendment, “no person shall be deprived of his/her property saved by the authority of law”.
Hence remedy in case of right to property in India is available through High Court and not the
Supreme Court. No law that deprives the right to property can be challenged. However as per the
constitution, no land can be acquired by the state without compensation. Land Acquisition is a
concurrent subject. Land Acquisition in India occurs in three ways:

1
Land Acquisition Act: History & The Need to Strike Down Right to Property, available at:
https://articles.manupatra.com/article-details/Land-Acquisition-Act-History-The-Need-to-Strike-Down- Right  to-
Property (last visited on November 1, 2022).
2
A.K Ganguli, “Right to Property: Its Evolution and Constitutional Development in India” 48 Journal of ILI 489
(2006).
  Acquisition through Land Acquisition Act 2013
 Through various other Acts
 Through negotiation

Also called Land Acquisition Act 2013, Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 3 is the main law that regulates land
acquisition and establishes rules and regulations for granting compensation, rehabilitation and
resettlement to the affected people in India. The act replaced the Land Acquisition Act, 1894. It
is the principle law concerning land acquisition and compensation to the land owners. The law
followed the massive industrialization and liberalization in the country. The law was brought in
due to absence of cohesive law for compensation and fair rehabilitation. The Act will replace the
Land Acquisition Act, 1894, a nearly 120-year-old law enacted during British rule.

3
Law Commission of India, “Law of Acquisition & Requisition of Land” (1958).
 HISTORY OF LAND ACQUISITION ACT IN INDIA

The history of land acquisition in India can be traced back to Bengal Regulation I of 1824. It was
the time when the British for the first time started acquiring lands for the purpose of public
welfare. This act was made enforceable in the provinces which were in control of Fort Williams,
soon after with the Building act XVIII in 1839 the acquisition of land started in Bombay also. In
1852, after modifying first 7 provisions of the Bengal Regulation I of 1824 a new Madras Act
XX of 1852 was passed. In all the presidencies at that time the rationale for acquisition of land
was to acquire for public welfare purposes which include widening of roads, building canals. I
would like to draw attention to the fact that every act had the rationale to acquire property for
public welfare purposes. After 1850 when railways were introduced in India, acquiring land for
purposes of building railways was added to the public welfare clause 4.

The enactment of these acts was to legitimise the act of land acquisition by the British for public
welfare purposes. But in the year 1857, Act VI was enacted which abolished all the previous
existing acts on the Land acquisition introduced till then. The East India company wanted to
improve the process and also for the first time one can find the mention of the word
‘compensation’ under the act. An agreement was to be made which empowered collector to
determine compensation under the same, and in case if there was no agreement as such the
dispute was taken to arbitration. We know that on paper every new advancement from the past
looks lucrative, but when it comes to practicality and ground reality various factors mar those
advancement. Similarly, it was found that the process of arbitration wasn't satisfactory, in some
cases the arbitrators were found to be incompetent and corrupt. In 1870, a new Act X was
enacted which for the very first time mentioned a reference to civil court in case the collector
fails to determine compensation according the agreement made so. Later on a separate act which
was dubbed as an act of compensation, passed in 1885 namely mines act dealt with grant of
compensation to miners5.

There were some problems in act of 1870 and subsequently it was repealed and finally the “Land
requisition Act of 1894” was brought into picture.

4
Kahkashan Y. Danyal, “Land Acquisition in India-Past and Present” Jamia Law Journal (2016).
5
P.K. Sarkar, Law of Acquisition of Land in India (Eastern Law House, Lucknow 3rd edn. 2012).
 LAND ACQUISITION ACT OF 1894

This Act was enacted by the British with the definite objective of building infrastructure like
railways, post-telegraph lines, roads, bridges, canals, communication network and means to
transfer their army and weaponry to different parts of the country. Their basic intention was to
extend, control and further consolidate their rule throughout the country. Hence, land belonging
to rural landowners was acquired under the Act. The ownership and control of the infrastructure
and communication network built after land acquisition remained completely with the
Government for utilization in public purpose.

After independence, the process of acquisition of land from farmers for building steel plants,
fertilizer plants, defence related plants and dams (number of villages were submerged to create
dams) continued, all for public purposes. Thereafter, the government entered into housing, urban
development and industrial sector and resorted to acquisition of land from farmers for
developing housing colonies, laying electricity poles, and industries. All these activities were for
public purposes6.

After the liberalisation of economy leading to privatisation, the share of private initiative in
various sectors increased and the private sector started taking the responsibilities which were
earlier discharged by the government in return for a number of incentives from the latter. As a
result of which, private players are present in almost all the sectors like housing, education,
health services, industry, construction of commercial complexes, media/ news channels.
Presently, private sector is flourishing well, competing with its public counterpart and is in fact
stealing the show as these are controlled by big business houses. For all the public purpose
projects, the most important requirement is land.

The question arises here, that where does the land come from for these private initiatives? In the
recent years, large scale acquisition of land has been made for companies under Part VII of the
1894 Act, proposing to use the land for a public purpose. The state governments have acquired
large tracts of land in rural areas, belonging to farmers/rural landowners at throwaway prices in
the name of development projects. Later, after changing the land use, land was handed over to
private builders for construction of multi storey residential and commercial complexes, industries

6
Kahkashan Y. Danyal, “Land Acquisition in India-Past and Present” Jamia Law Journal (2016).
etc. These private entrepreneurs later sold these complexes to the general public at very high
prices. The rural landowners have been taken for a ride by the concerned state governments in
collusion with the private entrepreneurs. There have been cases where the landowners/farmers
were assured of employment generation for their kith and kin, but that did not happen as they
were neither skilled for the job nor qualified for the same. The farmers have been cheated in the
name of land acquisition for public purpose – as they do not get the market price for their land
due to the under rated sale deeds and the government playing broker/agent for the private
players. Even if the landowners/farmers receive compensation from the government, it does not
provide any monetary benefit to them, as the money received is either wasted or spent unwisely
reducing them to landless/unemployed individuals. From a respectable and a dignified
landowner, the person now becomes a landless rogue because he has no skills apart from
farming. Moreover, there is no agency to counsel these farmers/landowners for proper use or
long term investment or management of the money.
AMENDMENTS WHICH FURTHER DEVELOPED THE ACT IN BRITISH
ERA

In the case of Krishna Dev Roy v. The land acquisition collector of Pabna7, a question of law
was raised that "whether a part only of any house, manufactory or other building, if the owner
desires that the whole of such house, manufactory or building can be so acquired."

It was held that: -

“Provided that the owner may, at any time before the Collector has made his award under section
11, by notice in writing, withdraw or modify, his expressed desire that the whole of such house,
manufactory or building shall be so acquired: Provided also that, if any question shall arise as to
wheth-er any land proposed to be taken under this Act does or does not form part of a house,
manufactory or building within the meaning of this section, the Collector shall refer the
determination of such question to the Court and shall not take possession of such land until after
the question has been determined. In deciding on such a reference, the Court shall have regard to
the question whether the land proposed to be taken is reasona-bly required for the full and
unimpaired use of the house, manufactory or building.”

This was also added to the S.49 of the land acquisition act, also the case dealt with the issue
“Where a Land Acquisition Collector refused to make a reference to the, Civil Court under sec.
49 of the Land Acquisition Act, the High Court5 in revision set aside his proceedings subsequent
to the refusal and directed the Collector to proceed according to law. 8”

7
MANU/WB/0150/1911.
8
Everything you need to know about land acquisition, available at: https://blog.ipleaders.in/everything-you-need-
to-know-about-land
acquisition/#:~:text=The%20old%20Land%20Acquisition%20Act%20of%201894%20had%20an%20objective,as%
20applicable%20by%20the%20Act(last visited on November 05, 2022).
 OBJECT AND PURPOSE OF LAND ACQUISITION ACT

Before the last enactment of 1870 valuation and compensation of acquired land on immovable
property were made by the Collector by agreement, if possible. If there was no agreement the
dispute had to be referred to arbitrators and there was no appeal against their decisions. The
decisions could be impeached only on the grounds of corruption and misconduct of arbitrators.
As those laws did not lay down any instruction for their guidance in performing their tasks and
the arbitrators were sometimes incompetent and corrupt, Act X of 1870 was introduced
abolishing the system. Thereby the arbitrators who were generally Collectors were required, in
case of dispute with the land holder to refer the difference to the court of the District Judge who
aided by assessors disposed of the case. Therein appeal lied to the High Court in case of
disagreement between the Judge and the assessor. But Act X of 1870 was not found entirely
ineffective because infrequent reference to the court by the collector as per the Act caused the
landowners of small pieces of land to pay court costs exceeding the value of the land itself.

The amended Act of 1894 made the Collector’s award final, unless altered by the decree in a
regular suit and the interested person could refer disputes to an authority quite independent of the
Collector and further right to appeal to appellate courts. Thus, the amended Bill of Land
Acquisition 1870 was introduced in India-in-Council in 1892 and referred it to a select
committee on whose final report, the assent of the Governor General of India-in-Council was
received, and it came into force on 1st March 1894. The reasons which led to its enactment were
for the acquisition of land needed for public purposes and for companies and for determining the
compensation to be made on account of such acquisition. Acquisition includes the purpose as
well as the actual taking of possession.

The object and intention of the Act are to compromise in one General Act sundry and elaborate
provisions relating to the acquisition of land for “public purpose”, for assessing the amount of
compensation and it is for avoiding the necessity repeating such provisions in subsequent Acts
dealing with similar or such acquisitions as well as for ensuring uniformity of the provisions that
the sections of Land Acquisition Act are introduced in subsequent Acts of employing and
incorporating words of the legislation in the subsequent Acts. It was further held that acquisition
of land for settlement of refugees was for a “public purpose”. Though the question is a justifiable
one and the ultimate decision must rest with the court, the actions of the legislature in deciding
upon the acquisition is itself considered good proof that the acquisition is for a “public purpose”.
As for example, all provisions of the Land Acquisition Act have been incorporated in the West
Bengal Land Development and Planning Act, 1948, save to the extent they are expressly varied
or accepted by such Act.

The following are the types of acquisitions by the Central or State Gov. for public purposes or on
behalf of or for a company or a registered society etc. viz., for:

1) Public purpose9.
2) Industrial concern not being a company. 10
3) Dwelling houses for workers of company. 11
4) Company engaged in work for public purpose12
5) Company likely to prove useful to public.13
6) Public purpose primarily on behalf of company. 14
7) Railway and other company for which Govt. is bound by agreement to provide lands. 15

The Land Acquisition Act 1894 (Act I of 1894) was amended in different years to make it more
effective. The amendments made by these Acts have been dealt with and discussed in the notes
to the various sections amended such as The Decentralization Act 1914 (Act 4 of 1914), The
Repealing and Amending Act (Act 10 of 1914), The Land Acquisition Amendment Act 1919
(Act 17 of 1919), The Devolution Act 1920 (Act 38 of 1920), The Land Acquisition Amendment
Act 1921 (Act 9 of 1921), The Land Acquisition Amendment Act 1923 (Act 33 of 1923), The
Land Acquisition Amendment Act 1933 (Act 16 of 1933), The Repealing Act 1938 (Act 1 of
1938), The Indian Independence (Adaptation of Central Acts and Ordinances) Order 1948, The
Adaptation of Laws Order 1950, The State Acquisition of Lands for Union Purposes (Validation)
Act 1954 (Act 23 of 1954), The Adaptation of Laws (No. 2) Order 1956, The Land Acquisition
(Amendment) Ordinance 1962 (3 of 1962), The Land Acquisition (Amendment) Act 1962 (Act
31 of 1962), The Land Acquisition (Amendment and Validation) Ordinance 1967 (1 of 1967),
9
Land Acquisition Act, § 6 (1894) (India).
10
Land Acquisition Act, § 38A (1894) (India).
11
Land Acquisition Act, § 41(1) (a) (1894) (India).
12
Land Acquisition Act, § 41(1) (a) (1894) (India).
13
Land Acquisition Act, § 41(1) (b) (1894) (India).
14
Land Acquisition Act, §§ 6 & 40 (1894) (India).
15
Land Acquisition Act, §§ 38A- 44B (1894) (India).
The Land Acquisition (Amendment and Validation) Act 1967 (Act 13 of 1967) and The Land
Acquisition (Amendment) 1984 (Act 68 of 1984). Some drastic and all-pervasive amendments
have been made through the Land Acquisition (Amendment) Act 1984 (68 of 1984) which are of
immense importance and received the assent of the president on the 24th of September 1984. Out
of 55 sections of the Act, by the present amendment 20 sections have been affected and 5 new
sections have been inserted and one section has been omitted.

Apart from the L.A. Act 1894, several special or local Acts also provide for compulsory
acquisition of land, subject to modifications as made by such special or local Acts when they are
applied to acquire land for purposes under them. The Indian Independence (Adaptation of
Central Acts and Ordinances) Order, 1948, adopts the Land Acquisition Act, 1894 after replacing
the words “the whole of British India” with “All the provisions of India”. The Britishera act is
the same form for several decades. Indian Independence (Adaptation of Central Acts and
Ordinances) Order 1948 published in the Gazette of India Extraordinary dt. 23rd March 1948
provided, inter alia, for continuation of the Land Acquisition Act 1894. Adaptations of law order
1950 (published in the Gazette of India Extraordinary dt. 26 January 1950) issued under Article
372 of the Constitution of India, provides that all the laws in force in the territory of India
immediately before the commencement of this Constitution shall continue in force therein until
altered or repealed or amended by a Competent Legislature or other Competent Authority.

DOCTRINE OF EMINENT DOMAIN

The power to take property from the individual is rooted in the idea of eminent domain.
According to the doctrine of eminent domain states, the sovereign can do anything, if the act of
sovereign involves public interest. The doctrine empowers the sovereign to acquire private land
for public use, provided the public nature of the usage can be demonstrated beyond doubt. The
doctrine is based on the following two Latin maxims,

(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).
 CONSTITUTIONAL PROVISION OF LAND ACQUISITION ACT

The Constitution of India initially gave the privilege to property (which incorporates land)
under Articles 19 and 31. Article 19 ensured that all residents reserve the privilege to procure,
hold and discard property. Article 31 expressed that “no person shall be deprived of his property
save by authority of law.” It likewise showed that pay would be given to a person whose
property has been taken for public purposes. The Forty-Fourth Amendment of 1978 took away
the privilege to property from the rundown of fundamental rights with a presentation of another
arrangement, Article 300-A, which said that “no person shall be deprived of his property save by
authority of law. The alteration guaranteed that the privilege to property‟ is no longer a major
right yet rather a constitutional/legitimate right/as a legal right and in case of penetrating, the
cure accessible to an abused person is through the High Court under Article 226 of the Indian
Constitution and not the Supreme Court under Article 32 of the Constitution 16. The state should
pay at the market an incentive for such land, building or construction obtained (Inserted by
Constitution Seventeenth Amendment) Act, 1964, the equivalent can be found in the prior
decisions when property right was a basic right, such as in the case of The State Of West Bengal
vs Mrs Bela Banerjee And Others, which propounded that “Remuneration” sent in Article
31(2) suggested full pay, that is the market estimation of the property at the hour of the securing.

The legislature must “guarantee that what is resolved as payable should be paid, that is, an only
likeness of what the proprietor has been deprived of. Somewhere else, Justice Reddy, O
Chinnappa held in the case of State Of Maharashtra v. Chandrabhan Tale on 7 July 1983 that
the principal right to property has been annulled because of its contrariness with the objectives of
“equity” social, economic and political and “fairness of status and chance” and with the
foundation of communist popularity based republic, as thought about by the Constitution.
Productivity has numerous features and one is yet to find a faultless trial of proficiency to suit
the broadly varying requirements of a creating society like our own. The idea of effectiveness
has been presented by Justice Reddy, O Chinnappa, combined with the state of trustworthiness.

16
M.P. Jain, Indian Constitutional Law (Kamal Law House, Calcutta, 5th edn., 1998).
 CONCEPT OF RIGHT TO PROPERTY AND ITS RELATION WITH
LAND ACQUISITION

The sections 275, 297 and 300 of the Govt of India Act, 1935 talked about certain rights which
included right against discrimination in employment, right to property and also other rights. The
joint committee on Indian constitutional reforms discussed about granting enforceable
mechanisms for “expropriation of right to property” and not “right to property” per se. But
after the opinion of Attorney general finally, S. 299 provided for certain mechanisms while
property was acquired and to enforce compensation for that property.

While the constituent assembly was constituted and held its first meeting in December 1946,
they vouched for clear cut rules to be mentioned in the constitution to avoid conflicts in future.
There was also a popular demand for fundamental rights. Initially, the clause for fundamental
rights which read as “No person shall be deprived of his life, liberty or property without due
process”. Immediately this became a point of discussion that the clause for due procedure can act
as shackles for the govt to do socialist activities. Since there was zamindari system and other
vices prevailing at that time, it was accepted that due process clause to be dropped from the draft.

At this point of time, I would like to mention that although the right to property is in contention
but notice the intentions of both the constituent assembly and the Joint committee formed during
govt of India act 1935. The constituent assembly was worried because of the contradictory nature
of this capitalist right and the socialist DPSP.

In the case of I.C Golak Nath v. State of Punjab17

In the year 1967, Golaknath family had over 500 acres of land and that time, under the "Punjab
Security of Land Tenures Act, 195315", the state govt. of Punjab consficated his 470 acres of land
stating that under the said act, the petitioner could hold land no more than 30 acres. Since, at that
time Art 19(1)(f)16 was a fundamental right, I.C Golaknath petitioned17 the Supreme court.

17
MANU/SC/0762/1967.
The issues were whether the parliament has a right to amend fundamental rights or not and
whether such amendment is an amendment under article 13(2) 18.

At that time, the prevailing air was that "no part of the constitution is un amendable 19"

The apex court adopted different view and ruled that the

“Fundamental Rights provided under the part III of Indian constitution cannot be subjected to
amendment process provided in article 368. If such rights are to amended, a new separate
constitution is to be convened for making a new constitution or radically changing it 18.”

THE 25TH AMENDMENT ACT & SOME OTHER CONTENTIOUS AMENDMENTS

Originally, the Constitution of India 1949 provided for right to hold and enjoy private property
and off course with some reasonable restrictions which were to be both reasonably and
procedurally correct. Secondly it provided for the acquisition of land under Article 31(1) which
says:-

“No person shall be deprived of his property save by the authority of law”

It also guaranteed that an individual's property can't be taken away by an act of executive which
is manifestly contrary to the colonial position, where the collector was empowered to make
acquisitions. But the purpose of acquisition and requisition remained same and that was to
acquire for public welfare.

As we saw some of the acts during the British raj and the land acquisition act of 1870 talked
about compensation for the first time. It is important to note that during British period the
compensation was mentioned in the statute while after the constitution of 1949 under article
31(2), it became a fundamental right. It means it was enforceable provision against the state.

Now the fundamental right to compensation was the bone of contention for the administration.
The fourth, the seventeenth, the twenty fifth and the forty second amendment sought to remove
this contention.

18
M.P. Jain, Indian Constitutional Law (Kamal Law House, Calcutta, 5th edn., 1998).
The fourth amendment act (1955) made a change that though parliament is under obligation to
pay the compensation but the adequacy of the compensation cannot be challenged. But the
Supreme court adopted a different view and interpreted the word compensation as full amount.
The Govt of India later on stated that if it starts granting the compensation on the full market
value for acquisition the fiscal stability of the nation may get threatened and these arguments had
merit as India just became independent. By the 25th (1971) amendment the word 'compensation'
was substituted by the word 'amount'. But, again the Supreme Court reserved it for judicial
intervention and in Kesvananda Bharti case it was ruled that the legislature couldn't fix arbitrary
or illusory amount. The government then reacted by putting specified laws of acquisition beyond
the pale of article 31 together by engrafting exceptions in the Articles 31A-31D.

The Article 31 C of the constitution was to be read as :-

"Any law which seeks to implement the directive in article 39(b) or 39(c) shall not be void for
inconsistency with articles 14 or 19"

THE CASE OF KESHAVANANDA SRIPADAGALVARU19

The Kerala Land Reforms Act, 1963 was enacted to fulfil the socioeconomic duties of the State
of Kerala and for this purpose the state govt acquired the land belonging to Edneer Mutt in the
Kasara God District of Kerala. Challenging this acquisition, His Holiness Kesavanand Bharati
the head of Edneer Mutt filed a writ petition under Article 32 for the enforcement of rights under
article 25, article 26, article 14 and article 19(1)(f).

The main point of contention was 24th amendment to the constitution which wanted the laws
which were enacted to give sanction to DPSPs to be shielded from judicial review and must
become superior to the fundamental rights.

The court only struck down the part of the amendment which shielded the laws from judicial
review and at the same time allowed the amendment. This case was particularly concerned
because of the amendment and its bearing on article 19(1)(f).

19
Kesavananda Bharati Sripadagalvaru v. State of Kerala, MANU/SC/0224/1973.
The right to property and land acquisition were never contradictory concepts if we go by the
intent of legislation because, both the article 19(1)(f) and the land acquisition act mentioned for
acquisition of land for public purposes. Just after the formation of India, acres of land went to
private persons and if they always had an absolute right then it would have been very difficult for
India to develop.

From the case of I.C Golaknath we can see as the petitioner had possession of over 500 acres of
land, for the development purposes it was indeed very necessary to acquire the land and start the
development activities.

I have read from many sources which has made me to adopt the abovementioned opinion, but we
know that howsoever bonafide the justification looks there is always a dark side to it.

The Kesavananda Bharti case raised the brows of the then PM Indira Gandhi and to restore her
govt's power she enacted the 42nd amendment act of 1976.

THE 42ND AMENDMENT ACT AND CRUSADE AGAINST ARTICLE 19(1)(f)

In the words of the then Hon'ble PM Indira Gandhi-

“We have always said that we have our own brand of socialism. We will nationalise the sectors
where we feel necessity. Just nationalisation is not our type of socialism”

The aim of Socialism is to eliminate inequality of income and status and to provide decent
standard of life to working people. Socialism in no way motivates to acquire all of the private
property and it is very clear that Indian constitution never advocated for this thing.

In the Kesavanand Bharti case the Surpreme court ruled that since judicial review is one of the
basic essence of the constitution which can’t be taken away via amendment under article 368 of
the Indian Constitution. So the scope of article 31 C was again limited by the supreme court as
far as judicial review was concerned.

Undaunted by the SC's decision in Kesavananda Bharti case, the parliament enlarged the scope
of article 31 C by the 42nd amendment act 1976, thos time parliament made the law such that if
any law has been enacted to give force to DPSPs, that law cant be invalidated merely on the
grounds of bypassing the fundamental rights and its reasonableness cant be questioned under
article 14 or 19. Although the Minerva Mills case nullified this extension.

THE DEATH OF ARTICLE 19(1) (F): 44TH AMENDMENT ACT, 1978

It was not totally unexpected, especially after step by step diminishing and encroaching upon the
vital essence of the fundamental right to property, the 44th amendment repealed the right to
property which meant that if executive without following the due procedure of law acquired the
land of an individual, he has no right to speedy remedy as he had prior under article 32 of the
Indian constitution.

The article 31(1) was taken out of Part III and is now article 300 A which says

“No person shall be deprived of his property save by the authority of law”
 DRAWBACKS OF LAND ACQUISITION ACT

There were many factors that lead to the inapplicability of the Land Acquisition Act 1894, the
major drawbacks being: - 1. The Land Acquisition Act 1894, though provided reassurance to the
landowners, was totally unsympathetic towards the people who earned their livelihood from
those lands. India being an agro-based country, where more than 60% of the population is still
dependent on agriculture, the interest of the laborer’s working on the land cannot be completely
overlooked. Moreover, ages of working on land renders them such perfection in agriculture that
it becomes difficult for them to adopt some other occupational means for their survival. 2. Under
the Land Acquisition Act 1864, the government can take over land of private land owners only
for “public purposes”. But this term “public purposes” has been given a very wide definition
under this Act and it includes a. Any extension or improvement or development of existing
infrastructure b. Any rural town or city planning c. Any development in pursuance of any
scheme or policy of the government. According to the Land Acquisition Act 1894, the
compensation to be given to the landowners is to be in accordance with the market value. But
this Act does not provide any guidelines to assess this market value. Hence, the calculation of
compensation becomes difficult. The Supreme Court in 201242 directed the government to
increase the compensation to the highest market value of the land, in the basis that someone who
is compelled to surrender his land should be able to claim a higher compensation than what a
similar landowner would receive if he would sell his property willingly. 4. Moreover, the
rehabilitation and resettlement provisions for the displaced people that include allotment to
government land, grant for house construction and other substantive allowances are completely
impractical in nature. This renders the appropriate government to rehabilitate the displaced
people in a proper manner. The government was driven by the above-mentioned drawback to
take necessary measures to overcome the defects faced by it in enforcing the Act. Due to this
reason the UPA government came up with the amendment bill in 2007. Again in 2011, it
introduced the Land Acquisition, Rehabilitation and Resettlement Bill. Till 2013 the British era
act was followed some of the ambiguous sections are discussed as follows: -

1. The govt could acquire any land in the name of "public purposes" and the term public
purposes was so ambiguous that it finally rested in the hands of executive to have a say
 on what public purposes is. Sometimes the land was just acquired and was sold to real
estate developers for cheap price.
2. There was no real appeal mechanism against to stop the acquisition process.
3. No say on how the rehabilitation will be done when the land was to be acquired
4. As discussed earlier the compensation rate was inadequate. These anomalies were
strengthened by the removal of right to hold property and mechanism to claim
compensation from the Indian constitution. The fundamental right to property, the 44th
amendment repealed the right to property which meant that if executive without
following the due procedure of law acquired the land of an individual, he has no right to
speedy remedy as he had prior under article 32 of the Indian constitution.

Article 31(1) was taken out of Part III and is now article 300 A which says:

“No person shall be deprived of his property save by the authority of law”

As previously mentioned, after the 44th amendment act citizens have no writ to directly petition
the SC or HC under 32 or 226 of the constitution for the ouster. But there are two exceptions: -

 If the state acquires a property which is administered by a ‘minority', the compensation

must be full and based on market value. It basically tries to maintain consonance with the
article 30(1) of the Indian constitution.
 If the state acquires the land which is personally cultivated by the owner and such land
doesn't exceed the statutory ceiling, the state must pay to such owner full market value of
his land as well as any building standing thereon.
 JUDICIAL INTERPRETATION

 Maharashtra State Electricity Board v. Dr. Sheshrao Baliram Ingole 20

The Bombay High Court held that, Sections 4, 6, 11, 12, 18 and 23 of the Land Acquisition Act,
1894 have been enacted to discharge the constitutional obligation of the State under Article 300A
of the Constitution to provide for payment of the compensation for acquisition of land, which
shall not be less than the market value of the land and to effectuate the fundamental right
conferred by the second proviso below Article 31A of the Constitution of India to get the market
value of the land in the mode and manner prescribed under the provisions of the Land
Acquisition Act.

 Ramniklal N. Bhutta v. State of Maharashtra21

The judgment of the Supreme Court in the matter said that while delineating the scope of
interference in land acquisition proceeding, Their Lordships held as under: - "10. Whatever may
have been the practices in the past, a time has come where the courts should keep the larger
public interest in mind while exercising their power of granting stay/injunction. The power under
Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not
merely on the making out of a legal point. And in the matter of land acquisition for public
purposes, the interests of justice and other connected cases and the public interest coalesce. They
are very often one and the same. Even in a civil suit, granting of injunction or other similar
orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to
weigh the public interest vis-a-vis the private interest while exercising the power under Article
226, indeed any of their discretionary powers. It may even be open to the High Court to direct, in
case it finds finally that the acquisition was vitiated on account of noncompliance with some
legal requirement that the person interested shall also be entitled to a particular amount of
damages to be awarded as a lump sum or calculated at a certain percentage of compensation
payable.

20
First Appeal No. 518 of 2003.
21
AIR 1997 SC 1236.
  Girias Investment Private Limited v. State of Karnataka22

It was held that though the rights of an individual whose property is sought to be acquired must
be scrupulously respected, but an acquisition for the benefit of public at large is not to be lightly
quashed and extraordinary reasons must exist for doing so.

 Nabin Chunder Sarma v. The Deputy Commissioner of Sylhet 23

The case sheds some light on the judicial ruling of that time when there was a dispute regarding
compensation. While the dispute was pending in the court the act of 1870 got repealed and the
new act of 1894 was enacted. The facts of the incident are that while the matter was in district
court the petitioner suddenly intimated district judge that he now doesn't want to contest the
matter against collector any further, but the unknown collector of this plea raised the amount of
compensation. The district judge ruled that the petitioner is no longer entitled to the new
compensation amount. The petitioner Nabin Chunder, then petitioned the High court of Calcutta
for the grant of increased compensation, the high court held that: "That under sec. 25, Act 1 of
1894, the former did not disentitle himself from claiming the benefit of the increased amount
awarded by the Judge." If we read the act of 1894 in the current times section 23 of the said act
deals with the "matters to be considered while determining the amount of compensation". It says
that the market value of the land at the time of publication of notification, the damage sustained
by the person interested or any standing crop got damaged by the act of acquisition, if the person
is compelled to change his place of residence, any diminution of profits during the publication
under section 6 of the said act and actual taking of the land by the collector, all of these factors
must be considered.

22
(2008) 7 SCC 53.
23
MANU/WB/0207/1896.
 THE LAND ACQUISITION AND REQUISITION ACT 2013

To address the shortcomings in the act following provisions were introduced for compensation
and other salient features:-

a) Since the old act didn't mentioned for rehabilitation and resettlement, the new act focuses
on adequate compensation, resettlement and rehabilitation.
b) It will be applied retrospectively where no award of compensation was made and if the
acquisition was made 5 years ago but no compensation was granted then the process of
acquisition was to be started fresh.
c) A new formula for compensation was provided:-

“Compensation in rural areas was to be calculated by multiplying market value by two and
adding assets attached to land or building and adding a solatium. In urban areas it would be
market value plus assets attached to the land and solatium.”
 CONCLUSION

The most important issue faced by people is getting compensation which is at par with the
Market value. The increase in litigation causes delay and the increase in litigation can be
attributed to the need for a larger amount over the proposed rate. Such cases are aimed at getting
interest amount and compensation at par with the market value, which has been the case to those
who accepted the compensation given by the courts after several years with damages and
interest.

Demand, interest rate, and limited supply, and economics played their part to increase
compensation, but so did the rise in inflation, cost of living, etc. There has to be a mechanism to
check that the implementation is transparent and clear. There is a lot of criticism, and obstacles
but the biggest obstacle is the will of the people. Property is no more a fundamental right and
since India is a welfare state and development needs to be catered to, acquisitions must be done
with the actual objective or its legislative intent and it ought to be ensured that fairness is
maintained for all stakeholders.
 BIBLIOGRAPHY

A. BOOKS

 Commentary on Constitution of India (Eastern Book Company 44th edn. 2019).

 M.P. Jain Indian Constitutional Law (LexisNexis 8th edn 2018).
 P.K. Sarkar, Law of Acquisition of Land in India (Eastern Law House, Lucknow 3rd edn.
2012).

B. Statutes

 The Land Acquisition Act, 1894

 The Constitution of India, 1950.

C. Journal

 Jamia Law Journal

 Economic & Political Weekly
 Journal of ILI
 Centre for the Study of Law and Governance, JNU

D. Websites

 www.lexisnexis.com
 www.livelaw.com
 www.lawoctopus.com
 www.scoobserver.com
 www.heinonline.com
 www.jstor.com