DOCTRINE OF EMININET DOMAIN AND LAND

ACQUISITION
Doctrine of Eminent Domain

Doctrine of Eminent Domain is a concept in the American Constitution. It is the

acquisition of private property by the state for a public purpose with paying certain
amount of compensation. The United States Constitution in its Vth amendment ordains
that- “No person can be deprived of his life liberty or property without due process of
law”.

There are two essentials of the Doctrine of Eminent Domain:

1. Property is taken for public use
2. Compensation is paid for the property taken.

In Indian Constitution, Entry 42 of List III speaks about ‘acquisitioning and requisitioning
of property’. Article 31 of the Constitution providing for compensation for the same.

In State of Bihar v Kameshwar Singh , Supreme Court defined eminent Domain as “the
power of a sovereign to take property for public use without the owner’s consent upon
making just compensation.”

In Article 31(2) the word compensation was used without any adjective like just or
reasonable. But Supreme Court interpreted its meaning as ‘just compensation’.

Following the repel of Article 31 by the 44th Amendment in 1978, an estate could now be
acquired for public purpose, without paying compensation. The only exception was that
such law should receive the assent of the President.

In K T Plantations Pvt Ltd v State of Karnataka (2011): The plantation, under threat of
acquisition by the Government, challenged the scope of Article 300A and also the
constitutional validity of the Land Acquisition Act. HC dismissed the writ petition. SC held
though Article 300A does not specifically mention compensation, same is in-built.

LAND ACQUISITION ACT, 1894

The Land Acquisition Act, 1894 empowered the government to acquire private land only
for public purpose or a company.

What constitutes “Public Purpose” under the Land Acquisition Act, 1894?

The expression “public purpose” includes provision of land for:

1. Village-sites or planned extension, development or improvement of existing village-
sites
2. Town or rural planning;
3. Any panned development of land from public funds in pursuance of any scheme or
policy of Government
4. Corporation owned or controlled by the State;
5. Residential purposes to the poor or landless or to persons residing in areas affected by
natural calamities, or to persons displaced or affected by reason of the implementation of
any scheme undertaken by Government,
6. Carrying out educational, housing, health or slum clearance scheme sponsored by
Government or by any authority established by Government for
7. Locating a public office, but does not include acquisition of land for companies
Procedure of Acquisition under Land Acquisition Act, 1894

1. Notification
Government publishes a notification in the Official Gazette and in two daily newspapers
circulating in that locality, including one regional language newspaper
Collector to cause public notice of the notification at convenient places in the locality

2. Preliminary Investigation
Post-notification, any authorized officer may enter and survey any land in the notified
locality. They may
1. do all acts necessary to ascertain whether the land is adapted for the required
purpose,
2. set out the boundaries of the land proposed to be taken and the intended line of the
work

Entry into any building or upon any enclosed court or garden attached to a dwelling
house can be only after giving the occupier at least seven days' notice in writing, or with
their consent.

3. Hearing of Objections
Sn 5A of the Land Acquisition Act, 1894 deals with hearing of objections.
Any interested person may object to the acquisition of the land or of any land in the
locality, within 30 days of the notification. A person shall be deemed to be interested in
land who would be entitled to claim an interest in compensation if the land were acquired
under this Act.
Such objection shall be made to the Collector in writing
The Collector shall give the objector an opportunity of being heard
The Collector, after hearing all such objections and after making any further inquiry as
deemed necessary make a report to the Government, containing his recommendations
on the objections, together with the record of the proceedings held by him
The decision of the Government on the objections shall be final, as per the LA act.

4. Official Notification
As per Section 6 of the LA Act, the government may officially declare that land is required
for a public purpose. The declaration shall be through
1. notification in official gazette
2. two newspapers.
3. The Collector shall also cause public notice of the substance of such declaration to be
given at convenient places in the said

5. Taking Over of the Land

After making the declaration, the Government may acquire the land by the following
methods
1. The collector to mark out and measure the land (if not already done during preliminary
investigation)
2. Collector issues notice to the interested persons and occupiers, detailing the
acquisition and compensation
The notice may require all persons interested in the land to appear personally or by
agent before the Collector at a specified time and place, with 15 days notice, to state
their interest. The interest so stated has legal binding as per Sn 175 and 176 of IPC
3. On the day so fixed (or adjourned), the Collector shall proceed to enquire into
(i) measurement
(ii) any objection
(iii) the value of the land
(iv) the respective interests of the persons claiming the compensation

6. Collector’s Award
The collector shall then make an award detailing
(i) the true area of the land;
(ii) the compensation
(iii) the apportionment of the said compensation among all interested persons
Such award shall be final.

The Collector shall give immediate notice of the award.

When the Collector has made an award under section 11, he may take possession of the
land, which shall thereupon free from all encumbrances. (Sn 16)

The determination of compensation for any land shall not in any way affect the
determination of compensation in respect of other lands in the same locality or
elsewhere.

The Collector shall make an award under section 11 within a period of two years from the
date of the publication of the declaration (excluding period of any stay granted by court)
and if no award is made within that period, the entire proceeding for the acquisition of
the land shall lapse (Sn 11A)

The determination of compensation by the Land Acquisition Officer is purely an

administrative act and can be challenged in the Court of Law.

The award passed by the Collector is not similar to that of an Arbitrator under the
Arbitration & Conciliation Act, 1996. The award by Collector is an 'offer' and an aggrieved
party can always ask for an enhancement in the compensation.

Enquiry by Collector as per Sn 11 of the Land Acquisition Act

Section 11 of Land Acquisition Act, 1894 deals with enquiry and award by Collector.

On the date fixed, or any other date to which the enquiry has been adjourned, the
Collector shall proceed to enquire into the objections and make an award under his hand
of:
• true area of the land
• compensation which in his opinion should be allowed for the land

The LA officer (collector) comes to the amount of compensation, considering the market
value of the land as of the date of preliminary notification (not the prevailing rates when
enquiry is made)

The Collector has discretionary power in regards to the valuation. He is expected to

identify the market value, using the resources at his disposal. The market rate mentioned
in the award has evidentiary value as per Sections 9 and 11 of the Indian Evidence Act,
1872.

He may apportion the compensation in between the interested persons, if they are more
than one, and mention their shares and names in the award.

Case Laws:
G Ganesha vs Special Deputy Collector (LA)(1994) : Land Acquisition Officer should not
refrain from passing the award solely on the reasons of unavailability of funds.
Mary Philip v State of Kerala: When the government has taken advance possession of the
land, it cannot withdraw from the acquisition proceedings on the ground that the land
acquisition has lapsed under Sn 11A
Rattan Singh v Union of India (2015)
Santosh Kumar and others vs Central Warehousing Corporation (1986)
Special Powers to Collector in cases of urgency as per LA Act 1984

Section 17 of the Land Acquisition Act, 1984 gives collector special powers in case of
urgency.

• In cases whenever the appropriate Government declares urgency, the Collector may
take possession Of any land, with 15 days after notice as per Sn 9(1)
• Of any building, with minimum 48 hours notice
An award need not be made
The land thus acquired shall vest absolutely in the Government, free from all
encumbrances.

The Collector shall at that time of taking possession offer to interested persons
1. tender payment of eighty per centum of the compensation for such land
2. compensate for the standing crops and trees (if any) on such land
3. compensate for any other damage sustained by them caused by such sudden
dispossession

State of Punjab v Gurdial Singh: Court held emergency powers under Sn 17 cannot be
invoked arbitrarily.
Susama v State of Kerala: The decision on “urgency” is for the authorities to decide. It is
not open for the court to examine it.

Appeal

Any interested person not accepted the award may seek the collector to refer the matter
to the court (Sn 18). The grounds of objection may be,
• measurement of the land
• amount of the compensation
• person to whom compensation is payable
• apportionment of the compensation among the persons interested.

The appeal is to be made within six weeks of the receipt of the notice from the Collector

Every such proceeding shall take place in open Court, and all persons entitled to practice
in any Civil Court in the State shall be entitled to appear, plea and act (Sn 22)

Matters to be considered on determining compensation (Sn 23)

The Court shall take into consideration-
1. Market value of the land
2. 30% above market value, in consideration of the compulsory nature of the acquisition.
3. Damage sustained by interested person, by reason of the taking of any standing crops
trees
4. Damage sustained by the interested person by serving such land from his other land;
5. Damage sustained by the interested person by reason of the acquisition injuriously
affecting his other property, movable or immovable, in any other manner, or his earnings
6. Reasonable incidential expenses when person is compelled to change his residence or
place of business,
7. Bona fide resulting from diminution of the profits of the land between the time of the
publication of the declaration under section 6 and the time of the Collector's taking
possession of the land.

Court shall also award an amount equal to 12% per annum on market value for the
period commencing on and from the date of the publication of the notification to date of
award or taking over of possession of the land. Any period or periods during which the
proceedings for the acquisition of the land were held up on account of any stay or
injunction by the order of any Court shall be excluded
The Court shall not take into consideration (Sn 24)
1. The degree of urgency which has led to the acquisition
2. Any disinclination of the person interested to part with the land acquired;
3. Any damage sustained by him which, if caused by a private person, would not render
such person liable to a suit
4. Any damage which is likely to be caused to the land acquired, after the date of the
publication of the declaration under section 6, by or in consequence of the use to which it
will be put;
5. Any increase to the value of the land acquired likely to accrue from the use to which it
will be put when acquired;
6. Any increase to the value of the other land of the person interested likely to accrue
from the use to which the land acquired will be put;
7. Any outlay or improvements on, or disposal of the land acquired, commenced, made
or effected without the sanction of the Collector after the date of the publication of the
notification
8. Any increase to the value of the land on account of its being put to any use, which is
forbidden by law or opposed to public policy.]

The amount of compensation awarded by the Court shall not be less than the amount
awarded by the Collector under section 11. (Sn 25)

Payment of Compensation

On making an award under section 11, the Collector shall tender payment of the
compensation awarded by him to the interested persons (Sn 31)

If
• interested persons do not consent to receive receive cxompensation,
• there is no person competent interested person to alienate the land,
• the title of the land is under dispute, to receive comepsatioon
• the Collector shall deposit the amount of the compensation in the Court

Any person admitted to be interested may receive such payment under protest as to the
sufficiency of the amount

If there is dispute on appropriate between different interested parties, collector may refer
matter to court.

Temporary Occupation of Land

The government, through district collector may temporarily occupy and use of any waste
or arable land, when such land is needed for any public purpose (Sn 35)

• The Collector shall give notice in writing to the person interested in such land
• The compensation may either be gross sum of money, or by monthly or other
periodical payments, as shall be agreed upon in writing between him and such persons
respectively.
• On the expiration of the term, the Collector shall make or tender to the persons
interested compensation for the damage (if any) done to the land and not provided for by
the agreement, and shall restore the land to the persons interested therein
• If the land has become permanently unfit to be used for the purpose for which it was
used immediately before the commencement of such term, and if the persons interested
shall so require, the Government shall proceed under this Act to acquire the land as if it
was needed permanently for a public purpose or for a Company.
• In case the Collector and the interested persons differ as to the sufficiency of the
compensation or apportionment thereof, the Collector shall refer such difference to the
decision of the Court.
Shortcomings and Limitations of Land Acquisition Act, 1894
1. Forced Acquisitions: Once the acquiring authority intends to acquire a land, it can
carry out the acquisition regardless of how the person whose land is sought to be
acquired is affected. The 1894 legislation only deals with the procedure of acquisition,
considering the very act of acquisition as a fait accoimpli.
2. Lack of safeguards: There is no real appeal mechanism to stop the process of the
acquisition. A hearing (under section 5A) is prescribed but this is not a discussion or
negotiation. The LA Officer (collector) is not required to take on board the views
expressed during the hearing.
3. Silent on Resettlement & Rehabilitation of those displaced: There are no provisions to
resettle or rehabilitate those displaced by the acquisition.
4. Urgency Clause: The urgency clause does not define what constitutes an urgent need,
and leaves it to the discretion of the acquiring authority. As a result almost all
acquisitions under the Act invoke the urgency clause.
5. Low Rates of Compensation: The rates paid for the land acquired are outdated, and
not even indicative of the actual rates prevailing in the area.
These shortcomings led to a host of litigations, stalling up the process for years on end.

LAND ACQUISITION ACT,2013

(The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation

and Resettlement Bill, 2013)

The following are the salient features of the new Land Acquisition Act, 2013

1. No land is acquired forcefully. The new law stipulates mandatory consent of at

least 70% of affected landowners for acquiring land for public-private-partnership
(PPP) projects and 80% of affected landowners acquiring land for private
companies.
2. Offer compensation, up to 4 times the market value in rural areas and 2 times the
market value in urban areas.
3. Compensation for livelihood losers: In addition to those losing land, the Bill
provides compensation to those who are dependent on the land being acquired
for their livelihood.
4. Rehabilitate those displaced by the land acquisition process. The Land Acquisition
Act of 1894 is silent on the issue of resettlement and rehabilitation of those
displaced by acquisition of land. The 2013 Act dedicates over five chapters and
two entire Schedules outlining elaborate processes (and entitlements) for
resettlement and rehabilitation. The Second Schedule outlines the benefits such
as land for land, housing, employment and annuities that shall accrue in addition
to the one-time cash payments.
5. Special Safeguards for Tribal Communities and other disadvantaged groups: No
land can be acquired in Scheduled Areas without the consent of the Gram Sabhas.
6. Safeguards against displacement: No one to be dispossessed until and unless all
payments are made and alternative sites for the resettlement and rehabilitation
have been prepared.
7. Return of Unutilised Land: In case land remains unutilised after acquisition, the
new Bill empowers states to return the land either to the owner or to the State
Land Bank.
8. Share in appreciated land value: Where acquired land is sold to a third party for a
higher price then 40 per cent of the appreciated land value (or profit) will be
shared with the original owners.
9. Choice of annuity or employment: All affected families are given a choice of
annuity or employment. If employment is not forthcoming they are entitled to a
one time grant of 5 lakh rupees per family. Alternatively they will provided with an
annuity payment of Rupees 2000 per month per family for twenty years (adjusted
for inflation). In addition subsistence allowance, and training and skill
development programmes also to be provided.
10. The definition of affected families includes not just landowners, but also tenants.
The new 2013 act has five pillars, which distinguish it from the 18994 Acy

1. Just and fair compensation

2. Consensual acquisition
3. Rehabilitation and resettlement of impacted people
4. Restriction ion power of collector to issue notification, especiallyt urgency clause
5. Effective appellate mechanism

Criticisms

The new Land Acquisition Act,2013 has also come in for several criticism.

1. It is in a sense a roll-back on the socialist policy, and a return to the Kameshwar

Singh days, where landowners rights are held supreme.
2. “Land for land” principle is not universally applicable, and neither practical.
3. There is still lack of sufficient protection for small land holders and marginal
farmers.
4. Compliance with the provisions will see huge increase of prices for houses and
setting up on industries, making it uncompetitive in the first place.

LAND CONSERVANCY
KERALA LAND CONSERVANCY ACT, 1957

Kerala land Conservancy Act, 1957 prevents the unauthorized occupation of government
lands in Kerala. The objective was to have a uniform act, applicable all over the state.

The act applies to all government lands across Kerala

Purpose
The ever-increasing land value resulted in rampant encroachment of revenue lands, both
through physical occupation and through forged documents. The Act intends to prevent
such encroachment, and conserve government land for the “common good “or benefit of
the society.

Salient Features
1. The act defines government land and perumboke land.
Sn 3 of the Act lists the following as property of government
a. Public roads
b. Streets, lanes, and pathways
c. Bridges, bunds, ditches, and dykes
d. Banks of rivers, streams, and drainage canals
e. All flowing water

Perumboke land is defined as unassisted land which is the property of the government,
used or reserved for public purpose, or for communal use of the village
2. The act lays down rules governing lawful occupation of government land
3. Establishes the principle land once vested with the government cannot be alienated
without the concurrence of the government.
4. The act makes it unlawful for any person to occupy a land which is the property of the
government, whether perumboke or not, without the permission of the government.
5. The act lists state as the custodian or trustee of all resources, including unassessed
land, and reserve its use for public purpose.
6. Sn 61(1) makes it unlawful for anyone to destroy, remove, or appropriate any earth,
sand, metal, of other article of value from government land, except without a permit.

Procedure for eviction of unauthorized occupants from government lands

Sn 11(2) describes the manner of eviction.
• Collector issues reasonable notice
• If the person does not vacate by the end of the notice period, the collector may enter
the land and take physical possession. Force may be used, if necessary.
• Any crop, building, or structure erected on the land is liable for forfeiture. Such
forfeiture shall be adjudicated by collector, and collector shall dispose such property as
deemed fit.
• The person may appeal to the RDO (Sn 16).The Revenue Board or Land Board may, on
receipt of appeal, or by suo motto action, reverse the order of the collector.

Sn 11(3) allows urgent eviction in public interest, without following the procedure listed
in Sn 11(2).The collector may issue a notice to the occupant to vacate the land within the
specified period, and then take over the land, using force if necessary. Collector can
decide on what constitutes public interest, but has to record hios reasons.

Sn 20A bars civil courts from entertaining any suit against any officer undertaking the
eviction, in good faith.

Case laws:
• Mathai v State of Kerala (1989): Land belonging to persons registered in the revenue
records as holders of lands in any way subject to the payment of taxes, are not the
property of the government, It can become government property only if it is abandoned
or relinquished by the holder of that land.
• KR Joseph v District Collector: If land acquired for public purpose is encroached, the
collector can take action to remove the encroachment.
• Natrajan v Shaji: Unauthorized occupants of government land can be eicted only by
complying with provisions laid down by the Kerala land Conservancy Act, 1957.
• Nachimuthu Gounder v State of Kerala (1980): Unauthorized occupant of government
land cannot claim value of trees planted by him, when evicted.

Punishments for violators

1. Removal of the encroachment
2. Eviction and forfeiture of crops
3. Penalties for destruction or appropriation of trees – fine of Rs 50/- plus damages as
compensation. Sn10 provisions for person destructing treest to pay as fine an amount
three times the value of the tree, as abjudicated by the collector
4. Imprisonment and fine – Imprisonment can extend to 3 years and finer may extend up
to 2 Lakh rupees
The act however offers some exceptions, or situations where an unlawful occupant shall
not be considered as unlawful ONBLY for the purpose of imposing punishment
• The person is occupying government land less than five cents, as on date of
commencement of the act
• He does not have any other land in his name or in name of family members
• He has documents such as ration card to prove he is occupying the government land

KERALA LAND ASSIGNMENT ACT,1960

The Kerala land Assignment Act empowers the government to assign any government
land, either absolutely, or subject to restrictions and limitations. Sn 10 of the Transfer of
Property Act prescribes conditions regarding alienation of such lands.

The subsequent Kerala land Assignment Rules, 1964 lists out the purpose for which
government land may be assigned. The major purposes are
1. For cultivation
2. For housing sites
3. Beneficial enjoyment of adjoining registered holdings

Land may also be leased out temporarily, if not required immediately by the government.
The act and rules allow assignment only to individuals, and not to companies, clubs or
other entities.
The assignment shall be subject to limits of max 50 cents in plains and one acre in hills
per family, for cultivation.
Maximum assignment for home sites is fifteen cents, and assignee is liable to pay land
value for the assignment. The 2005 amendment raised this limit to 25 cents.
The Tahsildar shall prepare a registry of land to be reserved for government and for
public purposes, and land available for assignment, for each taluk. The list shall be
approved by the District Collector.
25% of assignable land in each village shall be reserved for SC and ST, and 10% for ex-
servicemen.
The rules law down preference on order of assignment.

_KERALA LAND UTILIZATION ORDER, 1967__

Objective of Kerala Land Utilization Order, 1967 is to improve food crops, such as paddy,
sugarcane, vegetable, tapioca, yam, tea etc

The act was first promulgated in 1958 and later amended in 1967
It was enacted at a time when India was facing food-grain shortage. The state
government issued it under the powers of the Essential Commodities Act, 1955.
The act empowers district collect to order occupant of land to cultivate food crops.

The objective of the act was to:

1. Bring wasteland and arable land likely to be left fallow under cultivation
2. Prevent the conversion of any land cultivated with food crops for other purposes.

The following are the major features of the act

1. Regulation of cultivable crops
Sn 3 of the act empowers state government to publish a gazette notification empowering
land holders in a specified area to grow food crops specified in the notification, for a
specified period. Every such order shall be tom-tomed, and posted in notice board of
taluk office and collectorates

2. Restriction against leaving cultivable lands barren

Sn 4 empowers collector to ask any land holder of arable land not under cultivation, to
cultivate it with paddy or any other crop.
Sn 5: If holder of crop fails to comply with the notice, collector may hold auction and sell
the bright to cultivate the land in question, for three years. 25% of bid amount to be
collected immediately and balance after 10 days. The land holder shall be given the
proceeds of the auction sale, less government dies, as compensation.
If no one comes to purchase the sale, the collector may make arrangement to cultivate
land on own.
The person buying the sale rights has no rights over the land after the expiry of the
period.

3. Restriction of conversion of land

Sn 6: If land has been under cultivation for three years continuously, the land owner
cannot switch over to cultivation of any other food crop, or any other purpose, except
with the written permission of the collector. The collector will give priority to paddy
cultivation over other crops.
No permission is necessary when land is converted FOR paddy cultivation.
Any party aggrieved with the decision of the District Collector has rights to file an appeal
before the Board of Revenue.

4. Penalties
The penalties for contravention of any order issued under Sn 3 of the Essential
Commodities Act makes the Land Utilization Order potent. The penalities include

 Imprisonment for a term anywhere between three months and seven years
 Fine
 Repeat offenders to be punished with imprisonment for a term between six
months and seven years, and additional fine.

Case laws
Parveen K v Land Revenue Commisisoner, Thiruvananthapuram (2010): All provisions of
the Land Utilization Order, 1967 are still valid. Only exception is with regards to paddy
and wetland, which are now covered under the Paddy land Act.

Kairali Swayam Satya Sangham v State of Kerala (2009): Permission to remove clay from
paddy field should not be given casually. Authorities should consider the possibility of
reclaiming land immediately after end of sale period.

Jaykrishnan v Dist Collector (2008): Not only the status of the land, but status of
neighbouring properties is also relevant when giving permission for conversion.
Conversion of one property forming part of a cluster can have a determine effect on
others.

Annakutty Varkey v State of Kerala (1976): No permission is required for construction if

land is situated in residential use zone, or any zone under town planning scheme. This
however does not confer any particular right on any particular person.

Antony Jayan v State of Kerala: Kerala HC held if land has already been considered under
Town Planning Act, the owner need not get any further permission under Land Utilization
Order.

URBAN LAND CEILING AND LAND RELINQUISHMENT ACT, 1976

The Urban Land (Ceiling and Regulation) Act 1976 aimed to control urban land. The act
draws inspiration from Article 225 of the Constitution.
The act aims to
1. discourage the construction of luxury housing
2. Ensure orderly urbanization

Salient Features
The act imposes ceiling on both ownership and possession of vacant land.

• The act limits the maximum extent of land a person can hold in urban areas. Sn 3
prohibits holding on to excess urban land. Schedule I specifies the applicable ceiling
limits.
• The act regulates the transfer of urban land within the ceiling limit. Sn 5 prevents the
transfer of such excess land.
• The act restricts plinth area for construction of residential buildings
• Govt. has power to acquire excess land (Sn 10) through the following procedure
1. Publish a notification in the gazette and newspaper
2. Competent authority to Consider claims
3. Competent authority to issue orders and publish a declaration. When the declaration
comes into effect, property is deemed to have vested in government hands.
• Govt may acquire land by payment in either cash or bonds
• Only one dwelling unit per family in group housing scheme

Kanubhai Patel v Narayan Kunj Co-op Housing Society: No person holding vacant land
shall transfer by sale, mortgage, gift, lease or otherwise, without furnishing statement.