Right to Fair Compensation in Land Acquisition

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October 20, 2020
By Advocate Chikirsha Mohanty



Earlier the Constitution of India under Article 19 provided to the Indian citizens the fundamental right to property. It guaranteed that every citizen had a right to acquire, hold and dispose of the property. However, the fundamental right to property became a constitutional right after the 44th Amendment to the Indian Constitution. This means that the right to property became a statutory right rather than a fundamental right which is defined as basic human rights and is fundamental to a human being.

Initially, it was made a fundamental right in order to provide protection to the property and give legality of the land owned by the people living in the newly independent India. Notwithstanding, the Indian government wanted to bring new land reforms and encourage social justice by acquiring lands from landowners having surplus land and distributing the same to the landless farmers or to use it for the greater good of the public and therefore the fundamental right to property was abolished.

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What does land acquisition mean?

Land acquisition is the process through which the union or the state acquires private land belonging to an individual for the purpose of industrialization, development of infrastructural facilities or urbanization of the private land, and provides compensation to the affected landowners for their rehabilitation and resettlement. The state and the union are empowered by the constitution to acquire land and pay compensation to the affected individuals when necessary for the public good.

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What is right to fair compensation in land acquisition?

The 44th Amendment to the Indian Constitution that abolished the right to property under Article 19 also replaced Article 31 of the Constitution that stated that no person shall be deprived of his property save by authority of law. The Article was replaced by Article 300-A which stated that the purpose for which property belonging to an individual will be taken away or whether any compensation will be paid (which were both mandatory under Article 31) will be determined by the legislature by way of any law in force. The condition inherent under this Article is that it cannot be used arbitrarily, i.e. any action taken by the government using its powers under this Article must be for a public purpose only and after paying full compensation to the individual affected. The effect of this amendment is that in the event of a breach, the remedy available to an aggrieved person is through the High Court under Article 226 (writ jurisdiction of the High Courts) of the Indian Constitution and not the Supreme Court under Article 32 (writ jurisdiction of Supreme Court) of the constitution.

Under the new Article 300-A, the only requirement is that there must be a law for depriving a person of his property. This law must be a valid law, and no law of acquiring a private property can be valid unless it provides for acquisition or requisition of property for a public purpose and unless there is a provision in such a law for paying compensation.

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The law that governed the acquisition of land in India for a very long period of time was the Land Acquisition Act, 1894. However, the Act was later replaced with The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as the old 1894 Act suffered from various shortcomings including silence on the issue of resettlement and rehabilitation of those displaced by acquisition of land.
 

Monetary Compensation and Rehabilitation to aggrieved landowners

As stated above, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 was brought into force replacing the old 1894 Act. The Act focuses on providing not only compensation to the landowners, but also extend rehabilitation and resettlement benefits to the affected individual whose land is being acquired along with minimum compensation. The minimum compensation to be paid under the Act to the affected landowners is based on a multiple of market value and other factors laid down in the Act.

The Act also changed the norms of acquisition of land for use by private companies or in case of public-private partnerships, including compulsory approval of 80% of the landowners. It also introduced changes in the land acquisition process including a compulsory social impact study which is needed to be conducted before an acquisition is made.

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What purposes can be included under public purpose with regard to land acquisition?

The main purpose of the Act is that the union or state governments can acquire lands to use, hold and control, including for public sector undertakings and for "public purpose" which are as follows:

  1. Strategic purposes relating to naval, military, air force, and armed forces of the Union, including central paramilitary forces or any work vital to national security or defence of India or State police, safety of the people;

  2. Infrastructure projects as defined under the Act;

  3. For project affected families;

  4. Housing for such income groups, as may be specified from time to time by the appropriate Government;

  5. Planned development or the improvement of village sites or any site in the urban areas or provision of land for residential purposes for the weaker sections in rural and urban areas;

  6. 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 the Government, any local authority or a corporation owned or controlled by the State.
     

The land can be acquired for private bodies for the following purposes:

  1. Public-private partnership projects, where the ownership of the land continues to vest with the Government, for public purpose as defined in the Act;

  2. Private companies for public purpose.

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Why do you need a lawyer in a land acquisition case?

A property dispute on its own is a lengthy procedure to be involved in, let alone when the case to be dealt with is that of land acquisition. In such a scenario the difficulty of the case is magnified even further and without taking help from a legal expert the chances of winning are quite minimal. This is why it is important to have a competent property lawyer by your side when dealing with a case as serious as that of land acquisition. A property lawyer having years of experience in dealing with cases like these can formulate the right strategies that can help you get a desirable judgment and can also minimize the chances of losing.



 

These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.


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