Main Article Content

Abstract

Compensation is embedded in Eminent Domain which means supreme power of the Govt. to acquire the property of any person without his consent in the interest of the General Public, however subject to payment of compensation. During Constituent Assembly Debates the question of public purpose , the Govt.  authorised  with the power of eminent domain, and the compensation were intricately linked mainly because of the issue of zamindari. Battle between the Parliament and the Supreme Court ensued over expropriation and compensation and  through a  series of amendments to the Constitution  it ultimately culminated into removal of  “Right to Property” from fundamental right under 44th Amendment (which deleted  Art. 19(1)(f) and Article 31 and inserted in Part XII a new Chapter IV right to property under Article 300A) and made it a legal right, hence eminent domain is now a matter of Statute Law . (Public purpose and compensation are omitted from Art. 300A).  However payment of compensation is a constitutional requirement under Article 30(1A) and 2nd Proviso to Art. 31A(1) . The Hon’ble Supreme Court in K T Plantation Pvt. Ltd. And another Vs. State of Karnatka on 9th August 2011 has observed that “118. Payment of compensation now depends on terms of the Statute and Legislative Policy….143(e ) Public purpose is a precondition for depriving a person of his property under Art. 300A and right to claim compensation is also inbuilt in that Article …(f) Statute depriving a person of his property is therefore amenable to judicial review…”  Highly valuable fundamental rights  under the Constitution of India are Articles 21,14,19 and   are considered  as holy trinity consisting of a ‘golden triangle’. .” Power of Eminent Domain emerged and developed in India under East India Company Rule.  Right from 1824 Act till 1894 Land Acquisition  Act and its amendments from time to time  at pre-independence stage  , there is change in the Parameters of determination of compensation and Authorities who could adjudicate the same.  Viz. in 19th Century the amount was to be determined by the Arbitrators . In 1870 Act system of proper valuation of land was incorporated . If a person was not agreeable to the amount offered to him , then Collector could make a reference to Civil Court assisted by Assessors . Further  the Appeal could be filed to High Court.  Bill of 1893 contained a definition for market value , however it was dropped by Select Committee. In the Act of 1894 , market value was not defined .  It has been amended in  British Era in  1914 , 1919,1920,1921, 1923,1933, 1938, 1945. Also arose the theory of “value to the Owner” i.e. value which a Willing Seller may expect from a Willing Purchaser in the open market. (Raja Vyricherla Narayana Gajapatraju Badadur Garu v. The Revenue Divisional Officer, Vizagapatam, ILR 1939 Mad 532 (known as the Chemudu case). Post independence 1894 Act went through various amendments in 1962,1967 however major amendments took place  in 1984 . The Amendments tend towards providing limitation period for various stages of acquisition process and adding the elements of compensation viz.  interest was raised from 6% to 9% on the Court awarding excess compensation, if the Collector invokes urgency power, before taking possession, 80% of compensation be paid [Section 17(3A)]. Recently the Hon’ble Bombay HC has held Section 17 proceedings have lapsed citing a Judgment of Hon’ble SC  in M/s Delhi Airtech  Services Pvt. Ltd. And Anr. , “ if the prerequisite condition for payment of 80% before taking possession is not complied…by legal fiction it looses its character as acquisition under Section 17 [and (acquisition )]…will lapse.”Chapter VII laid down provisions for acquisition of land by Companies, 15% sum was raised to 30% on market value. The said Act was replaced by 2013 Act which combines compensation with rehabilitation and resettlement and provision of infrastructural Amenities in resettled area, enhanced compensation , interest and solatium (100%) etc .  However Maharashtra  State Acts relating to land acquisition exempted from applicability of RFCT LARR  Act 2013 (Section 105A, Schedule V of the Maharashtra Amendment Act 2018). Certain provisions relating to determination of Compensation and rehabilitation and resettlement under Schedule I ,II and III of RFCT LARR Act got incorporated in Maharashtra State  Acts by  way of Amendments  . This has resulted in limited applicability and  dilution of 2013 Act. I have studied the various case Laws of Supreme Court and Bombay High Court relating to interplay of acquisition and compensation provisions under various Central and State Laws relating to Land Acquisition vis a vis 2013 Act , which gives a Kaleidoscope   of varied pleas and principles in  judgments viz. Doctrine of Reference , Doctrine of incorporation which points towards   limited applicability of 2013 Act to Maharashtra State Acts , There are conflicting judgments , Hon’ble Courts granting interest in case of delay in compensation , inadequate compensation , plea of paucity of funds by acquiring body , many a times for doing complete justice , the Hon’ble Supreme Court has to invoke Art. 142 of the Constitution . Invariably the  Award is challenged on the basis of inadequate compensation , non payment of compensation, interest for delay , rent for taking possession of land prior to institution of acquisition proceedings etc.   The. In Dilbagh Rai Jarry v. Union of India, (1974) 3 SCC 554, the Hon'ble Supreme Court, speaking through Justice Krishna Iyer, after reference to the National Policy on State litigation … lamented that the State Government routinely disregards such policies and institute appeals, which result in staggering litigation costs and staggering litigation volumes.” (Also see judgment of Bombay High Court in State of Maharashtra Versus Smt. Sharadabai Ganesh Oze … Respondent; Decided on 3 April 2017)[i] The conclusion points out the need for a uniform regime of compensation , clarity in Rules for determination of compensation for enhancing accuracy at the first rung  in Hierarchy , balance between private and Public interests,  a generous compensation regime for the persons interested will increase costs of the Govt. or acquiring body however at the same time it may mitigate defiance by persons affected, which will reduce litigation , delay and inflationary costs


 


 


[i]     (Before M.S. Sonak, J.), In the High Court of Bombay, Civil Appellate Jurisdiction, State of Maharashtra Versus Smt. Sharadabai Ganesh Oze … Respondent; First Appeal No. 208 of 1992 With Civil Application No. 2995 of 1992 With connected Appeals , Decided on April 3, 2017.) , (2017 SCC OnLine Bom 1697)


 

Article Details