Report No. 10
The present Central Act has been in force for over 60 years. Experience has shown that inordinate delay occurs in acquisition proceedings. The main complaint of the Governments is that they are greatly handicapped in carrying out large projects in and outside the Development Plans as well as other works of public utility, as the machinery provided and the procedure laid down in the Act lead to great delays in obtaining possession of the land sought to be acquired. For the smooth and speedy attainment of the ideal of a Welfare State, it is imperative that the Government should be able to obtain possession of the lands needed for their projects with the least possible delay.
On the other hand, the complaint from the public is that there are unconscionable delays in the determination of compensation and its payment to the owners of properties. The Finance Ministry has given four instances in which the carrying out of projects has been delayed because they could not obtain possession of the land in time and it has been stated that acquisition proceedings commenced as early as 1948 are still pending. It is noteworthy, however, that the State Governments themselves admit that the delay is largely due to the tardy manner in which the machinery of the Government moves in the matter.
They also admit that, if the land acquisition officers are made to work methodically and expeditiously, the pace can be quickened. Any proposal for the reform of the law should, therefore, aim at overcoming these evils. Most of the delay occurs in the initial stages of the proceedings between the date of the notification under section 4 and the declaration under section 6. Further delays arise in the making of the award by the Collector, with the result that as under the existing law, the Government cannot obtain possession until the award is made and the taking of possession is indefinitely delayed.
28. The chief remedy suggested by the State Governments and others is that a time limit should be fixed for each step required in the acquisition proceedings and, further, an over-all time limit should also be fixed for the completion of the proceedings by the Land Acquisition Officer. We have given effect to these suggestions.
It has not been possible to provide for sanction for enforcing the time limit at each stage where a time limit has been fixed. We have, therefore, made a provision in sections 18 and 19 of the draft for cancellation of the notification under section 4(1), if the over-all time limit fixed for the two stages of the proceedings for acquisition-namely, the first, from the date of notification under section 4(1) to the date fixed by the Collector for an enquiry into the case and the second, from the stage of such enquiry to the reference to the Court for recording the agreement, if any, arrived at between the parties-is not adhered to. The result of cancellation of the notification under section 4(1) will be that the owner will be entitled to get back possession of the property together with compensation for deprivation of possession thereof and damage, if any, done to the property.
29. Under the existing law, before a reference is made to the Court, three stages have to be gone through. The first stage is the notification under section 4 followed by a preliminary investigation and the hearing of objections to the proposed acquisition. The second stage is the declaration under section 6 after the Government decides upon acquisition. The third stage is the survey of the land, that is, demarcation, measurement and preparation of the plan, (unless this has been done during the first stage), followed by notices to the persons interested, inviting claims and enquiry by the Collector to enable him to make the award. Unfortunately, there is a lacuna in the Act in so far as it does not indicate the course of action which the officer authorised under sub-section (2) of section 4 should adopt after completing the investigation.
Obviously, the object of the investigation is to find out, by operations to be carried out on the land, the suitability of the land for the purpose for which it is intended to be acquired. The object of the hearing of objections by the Collector under section 5A is to decide whether the acquisition is really for a public purpose and to ascertain, if possible, whether other lands in the locality may not be better suited to the purpose. The persons interested are also entitled at that stage to point out the inconvenience or the serious consequences that might follow the location of the work in the particular land specified in the notification under section 4. The Government, therefore, in reaching a decision, have to make up their mind on two points:
(1) whether the purpose is public or not; and
(2) the suitability of the land notified for the purpose.
Thereafter, the procedure beginning from section 6 has to be followed under the existing law. The most important point to consider at this stage is, whether the survey and demarcation and the preparation of the plan should be directed to precede or follow the declaration under section 6 or should be left to the discretion of the officer as at present. The effect of a Bombay amendment is that the investigation under sub-section (2) of section 4 can precede the preliminary notification under section 4. The Government of India have suggested that after the investigation under section 4(2), there should be a further notification before the declaration under section 6 is made.
Neither of these courses has commended itself to us. As we think it essential to enact provisions which will enable the Government to acquire possession as early as possible, we have sought to empower the Government to take possession of the land immediately after the declaration. To make this possible it is necessary that the survey, demarcation, and measurement of the land and the preparation of the plan should be completed before the declaration is made. We have, therefore, adopted the following scheme.
30. After the notification under section 4(1), the investigation under section 4(2) should be completed and there should be a report by the officer to the Collector. Simultaneously with the investigation by the officer, the Collector should hear objections to the acquisition and also prepare his report in that behalf. These two reports should reach the Government to enable the Government to take a decision on the question of acquisition. If the Government decide to acquire the land, the demarcation and other procedures, under section 8, should be completed. After these are completed, there should be a notification by the Government declaring that the land is needed for a public purpose, authorising the Collector to take order for acquisition (as under section 7) and empowering him to take possession of the land within a specified period.
The notification should also include a detailed description of the land by its survey number, and area and should also state where the plan could be inspected. It should be possible to complete these proceedings, beginning with the notification under section 4 and ending with the declaration, within a maximum period of six months; and if the Government speed up the matter by suitable rules, the proceedings may even be finished sooner and the Government could obtain early possession of the land. We have made a separate provision for emergent cases widening the scope of the provisions of section 17 of the Act. For temporary possession, the power to requisition may be resorted to, after issuing a notification under Part III of the proposed legislation.
31. Under the existing law, after the declaration for acquisition, the Collector has to issue a public notice as well as individual notices to the persons interested, inviting claims. The Collector then proceeds to make an inquiry and make an award determining the compensation. If there is any dispute, an application has to be made under section 8 for a reference to the Court. We feel that an inquiry by the Collector and an award by him are an unnecessary duplication of procedure. The inquiry by the Collector is administrative and not judicial.1 The so-called award is only an offer made by him on behalf of the Government. It binds the Government but not the other party.
It is said that the Collector, in determining compensation, often acts on the information furnished by his subordinate revenue officers and does not independently weigh the evidence. The offer which he makes as a result of his inquiry can as well be made by him on the basis of the information which he has about the value of the land. He may get information, if he so desires, from his subordinates or by local enquiry and there are provisions in the Act enabling him to gather such information. He may consult the Government regarding the value of the land, or, if the acquisition is made on behalf of other persons he may consult them as well. On the basis of such material as is available to him he can make an offer to the persons interested and if possible, may by negotiation fix the amount of compensation.
If there is an agreement, it may be recorded and an order passed on that basis. Parties may agree as regards compensation payable, the area of the land and, if there are more persons than one interested in the same land, the apportionment of the compensation amount proposed to be given to the parties inter se. In fact, this procedure of settling the compensation by agreement has been adopted by some of the Requisitioning Acts as well as other Acts, such .as the Coal Bearing Areas (Acquisition and Development) Act, 1947 (Act )OWIII of 1957), and we think this is a better method than an inquiry by the Collector, which causes considerable delay in the matter of fixing the compensation.
If no agreement is reached, the Collector can straightway refer the matter to the Court. Again, where there is a dispute regarding apportionment, it would not be necessary, as at present, for the parties to make applications under sections 18 and 30; instead, the matters in dispute could at once be taken to the Court. It may be said that where the acquisition is in respect of large areas of land and the claims are numerous, there may be delays in determining the compensation even by the court. The solution for this lies in the hands of the Government; and if it needs expedition, it can appoint as many special courts as are necessary to deal with the volume of work and speed up the proceedings for determining compensation. The power to appoint special courts is provided in the proposed legislation (See Appendix I).
1. Ezra v. Secy. of State, 32 Cal 605 (629) PC.
32. As regards the payment of compensation, we have provided that if there is agreement as to all the matters in issue, the Collector shall at once tender the amount to the parties. Even if an agreement is not reached, the Collector has to tender to the persons concerned the amount which he considers a fair compensation; and if they do not receive it, the Collector may deposit the amount in court within the period fixed. These provisions are intended to secure the avoidance of payment of interest by the Government to the extent of the deposited amount, if there is eventual delay in the disposal of the proceedings owing to the objection of the persons entitled to the compensation. The interests of such persons have also been safeguarded by providing that their rights will not be prejudiced by the mere acceptance of the deposited amount.