Report No. 10
7. Existing Law.-
The Land Acquisition Act, 1894, applied originally only to British India. The Native States passed their own Acts, for example, the Hyderabad Land Acquisition Act, 1309 Fasli [Act IX of 1309F (1899)1, the Mysore Land Acquisition Act, 1894, the Travancore Land Acquisition Act, 1089 [XI of 1089 (1914)1.
8. Under the Government of India Act, 1919 and the Government of India Act, 1935 (item 9 of List II of the Seventh Schedule), the Provinces had power to legislate with respect to compulsory acquisition of land. In.exercise of this power, some of the Provinces amended in certain respects, the provisions of the Act of 1894. After the Indian Independence Act, 1947, by the Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948, sub-section (2) of section 1 of Land Acquisition Act was amended by substituting the words "all the Provinces of India" for the words "the whole of British India". After the Constitution, under the Adaptation Order of 1950, for the words "the Provinces of India" the words "the whole of India except Part B States" were substituted.
The Part B States Laws Act, 1951 (III of 1951), did not extend the Land Acquisition Act to Part B States. Under the Adaptation of Laws No. 2 Order, 1956, which was promulgated after the States Re-organisation Act, 1956, for the words "except Part B States" the words "all the territories which immediately before the 1st November, 1956 were comprised in Part B States" were substituted. The Part B States had, however, laws of their own with regard to land acquisition. The Land Acquisition Act of 1894 does not apply to Jammu and Kashmir. The laws relating to Land Acquisition which are now in force in the various States of India may, therefore, be classified as under:
(1) The Land Acquisition Act of 1894 as amended from time to time by the Provinces and the States by virtue of the power vested in them under the Government of India Acts and the Constitution;
(2) The Acts passed by the Native States;
(3) The Acts passed by some of the Part B States.
9. A detailed statement of these laws and a Summary of the changes introduced by the amending Acts passed by the States are to be found in Appendix III to this Report.
10. Besides the aforesaid Acts which directly deal with the acquisition of land, there are other Acts of the Union and the States in which provision is made for such acquisition. An examination of these Central and State Acts, passed before and after the Constitution and summarised in Appendix IV (which may not be an exhaustive list) of this report discloses that different procedures for the acquisition of land have been adopted in the legislation of the States and the procedure varies even in the same State, depending upon the purposes for which the acquisition is made. There is no uniformity either in the principles for the determination of the compensation or in the tribunals constituted for determining it. Some of the Acts have adopted the principles and procedure contained in the Act of 1894 while others have deviated from them. The main points on which there are deviations may be summarised as follows:
(1) The connotation of the expression 'public purpose' has been enlarged so as to bring within the ambit of the Land Acquisition Act purposes for which a State may wish to acquire land.
(2) The relevant date for the determination of the market-value of the land has been altered to the date of either the declaration under section 6 or the date of a special notice, the issue of which is provided by the Acts.
(3) The principles for determining compensation laid down in sections 23 and 24 of the Land Acquisition Act have been materially altered.
(4) Some of the Acts authorise the appointment of a special Tribunal for the determination of the compensation and for its apportionment in cases of dispute. The qualifications of the members constituting the Tribunal also vary.
(5) In most cases, an appeal from the adjudication of the Tribunal is provided and usually it lies to the High Court.
11. As one of the objects for which the Law Commission is constituted is to make laws uniform throughout the country as far as possible, the question for consideration is whether it is possible, having regard to the provisions of the Constitution, to apply the provisions of the Land cquisition Act to cases governed by Acts specified in Appendix N. Parliament is, under item 42 of List III, entitled to enact a law relating to acquisition and requisitioning of property.
Article 254 of the Constitution lays down the principles for resolving inconsistency between laws made by Parliament and laws made by the State Legislatures in respect of matters specified in the Concurrent List. The proviso to Article 254(2) empowers Parliament to enact a law at any time with respect to the same matter, including a law adding to, amending, varying or repealing the law so made by the Legislature of a State. The essential condition for the application of the proviso to Article 254(2) is that the legislation made by Parliament and the State Legislature must relate to the same matter in the Concurrent List.
12. However, the Acts enumerated in Appendix N do not relate exclusively to acquisition and requisitioning of property. For example, the Calcutta Municipal Act, 1951 is a piece of legislation in respect of a matter which, it may be urged, is exclusively within the State List though that Act has incorporated in it, in a modified form, the provisions of the Land Acquisition Act. Applying the doctrine of pith and substance, it may not be possible to assert that such a piece of legislation is one with respect to the acquisition of land, though it contains provisions relating to its acquisition.
It is, therefore, a matter of doubt whether the provisions relating to land acquisition in the Calcutta Municipal Act, 1951 could pro tanto be replaced by Parliamentary legislation. This would leave matters in a very unsatisfactory situation. It would result in the position that if the object of acquisition is different, different principles of valuation of land can be applied and different Tribunals could be approached for the assessment of compensation, even though the lands sought to be acquired are situated in the same State.
13. If that be the true legal position, the difficulty can be solved only by persuading the States to conform, as far as possible, to the law relating to the acquisition of land enacted by Parliament. Another solution probably lies in the States requesting Parliament to legislate for them under Article 252 of the Constitution. Whatever be the method adopted, it is very desirable that there should be uniformity in the laws relating to acquisition of land throughout the country.