MODULE 1-7

Question 1

• Natural Theory

Answer 1

Grotius - Natural Reason - Theory of occupancy - The
property acquired by the occupation of an ownerless object. All things originally
were without owner and whosoever acquired or captured it became its owner.
Right to property of one’s own person – its natural.

Question 2

positive theory / labour theory

Answer 2

The positive theory of property, also known as the labor theory, is based on the idea that property is the result of an individual’s labor. According to Spencer, the founder of the theory, no one has a moral right to property unless they have acquired it through their own effort.

Question 3

• Historical Theory

Answer 3

According to this theory, the concept of private property has rooted out from the existing concept of joint property held by the whole society or members of ta particular social group for collective good/enjoyment of everyone in it. Such development have said to be taken place in different stages over a period of time.
First Stage: In this stage, people tend to take natural possession of the property and also exercise control over it (without any law or existence of state).
Second Stage: In this particular stage, the conception of juristic possession has developed i.e., possession in fact & law.
Third Stage: The present form of legal ownership has taken its shape in this stage. Therefore, the concept of protection of individual’s property rights by state has developed.
Sir Henry Maine was the ardent supporter of this theory about concept of property.

Question 4

Psychological Theory

Answer 4

– Benthem - Acquisitive Instinct - every individual
desires to own things and that brings into existence property – fulfilment of the
will of humans – conception of mind

Question 5

• Sociological Theory / Functional Theory

Answer 5

property not be considered
as a private right – but a social function - An institution which secures maximum
interest and satisfies maximum wants.

Question 6

• Metaphysical Theory

Answer 6

– Kant - A thing belongs to the owner when he is
connected with it in such a way that anyone else using it - without his consent –
results into an injury to him.
* Meta Physics – A branch of Philosophy – exploring abstract concepts –
to gain a deeper understanding – Unverified / Speculative Theoretical
assumptions

Question 7

Property a creation of Law and the State

Answer 7

Property a creation of Law and the State – Rousseau - Never existed before
they came into play – Unless there are laws – there does not exist a right – and
hence there is no property

Question 8

44th constitutional amendment

Answer 8

right of property scope reduced by legislature from the og constitution, so It changed the Constitution’s right to property by declassifying it as a fundamental right and reclassifying it as a constitutional right.

So article 31 and article 19 (1) (f) have been deleted from constitution and reclassified under article 300 A.
A shift in the legislature’s attitude on the necessity to provide compensation when
acquiring or requisitioning property.
2. The intimate connection between property and other basic rights.
3. Finally, the relationship between basic rights and directive principles.

while 300 A secures the constitutional right to property it also implies eminent domain. wherein the government can acquire land for public purpose and for welfare of public and it will not be in violation of art 19, 14.

Question 9

right to fair compensation objectives and schedules

Answer 9

• To ensure a humane, participative, informed, and transparent process for land acquisition for industrialization, development of essential infrastructural facilities and urbanization.

First Schedule – Compensation for Land Owners
* Second Schedule – Element of Rehabilitation and Resettlement entitlements
* Third Schedule – Infrastructural Amenities
* Fourth Schedule – List of enactments regulating LARR
* The Principal Act repealed the 1894 Land Acquisition Act.

Question 10

section 1(3) acrr consent?

Answer 10

ACRR= Acquisition, compensation, rehabilitation and resettlement

• when its acquisition:
• for private companies, the prior consent of at least eighty% of those affected families
• public private partnership projects, the prior consent of at least seventy%. of those affected families

the acquisition MUST be for a public purpose.

The process of obtaining the consent shall be carried out along with
the Social Impact Assessment study.
* No land shall be transferred by way of acquisition, in the Scheduled Areas in contravention of any law relating to land transfer, prevailing in such Scheduled Areas.
-

Question 11

Person interested means:

Answer 11

• persons claiming interest in compensation
• ST and other forest dwellers who have lost the forest rights
• person having easmentary right on the affected land
• tenancy under the state laws
• person whos livelihood will be affected

Question 12

Section 4 - Preparation of Social Impact Assessment study. (SIA)

Answer 12

Whenever the appropriate Government - intends to acquire land for a public purpose, it shall **consult the concerned Panchayat, Gram Sabha, Municipality or Municipal Corporation - in the affected area and carry out a Social Impact Assessment study in consultation with them. **
* Notification of commencement of SIA – local language – with local authorities – published – uploaded on the website – authorities to be adequately represented.
* To be completed within 6 months from the date of commencement – report
to be made available to the public.

SIA needs to include:
1. whether the proposed acquisition serves public purpose
2. * est. of affected families and the number of families among them likely to be displaced
3. * whether the extent of land proposed for acquisition is the absolute bare- minimum extent needed for the project.
4. * whether land acquisition at an alternate placehas been considered and found not feasible
5. * study of social impacts of the project, - Cost – benefit analysis - Environmental Impact Assessment study to be caried out simultaneously.

Question 13

Section 5 – Public Hearing. and section 6?

Answer 13

• S5:
  Appropriate Government shall ensure that a public hearing is held at the affected area, after giving adequate publicity about the date, time, and venue for the public hearing, to ascertain the views of the affected families to be recorded and included in the Social Impact Assessment Report.

Sec6: * Section 6 – Publication of Social Impact Assessment study
* SIA study report – along with the Social Impact Management Plan - local
language – with local authorities – published – uploaded on the website.
* Environmental Impact Assessment Report to

Question 14

• Section 7

Answer 14

• Appraisal of Social Impact Assessment report by an Expert Group includes:
• • two non-official social scientists
• two representatives of Panchayat, Gram Sabha, Municipality or Municipal Corporation
• two experts on rehabilitation / a technical expert in the subject relating to
  the project – Chairperson to be nominated

expert grp has to make reccomendations within 2 months regarding if the project serves public purpose or not and reccs are to be made public

Question 15

• Section 9–

Answer 15

Exemption from Social Impact Assessment.
* Urgency provisions – u/s 40 - appropriate Government may exempt
undertaking of the Social Impact Assessment study.

Question 16

Section 8

Answer 16

– Examination of proposals for land acquisition and Social Impact
Assessment report by appropriate Government – an obligation

1. The potential benefits and the public purpose referred to in clause shall outweigh the social costs and adverse social impact as determined by the Social Impact Assessment that has been carried out.
2. Minimum area od land required for project is to be acquired
3. • SIA / Expert Group recommendations to be examined – recommend such acquisition – as would ensure minimum displacement of people, minimum disturbance to the infrastructure, ecology and minimum adverse impact on the individuals affected – decision of the government to be made available in
     the local language

Question 17

• Section 10

Answer 17

Special provision to safeguard food security.

**No irrigated multi-cropped land shall be acquired under this Act unless **
* that it is being done under exceptional circumstances, as a demonstrable
last resort.
* an equivalent area of land shall be developed for agricultural purposes /
equal amount of the value of the land - deposited with the govt for
investment in agriculture for enhanced food security
linear projects – an exemption

Question 18

section 10 A

Answer 18

2015 Amendment - Appropriate Government – may – notify – that
SIA provisions not to apply to the following projects:
* Projects vital to national security or defence of India
* Rural infrastructure / affordable housing / industrial corridors
* Infrastructure Projects – including PPP – where ownership is with the
Government.
* Proviso - Extent of land – to be kept to bare minimum

Question 19

section 11

Answer 19

preliminary notification publication in official gazette, 2 daily newspapers and one in regional language, uploaded on website of govt and reasons for acquisition etc.

once this notification is made, no person shall make any trnxn of land or create any encumberances n the land. exceptions can be allowed if collector approves,

Question 20

• Section 12

Answer 20

Preliminary survey of land and power of officers to carry out survey -

o be conducted in presence of the owner or person authorized by him – if
he does not turn up – even after a reasonable notice – 60 days – survey can
be done in absentia.
* Not to enter in to a building / dwelling house – without the consent of the
occupier - 7 days’ notice to do so.

Question 21

Section 14.

Answer 21

Lapse of Social Impact Assessment report. = * If preliminary notification is not issued within 12 months of appraisal of
SIA report – SIA lapses – to be freshly conducted.
* Government may extend period – justify reasons – extension to be notified.

Question 22

Section 15 – Hearing objections.

Answer 22

• Any person interested in any land notified – within 60 days of preliminary
  notification – may object in writing to the collector and ask for opportunity to be heard

regarding:
* The area and suitability of land proposed to be acquired
* The justification offered for public purpose;
* The findings of the Social Impact Assessment report.

Question 23

• Section 16, 17,18-

Answer 23

Rehabilitation and Resettlement Scheme.
* Conduct a survey – census of affected families – including:
* particulars of lands and immovable properties being acquired of each
affected family * livelihoods lost and Resettlement and Rehabilitation Scheme to be prepared.
Scheme to include: *Amenitites and infrastructure facilties to be provided * a list of Government buildings to be provided in the Resettlement Area

• Section 17 – Collector to review the Rehabilitation and Resettlement Scheme – to submit the same with his suggestions to the Commissioner Rehabilitation and Resettlement – u/s 44 - for his approval.
• Section 18 – Approved scheme to be published –

Question 24

Section 19

Answer 24

• After considering the report – if the AG satisfied – that any particular land
  is needed for a public purpose, a declaration shall be made to that effect
• Along with it - a declaration of an area identified as the “resettlement area” – for resettlement of affected families.
• A summary of the Rehabilitation and Resettlement Scheme – to be published along with the declaration.
  No declaration shall be made unless the Requiring Body deposits an
  amount - in full or part - towards the cost of acquisition of the land.
  – a conclusive evidence – land required for a public purpose and - after making such declaration - Government may acquire the land

If no declaration made – withing 12 months – from the date of the Preliminary notification – notification deemed to be rescinded – discuss stay
/ injunction / extension.

Question 25

section 21-

Answer 25

Notice to persons interested= public notice stating that govt intends to take posession of land and claims of compensation are to be made.
persons interested are to appear personally at a time and place mentioned during a period of 30 days to 6 months from date pf publication of notice and state their interest in the land.

Question 26

Section 22

Answer 26

• Section 22. Collectors power to require and enforce the making of statements as to
  names and interests – may require statements to be made – person possessing an
  interest in the land – tenant / mortgagee - Discuss – implications:
• Legally bound to do so within the meaning of sections 175 and 176 of the
  IPC

Question 27

section 24 important learn through notes

Answer 27

Land acquisition process under Act No. 1 of 1894
shall be deemed to have lapsed in certain cases:
1. where no award was made under section 11 of Land Acquisiition act, then provisions from fair compensation act will now apply regarding to compensation
2. if award was made under the old act- then proceeding will continue accrodingly. BUT:

—> 1 if award was made 5 years or more ago but the possession has not been paid or compensation has not been given, then the proceedings shall deem to have been lapsed. = if necessary the AG can reinitiate the process undeer new act
—-> 2 - where an award has been made – under the old Act - and
compensation in respect of a** majority of land holdings** has not been
deposited in the account of the beneficiaries – then - all beneficiaries - shall
be entitled to compensation in accordance with the provisions of this Act.

Question 28

Section 25: Period within which an award shall be made:

Answer 28

• The Collector shall make an award within a period of twelve months from
  the date of publication of the declaration under section 19 – else the entire
  proceedings for the acquisition of the land shall lapse.
• Government may extend period – justify reasons – extension to be notified.

Question 29

Section 26: Determination of the Market Value –

Answer 29

market value - as specified - for the registration of sale deeds or
agreements to sell - in the area where the land is situated, or
* the average sale price for similar type of land situated in the nearest
vicinity area, or
* Consented amount of compensation as agreed upon under - in case of acquisition of lands for private entities / public private partnership projects –
* whichever is higher

Market value to be multiplied by a “factor” – First Schedule

Question 30

section 27,28,29

Answer 30

• Section 27: Determination of compensation:
• Collector after having determined the market value of the land - shall
  calculate the total amount of compensation to be paid - by including all assets attached to the land.
• Section 28: Parameters to be considered by Collector in determination of award:
  1. Market Value u/s 26.
  2. Damages sustained – standing crops etc / severance of land.
  3. If the person interested is compelled to change his residence or place of business - the reasonable expenses incidental to such change. 4. Diminution in the profits from the land – between publication of
  declaration u/s 19 and taking possession.
  5. Any other ground which may be in the interest of equity, justice and
  beneficial to the affected families.

Section 29: Determination of value of things attached to land or building: value of trees and plants / standing crops - use services of a competent person - agriculture, forestry, horticulture etc.

Question 31

Section 30

Answer 31

Section 30: Awarding Solatium:
* The Collector – after having determined the total compensation to be paid –
shall - to arrive at the final award - impose a Solatium amount - equivalent to
100% of the compensation amount.
* It shall be in addition to the compensation payable.

plus 12% pa interest on th emarket value from the date of the publication of the notification of the SIA - till the date
of the award / taking possession of the land - whichever is earlier.

Question 32

Section 33, 34, 35, 36, 37

Answer 32

• Section 33 – Correction of Awards by the Collector:
• Clerical / Arithmetical Errors – not later than 6 months – from date of
  award – either on own motion or application received.
• If to affect a person prejudicially – opportunity of being heard.
• Notice of correction to be given to all Persons Interested.

Section 34 - Adjournment of enquiry –The Collector may,

Section 35 – Powers of the Collector - Powers of a Civil Court.

• Section 36 – Powers of Appropriate Government – call for records – for satisfying
  itself as to the legality or propriety of findings / order / proceedings.
• Section 37 – Finality of Collectors Award
• Award once made - to be final - and a conclusive evidence -* A summary of the entire proceedings with respect to the acquisition of land
  to be kept open and displayed to the public – website.

Question 33

• Section 38

Answer 33

Possession of land- collector to take posession after making** PAYMENT within 3 months** of award.

payment of monetary parts of rehabilitation and resettlement within 6 months

Actual infrastructure entitlements to be within 18 months from date of award

Question 34

• Section 39

Answer 34

Additional compensation in case of multiple displacements. The Collector shall, as far as possible, not displace any family which has
already been displaced by AG, if absolutely necessary then the collector will provide additional compensation.

Question 35

section 40

Answer 35

Special powers in case of urgency to acquire land in certain cases.
- in cases of urgency if Appropriate govt directs after a public notice u/s 21 has been given for 30 days - the land then vests with appropraite govt.

the land is to be :
1. minimum possible area for defence of natiional security, calamities, any other emergency as approved by parliament
2. Possession of any building – not to be taken - without giving to the
occupier - at least forty-eight hours’ notice of intention to do so - or such
longer notice - as may be reasonably sufficient to enable such occupier to
remove his movable property from such building without unnecessary
inconvenience.
3. Before taking possession – Shall pay 80% of the estimated compensation.
4. if necessary the AG may waive any or all provisions of sec 4-47 of the act and may release a declaration under s 19. in that case additional 75%of compensation should be paid.

no additional compensation necessary if the project is for security and integrity of india

Question 36

Section 41

Answer 36

As far as possible, no acquisition of land shall be made in the Scheduled
Areas – to be done as a demonstrable last resort.
Prior approval of Gram sabha / Panchayat / Autonomous District
Councils - appropriate level - in the Scheduled Areas – under the 5th / 6th Schedule of the Consti - including cases of urgency.
if involuntary displacement then the SC/ST must gety their settling rights that meet requirements in 5 years.

**1/3 compensation to be paid as first installment **
reseetlement should be in same area and should provide extral land at no cost for community gatherings

If the tribals had Fishing rights - shall be given fishing rights in the
reservoir area of the irrigation or hydel projects.
* If resettled outside the district – an additional 25% of the monetary
component of RR + 50k one time.

Question 37

Section 81 –

Answer 37

– Temporary occupation of waste / arable land -

if appropriate govt requires occupation of land for public purpose- it may temporaroly occupy the land for not more than 3 years.
=Collector to give notice – purpose why land needed / terms and
conditions / compensation / manner of payment – settle as agreed.
* In case they differ - sufficiency of the compensation or apportionment -
the Collector shall refer such difference to the decision of the Authority.

Question 38

Section 82 – Possession / Restoration and section 83

Answer 38

• On executing agreement – collector to take possession / use.
• On expiry of term – damages not provided for - to be compensated – and
  restore the land.
• If permanently unfit for the purpose it was being used – if the interested
  persons so require – AG shall acquire land – as if needed permanently for
  a public purpose.\

Section 83 if there is a difference in opinion of condition of land= refer to authority= case Kedarnath Yadav v State of WB