This article has been written by Dhaval Vyas pursuing the Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho. This article has been edited by Aatima Bhatia (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho).
Table of Contents
Introduction
Land dispute is one of the oldest forms of disputes ever recorded in the history of civilized society. The land is nothing but a form of property that is immovable and limited. Property is a very broad term and includes moveable, tangible, and non-tangible things as well under its umbrella. The high incidence of legal and extra-legal disputes over land in India can be attributed to legislative factors like the existence of numerous, conflicting laws and current policies governing property rights; and administrative factors like the administration’s failure to comply with these laws. The pendency of these land dispute cases, in turn, is due to judicial factors. Through this article we’ll explore the details about various land acquisition disputes.
Legal provisions surrounding property in India
As per the highest law of the land, i.e by way of the Constitution of India, earlier the property right was guaranteed by way of fundamental rights in India, but it all changed per the 44th Constitutional Amendment. As ultimately adopted, Article 19(1)(f) of the Constitution guaranteed all citizens the fundamental right to ‘acquire, hold and dispose’ of property. This right was however subject to reasonable restrictions by the union and state legislatures in the public interest, stipulated in Article 19(6). Moreover, Article 31 of the Constitution provides that any State acquisition of property must only be upon enactment of a valid law, for a public purpose, and upon payment of compensations. Article 300 says that no person shall be deprived of his property except as per the requirement of law. This means the government can acquire the private property of an individual for public welfare as India is a welfare state.
The land is a state subject as per List II of the seventh schedule of the Constitution of India. Therefore, states must pass laws on the subject of land, however, if a law is passed by the center on a subject of state, Entry 32 of the Union list allows it to pass the legislation. The parliament, which includes the legislative power of both state and center, allows the center to make laws other than just the state in the state list.
Apart from that, as per 6 Entry, 99 in the Union list allows the new subject which is not expressly mentioned in the state or concurrent list. Also, if there is a need other than emergency powers to make new laws that don’t have a subject in either of the three lists, even those can be made by a separate entry in the Union list to legislate. In case of dispute between the center and state, the center laws will prevail. This is mentioned by the non-obstante clause.
“Parliament has the power to make laws concerning any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State List. of 7 Article 246 of the Constitution of India 1950.”
With the above laws and background in place, one must understand the core of any land dispute is to do with the rights associated with the possession of such land. These benefits are given in the definitions of land as per the old Land Acquisition Act of 1894 and the new Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The ownership of a property is a bundle of right
and it is this unlimited enjoyment in the limited area of the earth that everyone wants. As the demand is unlimited and the supply of land is scarce, the economic theory raises its price or value and if someone loses such property they would lose such benefits and therefore such disputes arise. The old Land Acquisition Act of 1894 had an objective in favor of the crown of England as they ruled over India, albeit it did have plans to give adequate compensation, damages, and costs as applicable by the Act. After Independence, there was a need for a law to not only give compensation but rehabilitate the people displaced and ensure the lands acquired for various welfare schemes and government projects in partnership with the common people.
Definition
The definition of land under Section 3(b) of the Act is in pari materia with the definition of land under Section 3(a) of the Land Acquisition Act, 1894 (for short Land Acquisition Act) and Section 3(p) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short Act 30 of 2013). As the definition of land indicates that it includes benefits arising out of land and the things attached thereto
Analysis
Due to the increasing population pressure on land, and the corresponding demand for land, the number of land disputes have increased in number. There are several laws related to land in India, both at the center and the state. The disputes are due to the violation of various bundles of rights of an owner at each level of the transaction. The ownership allows rights such as possession, lease, sub-lease, rent, mortgage, lending, assignment, easement, subletting, and so on. Now at each level, say purchasing, selling, leasing, renting, sub-letting there are other transactions such as registration, reference to land codes of the state or center, easement act, transfer of property act, land revenue laws, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and so on. So upon violations, liabilities arise and from it, a dispute arises.
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, is an improvement over the old land acquisition law. However, there are still many disputes even today.
The following observations were and it was found that there are three types of disputes.
- Those who had opted for compensation but were not happy with the amount of compen- sation provided.
- Those who believe that the use of land acquisition by the new act is itself ultra-vires and cannot be done. The percentage is less than 5 percent.
- The third dispute was regarding the procedure used and not about compensation and the existence of law.
The highest number of pendency happened in cases where after a case was resolved, the remuneration received was with interest over and above the disputed amount and this is often several times more than the initial amount demanded. This kind of created an incentive to dispute even if there was no other issue. The fact that fewer people had issues relating to the fact that the law itself was not valid shows that the people have more acceptance of land acquisition law. The issue of fair procedure or lapses is human created and can be improved with substantial improvement in quality of training and use of proper systems. The issue in compensation was the need to receive fair compensation as per the market rate rather than the circle rate fixed by the government. Most litigation was from states closer to the Supreme Court of India and Special Leave Petitions filed directly to the High courts and Supreme Courts.
Conclusion
The most important issue faced by people is getting compensation which is at par with the Market value. The increase in litigation causes delay and the increase in litigation can be attributed to the need for a larger amount over the proposed rate. Such cases are aimed at getting interest amount and compensation at par with the market value, which has been the case to those who accepted the compensation given by the courts after several years with damages and interest.
Demand, interest rate, and limited supply, and economics played their part to increase compensation, but so did the rise in inflation, cost of living, etc. There has to be a mechanism to check that the implementation is transparent and clear. There is a lot of criticism, and obstacles but the biggest obstacle is the will of the people. Property is no more a fundamental right and since India is a welfare state and development needs to be catered to, acquisitions must be done with the actual objective or its legislative intent and it ought to be ensured that fairness is maintained for all stakeholders.
References
- Https://legislative.gov.in/sites/default/files/coi.pdf.
- https://egazette.nic.in/writereaddata/1979/e-1080-1979-0018-47011.pdf.
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