State Laws and Rules

Transcription

1 State Laws and Rules Policy Review Sanjay Upadhyay, Legal Consultant Prepared for the Government of Gujarat Supported by World Bank under Non-Lending Technical Assistance on Strengthening and Transformation of Institutions for Management Land Acquisition and Resettlement and Rehabilitation 1

2 Gujarat Land Acquisition State Laws and Rules The Gujarat Agricultural Lands Ceiling Act, 1960 Purpose: The purpose of the Act is to extend the Bombay Tenancy and Agricultural Lands Act 1948 to the rest of the state of Gujarat. It is expedient in the public interest to make uniform provision for the whole of the State of Gujarat in respect of restrictions upon holding agricultural land in excess of certain limits and it is also expedient for so securing the distribution of agricultural land as best to subserve the common good to provide for the acquisition of surplus agricultural land for the allotment thereof to persons who are in need of lands for agriculture (including co-operative farming societies, landless persons, agricultural labourers and small holders 1. The commentary on the Act states that the object of the Act is not to directly interfere with the rights and liabilities of landlords and tenants. When either the landlord or tenant claims his rights under the Tenancy Act the extend of the area of which he is entitled to regain or retain possession, would be governed by the provisions of the Tenancy Act and not the Ceiling Act Adambhai v Adam Malka (1967) 8 GLR 577. The Act s Powers: The Act deems the acquisition of surplus lands to be in the public purpose and may be acquired under the provisions of the Act 2. The ceiling areas (that is the maximum amount of agricultural land permitted to be held) are specified in Schedule 1 of the Act according to local area and how well irrigated the land is. The better irrigated the lower the ceiling indicating the agricultural value of the land. The ceiling is further determined by the number of members of the family that own it, the capacity of those members to work and whether individuals own other land outside the Gujarat. Any computation will be based on the total land owned or leased by an individual including that owned as part of a joint family and transferred 3. Holders of surplus land as defined were/are obliged to notify the Mamlatdar (district revenue official) within a certain time period 4, failure to provide such a correct statement shall be liable to a financial penalty 5. The Mamlatdar shall forward the statement or affidavit to a designated Tribunal 6. The Tribunal is to prepare a list and other records shall proceed to produce a list of those holding surplus land 7. The Tribunal has jurisdiction to consider whether any individual has land outside the area 8. There are further provisions for determining surplus land and restoration of tenanted surplus land to the landlord 9. There is an objection mechanism to 1 Preamble. 2 Section 12. This mimics the requirement in the Land Acquisition Act 1894 (as amended) that land can only be acquired by the appropriate Government if there is a public purpose. 3 Ibid section 6 and Ibid section 10 5 Ibid section 11 6 Ibid section 10 7 Ibid section 13 8 ibid section 14 9 ibid section

3 the Tribunal 10. There is an exemption mechanism for certain categories of land and a mechanism, including an appeal mechanism for obtaining an exemption 11. Exempted land can be sold, gifted transferred etc with the permission of the Collector 12 Compensation mechanism: Quantum of compensation to be calculated in accordance with section 23 The Tribunal has jurisdiction to consider claims for surplus land from a tenant and making an award in accordance with section 23 (section 24) The compensation is payable by cash or transferable bond (section 25) Where land is acquired by the state government in order to from a compact block for a co-operative farming society under section 27, a collector shall determine the value of the land in accordance with sections 23 and 24 of the LAA 1894 (section 28). Awards by the Tribunal or the Collector can be appealed under section 36 to the Gujarat Revenue Tribunal. Gujarat Agricultural Lands Ceiling Rules 1961 Rules under the Gujarat Agricultural Lands Ceiling Act 1960 Rules which particularize: a)exemption for public trusts for education in agriculture may be exempted. b) Conditions of sale of exempted land. c) Rules for allotment of lands. d) Rules for allotment of orchards and compact blocks. Gujarat Agricultural Lands Ceiling (Compensation Bond) Rules 1965 Rules to describe the nature of the compensation bonds which can be given as compensation under the 1960 Act. The Bombay Forfeited Lands Restoration Act 1938 Purpose: To restore lands that were forfeited during the civil disobedience movement for non payment of land revenue and other sums due to the government. 10 Ibid section ibid section 3 12 ibidn section 3(5) 3

4 . Forfeited land means any lands forfeited to the Crown during the Civil Disobedience Movement in any of the years for non payment of land revenue or any sums due to the Government and specified in the Official Gazette by the State Government within six months of the Act (section 2) The State Government if satisfied that any forfeited land is needed for a public purpose and therefore in the public interest be acquired may make a declaration that the said land is needed for such a purpose. (section 4) Notice is to be given under section 5 on publication of the declaration under section 4(2) in the Official gazette to interested persons with all the requirements A Tribunal was constituted to carry out the functions of land restoration (section 3) Compensation: The Tribunal is empowered to determine the amount of compensation to be awarded for the land and the interests of those who are claiming compensation (section7) The amount of compensation will be determined after making such deductions specified under section 9 and will be final under section 12. The land is to be acquired 15 days after the publication of the notice under section 5. Collector may offer compensation for crops on the land. Any aggrieved person may appeal to the Tribunal. The decision of the Tribunal shall be final (section 13). The Saurashtra Gharked Tenancy Settlement and Agriculture Land Ordinance Purpose: The purpose of the Act is to provide for the settlement of dispute in Gharked between landholders and tenants for the improvement of the social conditions of peasants. Acquisition of Land There is no specific mention of acquisition of land. The Act does however mention the fact that agricultural land should not be sold to non-agriculturalists except with permission from the collector (section 54) and that land could be transferred for a bona fide industrial purpose. The Bombay Land Acquisition Officers Proceedings Validation Act Purpose: An Act to remove certain doubts and to establish the validity of certain proceedings taken for acquisition of lands in the State of Bombay under the Land Acquisition Act The Act does not add anything further do that added by the Land Acquisition Act The Land Acquisition (Gujarat Unification and Amendment) Act 1963 Purpose: The Act provides for the uniform application of the Land Acquisition Act 1894 to the entire state of Gujarat. 4

5 Extends the LAA 1894 to the Kutch area of Gujarat. Bombay Land Improvement Schemes Act Purpose: An Act to provide for the making and execution of schemes relating to the construction of tanks, embankments and other works, the prohibition and control of grazing for the purposes of preservation of soil, prevention of soil erosion, improvement of water supply and other matters. The Act is silent on land acquisition. Bombay Khar Lands Act Purpose: An Act to provide for the protection and improvement of Khar lands and the reclamation of tidal land in the Province of Bombay by the construction and maintenance of embankments. The Act is silent on the issue of land acquisition Bombay Land Requisition Act 1948 Purpose: An Act to provide for the requisition of land, for the continuance of requisition of land and for certain other purposes. Land Requisition: The State Government has power to order requisition of land if it is necessary and expedient so to do or any public purpose. (section 5) Land is defined in section 4(1) and includes buildings and all things attached to the earth. Buildings where which have been resided continuously for six months before the date of any requisition order cannot be requisitioned under section 5 The apparent distinction between acquisition and requisition is whereas the former there is a transfer of ownership and transfer of title in the latter there is no transfer of ownership or title. Therefore, when Government takes possession of property under the powers give to it under the 1948 Act it is requisitioning property and not acquiring it, as there is no transfer of ownership or title (AIR 1952 Bom 16 (19) DB). Vacant premises can be requisitioned by the State Government (section 6) There is provision for continuance of requisition (section 7). The State Government may at any time release from requisition any land requisitioned under the Act. 5

6 Compensation: Section 8 of the Act provides for compensation to be paid for requisitioned land. Compensation to be paid to persons having interest in the land to the amount which shall be determined by an officer authorized by the State Government and the officer shall hold such an inquiry in the manner prescribed. The officer shall determine such amount of compensation as he deems just having regard to the circumstances of the case and in particular sections 23 and 24 of the Land Acquisition Act 1894 Where there are several interested parties the officers shall decide any dispute as to the apportionment of the amount of compensation (section 8(2)). There is an appeal against the decision of the officer except in cases where the total amount of compensation except where the compensation does not exceed a minimum amount prescribed by the State Government. The appeal under section 8(3)(b) is to the District Court and shall be made within sixty days from the date of decision. Bombay Land Requisition (Determination) of Compensation Rules 1949 Purpose: These are Rules made under the 1948 Act in relation to compensation. Compensation: Provides further detail of how compensation can be obtained including application and the amount of compensation that that the officer and award. Bombay Land Requisition (Exemption) Rules 1948 Purpose: The purpose of the Act is to exempt certain lands from section 5 and 6 of the Bombay Land Requisition Act The Saurashthra Land Reforms Act 1951 Purpose: The purpose of the Act is to provide for certain measures of land reforms in Saurashtra. The improvement of land revenue administration land for ultimately putting an end to the Girasdari system. The Act provides provision for an allotment of land by Girasdars for personal cultivation under sections 19 A tenant will at any time be entitled to acquire occupancy rights on Girasdar land under section 28 if he pays an amount which is six time an assessment payable in respect of the agricultural land included in such a holding. A tenant who has acquired chav or buta hak (a term which remains undefined) shall acquire such rights without any payment. Compensation: There is provision of compensation to be paid to the Girasdar under section 33. 6

7 The Saurashtra Land Reforms Rules 1951 Purpose: The Rules provide further Rules for the allotment of land and acquisition of rights of a tenant contained in the 1951 Act/ The Saurashtra Land Reforms and the Saurashtra Barkhali Abolition (Gujarat) Revenue Tribunal Procedure) Rules 1966 Purpose: Provides for Rules for the Gujarat Revenue Tribunal. Bombay Land Revenue Code 1879 Purpose: The Bombay land Revenue Code provides for maintenance of a record of rights in every village in respect of persons who for the time have any right to land. the Acquisition of Land: Section 37 provide that public roads, lanes and paths, the bridges, ditches dikes and fences on or beside the same, the bed of the sea, and of harbours and creeks below the water-mark and of rivers, streams nallas, lakes and tanks and all canals and water courses and all standing and flowing water and all lands wherever situated which are not property of individuals, or of people capable of holding property.. shall be the property of the government and the collector may dispose of them as he sees fit. There is also provision in the Act for the sale of immoveable property (land) in relation to payment of revenue. Gujarat Land Revenue Rules 1972 Purpose: Codification for revenue rules in Gujarat. The Rules are quiet on land acquisition per se. However the Rules do provide for an acquisition of a transferable right for certain lands these are: Ravali land (section 57E) Parwana Vagarni (section 57G) Deesa House site (section 57H) The Gujarat Municipalities Premises (Eviction) Rules 1965 Purpose: Rules made under the Gujarat Municipalities Act The Rules do provide for taking possession of municipal premises and for damages for unauthorized occupation. 7

8 Bombay Stamp Act 1958 Compensation: provides for the determination of the market value of property to be deemed through instruments laid down by public authorities. Gujarat Special Economic Zone Act Purpose: to provide for the operation, maintenance, management and administration of a Special Economic Zone in the State of Gujarat and to constitute an Authority and for matters connected therewith or incidental thereto. The Act provides for the setting up of a Special Economic Zone Development Authority under section 4 (Constitution of Special Economic zone Development Authority). The Act allows land to acquired for a Special Economic Zone (SEZ), by consent agreement or through proceedings under the Land Acquisition Act Compensation: There appears to be no provision in the Act for compensation to be paid. The Gujarat Town Planning Urban Development Act 1976 Purpose: An Act to consolidate and amend the law relating to making and execution of development plans and town planning schemes in the State of Gujarat. The Act provides for the acquisition of land by agreement or under the provisions of the Land Acquisition Act 1894 for any development plan with a cause specified in clause (b), clause (d), clause (f), clause (k), clause (n) or clause (o) of subsection (2) of section 12, Clause 12 (2)(b) is reservation of land for public purposes. Clause 12(2)(d) land for transport and communication Clause 12(2)(f) land for community facilities and services. Clause 12(2)(k) land for the purpose of Union, any State, local authority, or any other authority or body established by or under any law for the time being in force. Clause 12(2)(n) provision for preventing or removing pollution of water or air caused by the discharge of waste or other means as a result of the use of land. Clause 12(2)(o) such other proposals for public or other purposes as may from time to time be approved by the area development authority or as may be directed by the State Government in this behalf. There is provision for the acquisition of land ten years after the coming into force of the development plan. Compensation: The Act provides for compensation to be paid in different situations: Section 19-Compensation incurred when a final development plan is varied. Sections 33(2) and 33(3)-the provision of compensation for expenditure incurred in 8

9 carrying out any development in accordance with permission where permission has be been rendered abortive by revocation or modification. Section 45(3)-the section provides for compensation from the appropriate authority for any development under section 40(3)(k). section 40(3)(k) imposes conditions and restrictions in regard to open space to be maintained around buildings, the dimensions of the buildings and other appendages. Section 73-this allows for compensation to be paid where a scheme has been varied. Any person who has incurred such expenditure for the purposes of complying with the scheme shall be entitled to be compensated by the appropriate authority for expenditure, if such expenditure is rendered abortive by reason of the variation of such a scheme. Section 77 allows for the compensation to be paid for land reserved or designated for any public purpose to be considered within the costs of the scheme. Section 82- provides for compensation for the owner of any property or right which is injuriously affected by the making of a town planning scheme, if the claim is made before the prescribed limit. Section 82-no compensation shall be payable in respect of any property or private right which is alleged to be injuriously affected by reason of any provisions contained in the town planning scheme, if under any law for the time being in force applicable to the area for which such scheme is made no compensation is payable for such injurious affection. Indian Electricity (Bombay) Amendment Act 1946 Purpose: Amends the Indian Electricity Act 1910 in relation to details about the purchase of undertakings. the Act does not say anything additional about land acquisition. 9