ACQUESTION OF LAND FOR PUBLIC PUSPOSES

456.  Advanatages and disadvanteges of acquestion by the private agreement - Land which is required for the public purposes must be taken up through the collector if the provision for compulsory acquestion contained in the act I 1894 are put inforce. But engineers or the other officers of government who have obtained permission from the head of there own department, can endeaviur to arrange for the purchase of land private agreement, and in such cases deputy commissioner’s out to supply them with perliminary estimates of value just as they would do in case in which it was proposed to make use as of the act. But they must not carry on private negotitiations for any other department unless of the department acquiring the land has itself failed to acquire land by such negotations. The advatage of the voluntry agreement is that the addition of fifteen per cent to the market price, which the act allows as a solatium for the compulsorynature of the transaction, is saved. On the other hand under the statutory procedure therei perhaps less risk of an extravagant valuation and comliance with the necessary for malities ensure the vesting of the land “absolutely in the government free of all encumbrance.” Where there is a faintest doubt regarding the title of the person in person in possession, or where there is any reason of the fear that the land may be encumbered to an unknown extent, private negotation is out of the jab there is often no danger, at least in localities where the land tenure is of latent defects of title. Where this is the case restore may be had to purchase by private agreement if ir is likely to result in any appreciable saving to time or money.

457.  Plan and perliminiary estimate of cost. Whatever be the procedure proposed, the first step to be taken is the preparaation of a proper paln of the land by so officerof the department which wishes to acquire it. Ordinararly the landowners will raise of objection to this entring on their land and doing whatever is necessary for that propsose. The act however, did not allow for an opportunty to be given to a person whose land was to be acquired to protest that the porpose for which acquestion was bein gordered was not fact a public purpose. To provide for this an amending act no. XXXVIII of 1928, was passed. The effect of this act is that a perliminiary notifiaction under section 4 is now essential in every case and provision for the lodgenment of objections against any proposed acquestion with in a period of thirty days. But if they do a notifiaction stating that the land is likely to be required for public purposes must be issued in the gazette. When this has appeared, and the deputy commissioner has publiced it locally, any officer authorised by government may enter on the land any survery it. If any demage is done to be land or the crops in the process, he must offer compentation to the landowners. If it is not accepted he must refer them to be deputy commissioner, who decision is final having made his plan, he must obtain form the deputy commissioner data for a perliminiary estaimate of the cost of acquiring the land. All that the district officer expected to give at this stage is the ordinary rate per acre which land of the description fetches in the neighberhood and a rough valuation of the trees building extra.

458.  Procedure in cases if purchase by private agreement - The procedure to be followed after the perliminiary estaimate has been sanctioned by competent authority in cases in which purchase by private agreement is preferred to compulsory acquestion is laid down in paragrah 21-27 of financial commissioner standing order no. 28.

459.  Perliminary action in case of cumpulsory acquisition - If the better course appears to be to proceed under the act, a notification is published in the gazette stating that the land is required for a public purpose and directing the deputy commissionor to take order for its acquistion. If the area is very large, a special officer is usually invested with the necessary powers and employed instead of the deputy commissioner.

460.  Nature of enquiry made by collector - The enquiry which th ecollector has to make in these cases relates to three points, each of which must be dealt with in his award. He must determine-

(a)  the true area of the land of each class,
(b)  the amount of compensation due, and
(c)  the appointment of the compensation among the persons interested.

461.  Demarcation of land. The first step is to have the land marked out and measured through the tahsildar. The existance of small discrepancies between the areas and the descriptions of land as found by the tahsildar and as stated in the notification is no reason for staying proceedings.

462.  Notice to parties interested. A general notice is next given to all persons interested in the land to appear before the collector on a certain date and to state the nature of their respective interests and the amount of compensation which they claim.

463.  Tahsildar’s report. Before the time fixed for the hearing, the collocror should receive from the tahsildar a khasra or filed register and a statement of holdings. In these statement particulars are given as to the areas, the rent, and the revenue of the land, and the trees, crops, wells, and buildings on it, and the estimated value of the last four items. The tahsildar also furnishes a report giving the chief date from which the market value of the land can be deduced, and his own opinion as to its proper price. The data of course include figures relating to any recent purchases of land by government course include figures relating to any recent purchases of land government or private persons on the same village or neighbourhood. Information regarding the latter can be obtained from the mutation registers and fromthe books in the office of the sub-register, who is usually either the tahsildar himself ir a non-official working at the headquartes of the tahsil. In using the prices stated in deeds of sale it must not call for reports from patwaris or kanungos as to the value of the land. In forming his own opinion he must take into account the matters which the act required the collector to consider in fixing amount of compensation, and must disregard those which it directs the collector to disregared.

464.  Reperesntation by departmental officer. It is important that the local officer who represents the department for which the land is being acquired should have ample opportunity to make any represented he thinks fit as to its market value.the instructions in paragraphs 38-39 of financial commissioner standing order no. 28 provide for this. Any representation he may make personally or by agent or in writing should receive careful consideration. But the collector must avoid all correspondence with him on the subject of the award, he must not inform him of the compensation he proposes to assess until the award has been pronounced.

465.  Examinatin of parties. A little trouble taken before the right holders before him will put the collector in a position to deal promptly with their objections, and by questioning them to clear up any points. Which the tahsildar’s report has left in doubt. A brief enquiry regarding any claims for compensation which they present will usually be enough to show in what respects if any his own perliminary estaimate of compensation requires to be modified.

466.  Preparation for hearing of case. Before the hearing of the case the collector ought to have studied the tahsildar’s report and to have estimated the compensation which appears to be suitable. The tahsildar’s data as to the prices paid for other land required by government can be checked by referring to th register of lands taken up for public purposes maintained in every district office. If the last settlement of the distirct is at all recent , valuable information as to the market value of land of different kinds is sure to be found in the tahsil assessment report.

467.  Award. The next step is to record and announce the award. All posible care must be taken in framiing it,for, as far as government is concerned, it cannot be questioned. The record will as a rule enable the collector to determine at once the first matter for decesion, namely, the true area of the land of each class to be acquired.

468.  Market value of land. In deciding he next point, the amount of compensation due, he has in the first flace to settle what the market value of the land is land to add to it 15 percent on account of compulsory acquisition.If he finds the amount to be much in excess of the preliminary estinate referred to in paragraph 465, he should refan from making an award and ask for further instruction.

469.  Consequential damages. He must consider the persons interested in the land to be taken up have any claim for consequential

(a)loss of standing crops or trees(section 23(1), second sub-head)

(b)damage to other land of theright holder by the taking up if the land required (section 23(1), third and fourth sub-heads)

as the owner will rlieved of th eobligation to pay land revenue and cases, the demand of the harvest under these heads should be deducted from any compensation awarded for crops.

470.  Damage to other land of rihgt-holder. Under the second head difficult questions arise. If, for example, a canal is carried through the heart of a village, the fields on one side ir the other are cut off from the homestead. To reach land which in a direct line is only distanbt a few hundred yards may involve the taking of ploughs and cattle three or four miles around. It is not always feasible to build a second adadi acriss the canal. The land may all be cultivated, or none of it may be common property. Again, if an embanked road or a canal distributary is carried through the fields attached to a well, and the area which ir can command is thereby dimished, the capital sunk in its construction may cease to yield any return to thelandowner. It is difficult for th epeople whi suffer to believe that a slight deviation from a strainght line, which would have saved themselves much trouble, could not have been made. No wise man will do anything to foster the idea that the administration wirks with the unsympathetic rigour of a piece f machniry, for this reason, and to avoid the expenses of consequential damages, governemnet has made consulting engineers and the local revenue officers responsible that in qzquiring land for railwys the fullest consideration is given to the convience of the landowners, and has ordered slight alteration in the alignment tobe made, where this is feasible, if annoyance to the people can be thereby obviated(govt.of india circular no. iv-railway, dated 4^th september, 1897) strrict orders exist on the irrigation department forbidding the excavation of canal water course thrighland belonging to a well “until-suitable pipe, culvert, or syphon is competed and the cultivatin of the alignment, which would be cinvenient to the properties, would diminish the usefulness or seriously increase the cost ofthe work. It is the more desirable to avoid claims for consequential damages where possible be cause it is a matter of great difficulty to calculate the compensation which si fairly due.(if reasonable claims are made under the head of severance, government amy direct the collector to acquire the whole ofthe objector’s land49(2))

471.  Matters to be excluded from sonsidertion in estimating market value. In estamating market value, the condition of thalnd as it was at the tine the notifiacation was issued declaring it to be required for a public purpose must alone be taken into account. tHe urgency of the need government nothing to do with the question(section 24, first and second heads) the latter, whether it is great or small must be taken as paid fir by the grant of fifteen percent over and abpve the market value. The fact that the use to which the land is to be put will imcrese the value of other land belonging to the right-holder is quite immaterial(section 24, sixth head) and so is any damage he may sustain which, if causes by a private person, would not be a ground for a civil action(section 24,third head)

472.  Cancelled.

416.  Compensation other than in money. Persons who are beiong deprived of their land for public purpose would often prefer to take other and in exchange rather than money compensation. The act allows an arrangement of the sort to be made with the sanction of the localgovt. but, in the first instance, the compenstaion must be assessed by the collector in money, and no one can be compelled to take land instead of cash. Another form in which compensation may be given with the approval of the local government is the reduction or remission of the land revenue payable on the remainder of the right-hlder’s land. An objection to this plan is that it introduces some complications into the revenue accounts and it is not desirable that it should be larglely adopted.

417.  Appointment of compensation. If the right-holders agree amongthemselves as to the division of the compensation their agreement must be accepted and cmbodied in the reward(section 29) where the right-holders are of different classes e.g. superior owners, inferior owners, or occupance tenants, the collector will usually have to apportion it himself. To do so is not always easy. The shareof an occupance tenat would properly be measured by the proportion between the price at which hesell his tenant right and that at which the landowner could sell the land , if unencumbered by any subordiante title.another way of approaching the question is to try to find outhow the profits derived from theland are divided. The land revenue is supposed to be equal to half the rent paid by an ordinary tenant-at-will, but as a matter of fact ,it is usually much less. In considering cash rents paid by between them and their landlords, the most favourable assumptions to adopt, as far as the latter are concerned, are that the assessment is up to the theortical standard, and that the rents are the highest allowed by law for tenants should receive seven-eights of the compensation. But, if he belongs to class which may be required to pay a malikana equal to three-fourths of theland revenue, his share of the compensation,as measured by the rent he pays, would be one-fourth. It will probably be found that calculatons based on the rent paid by occupancy tenants, at least in cases where the malikana is low, would give the landlord less than village opinion generally would hold to be his due, entries as to the division of compensation between land owners and occupancy tenants are sometimes to be cound in village administration papers. Where the allotment there stated is not palpably unjust, it is well to adopt it without further question. But it is clear that , whereall the administration papers of the district contain an identical entry without any dicrimination between different classes of occupancy tenants it cannot be accepted without further enquiry.

418.  References to civil court. Right-holders who object to the award of the collector as regads any of the maters which it deternmines may require him to refer their objections for decision to the district judge(section 3(d) and punjab government notification no. 1791, dated 26^th february 1883, section 18.)as soon as the award is announced, the collector should proceed to pay the compensation to all who are prepareed to accept it, either willingly or under protest(section 31(1). A right-holder who receives the money without protest cannot afterwards demand a reference to the civil court(section 31(2) a list must, therefore, be made of those who refuse to accept it or accept it under protest, immediate notice of the award must also be given to all the right-holders who have not appeared before the collector, so that no delay may occur in making any references to the civil court which their objections may render necessay(section12(2). For the period which applications for a reference to the court must be lodged, see provision to section18(2)).

419.  Taking of possession. As soon as the award has been made, the collector should ordinaly take possession of the land, “which shall thereupon vest absolutely in the government free from all encumbrances(section 16) he need his award. But, if the amount of the cliams to compensation put in much exceed the sum awarded, possession should not be taken without first refering to the authority sanctioning the work until the period within which appication for a reference to the court has elasped without any application being lodged(government of india letter no. 503-c,w.b. dated 19^th september 1898) one possession has been taken, government is bound to complete the acquisition of the land, whatever it may cost to do so. The fact that compensation has been paid does not entitle the department officer toenter upon theland he must receive possession of ir from the collector.

420.  Immediate possession in urgent cases. The 17^th section of the act makes it lawfil for the collector in cases of urgency to take over land without the assent of th owners and without waiting for the completion of the legal formalities. But, before doing so, he must tender to the right-holders compensation fir standing crps and trees and for any damage suffred by them on account of sudden dispossession. Legal requirement nay also of course be waived by agreement os really a voluntary one, and that the getting of immediate possession is a matter of great importance(detailed instructions on this subject will be found in paragraph 65-7- of financial commissioner’s standing order no. 28) for when land is taken up in this way, it is difficult afterwards to assess compensation for standing crops and trees, and it is hardly possible to refuse to complete the acquisition, even through it becomes evident that government runs a risk of having to pay an extravagent sum as compensation.

421.  Representation of government before civil court. When he makes a referenc to the district judge, the collector must inform the department officer that the has done os, and must supply him with a copy of the right-holder’s application stating the grounds of his objection to theaward. The proceeding before the civil court are of a judicial character(section 53). Facts must be proved in a legal manner, and all evidence, whether oral or dicuments in which the award is bases, must be produced. Unless the objection nerely relates to the appointment of the compensation, its amount not being in dispute, the district judge gives the collector notice fo the date of hearing, and the collctor must arrange for government being properly repersented in court by the govermnet pledger (see in this connection the ilnstruction in the punjab law department manual). The latter msut in any case receive a copy of the notice served in the collector so that he may have an opportunity of being present at the hearing of the case.

422.  Appeal. An appeal lies to the high court from decisions in land acquisitions cases passes by a district judge.

423.  Reduction of revenue. The reduction of the land revenue assessment consequent on the taking up of land has effect from the harvest succeeding the last ine in which the owners have been able to garner their crops.

424.  Compensation to assignees. If the revenue is assigned, the capitalized value of the demand may be paid to the jagirdar or mafidar. But the loss of the position of assignee, or even the diminution of the income derived from an assignment, is so unpalatable that, where possible, the necessary range for this being dine where only part of the revenue. It is usually feasible to assigned, in other cases, where the loss of revenue is very small, the jagirdar or mafidar must be content to accept to one-fifth of the total land revenue enjoyed by the assignee, the deputy commissioner may make a proposal for the grant of a pension or of a new assignment. Such a proposal should not be made as a matter of course, but only in favour of a deserving assignee who feels keenly the loss of his jagir income (punjab government no. 549, dated 4^th september, 1890. For the scale fo compensation in case of jagir revenue, see paragraph 53 of financila commissioner’s standing order no. 28.)

425.  Temprary occupation of land. The local government may didrect the colector to take up laid for any period not exceeding three years. In cases of temporary occupation of this kind, no notification os published in the gazette. The collector calls the rihgt-holder together an endeavours to come to an agreementwith them as to rent to be paid. In fixing the amount, it must be remembered that the landowners will remain liable for the land revenue. If the collector cannot come to an agreement with the right-holders, he must refer the matter in dispute for the decision of the district judge.(section 35)

426.  Compensation for damage done during occupation. At the expiry if the term of occupation the collector must offer compensation for any damage done to the land not provided for by the agreement, and the right-holder may rquire government to buy it out right if it has become permanatly unfit for the purpose for which it was use immediately before it ceased to be in their possession. Any dispute as to the condition of the land must be referred to the district judge.

427.  Taking up of land for companies. What has been said above about the acquisition land for the state applies equally to the taking up of land for a company under the provisions of part VII of the act.

428.  Disposal of land no longer required. Where land in the permanent occupation of any departments of the punjab government is no longer required, it should be handed over to the deputy commissioner of the district, who becomes responsible forthe disposal of it under the orders of the commissioner. “it may nothowever, be permanently alienated without the previous sanction of government” there is no legal bar to its being put up to auction. But as the matter of grace, government is usually willing to restore agricultural and pastoral land to the persons from whom it acquired it or to their heirs in their refunding the amount paid as compensation less the 15 percent granted for compulsory acquisition. The price may be lowered, if necessary, on account of deterioration, or enhanced in the rare case of land having been improved by the use to which government has put it. The improvement must be must be one one affecting the quality of the land. The fact that land which was unirrigated at the time of acquisition can, when relinquished, be watered by a canal si not an improvement of this sort. Considering how great the rise in the market value of land has been, the terms stated above are very liberal. It is not necessary to adopt them in their entitrety where the persons concerned are remote descendants or relations of the original holders. And where the circumstances of the case are at allout if the common, when for example, no price, or when the rise on the value of land on the neighbourhood has been exceptionally hlarge, these facts should be pointed out when referring such cases for orders so that government may have suffcient material before it to decide whether to offer any specail terms to the heirs of the persons from whom that land was qcquired.

In the case of rendtion of land under kassies and abandoned water channels such as those in multan and shujabad canel divisions which came under the possession of the irrigation department free of cost, the land should be restored to the original owners or their heirs free of charge.

COMMENTRY.

Land acquired project completed. The land no more required, hence ordered to be auctioned but more came forward. The land leased for a long term by the officers and leasee reclaimed it. In the meantime govt. decided to surrender to land to its original owner, held the state is not bound by the decision of its officers to lease and the govt. may recover  amount paid as compensation to original owners from plaintiff.( sadhu singh v. state of punjab 1992(2) RRR 464.

429.  Case in which prefernece should be given to owners of adjoining fileds. In the case of plots which from their size or shape are practically of no value to any one but the owners of theadjoining fields, government will be prepared to consider proposals for giving these owners the optin of purchasing at the market value. The mere fact that an outsider is prepared tooutbid them should not deter the deputy commissioner from recommendeding to government the acceptance of any fair offer which they may make.

430.  Action when the heirs and neighbourhood proprietors do not wish to purchase. If the heirs of the original owners cannot be traced, or if they or the proprietors of adjoining land decline to accept the terms approved by government, a further reference to government will be necessary if it is proposed to alienate the land permanently in some other way.

495-A. Department concerned to be consulted before land is actually sold. The department by which the land is surrendered should be given an opportunity of criticizing the rendition price to be demanded and of commenting upon any did or tender before it is accepted.

431.  Report to commissioner. Innegotiations for the disposal of land no longer required, the deputy commissioner, must make it plain that any therms he proposes are only tentative and need the sanction of government. Cases should, of course, be submitted through the commissioner and each reference should be a detailed one.

496-A. Transfer of land between governement departments. For the procedure to be followed in cases of transfer of state lands and building from the central government to a local governement of lands in the possession of one department to another, and of lands owned by manicipalities, reference should be made to part A of the financial commissioner’s standing order No. 28

It will be noticed that in these cases of acquisition the provisions of act I of 1894 are not applicable.