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Land Acquisition - Illegal Possession

Land Acquisition - Illegal Possession

Land Acquisition and illegal possession are two different situations which are faced by the property owners and when they are not aware of the remedies available while facing land acquisition and how to get possession of the property which has been illegally occupied results in injustice and deprives the Church and its institutions from such properties. This results in a situation that at several places encroachers have occupied illegally the properties of the Church and the in-charge Priest have even failed to protect the properties under their control from the individual encroachers or to claim compensation                         from the Union/State government and their agencies who have acquired the land and further if in some cases nominal compensation has been paid, but, failed to claim compensation on the basis of the market value of the land and the Church authorities have satisfied themselves by accepting a nominal compensation ignoring the law that they have a right to claim enhance compensation and claim fair, just and proper compensation at the market rate under the Land Acquisition Act.

Constitution of India has given the power to the Union / State Government to acquire the land for public purpose. Even prior to the coming in the force of the Constitution of India there was the law for land acquisition known as the Land Acquisition Act, 1894. Though the right to property is no longer a Fundamental Right but still Article 300-A of the Constitution provides that no person shall be deprived of his property save by authority of law.  Land Acquisition Act has been now drastically amended and the new Land Acquisition Act has come into force from 1st January 2014 which is called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

Land Acquisition proceedings consumes a long time. All land acquisition cases where lands have been acquired and notification has been issued under the old Act will be governed by the old Land Acquisition Act, 1894 and all land acquisitions which have taken place on or after 1st January, 2014 will be governed by the new law.

According to the Land Acquisition Act, 1894 the scheme of the Act provides the procedure for acquiring the land by issuing a notification mentioning the property in detail, hearing of the objections and then passing of the Award. There is a procedure for enhancement of claiming fair, just and proper compensation on market rate of the property acquired and if one is not satisfied with the compensation determined by the Collector one can file reference petition before the District Judge and then appeal before the High Court and finally before the Supreme Court.

According to the Land Acquisition Act, 1894 whenever the government wanted to acquire the land, a notification under section 4 and subsequently under section 6 and in cases of emergency acquisition notification under section 17 used to be issued and the Land Acquisition Officer used to pass the Award and the compensation amount used to be released to the Claimant. If the Claimant was not satisfied with the amount of compensation then the Claimant could have raised the dispute before the District Judge and the District Judge used to decide the reference and determine the compensation according to the market rate prevalent on the date when notification under Section 4 was issued. If the Claimant was not satisfied by the amount determined by the District Judge then appeal for enhancement could have been filed before the High Court and then in the last to the Supreme Court for enhancement of the compensation. This was the law prevailing in the country till 31st December, 2013. It was a draconian law where the government was the final word for acquiring any land. There was no attempt to find out about the individual’s / community opinion for the land acquisition and therefore a new law came into force on 1st January 2014 wherein detailed procedure for public hearing has been provided.

According to the present law whenever the government wants to acquire a land for a public purpose, the government will first prepare a social impact assessment study and a public hearing will be given for social impact assessment then social impact assessment study will be published. Central Government may also carry out environmental impact assessment thereafter a team of experts (who have a deep study and knowledge about the geographical and social demography) will examine the proposal. Thereafter the notification will be published and objections will be invited on land acquisition. After a notification under section 11 is issued, the administrator for rehabilitation shall conduct the survey and will publish the re-settlement scheme and after hearing the interested parties the Collector shall make an Award.

The award shall be made within a period of 12 months from the date of publication of the declaration under section 19 and if no award is made within  2 years then the entire proceedings shall lapse. That the Collector shall determine the market value and apart from the compensation will also make payment of solatium which is equivalent to 100% of the compensation amount. For building, improvements if any and for trees separate compensation will be paid. Any person who is not satisfied with the award may submit a reference to the land acquisition rehabilitation and resettlement authority who will be a District Judge and authority after hearing the parties shall determine the compensation. Thereafter an appeal can be filed before the High Court and in the last Special Leave Petition in Supreme Court. Interest @ 9% shall also be paid in addition. This is the brief of the scheme of the present Act. On certain issues the general public is not aware of certain situations in land acquisition matters and if the following situation exists in a particular case then the remedies are available. While issuing the notification and making of the award and determining the compensation most of the times people do not get fair compensation or market value of the land which results into a litigation and certain problems which normally arise in such land acquisition cases are mentioned below and while facing the problems the suggested remedy is explained below :-

01.           Sometimes a notification has been issued for acquiring the land but thereafter more than 2 years have passed and nothing has happened and neither any land acquisition proceedings have been initiated nor any award has been passed.

In such a situation one can file a Writ Petition and get the notification quashed because under section 25 if no award is made within a period of 12 months from the date of publication of declaration under section 19, the entire proceedings for land acquisition shall lapse.

02.           Sometimes wherein award has been passed and inspite of 5 years the compensation has not been paid to the Claimant then the entire land acquisition proceedings shall lapse.

03.           There is a situation when a compensation has been determined by the Land Acquisition Officer but it is not according to the market rate then what is the remedy available for claiming the compensation at the                    market rate.

In such a situation the claimant should file a reference petition within 45 days of the award. Thereafter the District Judge will determine the compensation according to market rate and still if the claimant is not satisfied he can file appeal before the High Court. And after the High Court he can approach the Supreme Court for enhancement of the compensation.

04.           Sometimes there are many claimants and only one of them has approached the Court and got the enhancement order in his favour and in such a situation can those claimants also claim enhance compensation who have taken no action and whose lands have been acquired by the same notification.

Yes, in such cases where other claimants have not taken any action can also claim enhance compensation like the claimant who has succeeded and this application for re-determination of the compensation can be filed under section 73 of the Act.

05.           Sometimes notification is issued and there is a building on the land or the land is used for some very important purpose and if there are extra ordinary reasons then a petition before the High Court can be filed for releasing the land from the land acquisition. The Hon'ble Supreme Court has definitely interfered but only in extra ordinary cases and in such an extra ordinary situation the land can be released from land acquisition.

06.           Sometimes apart from the land there is building or a tube well, the claimant can also claim additional compensation for the improvement made on the land, for the trees, for the building and the tubewell.

07.           If the land has been acquired for a malafide reasons or in a vindictive manner, the claimant can challenge the land acquisition by approaching the High Court or Supreme Court showing that in unfair manner the land is being acquired.

08.           Sometimes the Land Acquisition Officer and the appellate authority did not award just and proper compensation for the acquired land and ignored the potentiality of the land. In such cases the Claimant can challenge the compensation before the High Court and finally if not satisfied before the Supreme Court and prove the correct compensation as per the market rate by showing the evidence.

09.           What has been noticed in the Church administration is that at several places, Diocese has given the lands and properties to different societies of the Catholic Church on lease. A Lessee is not the owner of the property and therefore whenever such property will be acquired by the State Government the compensation can be claimed only by the Diocese unless the lease agreement says something different. The compensation will be divided between the Diocese and the occupier society who is holding the land on lease on the basis of the lease agreement. To avoid further complications it is advisable that the Lessee may be transferred the property and be made owner or the property may revert back to the Diocese but this nominal lease agreement is not a valid transfer of the property from the Diocese to the religious Society.

Illegal possession: Remedy for restoration

What is illegal possession ?

Whenever any person occupies any property which he has not acquired through a valid legal title is said to possess such property in illegal possession. Now the question would be how a valid legal title is acquired. A valid legal title is acquired either through inheritance or succession or by registered Deed or through a judgement of a competent court of law or through Partition-deed or through an award passed by the Arbitrator or through Will either registered or unregistered or by remaining in adverse possession of any property since last more than 12 years peacefully, continuously and without any interruption and declaring himself as the owner when occupying such land. (in case the property is of government then the period is 30 years). These are the legal modes of transfer of acquiring a valid title on any immovable property which may be either a building or open land or any agricultural land. Any person who remains in possession of any immovable property which he has not acquired through any of the above mode is said to be in illegal possession of the property and do not have a legal title on such property and which is called illegal occupation.

     The other question arises is that of any one has illegally occupied any property of any individual or Church or Convent or any religious society how can he be evicted. In such cases the remedy is to file a Civil Suit for a possession and simultaneously the plaintiff who files the suit can also claim a relief that during the pendency of the suit the encroacher be restrained from transferring the property in any manner or creating any charge on the property attached and receiver be appointed during the pendency of the suit. So long as the encroacher remains in illegal possession of the property he can be compelled to pay mesne profits during the pendency of the suit and additionally mesne profits of the last 3 years from the date of filing of the suit. Such suit for claiming possession are provided in the Specific Relief Act, 1963. Normally people avoid filing Civil Suit for possession on the ground that it will consume a long time but this approach is erroneous because firstly the reason which causes delay can be avoided and secondly to allow encroachment of a Church property which is a public property leads to land grabbers and such encroachers violate the law of the land and to support them by not removing them from encroachment is to deviate oneself from the path of truth and justice for which the Jesus gave the life.

 (The writer is a practicing advocate in Supreme Court of India: He can be contacted at bs_banthia@rediffmail.com

(Published on 13th July 2020, Volume XXXII, Issue 29)