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KLE LAW ACADEMY BELAGAVI
(Constituent Colleges: KLE Society’s Law College, Bengaluru, Gurusiddappa Kotambri Law College, Hubballi, S.A. Manvi Law College, Gadag, KLE Society’s B.V. Bellad Law College, Belagavi, KLE Law College, Chikodi, and KLE College of Law, Kalamboli, Navi Mumbai)
STUDY MATERIAL
for
LAND LAWS
Prepared as per the syllabus prescribed by Karnataka State Law University (KSLU), Hubballi
Compiled by
Prasad Hiremath, Asst. Prof.
Reviewed by
Dr. Mahesh R.S., Asst. Prof.
K.L.E. Society's Law College, Bengaluru
This study material is intended to be used as supplementary material to the online classes and
recorded video lectures. It is prepared for the sole purpose of guiding the students in preparation
for their examinations. Utmost care has been taken to ensure the accuracy of the content.
However, it is stressed that this material is not meant to be used as a replacement for textbooks
or commentaries on the subject. This is a compilation and the authors take no credit for the
originality of the content. Acknowledgement, wherever due, has been provided.
LAND LAWS UNIT – I
RIGHT TO FAIR COMPENSATION & TRANSPARENCY IN LAND ACQUISITION, REHABILITATION & RESETTLEMENT ACT, 2013
TABLE OF CONTENTS Chapter Contents Page No 1 Social Impact Assessment 4-
2 Public purpose 12-
3 Provision to Safeguard Food Security 17-
4 Notification & Acquisition 19-
5 Rehabilitation & Resettlement Award 25-
Bibliography 30
UNIT – II
RIGHT TO FAIR COMPENSATION & TRANSPARENCY IN LAND ACQUISITION, REHABILITATION & RESETTLEMENT ACT, 2013 TABLE OF CONTENTS Chapter Contents Page No
1 National Monitoring Committee for Rehabilitation and Resettlement
2 Land Acquisition Rehabilitation and Resettlement Authority 33-
3 Apportionment of Compensation 43-
4 Payment of Compensation 45- Bibliography 48 UNIT – III
8 Land Reforms in India During 1947-70 150- 9 9th Schedule of Indian Constitution and Judicial Scrutiny 168- 10 Bibliography 179
UNIT – V REAL ESTATE (REGULATION & DEVELOPMENT) ACT, 2016 KARNATAKA REAL ESTATE (REGULATION & DEVELOPMENT) RULES, 2017 TABLE OF CONTENTS Chapter Contents Page No 1 Registration of Real Estate Project 180-
2 Registration of Real Estate Agents 186-
3 Functions & Duties of Promoter 189-
4 Rights and Duties of Allottees 203- 5 Real Estate Regulatory Authority 207- 6 Real Estate Appellate Tribunal 213- 7 Offences and Penalties 217- 8 Bibliography 230
LAND LAWS
UNIT-
SYNOPSIS OF UNIT
Social Impact Assessment Public purpose
Provision to Safeguard Food Security Notification & Acquisition Rehabilitation & Resettlement Award
Bibliography
Synopsis of Topic
Overview Legal basis of SIA SIA under the RFCTLARR 2013 History Process flow of SIA Relevance of SIA The Need for SIA Conclusion Social Impact Assessment
Overview
According to the International Association for Impact Assessment (IAIA), ‘Social Impact Assessment’ is a process that integrates the processes of analysing, monitoring and managing the intended and unintended social consequences, both positive and negative, of planned interventions (policies, programs, plans, projects) and any social change processes invoked by those interventions. Its primary purpose is to bring about a more sustainable and equitable biophysical and human environment.
SIA is thus overarching framework that embodies the evaluation of all impacts on humans and on all the ways in which people and communities interact with their socio-cultural, economic and biophysical surroundings. SIA thus has strong links with a wide range of specialist sub-fields involved in the assessment of areas such as: cultural heritage impacts
provisions of social impact assessment and (mandatory ) consent by the people (landowners) whose lands the government intends to acquire, are the two shining cornerstones of this act that make it revolutionary in enabling democratisation of the whole process of land acquisition.
History
No SIA; Unprecedented Problems
Prior to the enactment of the present act, development or industrial projects executed anywhere in the country did not have any stringent parameters for measuring the magnitude of the repercussions that would be felt my communities residing in and around the site of the project. Consequently a large number of affected people were left out of any rehabilitation or resettlement plans that were developed for the same projects in an ad hoc manner. A few examples of the same-
1. Sardar Sarovar Dam, Gujarat, 1980s-
One of the most controversial and glaring examples of the lack of a systematic social impact assessment study conducted to enumerate the population of displaced and affected people. Rehabilitation of more than half of the population affected by submergence is yet to happen even though the project is deemed to be complete and was inaugurated as late as 2017.
2. Bilaspur Dam Project, Rajasthan, 1990s -
In the absence of any proper socio-economic-cultural impact survey, no proper plan for resettlement or rehabilitation was put in place, which allowed eventually an extremely haphazard ‘jungle-raj’ like scenario of providing compensation to the affected or displaced people. Genuinely affected poor were even cheated for their compensation.
3. Rengali Irrigation Project, Rengali, Odisha, 1985
A rough estimate of more than 10000 families displaced, the project had an ineffective rehabilitation management, where the allotted barren unirrigated lands which they could not use for any economy generation being unskilled in land use and having no skill upgradation.
Process flow of SIA
Determination of Social Impact and Public Purpose
A- Preliminary investigation for determination of Social Impact and Public Purpose -
Preparation of Social Impact Assessment Study U/s 4
Government to consult with Municipality, Panchayat, etc in the affected area and carry out a SIA study
Notification to this effect to be made available in local language to the concerned offices i.e. District Collector, Sub Collector, Tehsil, Municipality, Panchayat etc
Study to be completed in six months, team to include adequate representation from panchayat or municipality i.e. elected representatives of the people
Various parameters to be studied are mentioned ahead in this document.
The authority conducting the study to prepare a Social Impact Management Plan (SIMP) , listing ameliorative measures required to be undertaken for addressing specific components (these should not be less than other contemporary schemes/plans operational in that area
Public hearing for Social Impact Assessment U/s 5
Appropriate government to notify , with due time and publicity, for a public hearing to be conducted in that area, to ascertain views of the affected families to be recorded and included in the Social Impact Assessment Report
Publication of Social Impact Assessment Report U/s 6
Appropriate government to ensure that SIA study report and SIMP are made available in the local language to the relevant offices and published in the affected areas (locality) and website of the government in prescribed manner
if environmental impact assessment is being carried out, then a report of the SIA shall be made available to the agency carrying out the same. (Irrigation projects-Only EIA hence no SIA)
B. Appraisal of Social Impact Assessment report by an Expert Group-
Appropriate government to ensure that the SIA report is evaluated by an independent multi- disciplinary expert group U/s 7(1), which maybe constituted as follows-
1. There is a legitimate and bona fide public purpose for the proposed acquisition which necessitates the acquisition of the land identified 2. The potential benefits and the public purpose referred to shall outweigh the costs and adverse social impact as determined by the Social Impact Assessment study carried out 3. Only the bare minimum area of land required for the project is proposed to be acquired 4. There is no unutilized and which has been previously acquired in the area 5. The land, if any, acquired earlier remained unutilized, is used for such public purpose and make recommendations in respect thereof.
Relevance of SIA
SIA is the only mechanism today to address the impacts of acquisition on livelihoods of all those who don’t own land but are still dependant on it. It is a prerequisite to formulate inclusive rehabilitation packages. Together SIA and the public hearing at gram sabhas are two facets of this act for ensuring a fair “right” to compensation and right to rehabilitation.
The Need for SIA
First , internationally, there is increased recognition for conducting SIA as a methodology to review the social impacts of infrastructure and other development interventions. According to the International Association for Impact Assessment, “Social impact assessment includes the processes of analysing, monitoring and managing the intended and unintended social consequences, both positive and negative, of planned interventions (policies, programs, plans, projects) and any social change processes invoked by those interventions.
Its primary purpose is to bring about a more sustainable and equitable biophysical and human environment.”
SIA originated in the 1970s as a regulatory oversight mechanism, but increasingly, social impact assessment is being seen not as a regulatory hurdle but an important way of assessing business risk. SIA is often carried out as part of, or in addition to, environmental impact assessment.
Secondly , even within India, there is growing recognition of the need for SIA and the existence of policy precedents for the same. Since 2006, some aspects of the SIA as outlined in the LARR Act were being conducted as part of the environment impact assessment carried out pursuant to the EIA notification, 2006. Resettlement policies have lately made social
impact assessment a major part of the resettlement planning process.
For instance, in 2006, a provision was included for conducting SIA in the Orissa Rehabilitation and Resettlement Policy. The National Rehabilitation and Resettlement Policy, 2007 has made a provision for conducting SIA whenever a new project or expansion of an existing project is undertaken. But this provision is limited only to those cases, which involve displacement of 400 hundred or more families, en masse in plain areas, or two hundred or more families en masse in tribal or hilly areas.
The LARR Act, further mandates that the body conducting the SIA should prepare a Social Impact Management Plan, which outlines how this impact should be countered and addressed. Such a study is important for projects to be designed efficiently and equitably, and for them to be taken to completion without opposition from the affected families. Therefore, doing away with SIA completely for the vast majority of acquisitions may be politically expedient, but not ultimately desirable for ensuring sustainable, equitable and unopposed development. This is because unless the people displaced are stakeholders in the development process, they will not co-opt into the development process and allow it to proceed. After all stalled infrastructural and industrial activities benefit no one.
Conclusion
In the words of the American politician Jack Kemp, economic development doesn’t mean anything if it leaves people out. The costs of development, industrialisation and forward growth of civilisations mean nothing when basic survival is threatened by displacement from people’s original localities or, in other words, their homes. No civilisation can flourish at the cost of their fellow beings. Thus social impact assessment and the need to act on their recommendations and indicators are of paramount importance to the development narrative in a democratic way, which ensures people’s rights to live in their own homes in their natural ways of living do not get trampled upon, thus ensuring a holistically developed society as a whole, and therefore conserving the image of a welfare state.
Public purpose
Section 2 of the Act provides for the application of the provisions of the Act to various types of land acquisitions. It classifies the acquisition of land into three categories:
(1) appropriate government acquire land for its own use and for public purposes; (2) appropriate government acquires land for PPP projects/ for private companies for
urban areas;
(f) project for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by the Government, any local authority or a corporation owned or controlled by the State.
When the government acquires land for its own use, hold and control including for any Public Sector Undertaking (PSU) and for public purpose, the provisions of the Act relating to acquisition, compensation, rehabilitation and resettlement shall apply.
But where the government acquires land
(i) for public private partnership projects, where the ownership of the land continues to vest in the government, for public purpose and (ii) for private companies for public purpose, the provisions of the Act relating to land acquisition, consent, compensation, rehabilitation and resettlement shall also apply.
Under the proviso to Section 2(b), in case of acquisition of land for public private partnership, the prior consent of at least 70% of the affected families is required and in case of acquisition of land for private companies, the prior consent of at least 80% of the affected families is required. Whereas, there is no requirement of prior consent in case the government acquires land for its own use, hold and control, including for Public Sector Undertaking.
Further when the government acquires land either
(i) for its own use… for a public purpose, (ii) for a private company for a public purpose or (iii) for public private partnership for a public purpose, all the provisions of the 2013 Act relating to land acquisition, compensation, rehabilitation and resettlement shall apply. That is, if the land is acquired by the government for a private company or for a public private partnership or for its own use, then provisions of land acquisition shall apply and compensation has to be paid and rehabilitation and resettlement of the parties shall also to be done. In case of a land acquired by the government for a public private partnership, the land continues to vest with the government.
Case law
The Supreme Court in State of Bombay Vs. R.S. Narji 1956 AIR 294 has held that in each
case all the facts and circumstances will require to be closely examined in order to determine whether a public purpose has been established.
Public purpose is not capable of precise definition. Each case has to be considered in the light of the purpose for which acquisition is sought for. It is to serve the general interest of the community as opposed to the particular interest of the individual. Public purpose broadly speaking would include the purpose in which the general interest of the society as opposed to the particular interest of the individual is directly and vitally concerned. Generally the executive would be the best judge to determine whether or not the impugned purpose is a public purpose. Yet it is not beyond the purview of judicial scrutiny. The interest of a section of the society maybe public purpose when it is benefited by the acquisition. The acquisition in question must indicate that it was towards the welfare of the people and not to benefit a private individual or group of individuals joined collectively. Therefore, acquisition for anything which is not for a public purpose cannot be done compulsorily - Manimegalai Vs. The Special Tahsildar(Land Acquisition Officer) Adi Dravidar Welfare, AIR 2018 SC 2020
In Somawanti Vs. State of Punjab 1963 AIR 151 the Supreme Court has an occasion to consider the true import of expression "public purpose" in the context of the provisions of the Land Acquisition Act. After main a reference to the definition clause where the expression "public purpose" is defined, the Supreme Court observed as under:
“This is an inclusive definition and not a compendious one and therefore, does not assist us very much in ascertaining the ambit us very much in ascertaining the ambit of the expression 'public purpose'. Broadly speaking the expression' public purpose' would, however, include a purpose in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned.” “Hence the expression "public purpose" would include purpose in which the general interest of the community as opposed to the particular interest of the individual is directly or vitally concerned. Whatever furthers the general interest of the community as opposed to the particular interest of the individual must be regarded as public purpose. Thus scope of the expression is obviously not static and must change with varying concept, time, state of society and its needs. Therefore, the proper approach is to consider the
follows:
- Multi-crop irrigated land will not be acquired except as a demonstrably last resort measure, which in no case should lead to acquisition of more than the limits which have been set by the State Govt. under this law.
- Wherever multi-crop irrigated land is acquired an equivalent are of culturable waste land shall be developed for agricultural purposes or an amount equivalent to the value of the land acquired should be deposited with the appropriate Govt. for investment in agriculture for enhancing food security.
- States are also required to set a limit on the area of agricultural land that can be acquired in any given District.
However the provisions of Sec.10 do not apply in case of projects which are linear in nature such as those relating to railways, highways, major District roads, irrigation canals, power lines and the like
Synopsis of Topic
Publication of preliminary notification and power of officers Preliminary survey of land and power of officers to carry out survey Payment for damage Hearing of objections Case law Notification & Acquisition
Publication of preliminary notification and power of officers
Sec.11 of the RFCTLARR Act, 2013 envisages for publication of preliminary notification along with details of the land to be acquired in rural and urban areas and powers of officers thereupon.
Sec.11 states that whenever, it appears to the appropriate Government that land in any area is required or likely to be required for any public purpose, a notification (preliminary notification) to that effect along with details of the land to be acquired in rural and urban areas should be published in the following manner, namely
(a) in the Official Gazette; (b) in two daily newspapers circulating in the locality of such area of which one shall be in the regional language; (c) in the local language in the Panchayat, Municipality or Municipal Corporation, as the case may be and in the offices of the District Collector, the Sub-divisional Magistrate and the Tehsil; (d) uploaded on the website of the appropriate Government; (e) in the affected areas, in such manner as may be prescribed.
After issuance of the said notification the concerned Gram Sabha or Sabhas municipalities and the Autonomous Councils in case of the areas referred to in the Sixth Schedule to the Constitution, should be informed of the contents of such notification in all cases of land acquisition at a meeting called especially for this purpose.
publication in the newspaper even if it is before the gazette is published will be a publication required under Sec.4(1) and it loses none of its importance and is one of the factors requiring mandatory compliance under Sec.4(1). As such release of such publication in the newspaper for the purpose of submitting objection would be equally important and cannot be said to non est or premature – Kolkata Metropolitan Development Authority Vs. Mahendra Nath Memorial Society, AIR 2005 NOC 359 (Cal) 143
Preliminary survey of land and power of officers to carry out survey
Once when a notification has been made by the appropriate Govt. u/Sec.11 the appropriate Govt. is empowered u/Sec.12 to determine the extent of land and towards this end any officer or his servants or workmen who have been authorised by the such Govt. has the power:
a) to enter upon and survey and take levels of any land in such locality. b) to dig or bore into the subsoil c) to do all acts necessary to ascertain whether the land is adapted for such purposes; d) to set out the boundaries of the land proposed to be taken and the intended line of work proposed to be made thereon and e) to mark such levels boundaries and line by placing marks and cutting trenches and where otherwise the survey cannot be completed and the levels taken and the boundaries and the line marked to cut down and clear away any part of any standing crop, fence or jungle.
All of the aforesaid activities should be conducted in the presence of either the owner of the land himself or any person authorised in writing by the owner.
By giving a notice of at least sixty days prior to the said survey activities the owner has to be afforded a reasonable opportunity to be present during the survey and despite such notice if the owner defaults to be present on the land in that case the said survey activities can be conducted in his absence.
In conducting the aforesaid activities no person should enter into any building or upon any enclosed Court or garden attached to a dwelling-house without previously giving such occupier at least seven days’ notice in writing of his intention to do so.
Payment for damage
In conducting any of the survey activities enumerated under Sec.12 if any damage is caused
then the officer is empowered to pay or tender payment for the damage and if there is any dispute as to the sufficiency of such amount the officer should refer the dispute to the Deputy Commissioner and his decision will be final in this regard.
Hearing of objections
Sec.15 of the RFCTLARR Act, 2013 envisages hearing of objections of any person who is interested in any land which has been notified for acquisition.
The Section provides that within 60 days from the date of notification if any person who is interested in any land which has been notified as being required for any public purpose is at liberty to raise objections as to:
a) the area and suitability of land proposed to be acquired; b) justification offered for public purpose; c) the findings of the SIA
Such objections should be made to the Collector in writing and the Collector is bound to give a reasonable opportunity of being heard to the person raising such objections or any person authorised by him in this behalf or his Advocate.
After hearing all such objections and after making such further inquiry the Collector should make a report in respect of the land which has been notified and send it to the appropriate Govt. along with his recommendations on the objections so raised and the record of the proceedings held by him along with a separate report giving therein the approximate cost of land acquisition, particulars as to the number of affected families likely to be resettled for the decision of the Govt.
The decision of the appropriate Govt. on the objections will be final.
Case law
In Women’s Education Trust & Anr Vs. State of Haryana & Others the following principles were established w.r.t. hearing of objections:
(i) Before depriving any person of his land by compulsory acquisition, an effective opportunity must be given to him to contest the decision taken by the State Government/competent authority to acquire the particular parcel of land.
(ii) Any person interested in the land, which has been notified can file objections and show
