Govt can acquire land sans notice

Posted in Land Acqusitions, UNCATEGORIZED by NNLRJ INDIA on May 27, 2010

27 May 2010  Sanjay K Singh  Economic Times

NEW DELHI: The state can acquire land even if owners have not been issued a notice, the Supreme Court has ruled. The apex court added that land acquisition will not be illegal even if there are discrepancies in the notice served to affected owners under the provisions of the Land Acquisition Act.

“Section 9 of the act (Land Acquisition Act, 1894) provides for an opportunity to the ‘person-interested’ to file a claim petition with documentary evidence for determining the market value of the land and in case a person does not file a claim under Section 9 even after receiving the notice, he still has a right to make an application for making a reference under Section 18 of the act.”

“Therefore, scheme of the act is such that it does not cause any prejudicial consequence in case the notice under Section 9(3) is not served upon the person interested,” said a vacation bench comprising Justice B S Chauhan and Justice Swatanter Kumar.

The court said: “The land vests in the state free from all encumbrances when possession is taken under Section 16 of the act. Once land is vested in the state, it cannot be divested even if there has been some irregularity in the acquisition proceedings. In spite of the fact that Section 9 notice had not been served upon the person interested, he could still claim the compensation and ask for making the reference under Section 18 of the act. There is nothing in the act to show that non-compliance thereof will be fatal or visit any penalty.”

The court rejected the plea which had said that the provisions of Section 9 of the act was mandatory in nature and non-compliance thereof would vitiate the award and all other consequential proceedings.

Zeroing in on Section 9 of the act, the bench said, whether the provision is mandatory or directory, depends upon the intent of legislature and not upon the language for which the intent is clothed.

“The issue is to be examined having regard to the context, subject matter and object of the statutory provisions in question. The court may find out as what would be the consequence which would flow from construing it in one way or the other and as to whether the statute provides for a contingency of the non-compliance of the provisions and as to whether the non-compliance is visited by small penalty or serious consequence would flow therefrom and as to whether a particular interpretation would defeat or frustrate the legislation and if the provision is mandatory, the act done in breach thereof will be invalid,” remarked Justice Chauhan writing the verdict for the bench.

It said, “failure of issuance of notice under Section 9(3) would not adversely affect the subsequent proceedings including the award and title of the government in the acquired land. So far as the person interested is concerned, he is entitled only to receive the compensation and therefore, there may be a large number of disputes regarding the apportionment of the compensation. In such an eventuality, he may approach the district collector to make a reference to the court under Section 30 of the act”.

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  1. Patrick Ryan said, on July 25, 2010 at 18:13

    The question of the directory or mandatory nature of the timelines stipulated in the Land Acquisition Act, 1894 as amended from time to time, in consonance with the recommendations of Law commission of India, should be viewed from the perspective of real estate values.
    An aggrieved person, dispossessed of his ancestral/self acquired property which could well be his only source of livelihood, will be put to much financial hardship even to the point of total economic ruin, if the compensation for his property which was forcibly taken over, is tardy in reaching him. For one thing the Land Acquisition officer will go by the guideline rates which are below market value and if the timelines are not adhered to, the aggrieved persons ability to reinvest the compensation in some other property will be affected, thereby causing financial ruin.
    Viewed from this perspective adherence to the timelines stipulated in the Act ought to be considered as mandatory.If on the other hand if the same is held to be directory it will only encourage lethargy on the part of the Acquisition Officer and the the timelines specified in the Act also becomes redundant. In fact the timelines have to be considered as the only guarantee for the aggrieved person to get timely compensation.

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