关于土地征用的英文文献

关于土地征用的英文文献 Land Acquisition Act Jerome Kern In India the government is empowered by the central law passed by the union legislature, which is known as the Land Acquisition Act, 1894. The objective of this Act is to amend the laws relating to land acquisition for public purpose and for companies and also to determine the compensation, which is required to be made in cases of land acquisition. The enactment states that the expression land includes benefits that arise of land and things attached to the earth or permanently attached to the anything fastened to the earth. Further the Land Acquisition Act also specifies the public officers who are authorized for such acquiring of land on behalf of the State. They include the Collector, Deputy Commissioner and also any officer who is specially appointed by the appropriate government under the authority of law. The collector prepares the declaration and copies are forwarded to the administrative departments and all the concerned parties. This declaration is then required to be published in the same manner as in case of the notification issued. The collector issues the awards, further allows a time of not less than 15 days for any objections to be filed. Moreover if the compensation given is under protest than as per the enactment the awardees are entitled to refer the matter to the court for determination of requisite amount of compensation. “Right to acquire a property, although is not a fundamental right, but is a constitutional and human right. Before a person can be deprived of his right to acquire property, the law and/or a contract must expressly and explicitly state so.” The answer to the question, whether the property amendments violate the basic structure of our Constitution is in negative. The answer to this question depends upon the correct interpretation of the nature and effect of those amendments and their effect on fundamental rights and other basic features of our Constitution. The right conferred by Article 19(1) (f) and Article 31 read with the under noted entries were closely interwoven with the whole fabric of the Indian Constitution that those rights cannot be torn out without leaving a jagged 1 hole and broken threads replaced so as to harmonize with the other parts of the Constitution Article 19(1) (f) and Article 31 (2) dealt with different, but connected aspects of the right to property. The above mentioned two articles were mutually exclusive. However, there was a difference in opinion in this regard which was clarified by the 25th Amendment which introduced in Article 31 a new clause (2-B) which provided that “Nothing in Article 19(1) (f) shall affect any such law as is referred to in clause (2).” The validity of this amendment was unanimously upheld in the Fundamental Rights case. The reason for this mutual exclusiveness was that when property is acquired for a public purpose on payment of compensation, the right of a citizen to hold property is gone, and the question of his right to hold that property subject to reasonable restrictions does not arise. Further Article 19(1) (f) which conferred on citizens the right to acquire, hold and dispose of property formed part of a group of articles under the heading “Right to Freedom.” It requires no elaborate argument to demonstrate that property is intimately connected with the right to freedom. Article 31 appeared under the heading “Right to Property”; for the right to freedom conferred by Article 19(1) (f) would be worth little if the property when acquired could be taken away by law. Hence Article 31 provided that private property could be acquired only for public purpose and on payment of compensation. There is nothing in the Statement of Objects and Reasons to show that the Parliament no longer looked upon the right to acquire hold and dispose of property as part of the Right to Freedom. Both under amended and unamended Article 31(2), legislatures have an option either to fix the compensation in the law itself, or to lay down principles for determining compensation to be paid. Confining to the first option, if after the 4th Amendment, Parliament passed a law fixing compensation ranging from 90 to 50 per cent, or less, of the full and fair money equivalent (market value) of the property to be acquired, no court could set aside the law, for the challenge would be to the adequacy of compensation. In the result, the law would be a valid law although the compensation provided fell short, or far short, of the market value. If the question is asked “why the law has fixed the compensation amounting to 60%, and not 70 or 50 per cent of the market value?” the answer would be that in the legislative judgment the amount fixed by the law was a fair and just compensation for the acquisition of property under that law. And if a law fixing compensation at amounts ranging from 90 to 50 per cent, 2 or less, of the market value of the property acquired cannot be struck down by a court, equally, “principles of compensation” cannot be struck down when they produce the same result. The consequence of the transformation brought about by the 4th Amendment is that “principles of compensation do not mean the same thing before and after the 4th Amendment. The 4th Amendment clearly explained the meaning of “principle of compensation” as rules, the application of which would enable a person to determine the full and fair money equivalent. The 4th Amendment took away the yardstick of full and fair money equivalent and put no determinate yardstick in its place. After the 4th Amendment, principles of compensation only meant general rules, the application of which would produce an amount which the legislature considered was just and fair compensation for the property acquired. The framers of the Constitution knew that to substitute the fixed yardstick of a full and fair equivalent by the changing yardstick of the legislative judgment of what is fair and just to the individual whose property is to be acquired, was to put wide powers in the hands of Parliament which were capable of abuse. But the framers considered it necessary that Parliament should have those powers, and that necessary powers cannot be withheld because they can be abused. As regards the State legislatures, the requirement of obtaining the President’s assent [i.e. approval of the Union Government] was considered a sufficient safeguard. As years went by, it was seen that the presumption that the elected representatives of the people would not enact unfair laws of acquisition was seen to be unfounded, because the power was gravely abused and at times, the power became a weapon of blackmail. The above analysis shows that the 4th Amendment expressly made compensation and principles of compensation non-justifiable. One question still remain open to judicial review, namely, whether the amount fixed or the amount derived from the principles laid down for determining the compensation could be described as compensation at all. If, for example, a law fixed Re. 1 for acquiring property of the market value Rs. 1 lac, it is obvious that the legislature was observing the form but denying the substance of compensation. Such compensation would be struck down as illusory, i.e. in a practical sense, as no compensation at all. Where illusory compensation ends and grossly inadequate compensation begins, is a matter of difficulty which would have to be solved on the facts and circumstances for which the law provides. But apart from this limitation, the 4th Amendment was designed to exclude judicial review of “compensation” or principles of compensation for the acquisition of property. 3 In Vejravelu’s case, the petitioner impugned the Land Acquisition (Madras Amendment) Act, 1961 which amended the Land Acquisition Act, 1894, by providing that for acquisition of land for housing purposes the compensation to be paid was to be the market value at the date of acquisition or the amount equal to the average market value during the five years immediately preceding the date of acquisition, whichever was less. The Amendment Act also excluded potential value of land. Since Subba Rao, C.J. struck down the impugned Act for violating Article 14m it was wholly unnecessary for him to go into the challenge to the said Act under Article 31. In fact, in the view which Subba Rao, C.J. took of the impugned Act under Article 14, he himself found it unnecessary to go into the challenge to the said Act under Article 19. The discussion in Vajravelu’s case of the effect of 4th Amendment is confused and self-contradictory. At one place Subba Rao, C.J. observed that if the 4th Amendment is amending Article 31(2) retained the word “compensation”, the word must be treated as having the meaning of “just equivalent.” However, he realized that to put this meaning would be to destroy the very object with which the 4th Amendment was enacted, namely, to nullify Bela Banerjee’s case. He therefore inconsistently upheld the grossly inadequate compensation provided for in the impugned Act. This judgment need not detain us further because Subba Rao, C.J.’s observation that “compensation” as used in the 4th Amendment mean “a just equivalent” was treated in State of Gujarat v. Shantilal Magaldas as not merely obiter but also erroneous. In Shantilal Magaldas’s case Shah, J. held that the Transfer of Property Act laid down a relevant principle when it provided for compensation being determined on the basis of market value prevailing on a date anterior to the extinction of interest of the property acquired. The value of Shantilal’s land was determined as on 18th April, 1927. The draft shceme was not sanctioned by Government till 7th August, 1942, (that is, not till after 15 years). The compensation payable was communicated to Shantilal on 23rd August, 1957 (that is, not till after 30 years). Yet Shah, J. held that after the 4th Amendment the Act and the scheme were valid under Article 31(2). The common features of the five provisions laying down the principles of compensation which Shah, J. held were “relevant” (not irrelevant) are as under: Firstly, they did not profess to aim at a just equivalent or the market value of the property at or about the time of acquisition; i.e. to say that the standard of just equivalent was discarded. Secondly, the compensation actually awarded was grossly inadequate, judged by the value of the property in the open market, at or about the time of acquisition. 4 Finally, the compensation was not illusory. In addition to these principles Shah, J. showed that the principles of compensation are “relevant” if they deliberately omit an admitted element of market value, or disregard the continuous rise in the market value by taking the average of 5 years, or disregard the rise by taking the actual cost. The judgment given in Shantilal’s case vanished when the same learned judges delivered the judgment in the Bank Nationalization Case which nullified the 4th Amendment. Following propositions emerged from the majority decision: Compensation being the equivalent n terms of money of the property acquired the principle for determination of compensation is intended to award to the expropriated owner the value of the property acquired. The Constitution guarantees a right to compensation – an equivalent in money of the property acquired. That is the basic guarantee. The law must therefore, provide compensation, and for determining compensation relevant principles must be specified; if the principles are not relevant the ultimate value determined is not compensation. If appropriate method or principle is applied, the fact that by the application of another principle which is also appropriate a different value is realized, the court will not be justified in entertaining the contention that out of the two appropriate methods, one more generous to the owner should have been applied. Both the lines of thought (i.e. Vajravelu’s case and Shantilal’s case) which converge in the ultimate result, support the view that the principles specified by the law for the determination of compensation is beyond the pale of challenge, if it is relevant to determination of compensation and is recognized principle applicable in the determination of compensation for property compulsorily acquired and the principle is appropriate in determining the value of the class of property sought to be acquired. The value determined by the exclusion of important components of the undertaking such as goodwill and the value of unexpired period of leases, will not, in our judgment, be compensation for the undertaking. A review of Avijit Guha’s Land, Law, and Left 5 土地征用法 6