Updated: Thursday January 14, 2010/AlKhamis
Muharram 29, 1431/Bruhaspathivara
Pausa 24, 1931, at 07:05:37 PM
Course Contents:
1.
The Land Acquisition
Act, 1894 (Act I of 1894) as amended upto date.
Books Recommended:
1.
The Land Acquisition
Act, 1894 by Muhammad Amir Sohail.
2.
The Manual of Land
Acquisition Laws by Zia-ul-Islam Janjua and M. Waqar-ul-Haq.
Meaning of
acquisition: As it is very clear from the title of the law that
it is enacted for compulsory acquisition of land required for the purpose of
public benefit. It also determines the amount of compensation on account of
such acquisition. The exercise of the power of acquisition is limited to public
purposes.
First object: It
fulfills the needs of government and companies for land required by them for
their projects. Public purpose includes factory, school, fishery, and co-operative.
Seconds object: It
also determines the amount of compensation payable to those private persons or
bodies whose land is so acquired.
Publication of
notification: Where government needs or likely to be needed land
for public purposes, it is required to publish in the Official Gazzette. It is
responsibility of Collector to cause public notice to give at convenient places
in the said locality.
Powers of
officer: Officer so authorized has certain powers to exercise
his job to survey of the land which is intended to be acquired for public
purposes. He has following powers:
1.
Entry:
He can enter, survey, and levels of any land in such locality.
2.
Digging
or boring: He has also power to dig or bore the sub-soil.
3.
Necessary
acts: He can do all necessary acts for assertion whether
the land is adapted for such purposes.
4.
To set
out boundaries: He can set out boundaries in the purposed land,
which is intended, to be taken.
5.
Marking
and levels: He can cut trenches and mark places boundaries.
6.
Making
passage: Where turns out that survey become impossible due
to certain hurdles, he may order to remove them such as cutting down standing
crops, fences, or jungles.
Exception: Entry
in any building or upon any enclosed Court or garden attached to a dwelling
house is not allowed. Prior consents of occupier must be obtained. Otherwise
seven days’ notice should be given of the intention to do so.
Payment of
damages: Once a survey report is completed, submitted, and
finally approved by the Board of Revenue (BOR), damages shall be paid to the
affected party. This compensation is paid against any damage occurred during
survey. If any dispute arises regarding sufficiency of the amount of
compensation, this dispute shall be referred to Collector or other Chief
Revenue Officer of the district for settlement and his decision shall be final.
Hearing of
objection: Any person, who is interested in the land, intended
to be acquired, may object on compensation. Objection should be written and
addressed to Collector.
Hearing
opportunity: Collector shall provide opportunity to objector for
the hearing disputed subject. This opportunity is given either in person or by
pleader.
Submission of
report: Upon completion of the enquiry after giving
opportunity of hearing, Collector shall prepare a report including his
recommendations and he shall send it to Provincial Government. This report also
includes objections put forwarded. Decision of Provincial Government is
considered final. The above enquiry is purely administrative and not
quasi-judicial enquiry.
Declaration of
the intended acquisition: When government is satisfied that
all the formalities have been completed in respect to acquire the intended
property, it shall be obligatory to notify the declaration under the signature
of Secretary or duly authorized officer.
Conditions of
declaration: Declaration has to follow certain conditions such
as:
1.
Payment
of compensation: Declaration cannot be made unless the amount
of compensation has been paid to the aggrieved party, wholly or partly.
2.
Time
limit for declaration: Time limit for the declaration is
six months after the publication of notification for the acquisition of land.
Failure to make declaration within stipulated period makes an end the
acquisition of land. Period of prosecution and stay shall be computed to the
said period of six months.
Particulars of
declaration: Declaration is to be published in official Gazette.
It shall state the district or other territorial division, purpose of such
acquisition, and approximate area acquired.
Conclusive evidence:
Such declaration is conclusive evidence of the requirement of government for
public purpose.
Order of
acquisitions: Where the government has declared intention to
utilize certain land for public purpose may direct Collector to take order for
the acquisition of the land.
No award can be made under S. 11 unless the
provisions of S. 7 to 11 are complied with.
Marking,
measuring, and planning: Collector is responsible to mark
out the land. He shall also measure the land and shall make plan.
Public notice:
Collector has to make public notice containing government intention to acquire
certain land to interested persons who have claim of compensation.
Requirements of
notice: Notice should state the:
1.
Particulars of land so needed.
2.
Appearance of the all interested
persons either personally or by agent before the Collector. Time and place for
appearance is also necessary requirement. Notice also contain nature of
government’s interest, amount of compensation, particular of claims of
compensation, and the objection of the effected persons.
Service of
notice: Notice is also served to the occupier and all
persons having their interest, either personally or to agent.
If interested person resides not within district
where such property is situated, notice is sent by post on last known address.
Power to require
information: Collector may require any necessary information
from any suitable person containing the names and interest of any other person
in such land. This information may include interest as co-proprietor, sub-proprietor,
mortgagee, tenant, or otherwise.
Legal duty:
Person so required, to provide such information, is legally bound within the
meaning of §
175 and 170 of Pakistan Penal Code.
Enquiry and
award by Collector: Collector is obliged to conduct enquiry on
date and time settled prior regarding the objects of amount of compensation. He
shall decide.
1.
True area of land required.
2.
The appropriate amount of
compensation in his opinion.
3.
Apportionment of compensation
among all the persons interested in the land who have applied regardless they
have or not appeared before him.
Collector gives immediate notice of his award to all
the persons effected negating present in enquiry or not.
Correction of
mistake: Any person may at any time commit mistake. Mistakes
can be rectified in the manners provided. Award of compensation may contain
clerical or arithmetical mistake. It can be removed either on application of
the person concerned or at the motion of Collector.
Power to summon
and attendance: Collector may order for summoning and
attendance of any person for the purpose of enquiry. He has power to compel the
parties and also witnesses to appear before him.
Special powers
in case of urgency: Collector enjoys special powers in case of
urgency containing:
1.
He may negate award of
compensation.
2.
He can take the possession of
required land.
3.
He can abate land from all
encumbrances.
Reference to Court: Where Collector has made award for the amount of compensation, measurement of land, the persons to whom it is payable, or the apportionment of the compensation payable to the interested persons, the interested person, if has objection, may put a written application for decision of Court.
How application is made: If any objection arises regarding the award of Collector, a written application can be made to Collector requiring to make reference to Court in respect of matters specified therein. Collector leaves no option but to refer matter to Court for determination.
Objections, which may be raised: Written application must contain objections on award of Collector. Following objections may be made in application:
1. Measurement of land: Where any dispute arises regarding the measurement of land so required for public purpose or company, this matter can be forwarded to Collector for the determination of Court. Court shall determine whether measurement was accurate, wrong, or any other irregularity is observed. Court may require re-measurement if any irregularity is observed.
2. Amount of compensation: In certain cases amount of compensation may appear unsatisfactory. It may be assessed wrongly. In certain case value may be calculated on the basis of value which land carries at relevant time. Court has to take into consideration its potential value. Value of other land in the same locality can also be considered compulsory acquisition charges plus compensatory interest under Land Acquisition Act.
3. Interested persons: Award based on negation or ignorance of the person interested in land causes defect of award. Such deprived person may initiate written application for his consideration as relevant effected and interested person in the land so acquired. Court may consider his interest and awards compensation as of his right.
4. Apportionment of compensation: There may be more than one persons who have interest in the land so acquired. There may also be other persons who have effect of such compulsory acquisition. One person may have mere effect of compulsory acquisition, other one mere have interest in the land compulsorily acquired. There may be a person both interested and affected in land acquisition. Amount of compensation in apportionment may vary in certain cases. Person who is deprived or affected may refer this award to Court for determination.
Exception: There is one exception to this rule for reference to Court. Only that person can make this application who was:
1. Personal presence: He was personally present at the time of award before Collector.
2. Representation: Any person may not appear before Court. Such person requires his representation through his agent or Counsel. This representation should be at the time of such award. In other case he shall be deprived.
Time limit for reference:
1. Law allows six weeks time period to make written application to Collector for determination of Court.
2. When Collector makes his award, he issues notice to each interested person either he is present in Court personally or present in Court through representative. Time limit for reference is six weeks after the receipt of such notice from Collector.
3. This limit extends to six months from the date of award by Collector.
Period expires first shall be applicable to make application.
Statement of
Collector to Court: For the information of Court, Collector shall
state the following things in his reference:
1.
Particulars
of land: It may contain all necessary information regarding
the land acquired such as where it is situated, extent of land acquired, all
the trees planted in such land, buildings constructed, or any standing crops
thereon.
2.
Particulars
of interested persons: This information also includes
the names of all the interested persons who are interested in the opinion of
Collector in such land.
3.
Amount
awarded: Information about the amount awarded for damages
paid or tendered and the amount of compensation awarded.
4.
Objections:
All the objections and the amount of compensation and grounds on which it was
determined.
5.
Particulars
of notices: This statement also includes all the notices served
in this regard and all the written statements made or delivered by the parties
interested respectively.
Service of
notice: Court serves notices upon reference made by
Collector. This notice includes:
1.
Date: Notice
states the day on which enquiry is to be held for the determination of
objection.
2.
Directions:
Court directs through notice to the interested person for his appearance in
Court on the day fixed for hearing.
To whom notice
is issued: Following are the persons who are notified:
1.
The
applicant: Court serves notice to the applicant who desired
reference to Court.
2.
Interested
persons: This notice is also served to all the persons
interested therein.
3.
Collector:
Where objections are put with reference to the area of land acquired or amount
of compensation, notice is served also to Collector concerned.
Exception: There
is one exception to this rule of service of notice. Notice is not served to the
persons who have consented not to protest and have received amount of
compensation awarded.
Restricted scope
of enquiry: In the reference to Court, Court is restricted to
enquire just consideration of the interests of the affected persons by the
objection. If objection is not raised, no enquiry shall be held.
Proceedings in
open Court: Proceedings of referee Court should be in open Court
as in an ordinary
Cross objection: Party against which objections are lodged may make cross objection. If cross objection are sound, Court may reduce amount of compensation, which was awarded by the Collector in his decision.
Considerable points in compensation determination: Court is obliged to take into consideration some points during the determination of amount of compensation. They are as follows:
1. Market value: Market value is taken into consideration, which was at the time of publication of notification for compulsory acquisition of land.
2. Damage of property: Land may contain standing crop or trees at the time of acquisition. If any damage occurs while taking possession shall be considered in determination of compensation.
3. Damage of interest: If the land so acquired was in service of interested person and the interest is damaged due to acquisition, may also be considered in compensation determination.
4. Injurious effect: Land which is acquired may injure or effect other property adjacent, either moveable or immovable, in any manner, in earning of interested person. It is valid point, which is considerable in determination of compensation.
5. Consequential damage: Land acquired may cause in change of business or residence. Reasonable expenses incurred are also considerable points.
6. Diminution (decrease, lessening) of profits arising: Bona-fide damage may occur in arising out of profits in the land during the transitory period from the publication of notification and taking the possession of the land.
Where land is acquired compulsory on market value of the property, Court awards in every case additional 15% on market value.
Matters to be neglected in determining compensation: There are certain matters, which are negated and are not taken into consideration are as follows:
1. Degree of urgency: Land so needed cannot make any effect if it is acquired urgently. Compensation is decided later on.
2. Disinclination (dislike): If any interested person is disinclined shall not be considered in acquisition.
3. Damage by private person: During acquisition, if any damage occurs by private person, makes not liable to consider in suit.
4. Compulsory damage: If any damage is likely to be caused to the land acquired after publication of declaration by or in consequence of the use to which it will be put, shall not be considered.
5. Subsequent increase in value: Any increase in value of land due to compulsory acquisition and purpose for which it is acquired, shall be negated in determination of compensation.
6. Consequential increase in value: If value of other land is increased due to this act of government makes no considerable point for increase of compensation.
7. Unauthorized improvement: All the improvements made after publication of declaration without authorization of Collector shall not be considered for award of compensation.
8. Increase after value determination: Where the market value of interest has been determined once, no further increase shall be taken into consideration for increase in compensation.
9. Repairing cost: If the land so acquired is not in good sanitary condition and is liable to expense to take it in good condition, compensation shall exclude such nature of expenses.
Amount of compensation: Law has provided minimum and maximum limit of compensation.
1. Maximum compensation: Where amount of compensation is demanded after serving notice to interested person, maximum amount of compensation shall be, so claimed or not less than the amount, awarded by Collector in his decision u/s 11.
2. Refusal of claim: When the claim is refused or omitted without sufficient cause, the maximum amount shall follow the award of Collector.
3. Omission for cause: Where such claim is omitted on the grounds of sound reasons, the amount of compensation may exceed from the award of Collector.
4. Decrease on discretion: Where Court thinks fit at the time of cross objection or after consideration of any reference may decrease the amount of compensation. This decision is made after considering the award excessive.
Dispute of apportionment: Collector may refer the dispute to Court regarding the apportionment of compensation amount among the interested persons. This reference may contain two reasons such as:
1. Settlement of compensation: Where the amount of compensation has been settled in the decision of Collector.
2. Dispute of apportionment: After the decision of Collector, a dispute regarding the apportionment has raised among the parties interested.
Payment or deposit of compensation: Collector must pay or at least tender the compensation money to the parties entitled according to award. If the receipt of compensation is denied Collector may deposit it in Court. There may be four reasons in which amount is deposited to Court:
1. Silence: If the person entitled does not consent to receive compensation.
2. Dispute of title: Where is dispute as to the title of land in question.
3. Dispute of apportionment: Where there is dispute as to its disbursement among the persons entitled.
4. Non-competency: When the compensation is payable to the person who is not competent to alienate (divide) the land.
In all such cases Collector shall be constrained to deposit amount in Court.
Exception: There are certain exceptions to this rule, such as:
1. Receipt under protest: A person admitted being interested or entitled, may receive the amount of compensation. He may claim under reference to Court.
2. Receipt without protest: Where any claimant has received money without raising any objection loses his right regarding reference to Court. Receipt without protest extinguishes right of reference to Court.
3. Recovery of compensation: Where any person wrongfully receives wholly or partly the amount of compensation does not prevent the person who is lawfully entitled. Person entitled may institute suit for the recovery of amount.
Power of Collector: Law empowers the Collector to make certain arrangements with any person competent to contract, who has limited interest in such land.
Arrangements: Collector may make following arrangements:
1. Grant: Collector may grant other land in exchange of the land under compulsory acquisition.
2. Remission: Collector may remit the Land Revenue on other lands held under the same title.
3. Equity: He can make any other arrangement, which is equitable. It may consist on the regard of concerned interested parties.
Investment of money of incompetent person: Court invests money of incompetent person in the following manner:
1. Purchase of land: Court orders to purchase the other land which is similar to the land so acquired.
2. Government securities: If land is not purchased then this amount shall be invested in government securities as Court thinks fit.
3. Payment of interest: Amount of an interest shall be paid to the person entitled upon competency. In contrast it shall also be deposited in Court and shall be:
(1) Purchase of land: Utilized in the purchase of other lands as aforesaid.
(2) Payment to entitled person: Court may pay this amount of interest to any other entitled person.
Payment of interest: As soon as award is announced, Collector is obliged to pay or tender to pay amount or in case of refusal, may deposit it to Court. If such amount is neither paid nor deposited in Court shall pay interest @ 8%.
Computation of interest: Interest shall be computed from the time of so taking possession until it has been paid or deposited.
Investment of money in other cases: If there are any reasons other than incompetence, Court may invest the amount so deposited in government securities.
When investment is made: Investment is made when an interested party applies for such investment. This situation arises in the following cases:
1. Refusal: Where interested parties refuse to receive the amount of compensation or do not consent to receive it.
2. Dispute of apportionment: Where there is a dispute as to the apportionment of the compensation money.
3. Dispute of title: Where there is a dispute as to title as regards the persons interested to receive the compensation money.
Acquisition of land for companies: When any company desires to acquire land, Provincial Government may permit to any authorized officer of company to exercise powers as laid down in S. 4.
Publication of
notification: Where government needs or likely to be needed land
for public purposes, it is required to publish in the Official Gazzette. It is
responsibility of Collector to cause public notice to give at convenient places
in the said locality.
Powers of
officer: Officer so authorized has certain powers to exercise
his job to survey of the land which is intended to be acquired for public
purposes. He has following powers:
1.
Entry:
He can enter, survey, and levels of any land in such locality.
2.
Digging
or boring: He has also power to dig or bore the sub-soil.
3.
Necessary
acts: He can do all necessary acts for assertion whether
the land is adapted for such purposes.
4.
To set
out boundaries: He can set out boundaries in the purposed land,
which is intended, to be taken.
5.
Marking
and levels: He can cut trenches and mark places boundaries.
6.
Making
passage: Where turns out that survey become impossible due
to certain hurdles, he may order to remove them such as cutting down standing
crops, fences, or jungles.
Exception: Entry
in any building or upon any enclosed Court or garden attached to a dwelling house
is not allowed. Prior consents of occupier must be obtained. Otherwise seven
days’ notice should be given of the intention to do so.
What is company: Company is an association of person employing more than 100 workmen.
What is object: Object of land acquisition by company is to erect dwelling house or amenities (comforts, social pleasure, nice things) directly concerned to workmen.
Execution of agreement: In order to acquire land for company purpose, provision of § 6 to 37 shall not apply. But government has power to put them in force.
Previous enquiry: Government is custodian of public interest and sole judge whether such land was required for construction of some work and whether such work was likely to prove useful to public. Enquiry can be held in following cases namely:
1. Purpose: Whether this acquisition is for the erection of dwelling houses for workmen employed or for their amenities directly connected to workmen.
2. Usefulness to public: Acquisition is required for some work which is useful to public.
Enquiry officer: Provincial Government is competent to appoint enquiry officer who shall conduct enquiry at the time and place given to him.
Summoning the parties: Such enquiry officer may summon the parties and witnesses. He may compel them to produce documents.
Agreement with Provincial Government: Provincial Government makes an agreement with company for the purpose of acquisition of land, provided:
1. Satisfaction: Government is satisfied on enquiry report either made u/s 5-A(2) or 40.
2. Purpose: Government satisfies that the purpose of land acquisition is either erection of dwelling houses for workmen or provisions of amenities directly connected to workmen.
3. Usefulness: Government satisfies that purpose is useful to the public.
Contents of agreement: When government satisfies then enters into an agreement with company and agreement includes:
1. Payment: It includes the payment to be made to government. This payment includes cost of acquisition.
2. Transfer: Upon payment, land shall be transferred to company.
3. Terms and conditions: It also includes terms and conditions on which land shall be held by the company.
4. Completion plan: Purpose for which land is acquired should be completed in the given time.
5. Public usage: If the land is acquired for public benefit, what shall be the time limit of completion of work and what are the terms on which public shall be entitled to use the work.
Publication of agreement: It is an essential and real requirement on the part of company and public. It satisfies public that compulsory acquisition of one’s land for another juristic entity is one made in public interest and on the terms beneficial to it. The publication of the agreement in the manner prescribed is not a formality. The omission to do so will effect the acquisition.
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