R o b b y S h a r m a 865, Block-B, Panki Freelance Research Scholar Kanpur------ 208020 Town & Country Planning Problems Uttar Pradesh.
& Land Acquisition Act Ph:9235844258;9415438326 email.sharmarobby@hotmail.com Blog-http://sharmarobby.wordpress.com;
To 10-07-2011
The Secretary, National Advisory Council,
Government of
email: ![rita[at]nac[dot]nic[dot]in](file:///C:/DOCUME~1/Anil/LOCALS~1/Temp/msohtml1/01/clip_image002.jpg){kind=small}
; dhiraj.s@nac.nic.in
Subject;- PART-2-Some major defects in the Land Acquisition Amendment Bill-2009, passed by the Lok sabha , and proposed to be again put up before both Houses of Parliament.
Honorable Secretary Ji:
I am pasting below News Item Dated 4 July 2011 disclosing about certain views of the National Advisory Council as well as about some of the Proposals of the Central Government. I have already in Part-1 of my letter to you explained why the 70 /30 ratio for Private Land Seeking Parties need not at all be Incorporated, In fact the present Unrest about Land Acquisition is only because of the Evil Deeds of the LAND ACQUISITION COLLECTORS all over the Country. Details have been given by me in my detailed Commentary on Land Acquisition Amendment Act on my Blog. The reasons behind the revolt against Land Acquisition may be summarized as below:-
1. That The Land Acquisition Collectors, since many decades have
been declaring a fraction of the actual Market rate as Award to nourish the Mafia Nexus of Land Acquisition Collector/His officials+ some powerful and resourceful Villagers (who finance the Reference cases of Poor Villagers) + Advocates (who in turn settle with the Judges hearing the Reference Cases for Increase in Compensation ).
2. That for Example if the Market rate of any Land is say Rs. 1000/= per square Meters then as a general practice the Land acquisition Collector will declare a belated Award of about Rs 100/= Per square meters. Thereafter the Mafia will come in to operation and Agreements will be got signed from affected Villagers (by the Resourceful Villager + Advocates) whereby the Villager will be made to agree to give about fifty % of the increased Compensation (declared in Reference Cases under Section-18 by the Civil Judges) to this Mafia.
3. That The corruption prevailing in Courts, in Land Acquisition Compensation claims is quite apparent from the Observations made by the Allahabad High Court Bench in their judgment dated-05-03-2004 in the matter of Fiirst Appeal No.981 of 2002 (Agra Development Authority V/s State of U.P) and other connected appeals, the Observations are:-
“These facts disclose the scandalous state of affairs prevailing in the district courts of the U.P. and it is no wonder that the public is disgusted with this state of affairs which smacks of rampant corruption”………………………
“Let the Registrar of this Court place copy of this judgment before the Administrative Committee of the High Court for taking appropriate action against the concerned persons and Judicial officers who appear to be in collusion.” One of the Judges who delivered the Judgment in the above case , M.Katju is now a Supreme Court Judge. Dozens of Civil Judges came under a cloud by this Judgment.
4. That in the past, The Land Acquisition Collectors almost always gave their Awards, treating the Lands of the Landowners, almost always as Agricultural Lands. In reference Cases the Civil Courts treated the Lands near the Cities and within them as having probability of being built upon and so in most of the cases they compared the market rates with small plots sold in the Vicinity for dwellings and started deducting from 25 % to ONE THIRD for Development and balance was allowed as Compensation. To better understand it the following example may be taken: (i)- In a Land Acquisition Case of say 1967, in
5. That in the Land Acquisition Amendment Bill-2009, the Central Government has fixed a better criteria for fixing the Market Rate and for this purpose, they have inserted SECTION-11B but even after this the Controversy will remain because the Collectors declare two types of Circle Rates, one for Agricultural Lands in Rs. Per Hectares/Acres, and one for Residential/ Commercial /Industrial Plots in Rs per Square meters. The difference is huge for example in Gurgaon, the Circle Rate for
6. That to avoid this I had made detailed Suggestions in my letter dated 23rd March-2007 but they have not been heeded. No guidelines in this respect are there as to what rate to apply and where and while comparing the price with market rate of small Plots what is to be deducted for development charges (presently generally 25 % to one third is deducted and in some cases even 84 % has been deducted without any reasonable cause).
7. That about 80 years back the Bombay High Court said that while comparing the rate of Large Plot of Land with that of a small Plot of Land , the Wholesale Rate should be about 40 % to the retail rate , this Judgment was followed by the Supreme Court in only one or two cases but this is a very reasonable calculation. Say in the case of Gurgaon, in Areas where the Retail rate of Developed Plots is 25000/= per square meters the Rate of Rs. 10000/= NETT is Needed to be paid to the Land Owner , which comes to Rs 4 Crore per Acre, which is the actual market Rate of agricultural Land in Gurgaon as against the Circle Rate of Rs One Crore/Acre. You may make inquiries about this and you will be amazed to find it to be true. Therefore clear guidelines are needed in the Land Acquisition Amendment Bill 2009 specially in proposed Section-11- B if farmers unrest/ revolt and consequent litigation is to be avoided
8. That secondly there are no transparent guidelines for fixing of Circle Rates, in Delhi & Gurgaon & NOIDA, where lots of black money is in play the Circle Rates are about 25 % of actual Market Rate while in Cities like Kanpur, where the State Government in its greed for Stamp duty collection has in most outlying areas fixed the Circle Rates at thrice the actual rates with regard to Residential/ Commercial Circle Rates . Therefore this aspect of arbitrary fixation needs to be addressed if Proposed Section-11 B(1) (i) is to be meaningful. Proposed Section 11-B (1) (ii) & (iii) are meaningless till such time that the black money content of Land deals is not eliminated and for this purpose it should be mandatory for the Collector/ Income Tax Department (which has now by Section-50 C of their Act started valuing properties at the minimum rate of Circle Rate) to acquire randomly about 2 to 3 % of properties registered in the Registrar’s Office by paying ten to fifteen percent over and above the purchase cost. (for this purpose a independent Committee will have to keep an eye on the actual market rates and recommend Acquisition of undervalued properties)
9. Whatever may be the provisions of Law laid down,it is certain that the Land Acquisition Collector will never follow them (as per the past record) therefore unless Criminal penalty is imposed on the Land Acquisition Collector, for neglecting to follow the provisions of law, the problem will not end .The present Country wide Unrest against Land Acquisition is mainly because of the malafide and mischievous actions of the Land Acquisition Collectors. That therefore there should be a proviso to Section-11-B to the effect “that if the Land Acquisition Collector omits to take in to consideration fully, the factors provided for by Sections 11-B (1) (i)(ii) (iii) or 11B (2) (i)(ii)(iii), then he shall be held personally responsible and will be punished with imprisonment of three years as well as with fine”.
10. That the Proposed Section-11-B (3) is unconstitutional as it does not matter to the Land Owner as to which Agency is taking his Land and to which Use it will be put. There can be no discrimination on this account in matters of Compensation if this Section is not deleted then it will give rise to millions of litigations. A Judgment or two in this respect of the Supreme Court were given on account of over zealousness to favor the Government and are in fact wrong.
11. That However there may be cases of States, where the Land Owners get only restricted Rights of User of their Agricultural Lands and can not put it to any other Use but in case of Uttar Pradesh the Bhumidhar (Landholder) with transferable Right can under Section-142, of the U.P. Zamindari Abolition & Land reforms Act-1950, use his Land for any purpose including Industry, Commercial, residential and he does not even need the permission of any body under the U.P. Zamindari Abolition & Land reforms Act-1950 for this purpose. The Land of the Land Holder is his livelihood and he can earn his livelihood by his traditional / any other Lawful means through his Land. Therefore a detailed examination on this aspect is needed.
12. That if the true Market Rate is offered to the Land Owner at time of the Section-4 Notification itself and the Circle Rate is reasonable and reflects the actual Market Rate then majority of Land Owners will accept it as I have submitted in my detailed Suggestions dated 23rd March-2007.
13. That proposed Section 11 C , though not illegal will prove to be useless.
14. That no Proposal is there in the Land Acquisition Amendment Bill-2009 to stop the Illegal practice of Collectors, who manipulate as well as sometimes fabricate records to escape from the LIMITATION PROVISIONS between Section-4 Notification & Section-6 Declaration and Section-6 Declaration and Section-11 Award. To stretch this time limit they insert notices in Newspapers as late as two to three months (and in certain cases even years) and even then if they fail to make the declaration of section-6/ award under Section 11, they fabricate public notice and just type a Notice and show that it was displayed on notice Board in Panchayat or at prominent places. I had given detailed suggestions in the Letter dated 23rd March-2007, which have not been heeded. In fact the time period between first and last Publication should not be more than 15 days and Criminal Penalty should be levied on the Land acquisition Collector and he should be punished by two years imprisonment on the breach of this period or in the alternative, the First of the date of Publication in the gazette/ Newspaper/ Public Places should be the relevant date for the purpose of date of section-4 Notification /Date of Section-6 declaration as the case may be.
15. 15. That the Amendments proposed in Section -12 are insufficient, the Land acquisition Collectors have been on a regular basis making back dated awards and filing them to avoid Section-11A limitation. It should be made mandatory for the Collector to publish a summary of his Award in the Official Gazette. He should further be directed to publish a public notice of the Award having been declared within three days of declaring the Award and the date of the earlier Publication of the two should be taken as the date of Award. I have given detailed suggestions in this regard in my Letter dated 23rd March-2007.
16. 16. That the News item dated 04 July 2011 says that the Central Government is thinking of making Section-6 Declaration as relevant date for purpose of Market Value. This proposal is outright foolish as after publication of the Section- 4 Notification, the Act bars the sale and purchase of Land in the Area so after this date , there is no way that the Market value can be ascertained for Section-6 Declaration date. About fifty sixty seventy years back when there was no limitation between Section-4 to Section-6 and between Section-6 to Section-11, the Section -6 date was taken as there used to be gap of decades between the Section-4 & 6 and the only purpose of section-4 by Improvement Trusts was to stop building activities so that the purpose of Acquisition was not thwarted so it was thought fit to take Section-6 date as the relevant date. In the present case there is a limitation of one year between Section-4 and section-6 and 12 % Additional Compensation under Section-23 -(1-A) is allowed over market rate till date of Award which is needed to be changed to 15 % per annum compounded quarterly. So the Section-23-(1-A) needs to be amended accordingly as this is the minimum rate at which the Land prices are increasing.
1 17. That the Proposed Amendment to Section-23-(2) of the Act, increasing the amount of Solatium from 30 % to 60 % is not needed and in fact as suggested by me in letter dated 23rd March-2007, it can be even reduced to 15 %. The only need is that correct Circle Rate, Correct market rate is ascertained and guidelines for comparing the Market rate of larger agricultural Area with respect to rate of small developed plot at 40 % of the small Plots rate is laid down. However the Government may retain the Sixty percent Solatium proposal with a rider that this sixty percent will be given only if the Landowner accepts the Compensation at Agricultural Market value and undertakes not to contest the Award by relying upon any sale of Land of less than one Acre for Non Agricultural purposes.
1 18. That proposal of Part-11A & Part-11 B of the Land Acquisition Amendment Bill 2009 as passed by the Lok Sabha are Useless as poor Farmers can not be asked to go to the state Headquarters of the State Authority as it is they are caught up in the web of the Land acquisition Mafia and the present Proposals are not going to decrease the Litigation. If the Government thinks that just by incorporating provisions of market value assessment on account of the Circle Rate also and increasing the Solatium to sixty percent then the Government is grossly mistaken as the contagious issue of agricultural Circle Rate vis a vis the residential Circle Rate has not been resolved in the proposed Amendment So the Authorities under Part-11A & Part-11 B of the Bill have to be DISTRICT LEVEL AUTHORITIES ONLY so that the Farmer can easily approach them.
I Trust that you will agree with the Suggestions. I will send more Suggestions in Part -3 of my Suggestions.
Thanking You
Yours Sincerely
Robby Sharma
865, Block-B, Panki Kanpur-208020.
