India: Land Acquisition By MORTH Under National Highways Act

Land required by MORTH for National Highway projects is acquired under the provisions contained in Section 3 of the National Highways (NH) Act 1956. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (RFCTLARR) Act, 2013, became applicable to the other related acts mentioned in the Fourth Schedule, including the NH Act, 1956 w.e.f. 01.01.2015 in terms of Section 105(3) of the RFCTLARR Act of 2013.

The process of land acquisition

Competent authority (CALA) is defined under Section 3(a).

Under Section 3A, the Central Government may declare its intention to acquire land (defined under Section 3(b)). This notification will give a brief description of the land and shall cause the substance of the notification to be published in two local newspapers, one of which is in vernacular language.

Section 3B gives the person authorized by the Central Government, authority to conduct inspection, survey, measurement etc.

Any person who is interested in the land may within 21 days from the date of publication of the notification under Section 3A, submit his objections under Section 3C. These objections have to be made to the competent authority in writing and shall state the grounds thereof. After giving a proper opportunity of being heard, competent authority may either allow or disallow the objections.

Under Section 3D, if no objections have been made, or the objections have been disallowed; the competent authority may submit a report to the Central Government and on receipt of such report the government shall declare by notification in the official gazette that the land should be acquired under Section 3A. Where in respect of a land, a notification has been published under Section 3A but no declaration has been published within 1 year from the date of publication, the notification shall cease to have any effect.

Section 3E has vested the power in the competent authority to issue a notice in writing, directing the owner as well as any other person who may be in possession of the land to surrender or deliver possession of the land to the competent authority or any other authorized person within 60 days. It also lays down the steps to be followed if the same is refused.

Section 3F gives the lawful person authorized by the Central Government, authority to enter and perform other necessary acts upon the land for carrying out the building, maintenance, management or operation of the national highway or a part thereof, or any other work connected with it.

Section 3G and 3H lay down the procedure for the determination and the deposit of the amount of compensation payable.

Section 3I gives the competent authority certain powers of a civil court and Section 3J states that Land Acquisition Act, 1894 shall not apply to the acquisition under this Act.

Date of determination of market value of land

With reference to the first, second and third schedule of the RFCTLARR Act, 2013, the following is clarified:

  1. All cases which have not been announced under Section 3G of the NH Act till 31.12.2014 or where such awards had been announced but compensation had not been paid in respect of the majority of the land holdings under acquisition as on 31.12.2014, the compensation would be payable in accordance with first schedule of the RFTCLARR Act, 2013.
  2. In cases where the land acquisition process was initiated and the award for compensation under Section 3G had been announced before 01.01.2015, but the full amount was not deposited with the CALA, the compensation amount would be determined in accordance with the first schedule of the RFTCLARR Act, 2013.
  3. Where the process stood complete as on or before 31.12.2014, the process would be deemed to be completed and settled.

12% on market value

The proviso of Section 26 of the RFCTLARR Act stipulates that the date for the determination of the market value shall be the date of notification issued under Section 11 of the Act, which is corresponding to Section 3A of the NH Act. Similarly, Section 69(2) of the RFCTLARR Act also stipulates that an additional amount has to be calculated @12% on such market value for the period commencing on and from the date of publication of the preliminary notification under Section 11 in respect of such land to the date of the award of the collector or the date of taking possession of the land, whichever is earlier. As the NH Act is exempt from the Social Impact Assessment, it is by harmonious reading of all related provisions that the calculation of such amount shall be made w.e.f the date of publication of the notification under Section 3A of the NH Act.

Furthermore, the pronouncements of the courts on payment of compensation under Section 23(1A), 23(2) and 28 of the Land Acquisition Act, 1894, in respect of land acquired under the NH Act r/w Section 105(3) of the RFCTLARR, show that payment of amount of 12% of the market value of land from the date of publication under Section 3A till the announcement of the award under Section 3G or taking possession of land (whichever is earlier) is payable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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