- Natural Theory
Grotius - Natural Reason - Theory of occupancy - The
property acquired by the occupation of an ownerless object. All things originally
were without owner and whosoever acquired or captured it became its owner.
Right to property of one’s own person – its natural.
positive theory / labour theory
The positive theory of property, also known as the labor theory, is based on the idea that property is the result of an individual’s labor. According to Spencer, the founder of the theory, no one has a moral right to property unless they have acquired it through their own effort.
- Historical Theory
According to this theory, the concept of private property has rooted out from the existing concept of joint property held by the whole society or members of ta particular social group for collective good/enjoyment of everyone in it. Such development have said to be taken place in different stages over a period of time.
First Stage: In this stage, people tend to take natural possession of the property and also exercise control over it (without any law or existence of state).
Second Stage: In this particular stage, the conception of juristic possession has developed i.e., possession in fact & law.
Third Stage: The present form of legal ownership has taken its shape in this stage. Therefore, the concept of protection of individual’s property rights by state has developed.
Sir Henry Maine was the ardent supporter of this theory about concept of property.
Psychological Theory
– Benthem - Acquisitive Instinct - every individual
desires to own things and that brings into existence property – fulfilment of the
will of humans – conception of mind
- Sociological Theory / Functional Theory
property not be considered
as a private right – but a social function - An institution which secures maximum
interest and satisfies maximum wants.
- Metaphysical Theory
– Kant - A thing belongs to the owner when he is
connected with it in such a way that anyone else using it - without his consent –
results into an injury to him.
* Meta Physics – A branch of Philosophy – exploring abstract concepts –
to gain a deeper understanding – Unverified / Speculative Theoretical
assumptions
Property a creation of Law and the State
Property a creation of Law and the State – Rousseau - Never existed before
they came into play – Unless there are laws – there does not exist a right – and
hence there is no property
44th constitutional amendment
right of property scope reduced by legislature from the og constitution, so It changed the Constitution’s right to property by declassifying it as a fundamental right and reclassifying it as a constitutional right.
So article 31 and article 19 (1) (f) have been deleted from constitution and reclassified under article 300 A.
A shift in the legislature’s attitude on the necessity to provide compensation when
acquiring or requisitioning property.
2. The intimate connection between property and other basic rights.
3. Finally, the relationship between basic rights and directive principles.
while 300 A secures the constitutional right to property it also implies eminent domain. wherein the government can acquire land for public purpose and for welfare of public and it will not be in violation of art 19, 14.
right to fair compensation objectives and schedules
- To ensure a humane, participative, informed, and transparent process for land acquisition for industrialization, development of essential infrastructural facilities and urbanization.
First Schedule – Compensation for Land Owners
* Second Schedule – Element of Rehabilitation and Resettlement entitlements
* Third Schedule – Infrastructural Amenities
* Fourth Schedule – List of enactments regulating LARR
* The Principal Act repealed the 1894 Land Acquisition Act.
section 1(3) acrr consent?
ACRR= Acquisition, compensation, rehabilitation and resettlement
- when its acquisition:
- for private companies, the prior consent of at least eighty% of those affected families
- public private partnership projects, the prior consent of at least seventy%. of those affected families
the acquisition MUST be for a public purpose.
The process of obtaining the consent shall be carried out along with
the Social Impact Assessment study.
* No land shall be transferred by way of acquisition, in the Scheduled Areas in contravention of any law relating to land transfer, prevailing in such Scheduled Areas.
-
Person interested means:
- persons claiming interest in compensation
- ST and other forest dwellers who have lost the forest rights
- person having easmentary right on the affected land
- tenancy under the state laws
- person whos livelihood will be affected
Section 4 - Preparation of Social Impact Assessment study. (SIA)
Whenever the appropriate Government - intends to acquire land for a public purpose, it shall **consult the concerned Panchayat, Gram Sabha, Municipality or Municipal Corporation - in the affected area and carry out a Social Impact Assessment study in consultation with them. **
* Notification of commencement of SIA – local language – with local authorities – published – uploaded on the website – authorities to be adequately represented.
* To be completed within 6 months from the date of commencement – report
to be made available to the public.
SIA needs to include:
1. whether the proposed acquisition serves public purpose
2. * est. of affected families and the number of families among them likely to be displaced
3. * whether the extent of land proposed for acquisition is the absolute bare- minimum extent needed for the project.
4. * whether land acquisition at an alternate placehas been considered and found not feasible
5. * study of social impacts of the project, - Cost – benefit analysis - Environmental Impact Assessment study to be caried out simultaneously.
Section 5 – Public Hearing. and section 6?
- S5:
Appropriate Government shall ensure that a public hearing is held at the affected area, after giving adequate publicity about the date, time, and venue for the public hearing, to ascertain the views of the affected families to be recorded and included in the Social Impact Assessment Report.
Sec6: * Section 6 – Publication of Social Impact Assessment study
* SIA study report – along with the Social Impact Management Plan - local
language – with local authorities – published – uploaded on the website.
* Environmental Impact Assessment Report to
- Section 7
- Appraisal of Social Impact Assessment report by an Expert Group includes:
- two non-official social scientists
- two representatives of Panchayat, Gram Sabha, Municipality or Municipal Corporation
- two experts on rehabilitation / a technical expert in the subject relating to
the project – Chairperson to be nominated
expert grp has to make reccomendations within 2 months regarding if the project serves public purpose or not and reccs are to be made public
- Section 9–
Exemption from Social Impact Assessment.
* Urgency provisions – u/s 40 - appropriate Government may exempt
undertaking of the Social Impact Assessment study.
Section 8
– Examination of proposals for land acquisition and Social Impact
Assessment report by appropriate Government – an obligation
- The potential benefits and the public purpose referred to in clause shall outweigh the social costs and adverse social impact as determined by the Social Impact Assessment that has been carried out.
- Minimum area od land required for project is to be acquired
- SIA / Expert Group recommendations to be examined – recommend such acquisition – as would ensure minimum displacement of people, minimum disturbance to the infrastructure, ecology and minimum adverse impact on the individuals affected – decision of the government to be made available in
the local language
- SIA / Expert Group recommendations to be examined – recommend such acquisition – as would ensure minimum displacement of people, minimum disturbance to the infrastructure, ecology and minimum adverse impact on the individuals affected – decision of the government to be made available in
- Section 10
Special provision to safeguard food security.
**No irrigated multi-cropped land shall be acquired under this Act unless **
* that it is being done under exceptional circumstances, as a demonstrable
last resort.
* an equivalent area of land shall be developed for agricultural purposes /
equal amount of the value of the land - deposited with the govt for
investment in agriculture for enhanced food security
linear projects – an exemption
section 10 A
2015 Amendment - Appropriate Government – may – notify – that
SIA provisions not to apply to the following projects:
* Projects vital to national security or defence of India
* Rural infrastructure / affordable housing / industrial corridors
* Infrastructure Projects – including PPP – where ownership is with the
Government.
* Proviso - Extent of land – to be kept to bare minimum
section 11
preliminary notification publication in official gazette, 2 daily newspapers and one in regional language, uploaded on website of govt and reasons for acquisition etc.
once this notification is made, no person shall make any trnxn of land or create any encumberances n the land. exceptions can be allowed if collector approves,
- Section 12
Preliminary survey of land and power of officers to carry out survey -
o be conducted in presence of the owner or person authorized by him – if
he does not turn up – even after a reasonable notice – 60 days – survey can
be done in absentia.
* Not to enter in to a building / dwelling house – without the consent of the
occupier - 7 days’ notice to do so.
Section 14.
Lapse of Social Impact Assessment report. = * If preliminary notification is not issued within 12 months of appraisal of
SIA report – SIA lapses – to be freshly conducted.
* Government may extend period – justify reasons – extension to be notified.
Section 15 – Hearing objections.
- Any person interested in any land notified – within 60 days of preliminary
notification – may object in writing to the collector and ask for opportunity to be heard
regarding:
* The area and suitability of land proposed to be acquired
* The justification offered for public purpose;
* The findings of the Social Impact Assessment report.
- Section 16, 17,18-
Rehabilitation and Resettlement Scheme.
* Conduct a survey – census of affected families – including:
* particulars of lands and immovable properties being acquired of each
affected family * livelihoods lost and Resettlement and Rehabilitation Scheme to be prepared.
Scheme to include: *Amenitites and infrastructure facilties to be provided * a list of Government buildings to be provided in the Resettlement Area
- Section 17 – Collector to review the Rehabilitation and Resettlement Scheme – to submit the same with his suggestions to the Commissioner Rehabilitation and Resettlement – u/s 44 - for his approval.
- Section 18 – Approved scheme to be published –
Section 19
- After considering the report – if the AG satisfied – that any particular land
is needed for a public purpose, a declaration shall be made to that effect - Along with it - a declaration of an area identified as the “resettlement area” – for resettlement of affected families.
- A summary of the Rehabilitation and Resettlement Scheme – to be published along with the declaration.
No declaration shall be made unless the Requiring Body deposits an
amount - in full or part - towards the cost of acquisition of the land.
– a conclusive evidence – land required for a public purpose and - after making such declaration - Government may acquire the land
If no declaration made – withing 12 months – from the date of the Preliminary notification – notification deemed to be rescinded – discuss stay
/ injunction / extension.
