关于土地征用的英文文献

1、land acquisition actjerome kernin 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 deter

2、mine 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 sp

3、ecifies 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 copie

4、s 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.

5、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.first, right to property“right to acquire a property, although is not a fundamental right, but is a constitut

6、ional 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 qu

7、estion 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 w

8、hole fabric of the indian constitution that those rights cannot be torn out without leaving a jagged hole and broken threads replaced so as to harmonize with the other parts of the constitutionarticle 19(1) (f) and article 31 (2) dealt with different, but connected aspects of the right to property.

9、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 t

10、o 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 hi

11、s 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 demon

12、strate 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 pr

13、ivate 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.second, principle of d

14、etermining compensationboth 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 f

15、ixing 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 comp

16、ensation 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 comp

17、ensation for the acquisition of property under that law. and if a law fixing compensation at amounts ranging from 90 to 50 per cent, 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 t

18、he 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 whic

19、h 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 wo

20、uld 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

21、 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 s

22、tate legislatures, the requirement of obtaining the presidents 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

23、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 a

24、mount 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 t

25、he 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

26、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.in vejravelus case, the petitioner impugned the land acquisition (madras amendment) act, 1961 which am

27、ended 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,

28、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 th

29、e 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 vajravelus 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

30、 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 banerjees case. he therefore incon

31、sistently 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

32、merely obiter but also erroneous.in shantilal magaldass 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 acqu

33、ired. the value of shantilals 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 s

34、hah, 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 equiv

35、alent 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 acquisitio

36、n.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 di

37、sregard the rise by taking the actual cost. the judgment given in shantilals 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 equivale

38、nt 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