Issue 66 Vol III, June 30, 2008

L A W  &  J U S T I C E

Compulsory expropriation of land
Joginder Singh Toor from Toronto

BRITAIN experienced a railway boom in mid 19th century and railway promoters pressed the houses of parliament for the power to compulsorily acquire land by way of private bills. This gave rise to the concept of compulsory acquisition of the land belonging to private owners for public purposes. The provision which has become standard in private bills was consolidated in general public Act and the statutes provided the procedure for conducting an expropriation; compulsory acquisition and the method of compensation. The concept was travelled to other Commonwealth countries. During its own railway boom Canada adopted the English legislation with a few modifications and passed Railways Clauses Consolidation Act 1845 and India the Land Acquisition Act 1884.

Under the federal law of Canada the minister of public works and government services have the powers to acquire rights in any land and to take possession thereof, if in the opinion of the ministry it is required by the state for a public purpose or for a public work. Subsequent legislations have imposed limitations on the power to acquire lands or rights or interests of the owners therein. Other statues empower the governments of Canada or the provinces to acquire land.

The purpose for which the land can be compulsorily expropriated are the requirement of municipalities, elected school boards, universities, conservation departments, libraries, hospitals, public transportation systems, public parks, generation of electricity and distribution thereof, laying of electricity transmission lines etc.

Any person in the province of Ontario who has leave to construct any hydro project or any connected works, on application to Ontario Energy Board can be permitted to exercise authority to expropriate land. The Board has to set a date for the hearing of the application after the expiry of 14 days and if on hearing, the Board is of the opinion that the expropriation of the land is in public interest, the enterprise can be allowed to expropriate the land. In India this authority has to be exercised by the state only even if the land is to be acquired for a private company. However the authority is now being ceded to public undertakings such as National Highway Authority of India to acquire land directly for construction and development of national highways.

The main concern, in all such acquisitions is the feeling of the owner of the land so as to compensate him properly to avoid the feeling in him of victimization by way of loss of property. All efforts are to be taken to let him not feel that the public works intended to be created should have gone through his neighbors’ land than his own. The statute is not to be construed so as to take away the property of a subject without due compensation. The term “due” has always been a subject of wide interpretation generally it being the market value of the land to be assessed in various ways.

The Constitution of India originally provided to its citizens a fundamental right to acquire, hold and dispose of property. Immediately after the passing of the Constitution, a necessity arose to amend certain provisions relating to property. There was a need to abolish Zimidaris, Talukadari, Jagirdari and other semi-feudal systems prevalent in almost all the regions of India. Land reform measures, abolishing these feudal systems led to large scale disputes and litigations as to the compensation mentioned in the statues to be paid to the landlords. Demand for due compensation and the courts favorable pronouncement in favor of the landlords, impelled the need of putting the statues in 9th schedule of the Constitutions to protect them from any challenge in any court. Right to property was taken away from the chapter of Fundamental Rights.

A safeguard was provided in first Constitutional amendment of 1951, Article 31A was added providing that if by virtue of any law any land is acquired compulsorily which is held by the owner within the permissible limits provided by the land reforms Act, the owner shall have to be paid at the rate which shall not be less than the market value thereof. By implication the acquisition of land or declaring the same as surplus under the land reform Act which was beyond the permissible limits (30 acres in some states). Compensation need not be on the market rate. It could be token compensation.

In Canada there is no such limitation on the holding of lands. Any acquisition/expropriation has to be on the market value which has to be assessed in a fair manner through appraisers or arbitrators keeping in view the market value prevalent at the time of expropriation. Whereas in India, the value is assessed mainly on the basis of sales effected in the area in the immediate preceding period which generally doest not reflect the true market value and people mostly feel victimized uprooted and insecure. The provisions have to be rationalized, synchronized and amended in the manner so as to assure the true return of the real value of the land because the compensation stands in the stead of the land.

[Mr. Toor is senior advocate from the Punjab and Haryana High Court is currently in Toronto. He can be reached jogindersingh_toor@yahoo.com]

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