LAND ACQUISATION ACT

 

LAND ACQUISATION ACT

INTRODUCTION

Land acquisition is a way of  availing land in the market for purposes of development(Omar and Ismail,2009,pp.121-134).The land acquisition Act of 1989 and the land acquisition Act of 1991 are two legal Acts that were enacted by the government of Australia in order to govern the public and private land rights in the country. The two Acts have been used by authority when acquiring private land by force or through agreement for the public use. This paper will compare the two Acts in terms of their similarities and differences when it comes to land acquisition and compensation by the authority.

THE LAND ACQUISATION ACT OF 1989

According to this Act any disposal and acquisition of property interest must be authorized by this Act.  The act stipulate that the property can be acquired through various methods which include negotiated agreement, purchase where the property is bought in an open market, and finally through compulsory acquisition. These provisions are also found in the land acquisition act of 1894 from which this act has been developed. According to this act, minister must authorize any compulsory acquisition of the property and compensation will also be paid under similar authorization. The disposal of the property must also be authorized by the minister. All authorities are governed by this Act except the following; an incorporated society, association or company, a trustee body or politic body. Other authorities can also be partially excluded from this act using the legislations that enables them. Section 4(17), gives the interests in the land which may include the following; a state, common wealth interest or crown land territory; an interest that was not existence there before in a given land; land use restriction or even  gross easement. According to this act, land can either acquired by agreement or by compulsory process. The following are procedures for compulsory acquisition process.

• Making declaration of pre-acquisition as under section 5.
• Review or reconsideration of declaration of pre-acquisition.
• Making a declaration of acquisition as under section 6.

LAND ACQUISATION ACT OF 1991

The Act was enacted on July 1, 1991 and it revoked all the regulations that were previously made by the LAA 1969. According to section 4 of this Act, land or interests in land may be acquired by the compulsory process by the state authority. The state authority may refer to the  crown minister, any statutory body that may be acting on the interest of the crown, county council or other authority that  may be allowed to compulsory acquire land. The authority may acquire land by compulsory process as provided by this act or by any other provision provided by the 1912 public work act.  This act provides procedures for acquisition of the land and also for compensation of the land to the owner of the land. According to these procedures the state is not supposed to acquire land unless any delay in doing so will cause the owner of the land to experience some hardship. This hardship comes in when the owner of the land will not be in a position to sell the land at its market value because of the plan of the authority to acquire land for public purpose. The hardship may also comes  in when the owner of the land is not in a position to sell it due to his pressing domestic or other personal needs.

Under this act, value to the owner principle is applied when compensating an individual for the land which has been acquired by the authority for public use. This is based on the market value of the interest or land which have been acquired (Hyam, 2009; Brown, 2009). The compensation also includes consequential loss, severance loss and other type of loss that the owner of the land may have suffered due to the acquisition of the land by the state for the public use.

COMPARISON

The main aim of the 1991 land acquisition Act is to compensate the party whose land has been taken. These act clauses are mainly meant to return the person who has lost his or her land to the authority to similar or same position as before. These acts mainly look at the compensation terms that are fair to the parties who are involved in the exchange. This act is different from the 1989 land acquisition Act which deals with many other issues and not just the compensation of the acquired land, For instance, property in land and mortgages and interest for mortgages. Just compensation terms, looks the willingness of the both parties to trade or not to trade in their exchange. One of the issues that are addressed by just compensation terms is the willingness of the owner of the land to trade which it is argued by many that, compulsory acquisition does not consider the willingness of the land owner to trade the land with the acquiring authority. On the other hand, the 1989 LAA does not go that extent of addressing the terms of exchange though it addresses the process of compensation.

The LAA of 1991 also addresses the difference between the person who was willing to let his or her land go for ransom compensation and a person whose land was acquired by the authority but he was not will to give it in exchange for compensation. This difference between the compensation of the two parties is not addressed by the LAA of 1989. Just term compensation also addresses the difference between the procedures for partial acquisition and total acquisition. These include valuation methods such as piece meal method. The LAA of 1989 does not go to this far to address the difference between the two types of acquisition.

Another major difference between the two Acts is in their jurisdiction. The LAA of 1989 apply in the common wealth while the LAA of 1991 applies in the New South Wales.

THE USE OF THE ACTS

The two acts give procedures for acquisition of the land and also stipulate the terms of compensating the owner of the land. The law requires that the authority intending to acquire the land to give a notice of acquisition of the land within a reasonable time to the owner of the land. The owner of the land may also object the acquisition of the land by the acquiring authority if he or she has the legal reasons to oppose the acquisition of the land. The LAA 1991 is applied mostly in cases that deal with mortgage and their compensation where the owner of the acquired property receives compensation for the property that has been acquired by the authority. The acts provide all the procedures and provisions for the compensation of mortgage interest which has resulted from the acquisition. The act also provides the procedures for determining how the compensation will be calculated. This is also provided by other acts such as land acquisition act of 1986 and Just Terms of Compensation Act of 2009. This procedures may include provision of advance payment, account for compensation among other procedures for compensation. The act is applied in cases that involve determination of compensation that result from the acquisition. The LAA of 1991 is also applied in the same case since it is used in many legal cases that involve determination of the compensation. However, it is called (just term compensation) as it addresses the general issues of compensation. It provide terms that are both fair to the owner of the land well as the acquiring authority. It ensures that the terms that are used in the determination of the compensation are fair to both parties and no party receives higher compensation than it deserve. This is made possible by the provisions of this act that are applied in the court of law when judges are determining cases that involve compulsory land acquisition.

According to Graeme et al (2011, pp.210-219), most of the land cases that involves compulsory land acquisition were successful. They argue that the rate of success in those cases was about 91 percent for the last 20 years.

Birguban Singh and Others vs. Land Acquisition Officer

The plaintiff in this case is Birguban Singh and three others who are facing an officer for land acquisition from Hyderabad. The plaintiffs are accusing the land officer for acquiring their land for the construction of the bus stand. The petitioners were demanding to be paid higher compensation for the acquired land than they were offered. The court ruled in their favour using the compensation clause as it is provided by the 1989 land acquisition act.

The two legal cases above show how the two acts can be applied in different legal cases in order to make a ruling in a legal dispute. Both cases in the above scenario involve determination of the compensation which is provided in the clauses of the two acts. Both cases also involve individuals or company that are facing the acquiring authority for payment of the compensation.

 

A.S.KRISHNA AND CO. PVT. LTD. versus LAND ACQUISITION OFFICER (DEPUTY COLLECTOR) HYDERABAD

The defendant in this case is A.S KRISHNA & CO ltd which is facing the officer for land acquisition over the compensation of some plots that were acquired by the officer. The officer filed the case in the high court after the party failed to agree on the value of the land compensation. On its ruling the court reassessed the value of compensation which was paid to the company for the plots that were acquired. The case was determined using the LAA of 1991, where the court used the clause for determining compensation in order to determine the correct value of compensation which was supposed to be paid to the defendants.

 

 

 

COMPARISON OF THE PROCEDURES FOR ACQUISATION

The two acts states the procedures for land acquisition which must be followed by the acquiring authority in order to acquire land either through compulsory or through agreement with the owner of the land. First, the acts define the authorities which have rights to acquire land for public use.  These authorities include the crown minister, county council or any other body that may be acting on behalf of the state. According to the two acts, the acquiring authority must notify the owner of the land their intention to acquire the land in reasonable time and give the reasons why they intend to acquire the land.  In both acts the acquiring authority must also give the notice of compensation and   the value of that compensation on to the owner of the land. The two acts also define the interest in the land to be acquired which may include equitable or legal estates or the land interest.

Under both act, the acquiring authority is given powers to enter the land temporary before the acquisition in order to establish the suitability of the land to be acquired. This will allow the acquiring authority to obtain all the necessary information concerning the land intended to be acquired. The authority may enter to the land with other experts who may be required to access the land such as the surveyors. However, the authority intending to acquire the land must give notice for such entry to the owner of the land before entering into the land. The LAA 1989 also allow the acquiring authority to temporarily acquire the land if the situation demands it to do so. For instance if the land acquired is neighboring the authority land where public work is going on, the authority  may temporarily acquire that land for the purpose of public work. However, the authority acquiring the land must also give notice to the owner of the land within reasonable time to ensure that there is least inconvenience caused by that acquisition.

Most of the procedures that are followed in both acts when acquiring land are similar.  Both acts require the acquiring authority of to start with declaration for pre-acquisition, followed by review or reconsideration of the declaration for pre-acquisition and the declaration for acquisition. Declaration for pre-acquisition in both Acts requires the acquiring authority to give a notice to owner of the land to show their intention to acquire the land. Both acts also require that acquisition of the land to be done within the shortest and practicable time as possible. The procedures also require the acquiring authority to notify the owner of the land of any amendment or withdrawal of the acquisitions notice. The pre-acquisition procedures also require that the acquiring authority to notify the register general of such intended acquisition. In the declaration for acquisition the two acts requires the compulsory acquisition and the effects of such declaration to be made in Gazette.

Again the two acts give minister powers to act on behalf of the state as authorizing authority for compulsory land acquisition. According to both act, no land can be acquired by force or even through agreement without authorization of the minister. The acts require the party with interest in the land to give particulars of the mortgages to the minister. According to the LAA of 1991, the party who has interest in the mortgage is required to give all details concerning that mortgage. These details may include name, descriptions and address of the mortgage, the principal amount of the mortgage, amount of costs, interest and charges. These details must be provided to the minister on time if the person will qualify in his or her claim of the land interest.

CONCLUSION

Land acquisition and compensation in Australia has been governed by these two acts and other land acquisition acts which have been made recently. These acts give the authority power to acquire private land for the sake of the public use. The acquiring authority may be minister of the crown who acts on behalf of the state, city council or any other body that may be acting under the provisions of these acts. The two acts are applied in almost similar cases but not in all situations any of the acts may be applicable. The two acts provide legal procedures that need to be used in the acquisition of the land either by agreement or through compulsory acquisition. They also provide procedures for compensation once the acquisition has been done. The two acts provide methods of determining the amount of compensation that should be paid to the owner of the land. However, LAA of 1989, provide more clauses on the compensation for mortgages which have been acquired by the state as well as the calculation of interest from these mortgages.  The LAA of 1991 looks more on the compensation of land which has been acquired and methods for calculating the compensation. In both acts the minister of the crown is given power to allow any acquisition and compensation of the land. No acquisition and compensation can proceed without the permission of the minister. The compensation of the property is also allowed by the minister where the person to be compensated is required to provide the necessary details for the compensation. The minister will then determine for instance whether the owner of the property qualify to be compensated even the interest which has accumulated from the property which has been acquired. These provisions are provided in the two acts of land acquisition and compensation. The acts apply in most of the cases together apart from few land cases.

 

REFERENCES

Brown, D. (2009), Land Acquisition, LexisNexis Butterworths, London,

Graeme Newell, Nelson Chan, Evan Goodridge, (2011) “Risk assessment and compensation analysis of court decisions in compulsory land acquisition compensation cases in Australia”, Journal of Property Investment & Finance, Vol. 29 Iss: 2, pp.210 – 219

Hyam, A. (2009), The Law Affecting Valuation of Land in Australia, Federation Press, Annandal.

Mangioni, Vince (n.d) Just Terms Compensation And The Compulsory Acquisition Of Land Refereed Paper. University of Technology, Sydney. Retrieved on April 5,2011.http://www.prres.net/papers/Mangioni_Just_Terms_Compensation_And_The_Compulsory.pdf

Omar, Ismail; Ismail, Mazlan, 2009. The economic of landacquisition – using kotaka’s model in land acquisition to provide land for infrastructure development in Malaysia. Annals of the University of Petrosani Economics, Vol. 9 Issue 4, p121-134.

LEGAL CASES

A.S.krishna and co. pvt. Ltd. vs land acquisition officer (deputy     collector) hyderabad 1992 air 421 1991 scr supl.

Birguban Singh and Others vs. Land Acquisition Officer, Revenue Divisional Officer, Hyderabad and Another on 10/7/1989

 

LEGAL ACTS

LAND ACQUISATION ACT OF 1969

LAND ACQUISITION (JUST TERMS COMPENSATION) ACT 1991. New South Wales Consolidated Acts.

LAND ACQUISITION (JUST TERMS COMPENSATION) ACT 2009.

LANDS ACQUISITION ACT 1989. Act No. 15 of 1989 as amended

LANDS ACQUISITION AND COMPENSATION OF 1986

THE LAND ACQUISATION ACT OF 1894