LAND LAWS

In India, the law relating to stamp duty is contained in two sets of enactments, namely, the
Indian Stamp Act, which applies to the whole of India and the Stamp Acts passed by various
states, as for instance, the Bombay Stamp Act, (now called the Maharashtra Stamp Act),
which is applicable only to Maharashtra.

Objects of the Maharashtra Stamp Act 1958 (MSA)

The object of the Act is to collect proper stamp duty, in order secure revenue for the State, on
instruments on which such duty is payable, always keeping in mind that stamp duty is
payable on an instrument, a not on the transaction reflected in the instrument. Therefore, in
transaction involving the sale of a flat, stamp duty is payable on the Sale Deed or Agreement
and not on the sale transaction per se. However, observed by the Supreme Court, stamp duty
which is payable on a Sale Deed is on the actual market value of the property and not on the
value stated in the document. Hence, an obligation is cast on the authorities properly ascertain
the true value of the property, and not rely on the apparent tenor of the instrument. (Ramesh
Bansal v. Collector, Ghaziabad AIR 1999 SC 2126)

The statutory requirement of paying stamp duty on the basis of the actual market value has, to
an extent, kept a check on black money transactions. Keeping the objects of the Act in mind,
the following propositions emerge from various decided cases:

1. The Act is a fiscal measure to secure revenue for the State from certain classes of
instruments.

2. Stamp duty is imposed by the Act upon the instrument and not upon the transaction.

3. For charging stamp duty, the instrument is not to be treated by the name which it bears,
but by the substance or the real nature of the transaction recorded therein.

4. It is not illegal to adopt a particular method of effecting a transaction, which may

lessen or reduce the liability of stamp duty.

5. An instrument or a document should be read as it exists, that is, as it is worded or

drafted by the parties.

6. If an instrument which is required to be stamped is not stamped or is insufficiently

stamped, it is not, for that reason, invalid as between the parties thereto.
Main features and provisions of the Maharashtra Stamp Act -
Duty to be charged on the instrument is called stamp duty. Every document is not instrument,
but when document touches upon rights and liabilities, it becomes an instrument for the
purposes of this Act (Eg. Section 3 of the Act).

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Stamp duty depends upon the value contained in the subject matter according to the Schedule
I provided to the Act.
Duly stamped document is the document on which proper stamp duty is paid, otherwise it
will be considered as undervalued stamped. In such case, it is liable to be impounded and
liable to penalty. The Bombay Stamp Act extends to the State of Maharashtra. But in case the
document which is executed outside Maharashtra, still it will be chargeable under the
Bombay Stamp Act if it is brought in Bombay.
The Act can be considered under four aspects
1. Instruments;
2. Certain exclusions (Negotiable Instruments have been excluded from the purview of the
Bombay Stamp Act, because, they are operative all through the country;
3. Schedules;
4. Non-transactions.
The Amendment Act aims at-
a) rationalization of stamp duty leviable on various types of instruments by reducing the rates
of stamp duty so as to make it maximum 5% of the value of the subject matter;
b) at uniformity in the payment of minimum stamp duty. Minimum stamp duty payable was
Rs. 20, now it is raised to Rs. 100/-;
c) disposing refund cases speedily under newly introduced Section 52A.

Additional Controller of Stamps, Mumbai [S. 2(aa)] MSA: "Additional Controller of

Stamps, Mumbai" is defined to mean officer or officers so designated by the State
Government, including other officer whom the State Government may, by notification in
Official Gazette, appoint in this behalf.

Bond [S. 2(c)]: The word "bond" is defined to include:

(a) any instrument by which a person obliges himself to pay more to another, on condition
that the obligation shall be void I specified act is performed or is not performed, as the
case may be;

(b) any instrument attested by a witness and not payable to order or bearer, whereby a
person obliges himself to pay money to another; and

(c) any instrument attested by a witness, whereby a person obliges himself to deliver grain
or other agricultural produce to another.

The general test for distinguishing between a bond and a contract is that in the case of a
bond, in the event of a breach, the party to the instrument who was obliged to pay money to
the other, is liable to pay the sum stipulated in the instrument; in the case of a contract, the
quantum of damages is fixed by the court.

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Chargeable [S. 2(d)]: When applied to an instrument executed or first executed after the
commencement of the Act. In the case of any other instrument, the word means chargeable
under the law in force when such an instrument was executed or, where several persons have
executed it, when it was first executed.

The chargeability of instruments starts with at the time of its execution in the state, in case of
an instrument executed outside this state from the date of its receipt in this state and when
several persons execute an instrument when first of these person signs the same in this state.

Collector [S. 2(f)]: The word "Collector", as used in the MSA Act, means the chief officer
charge of the revenue administration of a district, including any office whom the State
Government may appoint for this purpose by a notification in the Official Gazette and on
whom any or all powers of the Collector conferred by the same or any other notification.

Under the Act, the Collector is authorised to exercise several power such as adjudication for
payment of proper stamp duty, certify instruments, impounding instruments and stamping
instruments which are impounded.

Conveyance [S. 2(g)]: The word "conveyance" includes: (a) a conveyance on sale, (b) every
instrument, (c) every decree or final order of a civil court, (d) every order passed by a High
Court under S. 394 of t Companies Act, 1956; and (e) every order made by the Reserve Bank
of India under S. 44-A the Banking Regulation Act, by which property, whether movable or
immovable, or any estate interest in such property, is transferred to or vested in any other
person inter vivos and which is not otherwise specifically provided for by Schedule I of the
Act.

Executed/Execution [S. 2(i)]: The words "executed" and "execution", when used with
reference to instruments, mean "signed" and "signature" respectively. These two terms also
include the attribution of electronic records under S. 11 of the Information Technology Act,
2000.

Immovable property [S. 2 (ja)]: The term "immovable property", as used in the Act,
includes land, benefits to arise out of land and things attached to the earth or permanently
fastened to anything that is attached to the earth.

Movable property [S. 2 (pa)]: "Movable property" includes standing timber, growing crops
and grass, fruit upon and juice in trees and property of every other description, except
immovable property.

Impressed Stamp [S. 2(k)]: An impressed stamp paper is one where the stamp is printed
directly on the top of the sheet of paper.

The expression "impressed stamp" includes - (a) labels affixed and impressed by the proper
officer; (b) stamps which are embossed or engraved on stamp paper; (c) impression by
franking machines; and (d) impression by any such machine as the State Government m
specify by a notification in the Official Gazette.

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The definition of the expression "impressed stamp" was amended 1994 by adding clauses (c)
and (d) to keep pace with improved technology relating to stamping machines.

Following the above definition, it has been held that the word "impressed stamp" would
include non-judicial and hundi stamp paper as well as special adhesive stamps which are
affixed and impressed by proper officer.

It is also to be noted that every impressed stamp paper must bought in the name of one of the
parties and this name must appear the paper, along with the date of purchase (as it must be
used within 6 months from such date). When a document is written on an impressed stamp,
the writing can appear on the face and the reverse of such a sheet. if the stamp papers are
not sufficient incorporate the entire document, plain paper may be used (as subsequent
pages) to complete the instrument. (S, 13)

However, only one instrument chargeable to duty can be written one stamp paper and a
second instrument chargeable to duty cannot! written on the same paper. (S. 14)

Instrument [S. 2(1)]: The word "instrument" includes every document by which any right or
liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded,
as also any electronic record as defined in the Information Technology Act, 2000.

The term does not, however, include the following, namely- bill of exchange, cheque,
promissory note, bill of lading, letter of credit, insurance policy, transfer of shares, debenture,
proxy, and receipt.

The reason why the above documents have been kept out of the scope of the word
"instrument" under the Bombay Stamp Act is that stamp duty on these documents is governed
by the Indian Stamp Act, 1899,

Going by the above definition, the following have been held to be "instruments" for the
purpose of the Act, namely, -an award of an arbitral tribunal; -a consent decree; -an order
approving a Scheme of Amalgamation under the Companies Act; -a written agreement
recording the terms and conditions of an oral agreement.

Even when a document falls within the definition of an "instrument under this Act, the
liability to pay stamp duty under the Act is only Instruments chargeable under Section 3.

The expression of instruments of gift includes where the gift of any moveable or immoveable
property but has not been made in writing any instrument recording whether by way
declaration or otherwise the making or acceptance of such oral gift is called instrument of
gift.

Instrument of Partition means any instrument whereby co owners of any property divide or
agree to divide such property is severally and include a final order of effecting partition by
any court or revenue authority, an arbitration award directing partition and when partition is

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effected without executing any such instruments, any instruments signed by co-owners and
recording whether by declaration of such partition or terms of partition among co-owners.

Market Value [S. 2(na)]: The expression "market value", in relation to any property which
the subject-matter of an instrument, means the price which such proper would have fetched if
sold in the open market on the date of the execution of the instrument or the consideration
stated in the instrument, whichever is higher.

Marketable security [S. 2(o)]: A "marketable security" means a security of such description
as is capable of being sold in any stock market in India.

Mortgage deed [S. 2(p)]: A "mortgage deed" includes every instrument whereby, for the
purpose of securing money advanced, or to be advanced, by way of loan or an existing or
future debt or the performance of an engagement, one person transfers or creates, to or in
favour of another person, a right over or in respect of specified property.

Paper [S. 2(q)]: The word "paper" is broadly defined in the Act to include vellum,
parchment or any other material on which an instrument may be written.

Power of Attorney [S. 2(r)]: A "power of attorney" includes any instrument, not chargeable
with a fee under the law relating to court fees, empowering a specified person to act for and
in the name of the person executing it. The term also includes an instrument by which a
person, not being a legal practitioner, authorised to appear on behalf of any party in any
proceeding before any court, tribunal or authority.

Settlement [S.2(t)]: A "settlement" is defined to mean any non-testamentary disposition in

writing, of movable or immovable property, made -

(a) in consideration of marriage; or (b) for the purpose of distributing the property of the
settlor among his family or those for whom he desires to provide or for the purpose of
providing for some person dependent on him; or (c) for any religious or charitable purpose.

Duly Stamped [S. 2(h)]: The expression "duly stamped", as applied to an instrument, means
that the instrument bears an adhesive or impressed stamp of not less than the proper amount
and that such stamp has been affixed or used in accordance with the law in force in
Maharashtra.

A document will be treated as being "duly stamped" – in cases where it bears an adhesive
stamp - when such stamp is duly cancelled; and in cases where the document is drawn on
impressed stamp paper when the provisions of Ss. 13 and 14 of the Act are complied with.

no stamp duty is chargeable in respect of:

(a) any instrument executed by or on behalf of, or in favour of, the government in those cases,
where but for this exception, the government would have been liable to pay the duty

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chargeable on that instrument or where the government has undertaken to bear the expenses
of the stamp duty; and

(b) any instrument for the sale, transfer or other disposition, either absolutely or by way of
mortgage or otherwise, of any ship or vessel, or any part, interest, share or property of or in
any ship or vessel registered under the Bombay Coasting Vessels Act, 1938 or the Merchant
Shipping Act, 1958.

How Stamp Duty is to be paid

The stamp duty payable on documents listed in Schedule I of the Act is to be paid:

(a) by means of a franking machine; or (b) by way of cash; or (c) by a demand draft; or (d)
by a pay order - in any Government Treasury or Sub-Treasury or General Stamp Office (S.
10)

Adhesive and Impressed Stamps

Adhesive stamps are allowed to be used on certain document specified in S. 11 of the Act, as
for instance, a delivery order in respect goods, a letter of allotment of shares, etc. Whenever
an adhesive stamp is used, the person executing the document must cancel the stamp, so that
it cannot be used again. He may do so by writing on or across the stamp, his name or initials
or the date or in any other effective manner, as for instance, by crossing it or drawing lines
across the stamp.

If a person required by S. 12 to cancel an adhesive stamp, fails to do so, he is punishable with

fine which may extend to 100. (5, 61)

When the adhesive stamp used for a document is effectively cancelled, the document is
treated as duly stamped and can be admitted as evidence in a Court of law. If there is an
instrument with a stamp that has not been cancelled, it is to be treated as an unstamped
instrument. (S, 12)

Time limits for stamping instruments

If an instrument chargeable with duty is executed by any person the State of Maharashtra, it
must be stamped before or at the time execution or immediately thereafter or on the next
working day. however, such an instrument is executed outside Maharashtra, it may be
stamped within three months from the date it was first received Maharashtra.

Short Note on ADJUDICATION?

Sometimes, the parties executing an instrument may not be sure about the exact amount of
stamp duty payable on that instrument. Very often, parties want to be doubly sure about the
amount of the correct stamp duty - as they would like to avoid complications in the future. In
such cases, under S. 31 of the Act, the instrument can be brought to the Collector by one of
the parties to the instrument, along with adjudicating fees of 100, so that the Collector may
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determine the stamp duty payable thereon. Such a document may or may not be previously
stamped; likewise, the document may or may not be executed by the parties. This provision is
often resorted to by the parties out of abundant caution.

In order to determine the correct amount of stamp duty, the Collect may call for a true copy
or abstract of the instrument, along with affidavit or other evidence as he may deem
necessary, to ensure that the facts and circumstances affecting the chargeability of the
instrument or the amount of the stamp duty are truly and fully disclosed to him.

In case of executed documents, if such a document is brought to the Collector for

adjudication - within one month of its execution or within one month of first execution in
Maharashtra, or if such a document is executed or first executed outside Maharashtra within
three months of its first receipt Maharashtra.

the person liable to pay stamp duty thereon must pay the same within sixty days from the date
of notice of demand to pay the stamp duty as adjudicated by the Collector. If such stamp duty
is not paid, the person liable to pay it is exposed to a penalty at the rate of 2% of the stamp
duty or the deficient portion thereof, for every month or part thereof from the date of
execution of the instrument or from the date of first receiving it in Maharashtra, as the case
may be. However, in any case, the penalty cannot exceed double the deficient portion of the
stamp duty. (S.31)

The opinion of the Collector on the chargeability of the instrument is final and conclusive, as
the Act does not provide for any appeal to a higher authority in this respect. (Banarasi Das v.
CCRA, AIR 1968 SC 497)

It has been held that the Collector's decision under S. 31 of the Act is an administrative act
and no reasons need be given for the same. Nor is a hearing necessary in such cases. (Pirbhai
Janubhai v. P. R. Mane Patil, AIR 1966 Guj. 175)

It may be noted that S. 31 of the Act deals with voluntary adjudication, that is, cases where
one of the parties to the instrument voluntarily brings an instrument before the Collector for
adjudication. The production of such documents cannot, however, be compelled by the stamp
authorities. (Dist. Registrar v. Canara Bank, AIR 2005 SC 186)

When any instrument of conveyance, exchange, gift, certificate of sale, deed of partition or
power of attorney to sell immoveable property is presented for registration under the
provisions of the Registration Act, 1908, and the registering officer has reason to believe that
the market value of immoveable property which is the subject-matter of the instrument to be
registered has not been truly set forth therein, he is required to immediately refer it to the
Collector for determination of true market value of such property. (S .32)

Adjudication means determining the chargeability of stamp duty on instruments. The

authority to be approached is the Collector of Stamps appointed in each District. Application
for adjudication should be accompanied by true copy or an abstract of the instrument and
also with such affidavit or other evidence as may be necessary to prove that all facts

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affecting the chargeability of the instrument have been truly set forth in the instrument.
Adjudication can be done both for signed as well as unsigned documents.

Note on ADMISSIBILITY OF INSTRUMENTS WHICH ARE NOT DULY

STAMPED?

As regards admissibility in evidence of instruments which are not duly and properly stamped,
the following eight rules can be summarised from the provisions of Ss. 34 to 36 of the Act:

1. Any instrument chargeable to stamp duty is admissible in evidence -

- if such an instrument is duly stamped, and

- in cases of stamp paper with an impressed stamp, if such a stamp paper has been
purchased in the name of one of the parties to the instrument.

If a family arrangement is reduced to writing, and it purports to create, declare, assign, limit
or extinguish any right, title or interest in any immovable property, it must be properly
stamped and also duly registered under the Registration Act. If it is properly stamped but
registered, it can be looked into for collateral purposes. But, if it is neither stamped nor
registered, it cannot be looked into any purpose whatsoever. [Bal Krishnan v.
Chandrashekharan, (2009) 11 ILD 522 (Mad)]

2. Even if an instrument is not duly stamped, it becomes admissible in evidence on payment

of:

- the stamp duty with which such an instrument is chargeable or the deficient amount of the
stamp duty, as the case may be; and

- a penalty at the rate of 2% of the deficient portion of the stamp duty for every month or
part hereof from the date of executing of the instrument, not however exceeding double
the deficient amount of the stamp duty.

3. If a contract is contained in two or more letters, and one of the letter is properly stamped,
the contract is deemed to be duly stamped.

4. An unstamped or insufficiently stamped instrument can be admitted in evidence in a

criminal court in any proceeding other than certain specified proceedings under the Civil
Procedure Code.

5. An unstamped or insufficiently stamped instrument can be admitted in any court, if such an

instrument has been executed by or on behalf of the government or if it bears a certificate
of the Collector under the Act.

6. A copy of an instrument or an oral admission of an instrument ca be admitted if the stamp

duty - or the deficient portion thereof - and the penalty, as above, has been paid.

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7. Once an instrument is admitted in evidence, such admission cannot be questioned at any
stage of the suit or proceeding on the ground that the instrument has not been duly
stamped.

8. The State Government is empowered to make rules to provide that if an instrument bears a
stamp of a sufficient amount, but the stamps are not of the proper description, such an
instrument can be certified to be duly stamped on payment of the chargeable stamp duty.

Thus, even if a document is not duly stamped, this does not invalidate the document. The
defect can be cured by payment of the deficient amount of stamp duty, along with the penalty
as stated above. However, it is only the original document that can be validated, and when the
original document is lost and a copy is produced, such a copy cannot be validated

INSTRUMENTS WHICH ARE NOT PROPERLY STAMPED BY ACCIDENT: If a person

voluntarily produces before the Collector, an instrument which is chargeable to stamp duty
but which has not been properly stamped, and offers to pay the correct amount of stamp duty
or the deficient part thereof, the Collector may accept such amount and make an endorsement
thereon that proper stamp duty has been paid. He can. however, do so only if – the instrument
is brought to him within one year of its execution or first execution; and he is satisfied that
the omission to duly stamp the instrument was due to a mistake, accident or urgent necessity.
Note on IMPOUNDING OF INSTRUMENTS?
S. 33 of the Act deals with impounding of instruments. It provide that every person who has
authority to receive evidence (as for instance arbitrators, local commissioners, etc.) and every
person in charge of public office (except a Police Officer) before whom a chargeable
instrument is produced or comes in the performance of his functions, must examine the
document, and if it appears to him that such an instrument is not stamped with a stamp of the
value and description required by law, he shall impound the same, irrespective of whether
such an instrument is or is not valid in law.
"Impounding" of an instrument refers to the act of taking legal or formal possession thereof.
The words "is produced", as used in S. 33, covers not only cases where it is produced
voluntarily for any judicial purpose, but also cases where an instrument is produced in
response to a summons The word "comes" under the Section has been held to be wide enough
to cover impounding of instruments under a search warrant also.
The fact that S. 33 uses the word "shall" (and not the word "may") makes it clear that the
provision for impounding is mandatory, and not discretionary, in nature.
The Supreme Court has observed that the object of S. 33 is to safeguard the collection of
revenue. (Board of Revenue, UP v. M/s Electronic India, AIR 1996 SC 616)
As observed by the Bombay High Court, a duty has been cast on the authority or the court to
impound a document under S. 33 of the Act if any document which is not properly stamped is
produced before it to be acted upon. (Deepak Corporation v. Pushpa Nanderjog, AIR 1994
Bom 337)

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The language of S. 33 makes it quite clear that an instrument can be impounded if it does not
bear a stamp of the value and description required by the Act. So, even if an instrument bears
a stamp of the required value (say, 500), but such stamp is of the wrong description (say, a
judicial stamp is used instead of a non-judicial stamp or vice versa), the instrument can be
impounded. Going by the clear language of S. 33, it cannot also be argued that since a
document is invalid in the eyes of law, the concerned officer has no jurisdiction to impound
it.
Under S 33 A if any instrument which is not duly stamped whether through mistake or
otherwise is registered under the act the registering officer can call for the original instrument
from the party and after giving him an opportunity of being heard he can impound the
instrument after recording his reasons for doing so.

The aims and objects of the Maharashtra regional and Town Planning Act 1966
(MRTP), as reflected in its Preamble, are as follows:

- to make provisions for planning the development and use of land in regions established
for that purpose and for the constitution of Regional Planning Boards;

- to make better provisions for the preparation of Development Plans, with a view to
ensuring that town planning schemes are made in a proper manner and that their
execution is made effective;

- to provide for the creation of new towns;

- to make provisions for the compulsory acquisition of land required for public purposes;
and

- to provide for related matters.

Agriculture [S, 2(1)]: The term "agriculture" is defined to include: horticulture, poultry
farming, raising of crops, fruits, vegetables, flowers, grass or trees of any kind, -breeding of
livestock - including cattle, horses, donkeys, mules and pigs, breeding of fish, keeping of
bees, the use of land for grazing cattle, and the use of land for any purpose which is ancillary
to its cultivation or other agricultural purpose. It is also expressly clarified that the term
"agriculture" does not include the use of land as a garden which is an appendage to a
building.

Appropriate authority [S. 2(3)]: this term under MRTP is defined to mean any public
authority on whose behalf land is designated for a public purpose in any plan or scheme and
which it is authorised to acquire.

Court [S. 2(6)]: For the purposes of the Act, the term "court" means

- in Greater Bombay, the Bombay City Civil Court, and

- in other parts of Maharashtra, - the principal civil court of origin jurisdiction.

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It is clarified that the term includes any other civil court of a Judge of Senior Division or a
Judicial Officer empowered by the State Government to perform the functions of the court
under the Act within the pecuniary and local limits of its jurisdiction.

Development Authority [S. 2(8)]: "Development Authority" means a New Town

Development Authority constituted or declared under S. 113 of the Act.

Development plan [S. 2(9)]: A "development plan" means a plan for the development or
redevelopment of the area within the jurisdiction of a Planning Authority. The term also
includes the revision of a development plan and proposal of a special planning authority for
the development of land within its jurisdiction.

Development Right: Floor Space Index (FSI) [Ss. 2(9A) & 2(13A)]: "Development right"
means the right to carry out development or to develop the land or building or both. It
includes a transferable development right (TDR) in the form of a right to utilise the Floor
Space Index (FSI) of land, utilisable either on the remainder of the land which is partially
reserved for a public purpose or elsewhere, as provided in the Development Control
Regulations.

The expression "Floor Space Index" is defined by S. 2(13A) of the Act as meaning the
quotient or the ratio of the combined gross floor area to the total area of the plot. Thus,

FSI = Total built up area on all floors of the building divided by Total area of the plot

Thus, in the case FSI is 2.0,

2.0 = 20000 sq. meters (of building area) divided by 10,000 sq. meters (of land area)

In other words, where the FSI is fixed at 2, on a land area of 10,000 sq. meters, a
construction of maximum 20,000 sq. meters of building area is possible.

Engineering operations [S. 2(11)]: For the purposes of the Act, "engineering operations"
include the formation or laying out of a street or means of access to a road or the laying out
of means of water supply, drainage, electricity, gas or other public service.

Heritage building [S. 2(13B)]: A "heritage building" means a building possessing

architectural, aesthetic, historical or cultural values, and which is declared as a heritage
building by the Planning Authority in whose jurisdiction such a building is situated.

Heritage precinct [S. 2(13C)]: "Heritage precinct" means any area comprising a heritage
building or heritage buildings and the precincts thereof or related places.

Land [S. 2(14)]: The term "land" includes benefits to arise out of land and thin attached to
the earth or permanently fastened to anything attached the earth.

Planning Authority [S. 2(19)]: The term "Planning Authority" means a local authority and
include a Special Planning Authority constituted or appointed or deemed to have been

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appointed under S. 40 of the Act. In respect of a slum rehabilitation area, the term includes
the Slum Rehabilitation Authority appointed under S. 3A of the Slum Areas (Improvement,
Clearance & Redevelopment) Act 1971.

Thus, for instance, in Maharashtra, the MMRDA (Mumbai Metropolitan Region

Development Authority) has been established. Th Government of Maharashtra has appointed
MMRDA as a Special Planning Authority for notified areas of Bandra-Kurla Complex and
the Chatrapati Shivaji International Airport.

The Town and Country Planning Division of the MMRDA is actively involved in the
preparation of Development Plans for these areas, issuing No-Objection Certificates, issuing
clarifications on CRZ (Coastal Regulating Zones), etc. It also coordinates with local
authorities on various issue relating to development.

In the case of the Navi Mumbai Project, all the land is to be publicly owned by CIDCO (City
and Industrial Development Corporation of Maharashtra Ltd.). As each area is taken up for
intensive development and later released to its occupants, the use of the land in that area is
to remain substantially frozen. After CIDCO was appointed as the New Town Development
Authority for Navi Mumbai, it prepared the Draft Development Plan for Nav Mumbai, which
was approved by the Government of Maharashtra in August 1979, and came into force from
March, 1980.

Plot [S. 2(21)]: A "plot" means a portion of land held in one ownership and numbered and
shown as one plot in a town planning scheme.

Reconstituted plot [S. 2(22)]: A "reconstituted plot" means a plot which is altered in
ownership or in any other way, by making of a town planning scheme.

Residence [S. 2(28)]: The term "residence" is defined to include the use for human habitation
of any land or building, or any part thereof, including gardens, grounds, garages, stables and
outhouses, if any, appertaining to such land or building.

Undeveloped area [S. 2(31 A)]: An "undeveloped area" means an area within the
jurisdiction of one or more local authorities which is, in the opinion of the State Government,
in a neglected condition, or which is being developed or which is in imminent likelihood of
being developed in an uncontrolled or haphazard manner and requires, in the public interest,
to be developed in a proper and orderly manner.

Note on DEVELOPMENT? Authorised Development? (Sections 43 to 52)

Development [S. 2(7)]: The term "development" is defined to mean the carrying out of
building, engineering, mining or other operations in or over or under land or the making of
any material change in any building or land or in the use of any building or land or any
material or structural change in any heritage building or its precinct. The term also includes
the demolition of an existing building structure or erection of part of such a building,
structure or erection, and reclamation, re-development, lay-out and sub-division of any land.

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In Bharti Tele-Ventures Ltd. v/s State of Maharashtra (AIR 2007 (3) Bom. 84), the Bombay
High Court observed that "the expression 'development' under the MRTP Act clearly
indicates the erection of a structure as well as any material change in the building or its
precinct The court held that the definition of the term being a wide one, it would include the
erection of a tower or construction of a cabin on the rooftop of a building.

Ss. 43 to 52 of the Act contain important provisions relating to control of development and
use of land included in Development Plans.

S. 43 of the Act deals with restrictions on development of land. It provides that, after the date
on which the declaration of intention to prepare a Development Plan or a notification
specifying any undeveloped area as a notified area or any area designated as a site for a new
town is published in the Official Gazette, no person can institute or change the use of any
land or carry out any development of land without the written permission of the Planning
Authority. Any person who commences, undertakes or carries out such development without
a written permission (as above) or not in accordance with such written permission or
modified permission (as the case may be) or after such permission is revoked, is punishable
with imprisonment for a minimum term of one month and a maximum term of three years
with a minimum fine of 2,000 and a maximum fine of 5,000. In case of a continuing offence,
a further fine of 200 per day can be lev for every day during which the offence continues after
conviction. [S.52]

However, no such permission is necessary in the following nine cases namely, -

(a) for carrying out maintenance, improvement or other alteration of building, not being a
heritage building or heritage precinct, which affects only the interior of the building and
does not materially affect the external appearance thereof;

(b) for carrying out any work in compliance with any order or direction of any authority
under any law in force;

(c) for carrying out any work by any authority in exercise of its powers under any law in
force;

(d) for carrying out, by the Central or the State Government or any local authority,

1.) of any work required for the maintenance or improvement of highway, road or
public street; 2.) of any work for the purpose of inspecting, repairing or renewing any
drains, sewers, mains, pipes, cables, telephone or other apparatus, including the
breaking open of any street or other land for that purpose;

(e) for excavations made in the ordinary course of agriculture operations, including wells;

(f) for the construction of a road intended to give access to land sole for agricultural
purposes;

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 (g) for normal use of land which has been used temporarily for other purposes;

(h) in case of land which is normally used for one purpose but occasionally used for any
other purpose - for the use of land occasionally for that other purpose; and

(i) for use, for any purpose incidental to the use of a building for human habitation, of any
other building or land attached to such a building

Procedure for application for permission

Ss. 44 and 45 of the Act deal with how applications for permission are to be made and the
grant or refusal of such permission. Any person desiring to carry out any development as
above must make an application in writing in the prescribed form and containing the
prescribed particulars to the Planning Authority, which may, by an order in writing-

(a) grant the permission unconditionally; or

(b) grant the permission subject to such conditions as it may impose with the previous
approval of the State Government; or

(c) refuse to grant the permission.

When permission is granted - with or without conditions - the same is to granted by way of a
Commencement Certificate in the prescribed form. If such permission is refused or is granted
subject to conditions, the order must state the ground for the refusal or for imposing the
conditions, as the case may be. When considering any application, the Planning Authority
must have due regard to the provisions of any draft or final plan or proposed plan, submitted
or sanctioned under the Act.

An applicant who is aggrieved by an order under clause (b) or clause (c) above, may prefer an
appeal, within a period of forty days, to the State Government, which may, after giving a
reasonable opportunity of being heard to the applicant and the Planning Authority, either
dismiss the appeal or allow the appeal by granting permission unconditionally or subject to
modified conditions. [S, 47]

S. 45 of the Act has added a salutary provision in favour of the applicant. It lays down that if
the Planning Authority does not communicate its decision within sixty days, the permission is
deemed to have been granted immediately on the expiry of the said period. This period of
sixty days is to be calculated from the date of receipt of the application or the date of the
applicant's reply to any requisition made by the Planning Authority, whichever is later.

The above concept of "deemed sanction" cannot, however, be invoked in cases where the
Planning Authority itself could not have given its permission under the Act. Thus, the
Bombay High Court has held that before there can be a presumption of deemed permission, it
must be shown that the Municipal Council had authority to grant the permission. When there
is no such authority, no presumption of deemed permission can arise. When a matter is not

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within the jurisdiction of the Municipal Council, it cannot be considered to be within its
jurisdiction, by takin advantage of S. 45 of the Act. (Vithal Devkhar v. State of Maharashtra
2001 (3) MLJ 156)

As observed by the Bombay High Court, it is mandatory for any person intending to carry out
development on any land, to apply for permission in the prescribed form. Therefore, if any
application is not made in the prescribed form, the applicant cannot take advantage of the
deeming provision of S. 45 of the Act, and carry out the development, claiming that he could
do so, as there was no communication from the Planning Authority within sixty days. (GTL
Infrastructure Ltd. v. Dhule Municipal Corp., 2012 (1) All MR 705)

Every such permission remains in force for a period of one year after it is granted or deemed
to have been granted (as above), after which the permission lapses. However, the Planning
Authority may extend the permission by one more year at a time. Such extended period
cannot however, exceed a period of three years in any case. [S. 48]

It is further provided that if, after the grant of the permission, the development is not
completed upto the plinth level (or, in cases where there is no plinth, upto the upper level of
the basement or stilt, as the case may be), within the said period of one year or within the
extended period (referred to above), the permission lapses, and the applicant is obliged to
make an application for a fresh permission. [S, 48]

Power to revoke or modify permission

If, after having regard to the Development Plan prepared (or under preparation), it appears to
the Planning Authority that the permission already granted or deemed to have been granted,
as the case may be should be revoked or modified, it may, by order, revoke or modify the
permission to such extent as appears to it to be necessary. However, before doing so, the
concerned person must be given an opportunity of being heard in the matter. [S, 51]

Note on UNAUTHORISED DEVELOPMENT? Explain the procedure for removal

of "unauthorized development" under the M.R.T.P. Act, 1909. What is development?
What are the powers of Planning Authority to deal with unauthorized development?

Powers to remove unauthorised development: S. 53 of the Act empowers the Planning

Authority to serve a notice on the owner of land to remove unauthorised development when
the Owner has carried out any development of land or has changed the use of land-

(a) without the permission required under the Act; or

(b) which is not in accordance with the permission granted, or is in contravention of any
condition subject to which such permission was granted; or

(c) after such permission has been revoked; or

(d) in contravention of any permission which has been modified.

Page 15 of 100
Such a notice may call upon the owner, requiring him, within such period as may be specified
in the notice, not being less than one month from the date of service of the notice, to take
such steps as may be specified, -

in cases falling under clause (a) or clause (c) above, to restore the land to its condition
existing before such development took place; and

in cases falling under clause (b) or clause (d) above, to secure compliance with the conditions
of the permission or with the modified permission.

Where such a notice requires the discontinuation of any use of the land, the Planning
Authority must serve the notice on the occupier of the land also.

A notice served as above under S. 53 of the Act may, in particular, require-

(i) the demolition or alteration of any building or works;

(ii) the carrying out on the land or any building of other operations; or

(iii) the discontinuance of any use of the land.

Any person aggrieved by a notice under S. 53 of the Act may, within the period specified in
the notice, apply for permission under S. 44 (seen earlier) for retention of any building or
works on the land or for continuance of any use of the land to which such notice relates. If
such permission is granted, the notice stands withdrawn. If, however, the permission is not
granted, the notice stands, and the owner is required take the steps specified in the notice. If
the permission is granted only some of the buildings or works, the notice stands withdrawn
only regards those buildings or works and remains in effect as regards to buildings and
works.

In cases where the notice requires the demolition or alteration any building or works, the
Planning Authority may itself cause restoration of the land to its condition before the
unauthorised development took place.

If the requirements of the notice are not complied with within the time specified in the notice,
the Planning Authority may prosecute the owner of the land for not complying with the
notice. In such cases, the punishment prescribed by the Act is imprisonment for a minimum
tenure of one month and a maximum term of three years and with a minimum fine of 2,000
and a maximum fine of 5,000. In the case of a continuing offence, a further fine of 200 per
day can be levied for every day during which the offence continues after conviction.

If the unauthorised development has been commenced, but not completed, the Planning
Authority has the power to serve a notice on the owner and the person carrying out such
development, requiring the unauthorised development of the land to be discontinued
immediately on the service of the notice. If any person continues to carry on such
development after receipt of such a notice, he is liable to punishment with imprisonment

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which may extend to three years or fine which may extend to 5,000, or both. In the case of a
continuing offence, a further fine of 100 per day can be imposed for every day during which
the no compliance continues. [S, 54]

Notwithstanding the above provisions, if any person has carried out any unauthorised
development of a temporary nature, the Planning Authority may, by an order in writing,
require the person to remove the structure or works or to discontinue the unauthorised use of
the land within a period of fifteen days from the receipt of the order. If such an order is not
complied within the said period of time, the Planning Authority can call upon the District
Magistrate or the Commissioner of Police to have such works summarily removed or such
use summarily discontinued without any further notice. If a question arises as to what can be
termed development of a "temporary nature", the decision of the Planning Authority is
declared to be final in this regard. [S. 55]

Power to require removal of authorised development or use: The above provisions relate to
unauthorised development. However, S. 56 of the Act deals with the powers of the Planning
Authority to require removal of authorised development or use. It provides that, if it appears
to the Planning Authority that it is expedient in the interest of proper planning, and having
regard to the Development Plan, -

(a) that any use of any land should be discontinued; or

(b) that any conditions should be imposed on the use of any land; or

(c) that any buildings or works on the land should be altered or removed,

-the Planning Authority may serve a notice on the owner -

(a) requiring the discontinuance of such use, or

(b) imposing specified conditions on the continuance of such use, or

(c) requiring specified steps to be taken for the alteration or removal of any buildings or
land, as the case may be, -

within the period prescribed in the notice, not however being less than one month from the
date of service of the notice.

Any person aggrieved by such a notice may, within the said period one month, prefer an
appeal to the State Government, which may dismiss the appeal or allow the appeal and quash
the notice or vary the notice it may deem fit. However, before doing so, a reasonable
opportunity being heard in the matter should be given both to the appellant and Planning
Authority. [S. 56]

Recovery of expenses: All expenses incurred by the Planning Authority under the above
provisions can be recovered by it from the person in default or from owner of the plot. [5.57]

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 Note on ACQUISITION OF LAND MRTP (Sections 125 to 129)?

Under S. 125 of the Act, if any land is required, reserved or designated in a Regional Plan,
Development Plan or a Town Planning Scheme for public purpose, such land is deemed to be
land needed for a public purpose under the Land Acquisition Act.

When, after the publication of a draft Regional Plan, a development Plan or any other plan or
town planning scheme, any land is required reserved for any public purpose specified in any
plan or scheme und the Act, the Planning Authority or the Development Authority or an
Appropriate Authority may acquire the land -

(a) by an agreement - by paying an agreed amount; or

(b) in lieu of payment of any such amount, - by granting to the owner of the land, FSI
or TDRs against the area of the land surrender free of cost and free from all
encumbrances, as also further or TDRs against the development or construction of
amenities on the surrendered land, as provided in the Final Development Control
Regulations; or

(c) by making an application to the State Government for acquiring such land under
the Land Acquisition Act.

In all such cases, the land, together with the amenities so acquire under clauses (a) or (b) or
(c) above, vests absolutely and free of any encumbrances in the Planning Authority, the
Development Authority the Appropriate Authority, as the case may be.

Lapsing of reservations: If any land which is reserved, allotted or designated for any purpose
specified in a Plan under the Act is not acquired by agreement within ten years from the date
on which the Plan comes into force, or if a declaration under S. 126 of the Act is not
published in the Official Gazette within such period, the owner of the land can serve a notice
on the Planning Authority or the Development Authority or the Appropriate Authority, as the
case may be. If, within twelve months of the service of such a notice, the land is not acquired
or no steps for its acquisition are commenced, the reservation, allotment or designation is
deemed to have lapsed and the land becomes available to the owner. [S. 127]

Amenity [S. 2(1)]: The word "amenity" is defined to include: - a road, bridge or any other
means of communication, - transport, - supply of water, electricity and any other source of
energy, - street lighting, - drainage and sewage, - educational and welfare projects, - markets
and conservancy, and - any convenience specified by the State Government by a notification
in the Official Gazette, to be an amenity required for leading a wholesome civic life.

Cess [S. 2(9)]: The term "cess" is defined to mean a tax on lands and buildings levied or
leviable under Chapter VIII of the Act. S. 82 of the Act provides for the levy of a tax or cess
(called the Mumbai Repairs and Reconstruction Cess) on lands and buildings.

Page 18 of 100
Development [S. 2(13)]: The word "development” under MHADA is defined to mean:

- the carrying out of building, engineering, mining or other operations in or over or under
any land (including land under sea, creek, river, lake or any other water), or

- the making of any material change in any building or land.

The word also includes redevelopment and lay-out and subdivision of any land and the
provision of amenities.

Board [S. 2(6)]: The term "Board", as used in the Act, refers to the Housing and Area
Development Board established under S. 18 of the Act.

Existing Board [S. 2(14)]: "Existing Board" means the following four Boards, namely, -

(a) the Maharashtra Housing Board constituted under the Bombay Housing Board Act,
1948;

(b) the Vidarbha Housing Board constituted under the Madhya Pradesh Housing Board
Act, 1950;

(c) the Bombay Building Repairs and Reconstruction Boar constituted under the Bombay
Building Repairs and Reconstruction Board Act, 1969; and

(d) the Maharashtra Slum Improvement Board constituted under the Maharashtra Slum
Improvement Board Act, 1973.

Land [2(16)]: The word "land" is defined to include: -open sites; -land which is being built
upon or is already built upon; -benefits to arise out of land; -things attached to the earth or
permanently fastened to anything attached to the earth; and -land under sea, creek, river, lake
or any other water.

Occupier [2(25)]: The Act has adopted an inclusive definition of the term "occupier". It lays
down that "occupier" includes:

(a) any person who, for the time being, is paying, or is liable to pay, to the owner, the rent,
or any portion of the rent, of the land or building in respect of which such rent is paid or
is payable;

(b) an owner in occupation of, or otherwise using, his land or building;

(c) a rent-free tenant of any land or building;

(d) a licensee in occupation of any land or building;

(e) any person who is liable to pay to the owner, damages for the use and occupation of
any land or building.

Page 19 of 100
In one case, it was observed that an "occupier" can be a person who is covered by any of the
five categories listed above. However, if a claimant is merely in joint occupation, this by
itself does not make that person a co-tenant. At best, it could be a case of permissive
occupation. If such a person cannot show that she is a co-tenant, she cannot be regarded as
an occupier under the Act. (Laxmibai Sethe v. Gulabbai Bomble, 1998 ILU 920)

Owner [S. 2(26)]: The word "owner", when used with reference to any building or land (or a
part thereof) which is let, or intended to be let or occupied separately, means the person who
receives the rent of such building or land (or a part thereof) or who will be entitled to receive
the rent thereof if the building or land (or a part thereof) were let.

The term also includes:

(a) an agent or trustee who receives such rent on account of the owner;

(b) an agent or trustee who receives the rent of, or is entrusted with or concerned for, any
building or land (or a part thereof) devoted to religious or charitable purposes;

(c) a receiver or manager appointed by any court of competent jurisdiction to have charge
of, or to exercise the rights of, an owner of the building, land or a part thereof; an

(d) a mortgagee in possession.

Premises [S. 2(27)]: The term "premises" means any land, building or part of a building
whether authorized or otherwise, and includes:

(a) gardens, grounds and out-houses, if any, appertaining to such building or a part of the
building;

(b) any fitting affixed to such a building or part of the building for the more beneficial
enjoyment thereof;

(c) a building or part of a building let or intended to be let occupied separately.

Note on the Mumbai repairs and reconstruction board: its powers and duties?

S. 18 of the Act provides for the establishment of a Board to be called the Mumbai Repairs
and Re-Construction Board for carrying on the activities of repairs and reconstruction and
slum improvement in the city of Mumbai.

The Board consists of a Chairman and not more than 17 other members, of whom at least 3
should be officials. Moreover, at least 2 non-official members must be persons who have
special knowledge or practical experience in finance, structural engineering, architecture,
town and country planning and public housing. All the members of the Board are appointed
by the State Government.

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Powers of the Board: S.75 of the Act provides that the powers of the Board are to be
exercised by it subject to the superintendence, direction and control of the Maharashtra
Housing and Development Authority ("the Authority") established under S. 3 of the Act.

The said Authority may entrust to the Board, the task of framing and execution of schemes
for building repairs or for re-construction of buildings or for housing and rehabilitation of
dishoused occupiers, subject to such terms and conditions as it may think fit to impose. (5,
79)

S. 79 also allows the Board -

(a) to hand over the execution of building repairs or reconstruction to a Municipal

Corporation or a co-operative society or any other recognized agency, but under its own
supervision; and

(b) to transfer by sale, exchange or otherwise, any new building so constructed to any co-
operative society if formed by all occupiers or apartment owners.

S. 77 of the Act deals with special powers of the Board, and lays down that, in the exercise of
its powers, the performance of its duties and the discharge of its functions, the Board may -

(a) authorize any person to enter any building or land for making any inquiry, inspection,
survey, measurement, valuation or taking levels of such building or land or for carrying
out any structural repairs or for executing any work authorized by or under the Act or
which is necessary for, or pursuant to, any of the purposes of the Act;

(b) cause any building which is proposed to be structurally repaired or re-constructed or

demolished, to be vacated within a specified period, taking such steps and using such
force as may be reasonably necessary for this purpose.

It is clarified that before exercising any power of entry under clause (a) above, reasonable
notice is to be given to the owner and occupiers of such land or building, so far as may be
compatible with the exigencies of the purpose for which such entry is to be made. Moreover,
such a power is to be exercised, as far as possible, in the presence of the owner or occupiers,
having due regard to their social and religious usages.

With reference to clause (b) above, it is provided that when a building or a part thereof is
caused to be vacated, the Board must allot to the occupiers who are dishoused or who are
required to vacate their premises temporary accommodation in any building maintained by
the Authority at such place and to such extent as it deems fit. Any person -

- who obstructs the entry of a person authorized to enter the premises under S. 77 (above),
or

- who obstructs the performance or execution of the duty of such a person, or

- who molests such a person after entry, or

Page 21 of 100
 - who fails to vacate the building or to remove his belongings therefrom within the
specified period,

is punishable with imprisonment upto three months or a fine upto 500 or both. (S.78)

Duties of the Board: S. 76 of the Act imposes the following eight duties on the Board:

1. To undertake and carry out structural repairs to buildings in such order of priority as the
Board considers necessary, without recovering the expenses thereof from the owners or
occupiers of such buildings.

2. To provide temporary or alternate accommodation to the occupiers of such buildings

when repairs are undertaken or when a building collapses.

3. To undertake, from time to time, the work of ordinary and tenantable repairs in respect of
all premises placed at the disposal of the Board.

4. To move the State Government to acquire old and dilapidated buildings which are
beyond repairs and to reconstruct them after providing alternate accommodation to the
affected occupiers.

5. To move the State Government to acquire old and dilapidated buildings which were
structurally repaired earlier by the Board, but where further structural repairs are not
possible or economical, to demolish such buildings and construct new buildings after
providing alternate accommodation to the affected occupiers.

6. To construct transit camps to provide temporary accommodation to persons affected by

house collapse, fire, torrential rain or tempest.

7. To take necessary action for demolition of damaged and dilapidated buildings, or

portions thereof, which are not capable of being repaired at a reasonable expense, and
thereby save human lives.

8. With the prior approval of the Maharashtra Housing and Area Development Authority, to
do all other things to facilitate the carrying out of its powers, duties and functions under
the Act.

Note on LEVY AND COLLECTION OF CESS?

Ss. 82 to 87 of the Act deal with the levy and collection of cess. As seen earlier, "cess" means
a tax on lands and buildings levied or leviable under Chapter VIII (that is, Ss. 74-103) of the
Act.

S. 82 provides that there shall be levied and paid to the State Government, from the date
notified in the Official Gazette for this purpose, a tax on lands and buildings called the
Mumbai Building Repairs and Reconstruction Cess, at such percentage of the rateable value
of the land or building in question as provided in Schedule II of the Act. Different rates are

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prescribed by the said Schedule for different types of land and buildings. For instance, in
cases where a building is not structurally repaired by the Board, the cess is levied at the rate
of 87% of the rateable value of the building in case of Category A buildings, at the rate of
63% of such value for Category B buildings and at the rate of 39% of such value for Category
C buildings.

This cess is to be collected by the Municipal Corporation in the same way in which property
tax is collected under the Mumbai Municipal Corporation Act. The Municipal Commissioner
must recover the amount of the cess by an addition to the general tax from each person in the
same manner as the recovery of general tax from such a person. If the owner fails to pay such
cess, the Municipal Commissioner is entitled to recover the same in the same manner in
which arrears of property tax are recovered.

Within a period of fifteen days from the date of recovery of the cess the amount is to be paid
by corporation to the state Government after deducting 5% of the amount of cess recovered.
If corporation makes a default in the collecting of cess or payment thereof to the State
government the state government may fix a period within, which same is to be done. On non-
compliance within this period, the State Government may direct any bank in which moneys
of the Corporation are deposited to transfer the required amount to the State Government and
bank is bound to obey such an order. (Ss. 85 & 87)

The following sixteen categories of lands and buildings are, however, exempt from cess
under S. 83 of the Act, namely,

(a) lands and buildings vesting in the Central Government or leased to it;

(b) lands and buildings vesting in or leased to the State Government or requisitioned by the
State Government;

(c) lands and buildings vesting in or leased to the Mumbai Municipal Corporation;

(d) lands and buildings vesting in or leased to the Maharashtra Housing and Area
Development Authority;

(e) lands and buildings vesting in or leased to the Trustees of the Port of Bombay, and not
used, or intended to be used, for the purpose of profit;

(f) lands and buildings leased to a registered public trust and exclusively occupied for
public worship or educational purposes;

(g) lands and buildings leased to a co-operative housing society;

(h) lands and buildings of any Diplomatic or Consular Mission specified by the
Government in general or special orders;

(i) buildings exclusively in the occupation of the owner;

Page 23 of 100
 (j) buildings exclusively used for non-residential purposes;

(k) residential buildings exclusively occupied on leave-and-license basis;

(l) buildings occupied or used partly for one and partly for another purpose specified in
clauses (i), (j) or (k) above;

(m) all open lands which are not built upon;

(n) buildings erected, or which may be erected, in an area after the date on which the
Bombay Building Repairs and Reconstruction Board Act, 1969, came into force;

(o) any lands or buildings exempted from the payment of cess under S. 28(1) (m) of the
Act; and

(p) any building which is subjected to repairs amounting to reconstruction as certified by

the Municipal Corporation.

What are STRUCTURAL REPAIRS? Explain procedure, repairs, alternate

accommodation, provisions under MHADA?

The term "structural repairs" is defined by S. 2(36) to mean repairs or replacement of

decayed, cracked structural components of a building or any substantial part thereof or any
part to which the occupiers have a common access, as for instance, staircases, passages, etc.
by a new one of the like or different material, including a change in the mode of construction
(as for instance, converting a load-bearing wall-type or timber-framed structure to one of
RCC), which repairs or replacement if not carried out expeditiously, may in the opinion of
the Board, result in the collapse of the building or any part thereof.

The term also includes repair and replacement of the roof and drain pipes fixed to the
building, which if not repaired or replaced simultaneously with structural repairs, would
cause further damage to the building. The term does not, however, cover the replacement of
tiles only.

When any such repairs are carried out to any building or a part thereof by the Board, the
building is deemed to be "structurally repaired" under the Act.

S. 88 authorizes the Board to undertake repairs to a building when the Board is satisfied that
any occupied building is in such a ruinous or dangerous condition that it is imminently likely
to fall - unless repairs to render it fit and safe for habitation are urgently done. For this
purpose, the Board may prepare a list of such buildings, setting out the order of priority or
urgency, and undertake their repairs either simultaneously or in such order of priority as per
the exigencies of the case.

In cases where –

Page 24 of 100
 (a) the cost of structural repairs to a building, is in excess of the amount specified by the
State Government by notification in the Official Gazette;

(b) the cost of structural repairs to a building would exceed the amount specified by state
government, but the size of the land is such that it would not be possible or economical
to erect a new building thereon are there is an adjoining building where the cost of
structural repair would not exceed the above amount,

three options are given to the Board by S. 88 of the Act, as follows:

1. The Board may decide not to repair such a building and issue Certificate to that effect. A
copy of such a Certificate is to be fixed in a conspicuous part of the building for the
information of all its occupiers. OR

2. The Board may, in cases of special hardship, decide to carry out structural repairs to such
a building on such terms and condition as it may impose, although the cost of such
repairs are likely to exceed the limit referred to above. OR

3. If the occupiers of the building agree to bear the excess costs the Board may carry out the
structural repairs if the occupier abide by such terms and conditions as are imposed by
the Board for payment of the excess amount to the Board.

The procedure for carrying out structural repairs by the Board outlined in Ss. 89 and 90 of the
Act - set out as follows:

Firstly, the Board must give notice of not less than fifteen days to the owner, informing him
that it intends to carry out such repairs from a specified date, and calling upon the owner to
submit his objections and suggestions, if any.

The above notice must also require the owner to furnish to the Board, a statement containing:

- the names of all the occupiers in the building as per his records,

- the approximate area and location of the premises in occupation of each occupier, and

- the rent, compensation or other amount payable by each such occupier.

+ An owner who refuses to furnish a statement as above or intentionally furnishes a false

statement, is punishable with fine upto 1,000.

+ A copy of the said notice is to be affixed to a conspicuous part of the building and must
also be published by a proclamation near the building, accompanied by a beat of the drum, so
that occupiers come to know about it, and can give their objections and suggestions, if any.

+ After considering the objections and suggestions received within the specified period, the
Board can decide on carrying out the repairs with or without modification or postpone or
even abandon such repairs.

Page 25 of 100
+ If the Board has reason to believe that the building is immediately dangerous for habitation,
the notice may even specify a notice period of twenty-four hours.

+ Even before giving such notice or before the period stated in the notice expires, the Board
can undertake such temporary measures as may be necessary to prevent danger to or from
such a building.

+ If the occupiers are required to temporarily vacate their premises before structural repairs
can be undertaken, the Board must allot, free of charge, temporary accommodation to them.
Such temporary accommodation may not be in the same locality or the same floor area.

+ If any occupant fails to occupy the temporary accommodation allotted to him within a
period of one month, the responsibility of the Board to give him temporary accommodation
comes to an end. However, the occupier retains his right to re-occupy his premises after the
building is repaired.

+ Whether or not the occupant accepts the temporary accommodation offered to him, he must
continue to pay the rent to the owner in respect of the premises vacated by him.

+ If an occupier does not vacate the premises, the Board may use such amount of force as
may be reasonably necessary to get the premises vacated. When the work of structural repairs
is complete, the occupier must forthwith vacate the temporary accommodation and occupy
his repaired premises. If he fails to do so within one month of the notice sent to him in this
regard by the Board, tenancy and other rights in respect of such premises are deem to be
terminated, notwithstanding anything contained in the Maharashtra Rent Act or any contract
or any other law, and the owner is entitled to the possession of such premises.

Repairs or reconstruction of buildings which suddenly collapse or become uninhabitable

S. 91 of the Act deals with cases when a building suddenly collapses or becomes
uninhabitable due to fire, torrential rain, and all or any of its occupiers are dishoused. In such
cases, the Act casts an obligation on the Board to allot temporary accommodation to such
occupiers in any building maintained by the MHADA to such extent as the Board deems fit.

In the case of any such building, if the Board is of the opinion that the building is capable of
being repaired and rendered fit for habitation at reasonable expense, the Board must
immediately undertake the necessary repairs.

If, however, the whole building has collapsed or is rendered uninhabitable or the Board is of
the opinion that the building is not capable of being repaired and rendered fit for habitation at
a reasonable expense it must move to the State Government to acquire the property under the
provisions of the Act and take necessary action to construct a new building on the site to
accommodate the occupiers who were dishoused. If, in such cases, the property is not
acquired by the State Government, no plan for erecting any new building on the same land
can be sanctioned unless No Objection Certificate has been obtained from the Board.

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 Note on ACQUISITION OF CESSED PROPERTIES FOR CO-OPERATIVE
SOCIETIES?

Provisions relating to acquisition of cessed properties for cooperative societies were inserted
in the Act by the 1986 Amendment of the Act in form of Chapter VIII-A (Ss. 103A to 103M)
and apply to all cessed buildings which were erected before September 1, 1940 and are
classified as Category A buildings under the Act. If, however, 50% or more of the occupiers
of such a building are using their tenements for commercial or non-residential purpose on the
date when the said Amendment came into force (that is, February 26, 1986), these provisions
will not be applicable. The provisions of Chapter VIIII-A of the Act may be summarized as
follows:

+ If a co-operative society is formed, or is proposed to be formed under the Maharashtra Co-

operative Societies Act, 1960, by not less than 70% of the occupiers of a cessed building, a
written application may be made to the Board, requesting it to move the State Government to
acquire the land, along with the existing building thereon (referred to here as "the land") in
the interest of its better preservation or for the reconstruction of a new building in its place.
Such applicants must also express their willingness to pay the amount for such acquisition (as
may be determined under the Act) and for carrying out the structural and other repairs or to
reconstruct a new building, as the case may be.

+ On receipt of such an application, after the necessary verification and scrutiny, the Board
must direct the cooperative society (whether registered or proposed) to deposit, within the
specified period, 30% of the approximate amount that would be required to be paid to the
owner if such land was to be acquired. On receipt of this amount, the Board must submit a
proposal to the State Government to acquire the land for the above purpose. If the State
Government is satisfied with the proposal, it may communicate its approval to the Board.

+ On receipt of such an approval, the Board must forward the acquisition proposal to the
Land Acquisition Officer for initiating acquisition proceedings under the Act. Thereafter, the
Collector must take and hand over the possession of the land to the Board. After the land has
vested absolutely in the Board, free from encumbrances, and the total amount payable to the
owner is determined, the society is asked to deposit the remainder amount to be paid to the
owner with the Land Acquisition Officer. In case the society is still not registered, the Board
must also direct the society to get itself registered. On receipt of the amount, the Land
Acquisition Officer must make payment to the owner or deposit the amount in court under S.
46 in cases of dispute.

+ The authority must then convey the land so acquired to the cooperative society of its
occupiers along with the rights, title and interests therein and execute the necessary
documents without undue delay. After the land is transferred to the co-operative society the
society must use the same for the purpose for which it was used before its acquisition, by
carrying out the structural repairs to the building or by reconstructing a new building in its
place, as the case may be.

Page 27 of 100
+ Once the land is transferred to the co-operative society, it cannot transfer such land or
building or its interest therein by sale, gift, exchange, leave and license, assignment or lease.
Similarly, no member or tenant of such a society can transfer his interest in any tenancy by
sale, gift, exchange, leave and license, assignment or lease. Even if there is such a purported
transfer, the same would be void. Additionally, such a person as well as his "transferee" are
liable to be evicted from that tenement.

+ The provisions of the Maharashtra Co-operative Societies Act, laying down the minimum
number of members for the formation of a co- operative society, do not apply to a co-
operative society formed as above.

+ The occupiers of tenements in such a building who have not become members of the co-
operative society are entitled to continue in their tenements as tenants of the co-operative
society on the same terms and conditions.

+ The above provisions have effect, notwithstanding anything inconsistent therewith in the
other provisions of the Act or any other law in force or any agreement, contract or judgment,
decree or order of any court or tribunal.

Note on Floor Space Index (FSI) and transfer of development rights (TDR)?

Floor Space Index (FSI) or Floor Area Ratio (FAR): is a formula which indicates the
availability of the total area for construction purposes on a particular plot of land. It is thus
a measure of the intensity of the site being developed. The greater the FSI, the greater can be
the construction on a given piece of land. The concept of FSI is very useful to public
authorities to limit the amount of construction in a given city or a part of a city. In the United
Kingdom, the terms "Plot Ratio" and "Site Ratio" are used to indicate the same concept,
whereas Australia prefers the term "Floor Space Ratio".

Regulation 2(42) of the DC Regulations defines FSI as "the ratio of the combined gross
floor area of all floors (except areas specifically exempted under the Regulations, as for
instance, passages, staircases, chimneys, lift-rooms, lift-wells, etc.) to the total area of the
plot.

Thus, - FSI = Total area on all floors / Plot area

In other words, if the total carpet area of all the floors of the building is divided by the area of
the land on which the building is built, the resulting figure is the FSI of that plot of land. FSI
is thus the ratio between the allowed built up area of a building and the area of the plot on
which it stands. if the government has fixed an FSI of 1.0 for a particular plot measuring 100
sq. meters, the builder can build only 100 sq. meters built up area on that plot. Similarly, an
FSI of 2.0 would indicate that the total floor area of a building can be two times the area of
the plot which it is built.

It thus becomes clear that the higher the FSI, the greater is the built up area available for that
plot. Whereas most cities in India have increased the FSI over a period of years, in Mumbai,

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the FSI has actually gone down from 3.5 to 1.33 over the past few years. The maximum
permissible Floor Space Indices are laid down in Tabular Form in Regulation 32 of the DC
Regulations. Thus, for instance in the Island City of Mumbai, the FSI is 1.33, whereas
different FSI are prescribed for the suburbs and the extended suburbs of the city.

Regulation 33 provides for additional FSI in certain circumstances like construction of

educational and medical institutions and institutional buildings of the government, public
authorities and registered public charitable trusts. Additional FSI is also available for public
libraries which are more than 100 years old and fall under Class A of Rule 10 of the
Maharashtra Public Libraries Rules, 1970. As regards starred hotels, FSI of 3.0 can be
granted to a 1-star, 2-star and 3-star hotels, an FSI of 4 to 4-star hotels and an FSI of 5.0 to 5-
star hotels.

In one case, a housing society made illegal constructions in violation of FSI to the extent of
more than 24,000 square feet. The Administrator passed an order of demolition of 8 floors.
The Supreme Court held that the unlawful construction made by the society was in clear and
was violation of FSI. The court upheld the Administrator's order and observed that this case
should be a pointer to all the builders that making of unauthorized constructions never pays
and is against the interest of the society at large. (Pratibha Co-operative Society Ltd &
Another v. State Maharashtra, 1992 C.T.J 274)

example of calculation of FSI of an existing building: A building has been constructed on a

plot of land measuring 5 acres. It has 100 flats of 800 sq. feet each, 200 flats of 1200 sq. feet
each and 400 flats of 1400 sq. feet each. Applying the above formula and taking 1 acre to be
equal to 43,560 sq. feet, the FSI of this building can be calculated as follows:

Total area of all the flats (in sq. feet): [100 * 800) + (200 * 1200) + (400 * 1400) = 8,80,000
sq. feet Total area of the plot in sq. feet

5 x 43.560 = 2, 17, 800 sq. feet

FSI = (8, 80,000)/ (2,17,800) = 4.04

Transfer of Development Rights (TDR) is an interesting concept under which, in certain

cases, the development potential of a plot of land is separated from the land itself and is
made available to the owner of the land in the form of a Development Rights Certificate
(DRC) which he can use on some other plot of land (generally, in a less developed area) or
which he can transfer to another person for a consideration.

Under the TDR policy, builders are compensated in kind if they surrender a part of their land
to the government for public purposes like construction of a park, widening of a road or slum
rehabilitation. The purpose of TDR is to shift building activities from intensively developed
parts of a city to moderately or sparsely developed parts thereof.

For instance, if a certain piece of property has been designated as a park in the city's Master
Plan and the owner of that property develops the park at his expense and hands it over to the

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government, the government will issue him with a DRC which allows him to build on an
equivalent area in the suburbs of the city or sell the DRC to another builder for the same
purpose.

TDR thus means making available a certain amount of additional built up area to the owner
of a piece of land in lieu of the area relinquished or surrendered by him, so that he can use
that extra built up area himself on some other plot of land or transfer it to another person for
an agreed sum of money. The purpose of TDR is to minimize the time required for the
process of acquisition of land in urban areas for public purposes like construction of
playgrounds and parks, widening of roads, etc. It is estimated that the TDR policy has
resulted in the additional construction of approximately 48,00,000 sq. meters in the city of
Mumbai.

The Transfer of Development Rights is regulated in Mumbai by Regulation 34 and Appendix

VII of the DC Regulations. Under the said Regulations, in Mumbai DRC can originate i.e. be
issued, in any part of the city. However, they can be used:

+ on any plot in the same Ward as that in which they originated, OR

+ on any plot lying to the north of the plot in which they have originated.

However, in both cases (above), they cannot be used in the Island city Mumbai.

Appendix VII of the DC Rules also contains a list of areas where DRC cannot be used, as for
instance,

- areas where the permissible FSI is less than 1.0;

- coastal areas and areas in the No Development Zone;

- areas in the Tourism Development Zone, etc.

Under the rules contained in Appendix VII, DRCs are to be issued the Commissioner himself,
and must state, in words and figures, the credit in square meters of the built up area to which
the owner is entitle the zones in which the Development Rights are earned and the areas
which they can be used. The TDR is also subject to the terms and condition listed in the said
Appendix of the act.

A holder of a Development Rights Certificate who desires to use the FSI credit certified
therein on a particular plot of land must attach a valid DRC to his application for
development permissions to the extent required.

When the holder of the DRC wishes to transfer it to another person he must submit the DRC
to the Commissioner with an application in the prescribed form. The Commissioner then
endorses the name of the new holder, that is, the transferee of the DRC, on the Certificate and
return the same to the applicant. Such an endorsement is to be made by the Commissioner

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himself, and any DRC nor having an endorsement made by him personally is available for
use only by the original holder.

HERITAGE BUILDINGS AND PRECINCTS: Under Regulation 67 of the DC

Regulations, the expression "heritage buildings and precincts" refers to listed buildings,
areas, artifacts, structures and precincts which are of historical or aesthetical or
architectural or cultural value, or any combination thereof.

Under the Maharashtra Regional and Town Planning Act, 1966, a "heritage building" means
a building possessing architectural, aesthetic, historical or cultural values, and which is
declared as a heritage building by the Planning Authority in whose jurisdiction such a
building is situated. "Heritage precinct', under the said Act, means an area comprising a
heritage building or heritage buildings and the precincts thereof or related places.

Provisions of the DC Regulations relating to such buildings and precincts may be

summarized as under:

- No development or redevelopment or engineering operations or additions, alterations,

repairs, renovations (including painting of buildings), replacements of special features or
demolition of the whole or any part thereof or plastering such buildings or precincts can be
done without the prior written permission of the Commissioner.

- In giving his permission (as above), the Commissioner must act in consultation with or on
the advice of a committee called the Heritage Conservation Committee to be appointed by the
State Government. However, in exceptional cases, the Commissioner is authorized to
overrule the recommendation of the said Committee for reasons to be recorded by him in
writing.

- As regards religious buildings in the list of heritage buildings, the changes, repairs,
additions, alterations and renovations required on religious grounds are to be treated as
permissible, as long as they are in accordance with the original structure and architecture,
designs, aesthetics and other special features of the building. However, in such cases also, the
Commissioner must take into consideration the recommendations of the said Committee
before arriving at a decision.

- With the approval of the State Government and after consultation with the above
Committee, the Commissioner has the power to alter, modify or relax any of the provisions of
the conservation precincts DC Regulations preservation if the same is needed for
conservation or retention of heritage buildings or precincts.

- If any such alterations, modifications or relaxations of the provisions are likely to cause
undue loss to the owners or lessees of such buildings or precincts the Commissioner must
give an opportunity of being heard to such owners or lessees and also to the members of the
public.

Page 31 of 100
 - Buildings which are included in the 'Listed Heritage precincts must maintain the skyline
in the precinct as is existing in the surrounding area, so as not to diminish or destroy the value
and beauty of the heritage buildings or precincts.

The DC Regulations have classified heritage buildings and precincts into three categories as
under:

- Grade I comprises of buildings and precincts of national or historical importance,

embodying excellence in architectural style, design, technology and material usage. No
intervention is permitted in Grade I buildings, either on the exterior or in the interior, unless it
is necessary in the interests of strengthening and prolonging the life of the buildings or
precincts or any part or features thereof. Moreover, all development in the areas surrounding
Grade I buildings or precincts is to be regulated to ensure that it does not mar the grandeur of,
or the views from, the Grade I building or precinct.

- Grade II comprises of buildings and precincts which are of regional or local importance,
possessing special architectural or aesthetical merit or cultural or historical value of an order
lower than that of Grade I buildings or precincts. Grade II buildings and precincts deserve
intelligent conservation. Internal changes and adaptive re-use may be allowed. External
changes may also be permitted, subject to strict scrutiny.

- Grade III comprises of buildings and precincts which are important for the townscape.
These are structures which evoke architectural, aesthetic or sociological interest, though not
as much as those of Grade Il buildings and precincts. However, they contribute to determine
the character of the locality and are representative of the life-style of a particular community
or religion. In the case of such buildings and precincts, external and internal changes are
generally allowed. Such changes can include extensions and additional buildings in the same
plot or compound, provided such an extension or additional building is in harmony with, and
does not detract from, the existing heritage building or precinct, especially in terms of height
or facade.

Objects of Maharashtra Agricultural Act (MAL)

The two main objects of the Maharashtra Agriculture Lands (Ceiling and Holding) Act
(MAL), as reflected in its Preamble, are:

+ to impose a maximum limit or ceiling on the holding of agricultural land in Maharashtra;

and

+ to provide for the acquisition of land held in excess of such ceiling limits and for its
distribution to landless and other persons.

Note on Agriculture [S. 2(1)]?

The word "agriculture" is defined to include: horticulture, the raising of crops, grass, garden
produce, the use, by an agriculturist, of the land held by him (or a part thereof) for grazing,

Page 32 of 100
the use of any land (whether or not an appendage to rice or paddy land) for the purpose of
rab manure, dairy farming, poultry farming and breeding of livestock.

[Rab manure is produced by burning layers of cow-dung, tree- lopping’s, leaves and grass.
The resulting ash is used as manure for cultivation. This local method of rice cultivation,
known as rab cultivation is the traditional device of manure production in the Konkan Region
of Maharashtra.]

"Agriculture" does not, however, include the cutting of wood only. The dictionary meaning
of agriculture is the cultivation of the soil. The Madras High Court has observed that the
ordinary meaning of the word "agriculture" is the raising of annual or periodical grain crops
through the operation of ploughing, sowing, etc. (Raja Ventatagiri v. A. Reddi, (1915) 38
Mad. 739)

According to the Bombay High Court, any operation which has something to do with land,
any operation which helps the land to yield fruits or crops, any operation which improves the
natural produce of the land, comes within the expression "agriculture". (N. G. Desai v. State
of Bombay, (1954) 57 BLR 199)

An "agriculturist" means a person who cultivates land personally [S, 2(3)]

The term "to cultivate" means to till or husband the land for the purpose of raising or
improving agricultural produce (whether by manual Labour or by means of cattle or
machinery) or to carry on any agricultural operation thereon. It is also clarified that if a
person enters into a contract to cut grass on any land, he shall not, only on that account, be
deemed to cultivate such land. [S.2(8)]

The expression "to cultivate personally" has also been defined in S. 2(9) of the Act. It means
cultivating land on a person's own account-

(i) by one's own Labour, or

(ii) by the Labour of any member of one's family, or

(iii) by hired Labour or by servants, on wages payable in cash or kind (but not in crop
share) under the personal supervision of himself or any member of his family.

It is clarified that a person under disability shall be deemed to cultivate land 'personally' if
such land is cultivated through his servants or by hired Labour. As S. 2(23), a 'person under
disability' means -

(a) a widow, or

(b) a minor, or

Page 33 of 100
 (c) a woman who is unmarried or, if married, is divorced or judicially separated from her
husband or whose husband is a serving member of the Armed Forces or who falls under
clause (d), below, or

(d) a person who, by reason of some mental or physical disability, is incapable of

cultivating land either by personal Labour or under supervision, and includes a serving
member of the Armed Forces.

In the case of a joint family, the land shall be deemed to be cultivated 'personally' if it is
cultivated by any member of such a family.

For the purposes of the Act, the "appointed day" is the day on which the Act came into force,
namely, January 26, 1962. It is defined under [S, 2(4)]. It is important not to confuse this date
with the “commencement date", which is the date on which the 1975 Amendment came into
force, namely, October 2, 1975.

Family [S. 2(11)]: The term "family", as used in the MAL Act, includes a Hindu undivided
family. In the case of other persons, group or unit, it includes the members thereof who, by
custom or usage, are joint in estate, possession or residence.

The Supreme Court has held that the expression "Hindu undivided family" would include a
Hindu coparcenary as well as an ordinary Hindu Joint family, where there are no coparceners.
(State of Maharashtra v. N. S. Deshmukh, 1985 Maharashtra L. J. 558)

A "family unit" means a family unit as defined in S. 4 of the Act, namely,

- a person and his spouse (or more than one spouse) and their minor sons and minor
unmarried daughters, if any; or

- where any spouse is dead, the surviving spouse or spouses and the minor sons and minor
unmarried daughters; or

- where the spouses are dead, the minor sons and unmarried daughters of the deceased
spouses.

[S. 2(14)] "To hold land" means to be lawfully in actual possession of land as owner or as
tenant.

[S. 2(16)] The word "land" means land which is used, or is capable of being used, for
purposes of agriculture, and includes:

(a) the sites of farm buildings on, or appurtenant to, such land;

(b) land on which grass grows naturally;

(c) trees and standing crops on such land;

Page 34 of 100
 (d) canals, channels, wells, pipes or reservoirs or other works constructed or maintained
on such land for the supply or storage of water for the purpose of agriculture;

(e) drainage works, embankments, bandharas or any other work appurtenant to such land,
or constructed or maintained thereon for the purposes of agriculture; and

(f) all structures and permanent fixtures on such land.

The Bombay High Court has held that an artificial tank constructed by the holder of land can
be considered as forming part of the land in his possession or occupation. However, a natural
reservoir or a natural tank cannot be construed as forming part of his total land holding.
(Bhagyashre Raje v. State of Maharashtra, AIR 2006 Bom 645)

[S. 2(10)] "Exempted land" means land exempted from the provisions of the Act under S.47
thereof. The said section lays down certain categories of land which are exempted from the
provisions of the Act, as for instance land held by the Government, land held by a bank or a
cooperative societ as security for recovery of its dues, etc.

Person [S. 2 (11)]: For the purposes of the Act, the word "person" includes a family.

Landless person [S. 2(17)]: A "landless person" means a person who does not hold any land
or who holds land for the purpose of agriculture not in excess of one hectare of dry crop land
and who earns his livelihood principally by manual Labour on agricultural land in either
case.

Tenant and landlord [S. 2(30)]: A "tenant" means a person who holds land on lease, and
includes a person who is deemed to be a tenant under the relevant tenancy law.

A "landlord" means a person from whom land is held on lease by a tenant, and includes a
person who is deemed to be a landlord under the relevant tenancy law.

Collector [S. 2(6)]: The term 'Collector' has been defined to include an Additional Collector,
an Assistant Collector or a Deputy Collector, exercising the powers or discharging the duties
of a Collector under the Maharashtra Land Revenue Code, 1966.

The term also includes any other officer not below the rank of an Assistant or Deputy
Collector, especially empowered by the State Government to exercise the powers and
perform the functions of the Collector by or under the Act.

Farming society [S. 2(12)]: A "farming society" means a society which is registered, or
deemed to be registered as such, under any law for the time being in force relating to the
registration of co-operative societies.

Joint farming society [S. 2(15)]: A "joint farming society" means a joint farming society
registered or deemed to be registered as such under any law for the time being in force
relating to the registration of co-operative societies, the members of which jointly cultivate
the land held by the members or by the society.
Page 35 of 100
 Explain classification and CEILING ON HOLDINGS areas under the MAL act?

Sections 3 to 7 of the Act deal with ceiling area of land and surplus land. As seen above, the
word "land", as defined in the Act refers to land which is used, or is capable of being used,
for the purposes of agriculture.

S. 3 of the Act declares that, subject to the other provisions of the Act, no person or family
unit shall, after October 2, 1975, hold land in excess of the ceiling area as determined in the
manner provided in the Act. "Exempted land" can, of course, be held by a person or a family
unit to any extent.

The provisions of the Act dealing with ceiling area and surplus land can be summarized as
follows:

1. The First Schedule of the Act lays down the ceiling areas for all the 27 districts and
talukas in the State of Maharashtra. Separate ceiling areas have been listed for different
classes of land. Thus, for instance, in the district of Nashik, for land with an assure
capable of yielding water supply for irrigation of land which is at least two crops in a
year, the ceiling area has been fixed at 18 acres. In the same district, in respect of land
which is irrigate seasonally by flow irrigation from any source, the ceiling area is 36
acres. For dry crop land in Nashik, the ceiling area is fixed a 54 acres, and so on. Thus,
different ceiling limits apply to different districts and talukas and to different classes of
land in the same district or taluka.

2. If a person or a family unit holds land of only one class, the ceiling area for that person
or family unit will be the ceiling are for that class of land as laid down in the First
Schedule.

3. If a person or family unit holds different classes of land the ceiling area is to be
calculated as per the formula laid down in S. 5(3) of the Act.

4. An exemption is made in respect of a family unit of more than five persons. In such
cases, the family unit is entitled to hold land exceeding the ceiling area to the extent of
one-tenth of the ceiling area for each member in excess of five. the total holding of the
family unit cannot exceed twice the ceiling area. (S. 6)

5. As regards persons and family units holding both exempted land and non-exempted land,

- if the area of the exempted land is less than the ceiling area, he or it is entitled to hold
only so much of the non-exempted land, as together with the area of the exempted
land, equals the ceiling limit; and

- in any other case, the person or the family unit is not entitled to hold any non-
exempted land.

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To take an example, suppose the ceiling limit for Mr. X is 18 acres. Now, if he is holding 10
acres of exempted land, he may hold 8 acres of non-exempted land. If, however, he holds 20
acres of exempted land, he cannot hold any other non-exempted land.

What are RESTRICTIONS ON TRANSFER, ACQUISITION AND PARTITION?

Sections 8 to 11-A in Chapter III of the Act deal with restrictions imposed by the Act on
transfers, acquisitions and partitions and the consequences of contravention of these
provisions.

Under S. 8 of the Act, if a person or a family unit holds land in excess of the ceiling area on
or after 2nd October, 1975, such person or any member of the family unit is not allowed, on
and after the said date, to transfer any land until the land in excess of the ceiling area is
determined under the Act.

The word "transfer" has been given a very broad meaning for the purposes of S. 8, and is
deemed to include the following:

- sale, - gift, - mortgage with possession, - exchange, - lease, - assignment of land for
maintenance, - surrender of a tenancy, - resumption of land by a landlord, or - any other
disposition,

whether made by act of parties inter vivos or by a decree or order of a court, tribunal or other
authority.

The term "transfer" does not, however, include:

- a transfer by way of sale or otherwise of land for the recovery of land revenue or sums
recoverable as arrears of land revenue; or

- an acquisition of land for a public purpose under any law for the time being in force.

A similar restriction is imposed by S. 9 of the Act on the acquisition of land in excess of the
ceiling area. It is provided that no person or a thereby member of a family unit shall, on or
after October 2, 1975, acquire transfer any land if he or the family unit, as the case may be,

- already holds land in excess of the ceiling area, or

- if the land to be acquired would, together with the land already held, exceed the ceiling
area.

Thus, S. 9 contemplates two possibilities. Firstly, if the person or the family unit already
holds land which is more than the ceiling area, he (or it) cannot acquire any more land.
Secondly, even if the land currently held is below the ceiling area, no new land can be
acquired if the aggregate of such new land and the land already held would exceed the ceiling
area.

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It is also expressly declared that if any land is acquired in willful contravention of S. 9
(above), then, as a penalty, the right, title and interest of that person of the family unit or any
member thereof, as the case may be, in the land so acquired is to be forfeited and the same
would vest in the State Government without any further assurance. (S, 10)

In order to provide an effective check on transfers and acquisitions which may be made to
avoid the object of the Act or to defeat its provisions, S. 10 lays down the consequences
which flow from such a transfer or acquisition as follows:

1. If any land is transferred in contravention of the provisions of S. 8, then, in calculating the

ceiling area of that person or that family unit, the land so transferred is to be taken into
consideration when determining the ceiling area.

2. If any person or a member of a family unit transfers any land between September 26, 1970
and October 2, 1975, in anticipation of or in order to avoid or defeat the 1972 Amendment of
the Act, the land so transferred is to be taken into consideration when determining the ceiling
area.

The provisions of S. 11 (above) cover not only a division of land made by parties inter vivos,
but also a partition made by a decree or order of a court, tribunal or other authority.

Moreover, if any land held by a person or a family unit is, after 2nd October 2,1975,
converted into any other class of land described in clauses (a), (b) or (c) S. 2(5) of the Act,
and thereby the holding of such a person or family unit exceeds the ceiling area, the land
which is so in excess is deemed to be surplus land with effect from the date of the conversion,
and accordingly, the provisions of the Act apply to such a holding. (S. 11-A)

SURPLUS LAND [S.12]: Agricultural land held by a person or family unit in excess of the
ceiling area prescribed under the MAL act is known as surplus land.

In the case of a minor or a lunatic, particulars of land can be furnished by his guardian. In
case of any person under a disability, the return can be filed by his authorized agent. If any
person or a member of a family unit who is required to furnish a return dies, then such a
return can be filed by his heir or by any other member of the family unit, as the case may be.

DECLARATION BY COLLECTOR regarding Surplus Land?

the Collector, he must make a declaration stating therein his decision on the following five
matters:

1. The total area of the land which the person or family unit is entitled to hold as the ceiling
area.

2. The total area of land which is in excess of the ceiling area.

3. The name of the landlord to whom possession of land is to be restored under S. 19 of the
Act and the area and particulars of such land.
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 4. The area, description and full particulars of the land which is delimited as surplus land.

5. The area and particulars of land out of the surplus land in respect of which the right, title
and interest of the person or family unit holding it is to be forfeited to the State
Government.

The declaration, as above, is to be announced in the presence of the holder of the land and
other persons interested in the land and who are present at the time of the declaration. After
the declaration is made, the Collector must prepare a statement in the prescribed form, giving
details of the area, description and full particulars of (a) the land which is delimited as surplus
land, and (b) the land which is to be forfeited to the State Government. A copy of this
statement is to be affixed by the Collector at the village chawdi or any other prominent place
at the village. A copy thereof is also to be sent to the person or the member of the family unit
interested in the land delimited as surplus land.

[A chawdi is a place ordinarily used by a village officer for the transaction of the business
of the village.]

On the date of the announcement of the declaration, the right, title and interest in the land
which is liable to be forfeited stands forfeited to and vests in the State Government. On and
after such date, no sale, gift, mortgage, exchange, lease or any other disposition can be made
of the land which is delimited as surplus land. Any such transfer or disposition, if made, is
invalid and of no effect.

An appeal can be filed against any declaration made by the Collector under the Act (as
above) before the Maharashtra Revenue Tribunal under S. 33 of the Act. A revision petition
can also be filed before the State Government under S. 45 of the Act. Subject to being
modified in appeal or revision, the declaration of the Collector is final and conclusive and
cannot be questioned in any suit or proceeding in any court.

It has been held that, when deciding "surplus holding", only such land as is in the actual
possession of a person - whether as owner or landlord or tenant - can be taken as the holding
of that person. Thus, devasthan inam lands, of which a person is wahiwatdar (that is,
manager), cannot be included in calculating that person's holding. (Smt. Bukhari v. State of
Maharashtra, AIR 2009 Bom 512)

Note on EXEMPTED LANDS?

the main object of the Act is to impose a limit or ceiling on the holding of agricultural land in
Maharashtra. However, land can be exempted from the operation of the Act in two ways.
Firstly, there are eight categories of land which enjoy an exemption under S. 47 of the Act
itself. Secondly, there are five categories of land which may be exempted by the State
Government by an order to that effect in the Official Gazette.

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The eight types of land exempt under S. 47 of the Act are listed below. In other words, the
following are eight categories of exempted lands to which the provisions of the Act do not
apply:

(a) land held by the Central or a State Government;

(b) land held by a corporation (including a company) owned or controlled by the Central or
a State Government;

(c) land belonging to, or held on a lease from or by a local authority;

(d) land belonging to, or held on a lease from or by or a University established by law in
Maharashtra;

(e) land belonging to, or held on a lease from or by an agricultural college or school or any
institution doing research in agriculture and approved by the State Government;

(f) land held by regimental farms and approved by the State Government in the prescribed
manner;

(g) lands leased by the Land Development Bank or the operative Bank or a Primary Co-
operative Society before August Central 4, 1959; and

(h) land held by a bank or a co-operative society as security for the recovery of its dues.

In addition to the above, the State Government may, after due inquiry, by order in the Official
Gazette, exempt from the provisions of the Act, any of the following five types of lands on
such terms and conditions as may be specified in the order, namely, -

(i) land held before September 26, 1970, by a public trust or a Wakf, where land is being
used for medical or educational relief or both;

(ii) land held before the said date by any person for a stud farm; (A stud farm is a place
used for breeding of livestock. Traditionally, the term refers to a place where horses are
kept for breeding.]

(iii) land held before the said date by a public trust or Wakf for panjrapole or gaushala; [A
panjrapole is an animal welfare home where animals are treated with care, fed properly
and given medical treatment whenever necessary. A gaushala is a protective shelter for
cows. It is a place where cows, calves and oxen are sheltered and looked after.]

(iv) land held before the said date by a public limited company or a public trust or a Wakf
for the purpose of breeding cattle or sheep:

(v) land which is held by an industrial undertaking for a bonafide industrial or other non-
agricultural use.

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Here also, if at any time, such land ceases to answer the above description or if there is a
breach of any condition subject to which the exemption under the Act was granted to such
land, the land loses the exemption and the provisions of the Act apply to such land.

In one case, the point before the court was whether land held by a person and used for
breeding cattle or sheep is exempt under S. 47 of the Act. Answering the question in the
negative, it was held that, under the said section, such land could be given an exemption only
if it belonged to the three categories of owners referred to in the section, namely, a public
limited company, a public trust or a Wakf. As the petitioners in this case were individuals,
they were not entitled to the exemption. (A. V. Abhyankar v. State of Maharashtra, 2007 (2)
AIR Bom (NOC) 258).

Boundary mark [S.2(3)]: "Boundary mark" means any erection, whether of earth, stone or
other material, and also any hedge, unploughed ridge, or strip of ground whether natural or
artificial set up, employed or specified by a survey officer or revenue officer having authority
in that behalf, in order to designate the boundary of any division of land.

Building [S. 2(4)]: The word "building" is defined to mean any structure, not being a farm
building.

Building site [S. 2(5)]: The expression "building site" means a portion of land held for
building purposes, whether any building be actually erected thereupon or not, and includes
the open ground or courtyard enclosed by, or appurtenant to, any building erected thereupon.

Chavadi [S. 2(7)]: The word "chavadi" means the place ordinarily used by a villa officer for
the transaction of village business.

Farm building [S. 2(9)]: A "farm building" means a structure erected on land assessed or
held for the purpose of agriculture for all or any of the following purpose connected with
such land or any other land belonging to or cultivated the holder thereof, namely -

(a) for the storage of agricultural implements, manures or fodder,

(b) for the storage of agricultural produce,

(c) for sheltering cattle,

(d) for residence of members of the family, servants or tenants of t holder, or

(e) for any other purpose which is an integral part of his cultivating arrangement.

Gaothan or village site [S. 2(10)]: "Gaothan" or "village site" means the land included
within the s of a village, town or city as determined by S. 122 of the Act.

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Improvement [S. 2(14)]: The term "improvement", in relation to a holding, means any work
which adds materially to the value of the holding, which is suitable and consistent with the
purpose for usage on holding for its benefit, subject to the forego provisions, includes -

(a) the construction of tanks, wells, water channels, embankments and other works for
storage, supply or distribution of water for agricultural purposes;

(b) the construction of works for the drainage of land or for the protection of land from
floods, or from erosion or other damage from water;

(c) the planting of trees and the reclaiming, clearing, enclosing, leveling or terracing of land;

(d) the renewal or reconstruction of any of the foregoing works, or alternations therein or
additions thereto.

In short an improvement is any positive permanent change to land that augments the
property’s value. An improvement will cause positive change to the land, increase the value,
and will allow the landowner to make productive use of the property.

Land [S. 2(16)]: The word "land" is defined to include benefits to arise out of the land, and
things attached to the earth, or permanently fastened to any things attached to the earth, and
also shares in or charges on, the revenue or rent of villages or other defined portions of
territory.

Unoccupied land [S. 2(41)]: "Unoccupied land" means the land in a village other than the
land held by an occupant, a tenant or a Government lessee.

Landlord and tenant [Ss. 2(17) & 2(40)]: The word "landlord" is defined to mean a lessor.
A "tenant" means a lessee, whether holding under an instrument, or under an oral agreement,
and includes a mortgagee of a tenant's rights with possession; but does not include a lessee
holding directly under the State Government.

Land records [S. 2(18)]: The expression "land records" means records maintained under the
provisions of, or for the purposes of, this Code, and includes a copy of maps and plans or a
final town planning scheme, improvement scheme or a scheme of consolidation of holdings
which has come into force in an area under any law in force in the State and forwarded to any
revenue or survey officer under such law or otherwise.

Land revenue [S. 2(19)]: "Land revenue" means all sums and payments in money or in kind
received or claimable by, or on behalf of Government from any person on account of land
held by, or vested in, him, and includes any taxes or cess, rate or other impost payable under
the provisions of any law for the time being in force.

To determine the amount of land revenue payable to the government, an assessment of the
piece of the land is carried out, known as land settlement.

According to the government's policies, the land revenue may be payable in cash or in kind.
Payment in kind is usually in the form of a fixed share of the product. For example, the
Maratha Empire imposed a tax known as Chauth, fixed at 1/4th of the produce.

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To occupy land [S. 2(25)]: "To occupy land" means to possess or to take possession of land.

Pardi land [S. 2(26)]: "Pardi land" means a cultivated land appertaining to houses within
village site.

Saza [S. 2(33)]: The word "saza" means a group of villages in a taluka which is constituted a
saza under S. 4 of the Act.

Survey mark [S. 2(36)]: "Survey mark" means for the purposes of this Code, a mark erected
for purposes of cadastral survey of land.

Survey number [S. 2(37)]: "Survey number" means a portion of land of which the area and
assessment are separately entered, under an indicative number in the land records and
includes-

(i) plots reconstituted under a final town planning scheme, improvement scheme or a
scheme of consolidation of holding which has come into force in any area under any
law; and

(ii) in the districts of Nagpur, Wardha, Chanda and Bhandara, any portion of land entered in
the land records under any indicative number known as the khasra number.

Superior holder [S. 2(38)]: a "superior holder" means a land- holder entitled to receive rent
from other land-holders (referred to as "inferior holders"), whether he is accountable or not
for such rent or land revenue, or any part thereof, to the State Government.

Village [S. 2(43)]: The word "village" is defined to include a town or city and all the land
belonging to a village, town or city.

Wada land [S. 2(44)]: "Wada land" means an open land in village site used for tethering
cattle or storing crops or fodder, manure or other similar things.

Note on REMOVAL AND REGULARISATION OF ENCROACHMENTS on

government Land?

Removal of encroachment: S. 50 of the Code deals with encroachments on land vested in the
State Government. It provides that:

(i) if any encroachment is being made on any land or foreshore vested in the State
Government, or

(ii) if any land is being used for the purpose of hawking or selling article without the
sanction of the competent authority, - the Collector is empowered to summarily abate or
remove any such encroachment or cause the articles exposed for sale to be removed. The
expenses incurred for such a process can be recovered from the person in occupation of
the land which is encroached upon or used for hawking or selling articles.

S. 50 also imposes penalties on the persons referred to above as follows:

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1. The person who encroaches or is in unauthorized use of the land must pay -

(a) if the land encroached upon has an assessed survey number assessment for the whole
period of the encroachment; and if the land encroached upon has not been assessed such
amount of assessment as would be leviable for such period on similar land in the same
village, town or city;

(b) an additional fine ranging between 5 and 1,000 if the land is used for an agricultural
purpose, and a fine not exceeding 2,000 if such land is used for a non-agricultural
purpose.

2. If the person has been caught hawking or selling any articles, he is liable to pay a fine not
exceeding 50, as may be determined by the Collector.

The Collector is also empowered to, by notice, prohibit or require the abatement or removal
of any encroachment on such lands from a date stated in such notice. If any person makes,
causes, permits or continues an encroachment after such a date, he become liable - in addition
to the fine referred to above - to pay an additional daily fine not exceeding 25 per day in
cases of encroachment for agricultural purposes and not exceeding 50 per day in any other
case.

As pointed out by the Bombay High Court, the Code empowers the Collector to abate or
remove encroachments made on any land or property vested in the State Government.
However, he has no power to remove any encroachment by a private person on a private
property. (Babamiya Shah v. Tahsildar, Beed, 2002 (5) Bom C. R. 619)

Regularization of encroachments S.51: If the person guilty of the encroachment is ready to

pay a sum not exceeding five times the value of the encroached land and an assessment not
exceeding five times the ordinary land revenue, the Collector may make a grant of such land
to the encroacher on such terms and conditions as may be imposed by the Collector in
accordance with Rules made in this behalf. Such a person's name is then to be entered in the
land records. However, this cannot be done unless public notice is given of such a proposed
regularization and all objections and suggestions have been considered by the Collector. The
expenses of the public notice are to be paid by the person making the encroachment, and if
not paid by him within a reasonable time, can be recovered from him as arrears of land
revenue.

When fixing the value of the encroached land for the above purpose, the Collector must do so
in accordance with the market value of similar land in the same neighborhood. Likewise, the
annual value of such land is to be assessed at the same rate as the land revenue of similar land
in the vicinity. The Collector's decision, both as regards the value of the land and the
assessment payable on it, is declared to be final and conclusive (S. 52)

Summary eviction of unauthorized occupiers of government land: S. 53 of the Code

provides that if the Collector is of the opinion that any person is unauthorizedly occupying or
is wrongfully in possession any government land or foreshore, or that such a person is not
entitled continue the use, occupation or possession of any such land or foreshore because of
the expiry of his lease or tenancy, the Collector may evict such a person. However, before

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doing so, he must give such a person opportunity of being heard in the matter and must also
make a summary inquiry, if necessary. If such a person has occupied the land wrongfully
unauthorizedly after he has ceased to be entitled to continue its us occupation or possession,
the Collector may also levy a penalty on him not exceeding twice the assessment or rent for
the period of unauthorized use or occupation.

After such a summary eviction, if any building or construction or crop raised there is not
removed by the encroacher, the Collector may summarily remove the same. The cost of such
removal is to be recovered from the encroacher as arrears of land revenue. (S. 54)

Note on GRANT OF SANAD?

Basically, a sanad is an authority in writing from the State, authorizing a person to hold land
of a specified tenure mentioned in the sanad.

The provisions of the Act relating to sanads apply to all lands situate within the site of a
village, town or city in Maharashtra.

when there is a conversion of land from one purpose to another, with the permission of the
Collector, and the land is allowed to be used for a non-agricultural purpose, a Sanad is
granted in the prescribed form to the holder of such land.

S. 126 of the Act lays down how surveys of lands in village sites are be conducted, and how
the results of the survey are to be recorded in the prescribed manner in the relevant maps and
registers. Every holder of building site and every holder of a building site newly formed after
such survey, is entitled to receive from the Collector one or more sanad or sanads in the
prescribed form specifying by plan and description, the extent and conditions of the holding
of such a person.

Briefly stated, a sanad contains: a description of the land, with its area and plan; assessment
of such land (or the exemption thereof); the tenure on which the particular site is held and the
terms of such a tenure; whether the holding is transferable and heritable; and in cases where
occupancy is for a limited period, the period of non-agricultural use.

When any holder of land has paid "survey fees" under S. 127 of the Act, he is not obliged to
pay any extra charge for the sanad. If, however, he is not required under the Act to pay
survey fees, he is entitled to receive the sanad on payment of a fee of Re. 1 per sanad. If a
holder does not apply for a sanad at the time of paying survey fees or within one year
thereafter, the Collector may require him to pay an additional fee of not more than 100 per
sanad. (S. 129)

If the holder of a sanad informs the authorities that the same has been lost or accidentally
destroyed, a copy of the sanad so lost or destroyed (duplicate sanad) may be given to him on
payment of the prescribed charges or fees. (S. 131)

After a survey has been made under the Act and after sanads have been granted (as above), if
the holding of such a person is altered by increase, decrease, sub-division, alteration of tenure
or otherwise, he is entitled to a fresh sanad, specifying by form and description, the extent

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and conditions of his altered holding. Alternately, he may require the sanad held by him to be
amended by the Collector. In both cases, however, he is liable to pay a "correction fee" which
is to be fixed for each village by regulations made by the Collector with the sanction of the
Commissioner.

The terms of occupancy in a sanad cannot be altered and are binding on the holder as well as
the government. If, however, there is a mistake in the sanad, the same can be rectified under
S. 257 of the Code.

When two claimants stake their claim for the same property, a sanad issued under the Code is
prima facie evidence of the title to such property. However, it is not a conclusive piece of
evidence and may be rebutted by other evidence, as a sanad is not a document of title like a
sale deed.

Note on RECORD OF RIGHTS? Role of Talathi? Mutation 6/12 extracts? 7/12

extracts?

S. 147 to 159 of the Code deal with the record of rights to be maintained in every village in
the State of Maharashtra. The State Government may, however, direct, by a notification in the
Official Gazette that these provisions shall not apply to any specified local area or with
reference to any class of villages or lands generally.

Under S. 148 of the Code, a record of rights is to be maintained in every village, and the same
must contain the following five particulars namely,

(a) the names of all persons (other than tenants) who are holder’s occupants, owners or
mortgagees of the land or the assignee of the rent or revenue of the land;

(b) the names of all persons who are holding the land a government lessees or tenants,
including 'tenants' within the meaning of the relevant tenancy laws;

(c) the nature and extent of the respective interests of the persons mentioned in clauses (a)
and (b) above, and the conditions and liabilities, if any, attaching thereto;

(d) the rent or revenue, if any, payable by or to any of the persons mentioned above;

(e) such other particulars as the State may prescribe by Rules, either generally or for the
purpose of any specified area.

In keeping with recent technological developments, by an amendment of the Code in 2005, it

is now provided that the above records may also be maintained by using a suitable storage
device.

S. 149 then provides that if any person acquires any right as a holder, occupant, owner,
mortgagee, landlord, government lessee or tenant of any land situated in any part of
Maharashtra, he must report - orally or in writing - his acquisition of such right within three
months to the Talathi, who must give a written acknowledgment thereof to that person. This
obligation is imposed irrespective of whether such a person has acquired the right by
succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise.

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If the person acquiring such a right is a minor (or is otherwise disqualified), the report may be
made to the Talathi by his guardian or other person having charge of his property. However,
if such a right is acquired with the permission of the Collector or by virtue of a registered
document, no report need be made to the Talathi.

As regards acquiring a right as a mortgagee is concerned, it is specifically provided that:

(a) such a right would include a mortgage without possession, but not an easement or
charge not amounting to a mortgage, as specified in S. 100 of the Transfer of Property
Act; and

(b) a person in whose favour a mortgage is discharged or extinguished or a lease is

terminated, is said to acquire a right within the meaning of S. 149.

Under S. 150 of the Code, the Talathi must enter in a Register of Mutations, every report
made to him under S. 149. When he makes such an entry, he must, at the same time, exhibit a
complete copy of the entry in a conspicuous place in the chavadi and also give a written
intimation to all persons who appear to be interested in the mutation. If any objection is
received, the Talathi must enter the particulars of the objection in a Register of Disputed
Cases. The disputes which are entered in this Register must be disposed of, as far as possible,
within one year by a Revenue or Survey Officer not below the rank of an Aval Karkun.

A Revenue Officer or a Talathi engaged in compiling or revising the Record of Rights can
call upon any person whose rights, interests or liabilities are required to be entered in the
Record, to furnish, or produce for his inspection, all such information or documents needed
for the correct compilation or revision of the Record. Such information or documents must be
furnished within one month of such a requisition. A person failing to so furnish within the
said period is liable, at the discretion of the Collector, to pay a fine not exceeding 5, leviable
as an arrear of land revenue. (Ss. 151 & 152)

It is also provided that every holder of agricultural land may make an application in writing to
the Talathi for supplying him with a booklet containing a copy of the record of rights
pertaining to such land. This booklet must also contain information regarding the payment of
land revenue in respect of that land and information as regards cultivation of the land and the
areas of crops sown in it as appearing in the village records. Every such booklet is to be
prepared in accordance with Rules made by the State Government in this regard.

Any entry in the record of rights and any certified entry in a register of mutations is presumed
to be true until the contrary is proved or a new entry is lawfully substituted in its place. (S.
157)

Lastly, no suit can be filed against the State Government or any office of the State
Government in respect of a claim, to have an entry made any record or register maintained as
above or to have any such entry omitted or amended. (S. 158)

The 7/12 extract (satbara utara) from the record of rights: The 7/12 extract (satbara utara) is
an extract from the record of rights in a district of Maharashtra which gives complete
information about a given piece of land.

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Form VII - for details about the owner of the land and his rights Form XII - for details about
the agricultural aspect of the land

Typically, a satbara utara contains: Name/s of the owner/s and

Type of land: whether agricultural or non-agricultural, Location of the land, Area of the land,
Name of the cultivator - if the owner of the land is not it cultivator, What crops, if any, are
grown on the land and whether the land is single-cropped or multi-cropped, Details of
outstanding loans, if any, Details of pending litigation, if any, Details of taxes - paid and
unpaid, Easements over the land, Access roads to the land.

what was earlier issued in the form of a hand-written certificate is now replaced by a
computerized certificate. This would not only make the land records more accurate and
assessable.

The 7/12, extract can be used for various purposes, as for instance, -

to verify details about a piece of land before purchasing such land;

to look up and verify the ownership of ancestral land;

to find out the type of activities carried out on a piece of land;

to find out details of the agricultural and non-agricultural aspects of the land and its
surrounding areas.

Note on RIGHTS IN UNOCCUPIED LAND? Nistar Patrak?

Ss. 160 to 167 of the Code deal with rights in unoccupied land.

Nistar Patrak: The right of nistar refers to the right of grazing cattle and is considered to be
an important right in the villages of India. Special provisions have therefore been made in the
Code to preserve and regulate this right.

S. 161 of the Code casts an obligation on the Collector to prepare a Nistar Patrak,
embodying a scheme of management of all unoccupied land in a village. This document is to
be prepared consistently with the provisions of the Code and the Rules made thereunder.

It must include all incidental matters, and in particular, the following:

(a) the terms and conditions on which grazing of cattle in the village is to be permitted;

(b) the terms and conditions on which - and the extent to which – any resident of the village
may obtain - wood, timber, fuel or any other forest produce; moram, kankar, sand,
earth, clay, stones or any other minerals;

(c) instructions regulating the grazing of cattle and removal of articles mentioned in clause
(b) above; and

(d) any other matter required to be recorded in the Nistar Patrak.

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When preparing the Nistar Patrak, the Collector must, as far possible, make provisions
for:

(a) free grazing of cattle used for agriculture;

(b) removal, free of charge, by the residents of the village, for the bona fide domestic
consumption, of any forest product or minor minerals; and

(c) the concessions to be granted to the village craftsmen for the removal of articles
specified in clause (b) above, for the purpose of their craft.

If the Collector is of the opinion that the waste land of a particular village is not sufficient for
the purpose of grazing cattle, after making inquiries and if it is in the public interest to do so,
he may order that the residents of that village shall have a right of nistar, that is, the right of
grazing cattle, in the neighboring village, to the extent specified in the order.

If, on inquiry, the Collector finds that a right of passage is reasonably necessary to enable the
residents of one village to graze their cattle in another village or in a government forest, he
may also pass an order that such a right of passage exists, specifying the conditions on which
the right may be exercised. He may also demarcate the route of such a passage, always
keeping in mind that it should cause minimum inconvenience to the residents of the village
through which such a route passes. All such orders are also to be recorded in the Nistar
Patrak. (S .164)

If a request is made by a village panchayat - or where there is no village panchayat, on an

application of one-fourth of the adult residents of that village - the Collector may, at any time,
modify any entry in the Nistar Patrak after making such inquiry as he deems fit.

If any person acts in contravention of the above provisions or commits a breach of any entry
in the Nistar Patrak, he comes liable to such penalty, not exceeding 1,000, as the Collector
may deem fit, after giving such a person an opportunity to be heard.

Note on Wajib-ul-arz?

Wajib-ul-arz is an Arabic term which literally means "necessity to be represented". In the

olden days, it was quite common, especially in Sind, N. W. Provinces and Central Provinces,
to prepare a statement containing the customs, rules of management, etc. of a village in the
form of wajib-ul-arz. Statutory recognition is now given to this concept by S. 165 of the
Code.

Under S. 165 of the Code, the Collector must, in accordance with any general or special
order passed by the State Government, ascertain and record, the customs in each village with
regard to:

the right to irrigation or a right of way or other easement, and the right to fishing,

in any land or water, belonging to or controlled or managed by the State Government or a

local authority. Such a record is known as the Wajib-ul-arz of the village and is to be
published by the Collector as provided in the Code.

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Any person aggrieved by any entry made in this record can, within one year from the date of
its publication, institute a suit in a civil court, to have a particular entry cancelled or modified.
Subject to any such order of a court, the record prepared by the Collector is declared to be
final and conclusive. (S. 165)

In simple words The Wajib-ul-arz or “village administration paper” is a statement of customs

respecting rights and liabilities in an estate. It is a record of customs in each village in
regard to: the right to irrigation, or the right of way or other easementary right, and the
right to fishing.

The Collector is also allowed to modify any entry or insert a new entry in the Wajib-ul-arz
(either on his own or on the application of any interested person) on the ground that -

(a) all persons interested in that entry wish to have the entry modified; or

(b) a decree of a court has declared the entry to be erroneous; or

(c) such an entry is founded on a decree of a civil court or on the order of a Revenue
Officer, but the same is not in accordance with such decree or order; or

(d) the entry was based on such a decree or order, but the same has subsequently been
varied in appeal, revision or review; or

(e) a civil court has, by a decree, determined any custom existing in a village.

Under S. 166 of the Code, the State Government may make rules for regulating –

Fishing in governments tanks and the removal of materials from lands belonging to the state
government. If any person acts in contravention to the above provisions or fails or observe
any rules or custom entered in the Wajib-ul-arz he becomes liable for penalty not exceeding
of rs 1000 as the collector may deem fit after giving opportunity to be heard.

Foreshore: is the shore or area of land between the high and low water marks. It is
sometimes referred as intertidal zone or littoral area. Thus it is a part of shore which above
water during low tide and underwater during high tide.

Agriculture Ss.2(1): is word defined to include horticulture, the raising of crops, grass or
garden produce, the use by an agriculturist of the land held by him for grazing his cattle and
the use of land for any purpose of rab manure.

The expression, "allied pursuits" is defined (in S. 2 (2A) of the Act) as meaning - dairy
farming, poultry farming, breeding of livestock, grazing - other than the pasturage of one's
own agricultural cattle, and such other pursuits as may be prescribed under the Act.

Agricultural laborer [S. 2(1 A)]: An "agricultural laborer" means a person whose principal
means of livelihood is manual Labour on land. The following persons may be regarded as
agricultural laborers, defined above, provided manual Labour on land is their principal
means livelihood:

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laborers engaged in agriculture on a daily basis;

laborers engaged in agriculture on a periodical basis;

laborers engaged in agriculture on a contract basis;

laborers engaged on daily basis or for a fixed period of time for ploughing, sowing seeds or
gathering crops;

servants engaged in agriculture on a fixed salary in cash or kin

To cultivate personally [S. 2(2), S-, 2(5) & S. 2(6)]: An "agriculturist" means a person who
cultivates land personally.

The term "to cultivate" means to till or husband the land for the purpose of raising or
improving agricultural produce (whether by manual Labour or by means of cattle or
machinery) or to carry on any agriculture operation thereon. It is also clarified that if a person
takes up a contract to cut grass or to gather fruits or other produce of trees on any land, he
shall not, only on that account, be deemed to cultivate such land. [S. 2(5)]

The expression "to cultivate personally has also been defined in 2(6) of the Act. It means
cultivating land on one's own account –

(i) by one's own Labour, or

(ii) by the Labour of any member of one's family, or

(iii) under the personal supervision of oneself or any member one's family, by hired Labour
or by servants, on wages payable in cash or kind (but not in crop share), provided the
entire are of such land

(a) is situated within the limits of a single village, or

(b) is so situated that no piece of land is separated from another by a distance of more
than five miles, or

(c) forms one compact block.

It is clarified that a widow or a minor or a physically or mentally disabled person or a serving

member of the armed forces shall be deemed to cultivate land 'personally' if such land is
cultivated by servants or by hired Labour or through tenants,

It is further clarified that, in the case of a joint family, the land shall be deemed to be
cultivated 'personally' if it is cultivated by any member of a joint family.

Appointed day [S. 2(2B)]: For the purposes of the Act, the "appointed day" means June 15,
1955.

Backward area [S. 2(2C)]: A "backward area" means any area declared by the State
Government to be a backward area, being an area in which, in the opinion of the State

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Government, socially, economically and educationally backward classes of citizens
predominate. The term also includes any area which is declared to be a 'Scheduled area'

Ceiling area [S, 2(2D)]: "Ceiling area", in relation to land held by a person as owner or
tenant (or partly as owner and partly as tenant) means the area of land fixed as ceiling area
under S. 5 or S. 7 of the Act.

Improvement [S. 2(7)]: With reference to any land, the term "improvement" means any
work which adds to the value of the land, which is suitable thereto and is consistent with the
purpose for which it is held. The term includes -

(a) the construction of tanks, wells, water channels, embankment and other works for
storage, supply or distribution of water for agricultural purposes;

(b) the construction of works for the drainage of land or for the protection of land from
flood or from erosion or other damage from water;

(c) the reclaiming, clearing, enclosing, levelling or terracing of land

(d) the erection of buildings on the land, required for the convenience or profitable use of
such land for agricultural purposes; and

(e) the renewal or reconstruction of any of the above works o alteration therein or additions
thereto as are not of the nature of ordinary repairs.

The term does not, include clearances, embankments levelling, enclosures, temporary wells,
water channels and other work as are commonly made by tenants in the ordinary course of
agriculture.

Joint family [S. 2(7A)]: The term "joint family", as used in the Act, means an undivided Hind
family. In the case of other persons (as for instance, hill tribes), it means group or unit, the
members of which are, by custom, joint in estate or residence.

Land [S. 2(8)]: The word "land" means -

(a) land which is used for agricultural purposes or which is so use but is left fallow, and
includes the sites of farm building appurtenant to such land; and

(b) for the purpose of certain sections specified in S. 2(8) of the Act, -

- the sites of dwelling houses occupied by agriculturists, agricultural laborers or artisans

and land appurtenant to such dwelling houses; and

- the sites of structures used by agriculturists for allied pursuits (as the term is defined
above).

Landholder [S. 2(9)]: A "landholder" means a zamindar, jahagirdhar, inamdar, talukdar,

malik or khot or any other person who is a holder of land or who is interested in land and

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whom the State Government has declared to be a "landholder" for the purposes of this Act,
on account of the extent and value of the land or his interests therein.

Landless person [S. 2(9A)]: A "landless person" means a person who holds no land for
agricultural purposes (whether as an owner or a tenant) and who earns his livelihood
principally by manual Labour and who intends to take to the profession of agriculture and is
capable of cultivating land personally.

Profits of agriculture [S. 2(13)]: The expression, "profits of agriculture", in respect of any
land, means the surplus remaining with the holder of the land after the expenses of cultivation
(including wages of the cultivator working on the land) are deducted from the gross produce.

Small holder: Economic holding [Ss. 2(6A) & 2(16B)]: The expression, "small holder"
means, an agriculturist cultivating land less in area than an economic holding, who earns his
livelihood principally by agriculture or by agricultural labour. [S 2(16B)]

The expression "economic holding" means, in relation to land held by a person whether as
an owner or tenant (or partly as owner and partly as tenant), the area of land fixed as an
economic holding under S. 6 or S 7 of the Act. [S 2(6A)]

Tenancy and tenant [S. 2(17) & 2(18)]: "Tenancy" means the relationship of landlord and
tenant. A "tenant means a person who holds land on lease, and includes –

- a person who is deemed to be a tenant under S. 4 of the Act;

- a person who is a protected tenant under S. 4A of the Act; and
- a person who is a permanent tenant.

The Bombay High Court has held that a tenant who is lawfully inducted by a mortgagee is
deemed to be a tenant of the mortgagor when the mortgage is redeemed. (N. B. Patil v. K. C.
Patil, 2002 (2) Mah L. J. 440)

Warkas land: The expression "warkas land" means land which is used for the purpose of rab
manure in connection with rice cultivation and is classified in the revenue records as
"warkas".

Basically, warkas land (or leftover land) is land which is usually on slopes or forest tracts
and has poor productivity. This type of land is used by farmers during the monsoon season to
grow low-grade millets (like nachani or ragi and warai) for self-consumption. Its cultivation
involves burning of vegetation on the land, preparing the soil with a pick and sowing by
hand. The land is usually left fallow for few years after it is cultivated to allow the vegetation
to grow again.

As stated earlier, rab manure is produced by burning layers of cow dung, tree-loppings,
leaves and grass. The resulting ash is used as manure for cultivation. To cultivate any warkas
land, adjacent land is required to carry out the operation of rab manure production.

Rab cultivation has evolved from the destructive process of nomadic cultivation, known in
different parts of India as dahya (or dalhi), jiim, or kumri, and in Burma as taungya. It
consists of setting fire to a tract of forest and raising a crop from the ground thus cleared,
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with the ashes as manure. Once exhausted by a rapid succession of crops, the tribes would
move on to another tract of forest land.

It has been held that although the villagers in occupation of a particular area of rice land may
have a right to collect rab materials from the adjacent waste lands, they have no proprietary
interest in the soil, only on that account. So, if such lands are compulsorily acquired, the
villagers would have no right to any part of the compensation. (Vallabhdas Narayanji v. The
Special Land Acquisition Officer for Railways, 85 Ind Cases 427)

Note on RESTRICTIONS ON TRANSFER OF AGRICULTURAL LAND?

Under the Act, transfers of agricultural lands to non-agriculturists are severely restricted. S.
63 of the Act lays down that any - sale, gift, exchange, lease, or mortgage where possession
of the mortgaged land is given to the mortgagee,

shall not be valid if the same is in favour of a person who is not an "agriculturist" or an
"agricultural laborer".

A transfer of such land, even to an agriculturist, is prohibited if after the transfer, the
agriculturist would hold agricultural land in excess of the ceiling limits determined under the
Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961.

a simple mortgage (where possession of the land is not given to the mortgagee) would lie
outside the scope of the said section. However, the Collector or an officer authorised by the
State Government for this purpose, may grant permission for such sale, gift exchange, lease
or mortgage, subject to such conditions as may be prescribed. However, no such permission
can be granted if the non- agricultural purchaser has an annual income from other sources of
12,000 or more. It is because of the provision that a duty is cast on civil courts and Collectors
to ensure that an intending purchaser of agricultural lands - whether by auction or otherwise -
is an agriculturist or an agricultural laborer.

Exemptions:

1. The restriction contained in S. 63 does not apply to a sale, gift, exchange or lease of a
dwelling-house or the site thereof or any land appurtenant thereto, if such a transfer is in
favour of:

an agricultural laborer, or an artisan, or a person carrying on any allied pursuit.

2. S. 63 also does not prohibit a mortgage of agricultural land or any interest therein in
favour of a co-operative society as a security for a loan advanced by such a society.

3. The said section also does not apply to a sale of agricultural land by or to a co-operative
society registered under the law.

4. The provisions of S. 63 are also not applicable to any transfer declared to be a

"mortgage" under S. 24 of the Bombay Agricultural Debtor's Relief Act, 1947.

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 5. Lastly, transfer of agricultural land to a non-agriculturist is allowed if the same is for
bona fide industrial use, under the provisions of S. 63-1 A.

Note on TRANSFER OF AGRICULTURAL LAND FOR BONA FIDE INDUSTRIAL

USE OR Special TOWNSHIP PROJECT?

S. 63-1A of the Act carves out an exception to S. 63, and provides that a person can sell
agricultural land without the permission of the Collector to any person - whether an
agriculturist or not - if such a person intends to convert the same to a bona fide industrial use
or a special township project. This exception is available only if such land is located within -

(a) the industrial zone of a regional plan or development plan or a town planning scheme
prepared under the relevant legislation, or

(b) an area where no such plan or scheme exists, or

(c) an area taken over by a private developer for the development of a special township
project.

However, if the total extent of such land proposed to be purchased exceeds ten hectares, the
prior permission of the Development Commissioner (Industries) or an officer authorized by
the State Government for this purpose must be obtained.

Such a purchase of land should also be subject to the condition that it shall be put to industrial
use within a total period of fifteen years from the date of purchase, failing which the seller of
the land would have the right to re-purchase the land at the price for which it was originally
sold by him. The above provisions (of S. 63-1 A) do not, however, apply to the areas notified
as eco-sensitive zones by the Government of India.

Moreover, if the land being sold is owned by a person belonging to a Scheduled Tribe, such a
sale of land is also subject to the provisions of Ss. 36 and 36A of the Maharashtra Land
Revenue Code, 1966 and the applicable provisions of the Maharashtra Restoration of Lands
to Scheduled Tribes Act, 1974.

S. 63-1A also defines the terms "bona fide industrial use" and "special township project' as
follows:

"Bona fide industrial use" means - the activity of manufacture, preservation or processing
of goods or any handicraft or industrial business or enterprise, or the activity of tourism
within the areas notified by the State Government as tourist places or hill stations.

The said expression also includes - the construction of industrial buildings used for
manufacturing processes or purposes, or power projects and ancillary industrial usage like
research and development, godown, canteen, office building of the industry concerned, or
providing housing accommodation to the workers of the concerned industry, or the
establishment of an industrial estate, including a cooperative industrial estate, service
industry, cottage industry gramoudyog units or gramoudyog vasahats.

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The expression "special township project' means a special township project or projects
under the Regulations framed for Development of Special Township by the Government
under the provisions of the Maharashtra Regional and Town Planning Act, 1966.

Note on REASONABLE PRICE TO BE FIXED FOR SALE OF AGRICULTURAL

LAND?

As the Act imposes restrictions on transfer of agricultural land, provisions are also made to
ensure that a reasonable price is paid when such land is sold. S. 63A of the Act provides that
when agricultural land is sold under the Act, the price thereof must consist of:

(a) an amount not being less than twenty times the assessment levied (or leviable) in respect
of that land, but not more than two hundred times of such assessment, and

(b) the value of any structures, wells and embankments constructed on such land and the
permanent fixtures made and trees planted on the land.

When agricultural land is sold under the Act by mutual agreement, the price of the land
should be within the limits mentioned above and the agreement must be registered before the
Mamlatdar. In cases where there is no mutual agreement, the price of the land is to be
determined by the Agricultural Lands Tribunal, keeping the following seven factors in mind,
namely, -

1. the rental values of other lands in the locality which are used for similar purposes;
2. the structures and wells constructed, the permanent fixtures made and the trees planted,
on the land by the landlord or the tenant;
3. the profits of agriculture of similar land in the vicinity;
4. the prices of crops and commodities in the locality;
5. the improvements made in the land by the landlord or the tenant;
6. the assessment payable in respect of such land; and
7. such other factors as may be prescribed.

Note on SALE OF AGRICULTURAL LAND TO A PARTICULAR PERSON?

Under S. 64 of the Act, when a landlord wishes to sell agricultural land, he must make an
application to the Agricultural Lands Tribunal for determination of a reasonable price of such
land. Thereafter, the Tribunal must fix the reasonable price of such land, keeping in mind the
seven factors listed in S. 63-A. It must also direct that such price not more than six annual
installments with simple interest 4.5 % per cent per annum. When the land is sold to the
permanent tenant who is in possession of the land, the price should be with at least six times
the annual rent.

Once the Tribunal has determined a reasonable price of such land the sale is to be effected by
taking the following steps:

+ The landlord must make an offer of sale, -

(a) in case of agricultural land, - to the tenant in actual possession of the land, and to all
persons and bodies in the 'Priority List' to be prepared by the Collector;
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 (b) in case of a dwelling house or a site of a dwelling house or land appurtenant thereto, - to
the tenant thereof, and to persons residing in the village who are not in possession of a
dwelling house.

+ The persons to whom such offers are made must intimate to the landlord, their willingness
to purchase the land at the price fixed by the Tribunal, within one month of the date of receipt
of the offer

+ If only one person intimates such willingness, the landlord must call upon such a person, by
a notice in writing, to pay the amount determined by the Tribunal to him or to deposit such
amount with the Tribunal within one month or such extended period as the landlord may
consider reasonable.

+ if more than one person has intimated such willingness, the landlord must give notice as
above to the person who ranks the highest on the Priority List, calling upon him to pay or
deposit the amount, as aforesaid. If no such payment or deposit is made, a similar notice is to
be given to the person who is the next highest on the Priority List, and so on.

The following further points as regards such sales may also be noted:

1. Any sale made in contravention of S. 64 is declared to be void.

2. If there is any dispute as regards the following matters, such a dispute is to be decided by
the Tribunal. The types of disputes covered are:

(a) disputes regarding the offer made by the landlord;

(b) disputes regarding the notice given by the landlord;

(c) disputes regarding the payment or deposit of the reasonable price; and

(d) disputes regarding the execution of the sale deed.

3. If a tenant fails or refuses to purchase land or a dwelling house offered to him under S. 64
of the Act, and in consequence, the same is sold to any other person, following the above
procedure, the landlord is entitled to evict such a tenant and put the purchaser in possession
of such land or dwelling house.

4. The provisions of S. 64 can be invoked only when the relationship between a landlord and
a tenant is subsisting and the tenant is in possession of the land in dispute. (Radhabai
Deshpande v. Babu Dhondu Shewel, 2001 (1) Mah L. J. 629)

5. The provisions of S. 64 do not apply to sales by or to cooperative societies. (S.64A)

Write short notes on the following: Penalty for using land for another purpose without
permission?
S. 45: Penalty for so using land without permission -
(1) "If any land held or assessed for one purpose, is used for another purpose -

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a) without obtaining permission of the Collector under Section 44 or before the expiry of the
period after which the change of the user is deemed to have been granted under that Section,
or in contravention of any of the terms and conditions subject to which such permission is
granted; or
b) in contravention of any of the terms and conditions subject to which any exemption or
concession in the payment of land revenue in relation to such land is granted, the holder
thereof or other person claiming through or under him, as the case may be, shall be liable to
the one or more of the following penalties, that is to say, -
i) to pay non-agricultural assessment on the land leviable with reference to the altered use;
ii) to pay in addition to the non-agricultural assessment which may the rules leviable by or
under the provision of this code such fine as the collector may, subject to the rules made by
the state Government in this behalf, direct;
iii) to restore the land to its original use or to observe the conditions on which the permission
is granted within such reasonable time as the Collector may, by notice in writing direct and
such notice may require such person to remove any structure to fill up excavation or to take
such other steps as may be required in order that the land may be used for its original purpose
or that conditions may be satisfied.
(2) "If any person fails, within the period specified in the notice aforesaid, to take steps
required by the collector he may also impose on such person a penalty not exceeding Rs. 30/-
for each day during which the contravention is persisted in. The Collector may himself take
those steps or cause them to be taken; and any cost incurred in so doing, shall be recoverable
from such person as if it were an arrear of land revenue".
Explanation "Using land for the purpose of agriculture where it is assessed with reference to
any other purpose shall not be deemed to be change of user".
S. 46: Responsibility of tenant or other person for wrongful use- "If a tenant or any other
holder or any person claiming under or through him, uses land for a purpose in contravention
of the provisions of Sections 42, 43 or 44 without the consent of the holder and there renders
the holder liable to the penalties specified in Section 43, 44 or 45, the tenant or the person, as
the case may be, shall be responsible to the holder in damages".
Power of State Government to exempt lands from provisions of Sections 41, 42 45 or 46-
Nothing in Sections 41, 42, 44, 45 or 46 shall prevent -
a) the State Government from exempting any land or class of lands from the operation of any
of the provisions of those Sections, if the State Government is of the opinion that, it is
necessary, in th public interest for the purpose of carrying out any of the objects of this Code,
to exempt such land such class of lands; and
b) the Collector from regularizing the non-agricultural use of any land on such terms and
conditions a may be prescribed by him, subject to rules made in this behalf by the State
Government".
S. 47A: Liability for payment of conversion tax by holder for change of user of land-

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(1) "There shall be levied and collected additional land revenue, to be called the conversion
tax, account of change of user of lands".
(2) "Where any land assessed or held for the purpose of agriculture, is situated within the
limits Mumbai Municipal Corporation area excluding the area of the Mumbai City District or
any other Municipal Corporations area of any 'A' Class or 'B' Class municipal area or of any
peripheral area of an of them, and-
a) is permitted, or deemed to have been permitted under sub-section (3) of Section 44, to be
used for a non-agricultural purpose;
b) is used for any non-agricultural purpose, without the permission of the Collector being first
obtained or before the expiry of the period referred to in sub-section (3) of Section 44, and is
regulated und clause b) of Section 47, or
c) is put to a bona fide industrial use as provided in Section 44A, then, the holder of such land
shall, subject to any rules made in this behalf, be liable to pay to the Sta Government, the
conversion tax, which shall be equal to five times the non-agricultural assessment leviable on
such land, in accordance with the purpose for which it is so used or permitted to be used".

Competent authority [S. 7(1)]: "Competent Authority" means the Competent Authority
appointed under S. 40 of the Act.

Landlord [S. 7(3)]: The term "landlord" means any person who is for the time being
receiving, or is entitled to receive, rent in respect of any premises, whether on his own
account, or on account of, or on behalf of, or for the benefit of, any other person, or who
would so receive the rent if the premises were let to a tenant.

The term also includes:

- in respect of his sub-tenant - a tenant who has sub-let any premises;

- in respect of a licensee deemed to be a tenant under the Bombay Rent Act, 1947
(which is now repealed) - the licensor who has given his premises on license; and
- in respect of the State Government or the Central Government (in cases dealt with by
S. 27 of the Act) - the person who was entitled to receive the rent if the premises were
let to a tenant immediately before December 7, 1996.

Permitted increase [S. 7(8)]: Permitted increase means an increase in rent permitted under
the provisions of this Act.

Premises [S. 7(9)]: The term 'premises' means any building or part of a building let or given
on license separately (other than a farm building), including:

(a) the gardens, grounds, garages and out-houses, if any, appurtenant to such a building or
part of a building;

(b) any fittings affixed to such a building or part of a building for the more beneficial
enjoyment thereof;

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but does not include a room or other area in a hotel or lodging house.

Standard rent [S, 7(14)]: 'Standard rent', in relation to any premises, means:

(a) where the standard rent is fixed by the court or by the Controller under certain
specified Acts, such rent plus an increase of 5% in the rent so fixed; or

(b) where the standard rent or fair rent is not so fixed, then, subject to the provisions of Ss.
6 and 8 of the Act, -

(i) the rent at which the premises were let on October 1, 1987, or

(ii) where the premises were not let on that date, the rent at which they were last let
before that date plus an increase of 5% in the rent of the premises let before October
1, 1987; or

(c) in any of the cases specified in S. 8 of the Act, the rent fixed by the court.

Tenant [S. 7(15)]: Tenant means any person by whom, or on whose behalf, or on who’s
account, rent is payable for any premises.

The term includes:

(a) any person who, by virtue of or under the provisions of any repealed Rent Acts, is -

(i) a tenant, or

(ii) a deemed tenant, or

(iii) a sub-tenant as permitted under a contract or by the permission or consent of the

landlord, or

(iv) has derived title under a tenant, or

(v) to whom interest in the premises has been assigned c transferred or permitted;

(b) a person deemed to be a tenant under S. 25 of the Act;

(c) a person to whom interest in the premises has been assigned transferred or permitted
under S. 26 of the Act;

(d) in cases where the tenant dies (it being immaterial whether such death has occurred before
or after the 1999 Act came into force), - -

(i) if the premises are let out for residence, - any member the tenant's family who is residing
with the tenant at the time of his death; and (ii) if the premises were let out for education,
business, trade or storage, any member of the tenant's family who using the premises for such
a purpose along with the tenant at the time of his death.

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In the absence of any such member, any heir of the deceased tenant as may be decided by an
agreement between the heirs, is to be considered to be the tenant. In the absence of such an
agreement, any heir of the tenant, as may be decided by the court, becomes the tenant.

It is clarified that the above provision for transmission of tenancy not restricted to the death
of the original tenant, but also applies to the death of subsequent tenants.

Maharashtra Rent Control Act (MRCA) covers matters such as fixation of standard rent
and permitted increases, recovery of possession of rented premises by the landlord,
provisions regulating sub-tenancies, as also provisions regarding jurisdiction of courts, filing
of suits and appeals, etc.

The Act applies to all premises in Maharashtra which are let out for the purposes of
residence, education, business, trade or storage in the areas covered by Schedules I and II of
the Act. The Act does not, however, apply to:

- any premises belonging to the Government or a local authority;

- any premises let or sub-let to banks, public sector undertakings or any corporation
established by or under any Central or State Act;
- any premises let or sub-let to foreign missions, agencies and multinational companies;
or
- any premises let or sub-let to a private or public company having a paid-up share
capital of rupees one crore or more.

Additionally, the State Government is empowered by S. 3 to direct that all or any of the
provisions of the Act shall not apply, subject to such terms and conditions as may be
specified, to:

(i) premises used for a public purpose of a charitable nature or to any class of
premises used for such purposes;
(ii) premises held by a public trust for a religious or charitable purpose and let out at a
nominal or concessional rent;
(ii) premises held by a public trust for a religious or charitable purpose and
administered by a local authority; and
(iv) premises belonging to, or vested in, any university established by any law for the
time being in force.

Note on FIXATION OF STANDARD RENT AND PERMITTED INCREASES?

S. 8 of the Act deals with applications to court for fixation of the standard rent. It lays down
that, subject to the provisions of S. 9, the court may fix the standard rent at such amount as it
deems just, having regard to the provisions of the Act and the circumstances of the case, in
any of the following four cases:

(a) where the court is satisfied that there is no sufficient evidence the rent at which the
October 1, 1987, or in cases where the premises were not let out on that date, the day on
which they were last let out before that date;

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(b) where the premises were let out at one time as a whole or in parts, and at another time, in
parts or as a whole;

(c) where the premises have been, or are, let out without rent or at a nominal rent, or for some
consideration other than rent;

(d) where there is a dispute between the landlord and the tenant regarding the amount of the
standard rent.

Generally speaking, the question of standard rent and permitted increases comes before the
court either when the tenant files an application for fixation of standard rent or when the
landlord files a suit for recovery of the rent.

When an application for fixation of standard rent and permitted increases is filed by the
tenant, the court must specify the amount of such standard rent and permitted increases and
direct the tenant to deposit such amount in court, or at the option of the tenant, to pay the
same directly to the landlord, pending the final decision of the court. If the tenant fails to
deposit or pay this amount, his application is to be dismissed by the court. Out of the amount
so deposited, the court may also order payment of a reasonable sum to the landlord towards
payment of the rent and permitted increases due to him. [5.8(3)]

In cases where the landlord has filed a suit for the recovery of rent (whether with or without a
claim for possession of the premises), and the court is satisfied that the rent is excessive and
that standard rent should be fixed, the court may pass an order directing the tenant to
forthwith deposit in court, such amount of the rent as it considers reasonable, or at the option
of the tenant, to pay such amount directly to the landlord. The court may also order the tenant
to periodically deposit in court such amounts as it considers proper as interim standard rent,
or a option of the tenant, to pay such an amount to the landlord, during the pendency the suit.
The court may further direct that if the tenant fails to do so, he would not be allowed to
defend the suit except with the leave of court [S. 8(4)].

No appeal can be filed in respect of any order of the court under 8(3) or S. 8(4), referred to
above.

S. 8 also provides that an application to the court for fixation of standard rent can be filed
jointly by all or any of the tenants in respect of the premises situated in the same building.

S. 9 of the Act then lays down that no court can entertain any application for fixation of
standard rent, if the standard rent of the same premises has already been fixed by a competent
court on the merits of the case - unless there was some fraud, collusion or error of facts or if
there was a substantial alteration or change in the amenities enjoyed by the tenant.

Charging rent in excess of the standard rent declared illegal: S. 10 makes it clear that it shall
not be lawful to claim or receive any rent above the standard rent and the permitted increases.
Any contravention of this provision has been made punishable with imprisonment upto three
months or fine upto 5,000, or both.

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When rent may be increased: Ss. 11 and 12 of the Act provide for five cases in which the
landlord is allowed to make an increase in the rent.

Firstly, the landlord can increase the rent by 4% per annum in respect of all premises let out
for residence, education, business, trade or storage in the areas specified in Schedules I and II
of the Act.

Secondly, the landlord can effect a reasonable increase in the rent for an improvement or for
a structural alteration of the premises - provided he has the written consent of at least 70% of
the tenants. However, no such increase can be made in respect of any improvements and
alterations which it is the duty of the landlord to make under S. 14(1) of the Act.

Thirdly, with the requisite consent of the tenants as above, a landlord can also increase the
rent of the premises by an amount not exceeding 15% per annum of the expenses incurred on
account of special additions to the premises or special alterations made therein or additional
amenities provided for the premises, provided that total expenses incurred are certified by the
municipal authority or by an architect from om a notified panel of architects.

Fourthly, when special or structural repairs are made by the landlord, the can effect a
temporary increase in the rent of the premises at a rate not exceeding 25% of the standard
rent - provided all the requirements of S.11 in this regard have been complied with.

Lastly, if there is any increase in the rate, cess, charge, tax, land assessment, ground rent or
any other levy which the landlord is required to pay to the government, he is entitled to make
a proportionate increase in the rent of the premises. Likewise, in cases where the rent charged
in inclusive of the charges for electricity and water, and there is an increase in such charges
and the landlord is required to pay such increased charges, he can increase the rent of such
premises by an amount not exceeding the additional amount payable by him on account of
such an increase.

It is also to be noted that the provisions of the Act relating to standard rent and permitted
increases do not apply to any premises in a building (whether newly constructed or
otherwise) in cases where such premises were not let or given on licence for a continuous
period of one year. (S. 6)

Duty of landlord to keep premises in good repair: S. 14 of the Act lays down that, in the
absence of any agreement to the contrary between the landlord and the tenant,
notwithstanding anything contained in any other law, every landlord is bound to keep the
premises in good and tenantable repair.

If the landlord neglects to do so, any tenant or tenants may serve on him, a notice to effect
such repairs within a period of fifteen days. If he still neglects to do so, such tenant or tenants
may, within a reasonable time, make such repairs, and deduct the expenses of such repairs
from the landlord. However, the amount so deducted in any year cannot exceed one-fourth of
the rent payable by the tenant for that year. In such cases, the accounts and vouchers
maintained by the tenant would constitute conclusive evidence of such expenditure and are
binding on the landlord.

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 Note on RECOVERY OF POSSESSION OF PREMISES BY THE
LANDLORD?

Ss. 15 to 24 of the Act contain provisions relating to recovery of possession of tenanted

premises by the landlord. S. 15 lays down a salutary rule which makes every tenant in
Maharashtra statutorily protected tenant. It provides that a landlord shall not be entitled to the
recovery of possession of the tenanted premises so long as the tenant pays, or is ready and
willing to pay the amount of standard rent and permitted increases (if any) and observes and
performs the other conditions of the tenancy in so far as such conditions are consistent with
the provisions of the Act.

The Bombay High Court has held that the question whether a tenant is "ready and willing to
pay the rent is a question to be decided on the facts of each case. (Shah v. D. Shroff, 70 BLR
714)

Recovery of tenanted premises by the landlord is allowed under the Act only in fifteen cases,
which are briefly discussed below.

(i) Non-payment of standard rent and permitted increases

(ii) Commission of any act contrary to S. 108(o) of the Transfer of Property Act

(iii) Erecting a permanent structure

(iv) Creating nuisance or annoyance

(v) Tenant giving a notice to quit

(vi) Unlawful sub-letting or giving on licence

(vii) Premises given to employees of the landlord

(viii) If the premises are reasonably and bona fide required by the landlord

(ix) If the premises are to be repaired

(x) If the premises are to be demolished

(xi) If a floor is to be raised on the terrace

(xii) If the premises are required for immediate demolition

(xiii) Erection of a building on a garden

(xiv) Excessive rent charged for sub-let premises

(xv) If the premises have not been used, for 6 months without reasonable cause.

Special provisions for members of armed forces, scientists and government employees S. 23
of the Act contains special provisions for the following three classes of persons, namely, -

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(i) a landlord who is a member of the armed forces of the Union, or who was such a member
and has retired as such or has taken premature retirement;

(ii) a landlord who holds a scientific post in the Department of Atomic Energy of the Central
Government or in any of its allied institutions, or was such a scientist and has retired as such
or has taken premature retirement, and one year has not elapsed since his retirement;

(iii) a landlord who is an employee of the Government of India, Government of any State or
Union Territory, Public Sector Undertaking of the Government of India or of any State
Government and has retired as such or has taken premature retirement, and one year has not
elapsed since his retirement.

A landlord falling under any of the above three categories is entitled to recover from his
tenant, the possession of any premises owned by him, on the ground that such premises are
bona fide required by him for occupation by himself or by any member of his family. Such a
landlord must make an application for the recovery of his premises to the Competent
Authority which can pass an order of eviction as provided in S. 23 of the Act.

The main object and purpose of THE REGISTRATION ACT, 1908 is to provide for a
method of public registration of documents, so that members of the public may have
authentic information about the status of a particular property and the legal rights and
obligations affecting it, thereby also preventing fraud. As observed in one case, "Registration
lends inviolability and importance to certain classes of documents". (Jogi Das v. Fakir Panda,
AIR 1970 Ori. 22) Registration is compulsory in case of documents listed in S.17(1) of the
Act, whereas it is optional for those mentioned in S. 18. The Act also lays down the time
limit within which a document is to be registered giving a discretion to the authorities to
register a document presented even thereafter in cases where the delay is occasioned by
urgent necessity or unavoidable accident. (S.25)

Provisions are also made for registration of documents executed out of India (5, 26) and
special provisions have been included in respect of wills (5.27, 40 - 45)

Book [S. 2(2)]: A book is defined to include a portion of a book, and also any number of
sheets connected together with a view of forming a book or portion of a book.

Immovable property [S. 2(6)]: "Immovable property" includes land, buildings, hereditary
allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land,
and things attached to the earth, or permanently fastened to anything which is attached to the
earth, but not standing timber, growing crops nor grass.

Lease [S. 2(7)]: A lease is defined to include a counterpart, kabuliyat, an undertaking to

cultivate or occupy and an agreement to lease.

Movable property [S. 2(9)]: Movable property includes standing timber, growing crop and
grass, fruit upon and juice in trees and property of any description except immovable
property.

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Representative [S. 2(10)]: The term 'representative' includes the guardian of a minor and the
committee or other legal curator of a lunatic or idiot.

Note on DOCUMENTS OF WHICH REGISTRATION IS COMPULSORY?

Exceptions?

S. 17(1) of the Act provides a list of seven documents of which registration is compulsory. If
such a document is not registered, it cannot affect any immovable property to which it relates;
nor can it be received as evidence of any transaction affecting such a property.

The seven documents listed in S. 17(1) of the Act are as under:

(a) An instrument of gift of immovable property.

(b) Any other non-testamentary instrument which purports or operates to create, declare,
assign, limit or extinguish (whether in present or in future) any right, title or interest
(whether vested or contingent) of the value of 100 or more to or in immovable property.

(c) Any non-testamentary instrument which acknowledges the receipt or payment of any
consideration on account of the creation, declaration, assignment, limitation or extinction
of any such right, title or interest.

(d) A lease of immovable property, if such a lease - is from year to year, or is for any term
exceeding one year, or reserves a yearly rent.

(e) Any non-testamentary instrument transferring or assigning any decree or order of a

court or any award, in cases where such a decree or order or award purports or operates
to create, declare, assign, limit or extinguish (in present or in future) any right, title or
interest (whether vested or contingent) of the value of 100 or more to or in immovable
property.

By an amendment passed in Maharashtra (in 2010, which came into effect in 2013), the
following documents have been added to the above list, as far as compulsory registration of
documents in Maharashtra is concerned:

(f) an agreement relating to the deposit of title deeds, where such deposit has been made by
way of security for the repayment of a loan or an existing or future debt;

(g) a sale certificate used by any competent officer or authority under any Recovery Act;

(h) an irrevocable Power of immovable property in any way executed on or after the
commencement of the Registration (Maharashtra. Act, 2010 (that is, on or after April 1,
2013). Amendment)

Exceptions to S. 17(1)

The following fifteen instruments are not registrable under S. 17(1) by virtue of S. 17(2) of
the Act.

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1. A composition deed

2. Shares in a joint stock company

3. Debentures issued by a joint stock company

4. An endorsement upon or transfer of a debenture issued by a joint stock company

5. A document that merely creates a right to obtain another document

6. A decree or order of a court

7. A government grant

8. An instrument of partition made by a Revenue Officer

9. An order granting a loan or instrument of collateral security under Land Improvement Acts

10. An order granting loan under certain other statutes

11. An order under the Charitable Endowments Act

12. An endorsement on a Mortgage Deed

13. A receipt for payment of a mortgage debt

14. A Certificate of Sale pursuant to a public auction

15. A document containing a recital of payment of earnest money or purchase money

Note On DOCUMENTS OF WHICH REGISTRATION IS OPTIONAL?

S. 18 of the Act contains a list of documents of which registration under the Act is optional. It
lays down that the following eight document may be registered under the Act, namely,

a) Instruments other than instruments of gifts and wills, which purport or operate to create,
declare, assign, limit or extinguish (whether present or in future) any right, title or interest
(whether vested contingent) of the value of less than 100 to or in immovable property.

(b) Instruments which acknowledge the receipt of the creation, declaration, assignment,
limitation or extinction of any such right, title or interest.

(c) Leases of immovable property for any term not exceeding one year. In one case, the
question before the court was whether a lease executed for a period of one year, with an
option to the lessee to renew it for a further period of one year could be said to be a lease for
a term "not exceeding one year". The court held that since the lease was for one year only,
unless the lessee exercises his option, no interest would be created in the property for the
following year. Hence, the lease cannot be said to be for a period exceeding one year. (Hand
v. Hall, 1877 L R 2 Ex. Div. 318)

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It is also to be remembered that all leases of immovable property are compulsorily registrable
under the Transfer of Property Act. Thus, in practice, this clause will cover only agricultural
leases which are outside the ambit of that Act.

(d) Leases exempted under S. 17 of the Act.

As seen earlier, the State Government may exempt from the operation of S. 17(1) of the Act
any lease executed in a given district or part of a district if- the term of the lease does not
exceed five years; and the annual rent under the lease does not exceed 50.

(e) Instruments transferring or assigning any decree or order of a Court or any award, when
such decree, order or award purports or operates to create, declare, assign, limit or extinguish
(whether in present or in future) any right, title or interest (whether vested or contingent) of a
value of less than 100 to or in immovable property.

(f) Instruments other than wills, which purport or operate to create, declare, assign, limit or
extinguish any right, title or interest to or in movable property.

(g) Wills.

Although a will is not compulsorily registrable, a will can be presented for registration or it
may be deposited with the registering authorities at any time.

(h) All other documents which are not required to be registered under S. 17 of the Act.

Note on TIME-LIMITS FOR REGISTRATION OF DOCUMENTS? Procedure?

A special provision is made in the Act in respect of wills and it is provided (by S. 27) that a
will may be presented for registration or deposited with the Registrar at any time. In other
words, the Act does not prescribe any time limit for the registration or deposit of a will.

As regards all other documents, they must be presented for registration to the proper officer
within four months from the date of execution. As regards to decrees and orders, it is
provided that they must be presented for registration within four months from the date on
which the decree or order was made, and in case of an appealable decree, within four
months from the date on which it becomes final. (S, 23)

If a document is executed by several persons on different dates, it has to be presented for

registration within four months from the date of each execution. (S. 24)

Under S. 26 of the Act, if a document purports to have been executed by all or any of the
parties outside India, and it is not presented for registration within the prescribed period, it
may be accepted for registration on payment of the proper registration fee, if the Registering
Officer is satisfied that -

the document was, in fact, executed outside India by all or any of the parties, and

it has been presented for registration within four months after its arrival in India.

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S. 25 of the Act deals with the case of a document which is not presented for registration
within the prescribed period of four months due to an urgent necessity or an unavoidable
accident. In such cases, the Registrar may allow its registration, provided the delay does not
exceed four months (that is, a total period of eight months) on payment of a fine not
exceeding ten times the amount of the registration fee.

Re-registration of documents: S. 23-A of the Act deals with a case where a registrable
document has been presented for registration by a person not duly empowered to present it,
but the same has been accepted for registration. In such cases, any person claiming under
such a document can present the document for re-registration. However, he can do so only
within a period of four months from his first becoming aware that the registration of such a
document is invalid (as it was not presented by a proper person). The effect of such re-
registration is the same as if it had not been previously registered and as if its presentation for
re-registration was made within the time allowed by the Act for registration of documents.

Photograph and finger-prints: On account of large-scale frauds, the Registration Act was
amended in 2001 to provide that every person who presents any document for registration
must affix his passport-size photograph and his finger-prints to the document. In such a
document relates to the ownership of immovable property, the passport-size photograph and
finger-prints of each buyer and each seller of the property should be affixed to the document.
(S. 32A)

Note on EFFECTS OF NON-REGISTRATION OF DOCUMENTS?

S. 47 of the Act clarifies that a registered document operates, not from the date of its
registration, but from the date on which it would have commenced to operate if its
registration was not required. Thus, on 1 st April, A and B sign a conveyance which contains a
provision that it shall come into operation immediately on its execution. This document is
registered under the Act on 15th June. The date on which the conveyance comes into
operation is 1st April and not 15th June.

S. 48 of the Act then provides that all non-testamentary documents which relate to property,
movable or immovable, and which are duly registered under the Act, take effect against any
oral agreement or declaration relating to the same property, unless such oral agreement or
declaration is accompanied by delivery of possession of the property and the same constitutes
a valid transfer under the law.

An exception to the above rule is made in favour of a mortgage by deposit of title deeds
(equitable mortgage). Such a mortgage takes effect against any mortgage deed of the same
property which is subsequently executed and registered under the Act.

S. 49 of the Act lays down the effect or legal consequence of non- registration of a document
which is required to be registered either by S. 17 of the Act or under any provision of the
Transfer of Property Act, 1882, but is not so registered. The two main consequences of such
non- registration are as follows:

(a) Such a document cannot affect any immovable property comprised in the document; and

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(b) Such a document cannot be received as evidence of any transaction affecting such
property.

In case such a non-registered document is a power to adopt, it does not confer any power to
adopt; nor can it be received in evidence as conferring such power.

As far as receiving an unregistered document in evidence is concerned, two exceptions are

contained in S. 49 of the Act, which provides that if there is an unregistered document
affecting immovable property and required to be registered under the Registration Act or the
Transfer of Property Act, it may be received - as evidence of a contract in a suit for specific
performance under Chapter II of the Specific Relief Act, 1877; and as evidence of any
collateral transaction which is not required to be effected by a registered instrument.

In K. B. Saha & Sons v. Development Consultants Ltd. (2008 (8) SCC 564), the Supreme
Court explained the legal effects of non-registration of a registrable document and laid down
the following five propositions:

1. If a registrable document is not registered, it cannot be admitted into evidence.

2. However, such an unregistered document can be used as evidence of a collateral purpose.

3. The collateral purpose sought to be proved using an unregistered document must be

independent of, and divisible from, the transaction contained in the document.

4. The collateral transaction should be one which is not required by law to be effected by a
registered document.

5. If a document is not admissible for want of registration, none of its terms can be admitted
in evidence. Using such a document to prove one of the clauses of the document cannot be
said to be using it for a collateral purpose.

K. B. Saha's case (above) was relied upon by the Supreme Court in its later judgment in S.
Kaladevi v. V. R. Somasundram (JT 2010 (3) SC 610), where the court held that if an
unregistered sale deed is tendered in evidence, not as an evidence of a completed sale, but as
proof of an oral agreement of sale, the deed can be received in evidence, making an
endorsement that it is received by the court only as evidence of an oral agreement of sale
under S. 49 of the Act.

Note on CRZ?

The policy relating to Coastal Regulation Zone (CRZ) has been formulated and implemented
keeping the following objectives in mind, namely, -

(a) to ensure "livelihood security" to the fishing communities and other local communities
living in coastal areas;

(b) to conserve and protect coastal stretches, its unique environment and its marine area;
and

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 (c) to promote sustainable development based on scientific principles, while taking into
account the dangers of natural hazards in the coastal areas, the rise in sea level due to
global warming, etc.

The CRZ Notification dated 6th January, 2011 is applicable to the coastal stretches of India
and the water area upto its territorial water limit, excluding the islands of Andaman and
Nicobar and Lakshadweep and the marine areas surrounding these islands upto its territorial
limit.

Areas covered by the coastal regulation zone: The Coastal Regulation Zone (CRZ)
includes:

(a) the land area from the High Tide Line (HTL) upto 500 meters on the landward side
along the seafront;

(b) the land area between the HTL upto 100 meters or the width of the creek, whichever is
less on the landward side, along the tidal influenced water bodies that are connected to
the sea;

(c) the land falling:

- between the hazard line and 500 meters from the HTL on the landward side in the case
of the seafront; and

- between the hazard line and 100 meters in the case of a tidal influenced water body;

(d) the land area between the HTL and the Low Tide Line (LTL), also known as the
"intertidal zone";

(e) the water and bed area between the LTL and the territorial water limit (12 nautical
miles) in the case of the sea; and

(f) the water and the bed area between the LTL at the bank and the LTL on the opposite
side of the bank in the case of tidal influenced water bodies.

"High Tide Line" (HTL) means the line on the land upto which the highest water line
reaches during the spring tide.

The "hazard line" refers to the line demarcated by the Ministry of Environment and Forests,
after taking into account, tides, waves, sea level rise and shoreline changes.

The expression "tidal influenced water bodies" refers to the water bodies which are
influenced by tidal effects from the sea, in the bays, estuaries, rivers, creeks, backwaters,
lagoon or ponds connected to the sea or the creeks, and the like.

Note on PROHIBITED AND REGULATED ACTIVITIES IN CRZ?

Under the CRZ Notification, certain activities are prohibited in the CRZ, whereas other
activities are strictly regulated.

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Prohibited activities: There are fourteen activities which are prohibited in the CRZ, as
follows:

1. Setting up of new industries and expansion of existing industries, except the following:

(a) industries directly related to the waterfront or directly needing foreshore facilities,

[ The expression "foreshore facilities" means those activities permissible under this
Notification and which require waterfront for their operations such as ports and harbors,
jetties, quays, wharves, erosion control measures, breakwaters, pipelines, lighthouses,
navigational safety facilities, coastal police stations and the like.]

(b) projects of the Department of Atomic Energy;

(c) facilities for generating power by non-conventional energy sources;

(d) development of a "green field airport" at Navi Mumbai;

(e) reconstruction and repair works of dwelling units of local communities, including
fishermen.

2. Manufacture or handling oil storage or disposal of hazardous substances specified in

government Notifications, subject to certain exceptions.

3. Setting up and expansion of fish processing units, including warehousing, except hatchery
and natural fish drying in permitted areas.

4. Land reclamation, bunding or disturbing the natural course of seawater, subject to specified
exceptions, as for instance, those required for setting up, construction or modernization or
expansion of foreshore facilities or those meant for defence and security purposes.

5. Setting up and expansion of units or mechanism for disposal of wastes and effluents,
except facilities required: for discharging treated effluents into the watercourse approved
under the Water Act for storm water drains and ancillary structures for pumping; and
treatment of wastes and effluents arising from hotels, resorts and human settlements in CRZ
areas other than CRZ-I.

6. Discharge of untreated wastes and effluents from industries, cities or towns and other
human settlements.

7. Dumping of city or town wastes for the purpose of land filling and the like.

8. Port and harbor projects in high-eroding stretches of the coast, except strategic and
defence-related projects.

9. Reclamation for commercial purposes like shopping and housing complexes, hotels and
entertainment activities.

10. Mining of sand, rocks and other sub-strata material, - except minerals not available
outside the CRZ area and exploration and exploitation of Oil and Natural Gas.
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11. Drawing of underground water and construction related thereto within 200 meters of the
HTL, subject to certain exceptions.

12. Construction activities in CRZ-I, except certain activities listed in the Notification, as for
instance, projects relating to the Department of Atomic Energy, etc.

13. Dressing or altering any sand-dunes, hills, natural features, including landscape changes
for beautification, recreation and similar purposes.

14. Facilities required for patrolling and vigilance activities of marine and coastal police
stations.

Regulated activities: All other activities, that is, all activities not falling under the above
fourteen items of prohibited activities, are regulated as under:

1. Clearance is to be given for any activity in CRZ only if it requires waterfront and foreshore
facilities.

2. For projects which are listed under the 2011 Notification which also fall under the
Environment Impact Assessment (EIA) Notification 14th September, 2006, clearance is
required to be taken only under the said EIA Notification. However, such clearance is subject
to the same being recommended by the concerned State or Union Territory Coastal Zone
Management Authority.

3. Construction involving a built up area of more than 20, 000 square meters in CRZ-II is to
be regulated in accordance with the norms contained in the said EIA Notification dated 14th
September, 2006.

4. Construction in CRZ-Il involving a built-up area of less than 20,000 square meters is to be
approved by the concerned State or Union Territory in accordance with the 2011 Notification.

5. The Ministry of Environment and Forests may specify projects for which there should be a
prior public hearing of persons affected by such projects.

6. Nine types of activities require clearance from the Ministry of Environment and Forests,
namely,

(a) activities not listed in the said EIA Notification referred to above;

(b) construction activities relating to projects of the Department of Atomic Energy or

defence requirements for which foreshore facilities are essential, as for instance,
slipways, jetties, wharves, quays, etc.

(c) construction and operation of lighthouses;

(d) laying of pipelines, conveying systems and transmission lines;

(e) exploration and extraction of oil and natural gas and all associated activities;

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 (f) foreshore requiring facilities for transport of raw materials, cooling water, etc. for
thermal power plants;

(g) mining of rare minerals specified by the Department of Atomic Energy;

(h) facilities for generating power by non-conventional energy sources, desalination

plants and weather radars; and

(i) demolition and reconstruction of: buildings of archaeological and historical

importance; heritage buildings; and buildings used by the public for purposes of
worship, education, medical care and cultural activities.

CLASSIFICATION OF COASTAL REGULATION ZONES

For the purpose of conserving and protecting coastal areas and marine waters, the CRZ area
has been classified into the following five categories:

(1) CRZ-I: comprises of:

1. Areas which are ecologically sensitive and the geo-morphological features play a role in
maintaining the integrity of the coast, as for instance, - mangroves, - corals and coral reefs, -
sand dunes, - national parks, marine parks, sanctuaries, reserve forests, wildlife habitats and
other protected areas, - nestling grounds of birds, - areas or structures of archaeological
importance and heritage sites.

2. The area between the Low Tide Line and the High Tide Line.

Permissible activities in CRZ-I: No new construction is permitted in CRZ-I, except

(a) projects relating to the Department of Atomic Energy;

(b) pipelines and conveying systems, including transmission lines;

(c) facilities essential for activities permissible in CRZ-I;

(d) installation of weather radar for monitoring cyclones;

(e) construction of trans-harbour sea links; and

(f) development of a green field airport at Navi Mumbai.

For areas between the LTL and the HTL which are not ecologically sensitive, necessary
safety measures have to be incorporated while permitting activities like exploration and
extraction of natural gas, construction of dispensaries, schools, public rain-shelter,
community toilets, bridges, roads, jetties, water supply, drainage, sewerage required for
traditional inhabitants, salt harvesting by solar evaporation of seawater, desalination plants,
etc.

(2) CRZ-II: comprises those areas which have been developed upto or close to the shoreline.
"Developed" areas, for this purpose, means areas within existing municipal limits or areas

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situated in other urban areas which are substantially built up and have been provided with
drainage and approach roads and other infrastructural facilities like water supply and sewage
mains.

Permissible activities in CRZ-II: Certain activities listed in the Notification are permitted in
CRZ-II, as for instance,
- buildings only on the landward side of an existing road or on the landward side of
an existing authorised structure;
- reconstruction of authorised buildings - subject to existing FSI (Floor Space
Index) or FAR (Floor Area Ratio) norms -provided there is no change in the
present use;
- desalination plants and associated facilities;
- storage of non-hazardous cargo like edible oil, fertilizers and food-grain in
notified ports;
- facilities for generating power by non-conventional power sources.

(3) CRZ-III: consists of areas which are relatively undisturbed and those which do not fall
under CRZ-I and CRZ-II. Additionally, CRZ-III also includes coastal zones in rural areas and
areas within municipal limits or other designated urban areas which are not substantially built
up.

Permissible activities in CRZ-III: In CRZ-III, an area upto 200 meters from the HTL on the
landward side in the case of a seafront, and upto 100 meters along tidal influenced water
bodies or the width of the creek, whichever is less, is ear-marked as a "No Development
Zone" (NDZ).

However, there is a list of activities which may be permitted even in the NDZ, as for instance,
-
- agriculture, horticulture, gardens, pastures, parks, playfields and forestry;
- projects relating to the Department of Atomic Energy;
- mining of rare minerals, manufacture of salt from seawater
- facilities for generating power by non-conventional energy sources
- weather radars;
- construction of dispensaries, schools, bridge, roads, etc. required for local
inhabitants (which is to be permitted on a case-by- case basis);
- facilities for local fishing communities, like fish drying yards, auction halls, ice
plants, ice crushing units, etc.
- development of a green field airport at Navi Mumbai.

(IV) CRZ-IV: consists of: (a) the water area from the Low Tide Line upto 12 nautical miles
on the seaward side; and (b) the water area of the tidal influenced water bodies from the
mouth of the water body at the sea upto the influence of the tide which is measured as 5 ppt
(parts per thousand) during the driest season of the year.

Permissible activities in CRZ-IV: In areas covered by CRZ-IV, there are no restrictions on

traditional fishing and allied activities undertaken by local communities. However, activities
impinging on the sea and tidal influenced water bodies are regulated as follows:
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1. No untreated sewage, effluents, ballast water, ship washes, fly ash or solid waste from any
activities can be dumped or let off.

2. A comprehensive plan for the treatment of sewage generating from coastal towns and cities
is to be formulated and implemented.

3. There should be no pollution from oil or gas exploration or from drilling, mining or
shipping.

(V) Areas requiring special consideration: Detailed provisions have been made for areas
requiring special consideration for the purpose of protecting the critical coastal environment.
These areas are:

(a) the CRZ areas falling within the municipal limits of Greater Bombay;

(b) the CRZ areas of Kerala, including the backwaters and backwater islands;

(c) the CRZ areas of Goa; and

(d) critically vulnerable coastal areas, such as the Sunderbans region of West Bengal and
other ecologically sensitive areas identified under the Environment (Protection) Act, 1986,
and managed with the involvement of coastal communities, including fisher folk.

THE URBAN LAND (CEILING AND REGULATION) ACT, 1976 [Repealed in the
State of Maharashtra] – an act to provide for imposition on vacant land in urban
agglomerations for the acquisitions of such land excess of ceiling limit to regulate the
constructions of buildings and for matters connected therewith so there is no concentration of
urban land in hands of few persons and to bring equitable distribution of land for common
good.

The main objectives of the Act, as reflected in its Statement of Objects and Reasons, are:

(i) to prevent concentration of urban property in the hands of a few persons and speculation
and profiteering therein;

(ii) to bring about socialization of urban land in urban agglomerations to subserve the
common good by ensuring its equitable distribution;

(iii) to discourage construction of luxury housing, leading to conspicuous consumption of

scarce building materials and to ensure the equitable utilization of such materials; and

(iv) to secure orderly urbanization.

In order to achieve the above objects, the Act provides for the following:

(a) imposition of a ceiling limit on both ownership and possession of vacant land in urban
agglomerations;

(b) acquisition of excess vacant land by the State Government, with powers to dispose of
the vacant land to subserve the common good;
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 (c) payment of compensation for the acquisition of the excess vacant land - in cash and in
bonds;

(d) granting of exemptions in respect of certain categories of vacant land;

(e) regulating the transfer of vacant land within the ceiling limits;

(f) regulating the transfer of urban or urbanisable land with any building for a period of ten
years from the commencement of the Act or the construction of the building, whichever
is later;

(g) restricting the plinth area for the construction of future residential buildings; and

(h) other procedural and miscellaneous matters.

As observed by the Supreme Court (in Union of India v. Valluri B.Chaudhary, AIR 1979 SC
1415), the primary object and purpose of the Act is to secure that the ownership and control
of material resources of the community are so distributed as best to subserve the common
good (Art. 39(b) of the Constitution of India) and to secure that the operation of the
economic system does not result in concentration of wealth and means of production to the
common detriment (Art. 39(c) of the Constitution).

Appointed day [S. 2(a)]: As far as the eleven States referred to above are concerned, the
term "appointed day" means the date on which the Urban Land (Ceiling and Regulation) Bill
was introduced in Parliament. As regards other States which adopt the Act later on (by
passing resolutions as provided in the Constitution of India), the term "appointed day" refers
to the date of such adoption.

Urban land [S. 2(0)]: The term "urban land" means any land situated within the limits of an
urban agglomeration and referred to as such in the relevant master plan.

In cases where there is no master plan or where the master plan does not refer to any land as
urban land, the term means any land within the limits of an urban agglomeration and situated
in any areas included within the local limits of: a municipality (by whatever name called), a
notified area committee, a town area committee, a cantonment board, or a panchayat.

However, the term "urban land" does not include any land which is mainly used for the
purpose of agriculture.

Urbanisable land [S. 2(p)]: "Urbanisable land" is defined to mean land which is situated
within an urban agglomeration, but which is not urban land.

Vacant land [S. 2 (q)]: "Vacant land" is defined to mean land in an urban agglomeration
which is not mainly used for the purpose of agriculture.

The term "vacant land" does not, however, include:

(a) any land on which construction of a building is not permissible under the building
regulations in force in that area;

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(b) in an area where there are building regulations, the land occupied by any building which
has been constructed before, or is being constructed on, the appointed day with the approval
of the appropriate authority, including the land appurtenant to such a building;

(c) in an area where there are no building regulations, the land occupied by any building
which has been constructed before, or is being constructed on, the appointed day, including
the land appurtenant to such a building.

It is also clarified that if any person ordinarily keeps his cattle other than for purposes of
dairy farming or breeding of livestock, on any land situated in a village within an urban
agglomeration, then, so much of the and as is ordinarily used for keeping such cattle
immediately before the appointed day, is not deemed to be vacant land.

Urban agglomeration [S, 2(n)]: The Census of India has defined an urban agglomeration to
mean a continuous urban spread constituting a town and its adjoining urban outgrowths or
two or more physically contiguous towns together and any adjoining urban outgrowths of
such towns.

for instance, for the State of Maharashtra, Greater Bombay is categorised as an UA with a
peripheral area of 8 kilometers, whereas Ulhasnagar, Nagpur and Pune are shown as UAs
with peripheral areas of 5 kilometers each. Likewise, in Gujarat, Rajkot, Ahmedabad,
Vadodara and Surat are UAs with a peripheral area of 5 kilometers each, whereas Bhavnagar
and Jamnagar are UAs with peripheral areas of 1 kilometer each.

Building regulations [S. 2(b)]: "Building regulations" mean the regulations contained in the
master plan or the law in force governing the construction of buildings.

Master plan [S. 2(h)]: In relation to an area within an urban agglomeration or any part
thereof, the term "master plan" refers to the plan (by whatever name called) prepared under
any law for the time being in force or in pursuance of an order made by the State Government
for the development of such area or part thereof and providing for the stages by which such
development is to be carried out.

Dwelling unit [S. 2(e)]: The term "dwelling unit", in relation to a building or a portion of a
building, means a unit of accommodation in such building or a portion thereof, used solely
for the purpose of residence.

Land appurtenant [S. 2(g)]: The expression "land appurtenant", in relation to any building,
means -

(a) in an area where there are building regulations - the minimum extent of land required
under such regulations to be kept as open space for the enjoyment of such a building, not
however exceeding 500 square meters; and

(b) in an area where there are no building regulations - an extent of 500 square meters
contiguous to the land occupied by such a building.

In case of a building constructed with a dwelling unit before the appointed day, "land
appurtenant" would also include an additional extent not exceeding 500 square meters of land
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(if any) contiguous to the minimum extent of land referred to in clause (a) or clause (b)
above.

Competent authority [S. 2(d)]: "Competent authority" means any person or authority
authorised by the State Government by Notification in the Official Gazette, to perform the
functions of the competent authority under the Act, for such area as may be specified in the
Notification. Also, different persons or authorities may be authorised to perform different
functions.

Person [S. 2(i)]: The term "person" is defined to include an individual, a family, a firm, a
company or an association or body of individuals, whether incorporated or not.

Family [S. 2(f)]: "Family", in relation to a person, means the individual, the wife or husband
of that individual (as the case may be) and their unmarried minor children, that is, unmarried
children who have not attained eighteen years of age.

To hold [S. 2(1)]: In relation to any vacant land, the expression "to hold" means -

(a) to own such land, or

(b) to possess such land as owner or as tenant or as a mortgagee or under an irrevocable

power of attorney or under a hire- purchase agreement or partly in one and partly in another
of such capacities.

It is also clarified that if the same vacant land is held by one person in one capacity and by
another person in another capacity, such land is deemed to be held by both such persons for
the purposes of the Act.

Note on CEILING Limit ON VACANT LAND?

Under S. 3 of the Act, on and from the commencement of the Act, no person can hold vacant
land in excess of the ceiling limits specified in S. 4 of the Act. The excess vacant land can be
acquired by the State Government by following the procedure laid down in the Act and on
payment of compensation as provided in S. 11 of the Act. The ceiling limits of vacant land
are laid down in S. 4 of the Act as under:

(a) Where the vacant land is situated in an urban agglomeration falling within category A of
Schedule I of the Act, the ceiling limit is 500 square meters.

(b) Where the vacant land is situated in an urban agglomeration falling within category B of
the said Schedule, the ceiling limit is 7,000 square meters.

(c) Where the vacant land is situated in an urban agglomeration falling within category C of
the said Schedule, the ceiling limit is 1, 500 square meters.

(d) where their category is situated in an urban agglomeration falling within category D of the
said Schedule, the ceiling limit is 2, 000 square meters. It by category A, namely, Greater
Mumbai, Delhi, Chennai and Kolkata. Category B also covers four towns, namely,
Ahmedabad, Bengaluru, Pune and Kanpur. fall under Categories C and D, as Mysore,

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Bhopal, etc. fall under Category C and Ajmer, Kolhapur, Cuttack, Jalandhar, etc. under
Category D.

Provisions have also been made for persons holding vacant lands falling under two or more
of the above categories.

Where a person holds vacant land and also holds any other land on which there is a building
with a dwelling unit in it, the extent of such other land occupied by the building and the land
appurtenant thereto is also to ratio be taken into account in calculating the extent of vacant
land held by such a person. Where, however, a person owns only a part of a building in group
housing, then only the proportionate share of that person in the land occupied by the building
and the land appurtenant thereto is to be taken into account.

"Group housing" means a building with one or more floors, each floor consisting of one or
more dwelling units and having common service facilities like staircase, balcony and
verandah.

Firms and partners: Where such vacant land is held by a firm, the right or interest of a partner
in such vacant land, calculated on the basis of his share in the firm, is also to be taken into
account when calculating the vacant land held by that partner.

Hindu undivided families: As regards a Hindu undivided family (HUF), it is provided that the
vacant land which would have fallen to the share of a member if a partition had taken place
on the date of commencement of the Act is also to be taken into account when calculating the
vacant land held by such a member of the HUF.

Beneficiary under a private trust: If a person is a beneficiary under a private trust and his
share in the income of the trust is known or determinable, the proportionate share of vacant
land held by the trust is also to be taken into account when calculating the extent of vacant
land held by that beneficiary.

Members of registered co-operative societies: When a person who is a member of a registered

co-operative housing society holds vacant land allotted to him by the society, such vacant
land is to be included when calculating the vacant land held by that member.

Exemption If, before the commencement of the Act, any scheme for group housing in respect
of vacant land had been sanctioned by a competent authority, the person holding such vacant
land at the time of the of the Act is entitled to continue to hold such vacant for the purpose of
group housing. However, in such cases, not more than than one dwelling unit in the group
housing can be owned by one single person.
State the circumstances under which the vacant land may be exempted from ceiling
limit under the U.L.C. Act, 1976.? Write a short note on: Exemption of a vacant land?
S. 20: Power to exempt –
(1) "Notwithstanding anything contained in any of the foregoing provisions of this chapter,
a) where any person holds any vacant land in excess of the ceiling limit and the State
Government is satisfied, either on its own motion or otherwise, that having regard to the

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 location of such land, the purpose for which such land is being or is proposed to be used
and such other relevant factors as the circumstances of the case may require, it is
necessary and expedient in the public interest so to do, that Government may, by order,
exempt, subject to such conditions, if any, as may be specified in the order, such vacant
land from the provisions of this chapter;
b) where any person holds vacant land in excess of the ceiling limit and the State
Government, either on its own motion or otherwise, is satisfied that the application of the
provisions of this Chapter would cause undue hardship to such person, that Government
may, by order, exempt, subject to such conditions, if any, as may be specified in the
order, such vacant land from the provisions of this chapter:
Provided that, no order under this clause shall be made unless the reasons for doing so are
recorded in writing".
(2) "If at any time, the State Government is satisfied that, any of the conditions subject to
which any exemption under Clause a) or Clause b) of sub-section (1) is granted, is not
complied with by any person, it shall be competent for the State Government to withdraw, by
order, such exemption after giving a reasonable opportunity to such person for making a
representation against the proposed withdrawal and thereupon the provisions of this chapter,
shall apply accordingly".
Thus, it may be seen from the above that, Section 20 empowers the State Government to
exempt any excess vacant land in public interest and also in case where such exemption is
considered to be necessary to avoid undue hardship to any person.
S. 21: Excess vacant land not to be treated as excess in certain cases –
(1) "Notwithstanding anything contained in any of the foregoing provisions of this chapter,
where a person holds any vacant land in excess of the ceiling limit, and such person declares
within such time, in such form and in such manner as may be prescribed before the
competent authority, that such land is to be utilised for the construction of dwelling-units
(each such dwelling-unit having plinth area not exceeding 80 square metres) for the
accommodation of weaker sections of the society, in accordance with any scheme approved
by such authority as the State Government may, by notification in the Official Gazette,
specify in this behalf, then, the competent authority may, after making such inquiry as it
deems fit, declare such land not to be excess land for the purpose, and permit such persons to
continue to hold on such terms and condition as prescribed including a condition as to the
time-limit within which such buildings are to be constructed.
2.) Where any persons contravene of any conditions subject to which the permission has be
granted under subsection 1) the competent authority shall, by order, and after giving such
person an opportunity of being heard, declare such land to be excess land, and thereupon all
the provisions of this chapter, shall apply accordingly".
S. 22: Retention of vacant land under certain circumstances –
(1) "Notwithstanding anything contained in any of the foregoing provisions of this Chapter,
where an person demolishes any building on any land held by him, or any such building is
destroyed or demolished solely due to natural causes and beyond the control of the human
agency and as a consequence thereof, either case, the land on which such building has been
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constructed becomes vacant land and the aggregate of the extent of such land and the extent
of any other vacant land held by him exceed the ceiling lima then, he shall, within three
months from the date of such demolition or destruction, file a statement before the competent
authority having jurisdiction specifying the location, value and such other particulars may be
prescribed, of all the vacant land held by him".
(2) "Where, on receipt of a statement under sub-section (1), and after such inquiry as the
compete authority, may deem fit to make, the competent authority is satisfied by land which
has become vacant land is required by the holder for the purpose of redevelopment in
accordance with the master plan, such authority may, subject to such conditions and
restrictions, as it may deem fit to impose, permit the hold to retain such land in excess of the
ceiling limit for such purpose, and where the competent authority not so satisfied, and does
not so permit, the provisions of Sections 6 to 14 (both inclusive) shall, so far: may be, apply
to the statement filed under sub-section (1) and to the vacant land held by such person excess
of the ceiling limit".

Acquisition of property and requisition of property: when property is acquired by the

state the title of the property passes to the state whereas in requisition the title of property
remains with the owner and the possession thereof (for limited purpose) is taken over by
state.in both the cases element of public purpose must be present.

The Land Acquisition Act 1894 is important piece of legislation in India under which state
had power to acquire private property for the public purpose.

The main object of the act was to amend the then existing law relating to acquisition of land
for public purpose and for determining the amount of compensation to be paid for such
acquisition.

Land: The Act has adopted an inclusive definition of "land". This word includes benefits to
arise out of land, and things attached to the earth or permanently fastened to anything
attached to the earth.

As held by the Rajasthan High Court, the owner of acquired land is entitled to get
compensation for the well and permanent structures raised on the land like farm houses,
water channels, etc., but not for pumping sets and other electrical fittings which are not
permanently fastened to the land. (Kamla Devi v. Border Security Force, Jodhpur, AIR 1988
Raj. 205)

Local authority: The expression "local authority" includes a town planning authority (by
whatever name called) set up under any law for the time being in force.

Collector: The word "Collector" is defined to mean the Collector of a district. The term also
includes a Deputy Commissioner and any officer specially appointed by the appropriate
Government to perform the functions of a Collector under the Land Acquisition Act, 1894.

Arable land: The definition of the term "arable land" was inserted by a Maharashtra
Amendment to mean land fit for cultivation, whether in fact cultivated or not. The term also
includes garden land.

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Person interested: The expression "person interested" includes all persons claiming an
interest in compensation to be made on account of the acquisition of land under this Act.
Moreover, a person is deemed to be interested in land if he is interested in an easement
affecting the land.

The Gauhati High Court has held that any person who claims an interest in compensation for
acquired land is a "person interested". The effect of land acquisition is to relinquish the rights
of the owners of the land and vest it exclusively in the Government. As such, any person
affected by the extinguishment of the right in such land is to be considered to be such a
person. (Gandhamoyee Devi v. Collector of Kamrup, AIR 1982 Gau.

The following have been held to be a 'person interested' under the above definition, namely, -

a mortgagee decree-holder of the acquired land;

a perpetual lessee in possession of the acquired land;

a person who has bought the land in question at a Government auction, although he is not in
possession of the land on account of pending litigation.

Court: The expression "Court" means a principal Civil Court of original jurisdiction, unless
the appropriate Government has appointed a special judicial officer within any specified
local limits to perform the functions of the Court under this Act.

Company: The term "company" means -

(a) a company as defined in S. 3 of the Companies Act, 1956, other than a government
company;

(b) a society registered under the Societies Registration Act, 1860, or under any
corresponding law in force in a State, other than a society established or administered by
Government;

(c) a co-operative society within the meaning of any law relating to co-operative societies for
the time being in force in any State, other than a co-operative society in which not less than
fifty- one per cent of the paid-up share capital is held by the Government.

Appropriate government: The expression "appropriate Government" means, in relation to

acquisition of land for the purposes of the Union, the Central Government, and, in relation to
acquisition of land for any other purposes, the State Government.

Note on Public purpose?

it covers the acquisition of land for purposes related to rural planning; improvement and
development of State owned or controlled corporations, educational and housing facilities;
and providing residence to the poor or landless affected by natural calamities.

The expression "public purpose" includes -

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(i) the provision of village-sites, or the extension, planned development or improvement of
existing village-sites;

(ii) the provision of land for town or rural planning;

(iii) the provision of land for planned development of land from public funds in pursuance of
any scheme or policy of Government and subsequent disposal thereof in whole or in part by
lease, assignment or outright sale with the object of securing further development as planned;

(iv) the provision of land for a corporation owned or controlled by the State;

(v) the provision of land for residential purposes to the poor or landless or to persons residing
in areas affected by natural calamities, or to persons displaced or affected by reason of the
implementation of any scheme undertaken by Government, any local authority or a
corporation owned or controlled by the State;

(vi) the provision of land for carrying out any educational, housing, health or slum clearance
scheme sponsored by Government or by any authority established by Government for
carrying out any such scheme, or with the prior approval of the appropriate Government, by a
local authority, or a society registered under the Societies Registration Act, 1860 or under any
corresponding law for the time being in force in a state or a co-operative society within the
meaning of any law relating to co-operative societies for the time being in force in any State;

(vii) the provision of land for any other scheme of development sponsored by Government or
with the prior approval of the appropriate Government, by a local authority;

(viii) the provision of any premises or building for locating a public office, but not including
acquisition of land for companies;

(ix) the acquisition of land for purposes of development of areas from public revenue or some
fund controlled or managed by a local authority, and subsequent disposal thereof, in whole or
in part, by lease, assignment or sale, with the object of securing further development.

The Supreme Court has observed that the term "public purpose" is not capable of precise
definition. Each case has to be light of the purpose for which acquisition is sought by the
government. The purpose should serve the general interest of the community as opposed to
the interest of a particular individual. Broadly speaking, public purpose would include a
purpose in which the society is generally interested as against the interest of an individual
who is directly and vitally concerned. (Srinivasa Co-op. Housing Bldg. Society Ltd. v.
Madam Gurumurthy Sastry, (1994) 4 SCC 675).

the following have been held to be acquisitions for a "public purpose":

- acquisition of property for constructing a memorial for national heroes (Annarao v.

Solapur Municipal Corp., (2004) 3 Mah. L.J., 101);
- acquisition of property for providing housing accommodation for economically
backward classes of persons (Chandravati Devi v. State of Haryana, 1995 Supp. (2) SCC
54);

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- acquisition of land for providing housing sites to the members of a co-operative society
(Venkataswamappa v. Special Deputy Commissioner, AIR 1997 SC 503);
- acquisition of land for the purpose of constructing staff quarters for employees (Bai
Malimabu v. State of Gujarat, AIR 1978 SC 515);
- acquisition of property for setting up of a paper mill (Sarmukh Singh v. State of U. P.,
1995 Supp. (4) SCC 489).

Note on ACQUISITION OF LAND? Procedure?

The steps to be followed for acquisition of land under the Act are contained in S. 3A to S. 17
of the Act, and may be summarized as under:

Step 1: Preliminary survey (in Maharashtra only)

Under S. 3A, before a Notification is issued for acquisition of any land, a preliminary survey
may be carried out by an officer of the State Government to determine whether land in any
locality is needed or is likely to be needed for any public purpose. S. 3B provides for
payment of compensation in respect of any damage caused to the land in the course of such a
preliminary survey.

Step 2: Notification/Publication

The second step for the acquisition of land in Maharashtra (and the first step for such
acquisition in other parts of the country) under S. 4 of the Act is that a Notification regarding
the proposed acquisition must be published in the Official Gazette and two daily local
newspapers circulating in that locality, one of which at least should be in the regional
language. A public notice of the substance of the Notification is also to be put up at
convenient places in the locality.

Once such a Notification is issued, it becomes lawful for any officer authorised by the
Government -

(a) to enter upon, survey and take levels of any land in that locality;

(b) to dig or bore in the sub-soil of such land;

(c) to set out the boundaries of such land;

(d) to mark the levels and boundaries by placing marks and cutting trenches;

(e) to cut down any part of the standing crops, fence or jungle if the survey cannot be
otherwise completed; and

(f) to do all other acts necessary to ascertain whether the land is adapted for the purpose for
which it is to be acquired.

However, any such officer cannot enter into any building or any enclosed court or garden
attached to a dwelling house without the consent of the occupier or after giving the occupier
at least seven days' notice in writing of his intention to do so.

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Under S. 5 of the Act, compensation is to be paid in respect of any damage caused to the land
in the course of such entry by the authorized officer.

From a practical point of view, such a Notification alerts the landowner against investing
further money or Labour in the improvement of such land and also informs the public about
the proposed acquisition of the land. However, the landowner continues to own the land until
it is finally acquired when the following steps are taken.

Step 3: Filing of objections/being heard

The next step is the filing of objections against the proposed acquisition by interested
persons. In fact, the main object of issuing the Notification is to call for objections, if any,
from owners, occupiers or others who have some interest in such land, thus giving them an
opportunity to raise their claims against the move of the government to acquire the land. All
persons aggrieved by the proposed acquisition are required to file their objections in writing
before the Collector within thirty days from the date of the Notification.

In practice, objections filed under the Act are typically on some or all of the following
grounds, namely:

- that the purpose for which the land is sought to be acquired is not a public purpose;
- that the land in question is not suitable for the purpose for which it is proposed to be
acquired;
- that more land is sought to be acquired than what is necessary for the proposed project;
- that it is possible to acquire an alternate piece of land for the same purpose, with less
(or no) inconvenience to the concerned persons;
- that the land has historic monuments, places of public interest, religious building, tombs,
graveyards, etc., and hence, such land ought not to be acquired;
- that such acquisition is mala fide in nature.

The Collector must then give every objector an opportunity to be heard in person or by
pleader or by any other person authorised by the objector. After hearing all such objections
and after making further inquiries, if any, the Collector must make his report to the
appropriate Government, containing his recommendations on the objections, together with a
record proceeding held by him to enable such government to arrive at a decision on such
objections, a decision which is declared by S.5A of the act to be final in the matter.

Step 4: Declaration

If the appropriate Government is satisfied, after considering the report of the Collector, that
any particular land is needed for a public purpose, a declaration is made to that effect under
the signature of the Secretary to that Government or some other officer duly authorised for
this purpose. Such a declaration must be issued within a period of one year from the date of
the Notification and must be published in the same way as the Notification. The last of the
dates of Such publication/public notice is to be regarded as the "date of the Publication of the
declaration". Such a declaration is conclusive evidence that the land in question is needed for
a public purpose and the government can then acquire the land.

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No such declaration can, however, be made unless the compensation to be awarded for such
property is paid out of public revenues or a fund controlled or managed by a public authority.
[S. 6]

Step 5: Direction to the Collector

Once the land is declared to be needed for a public purpose, appropriate Government must
direct the Collector to cause the land be marked, measured and a plan thereof to be made. [Ss.
7 & 8]

Step 6: Notice to interested persons

The Collector must then cause public notices to be given at convenient places on or near the
land, stating that the Government intends to take possession of such land and that
compensation claims may be filed before by all persons interested in the land. The notice
must require all interested persons to appear personally or through an agent before the
collector at a time and place mentioned in the notice.

As observed in one case, it is mandatory on the part of the Collector to serve a notice on the
land owner who files written objections and to provide him with an opportunity of being
heard. Non-compliance with this requirement vitiates all the subsequent proceedings.
(Gurcharan Singh v. State of Punjab, AIR 1981 P & H. 96)

Step 7: Inquiry and award

The Collector must then proceed (under S. 11 of the Act) to inquire into the objections filed
by interested persons as regards the measurement of the land, the value of the land as on the
date of publication of the Notification under S. 4 of the Act and the respective interests of
persons claiming compensation. After making the necessary inquiries, the Collector must
make an award, signed by him and in the prescribed form (Form 14), stating inter alia –

- the true area of the land;

- the compensation which, in his opinion, should be allowed for the land; and
- the apportionment of such compensation amongst all the claimants.

Such an award is to be made by the Collector after obtaining the previous approval of the
appropriate Government. Under an amendment applicable only in the State of Maharashtra,
the State Government may pass an order that no award exceeding a specified amount may be
made by the Collector without the previous approval of the State Government.

The Collector is obliged to make such an award within a period of two years from the date of
publication of the declaration. If the award is not made within this time, the entire
acquisition proceedings of that land lapse - and the whole process would have to restart from
Step 1 if the same land is to be acquired under the Act. [S, 11 - A]

If, at any stage of the proceedings, the interested persons appearing before the Collector agree
in writing on all the matters to be included in the award, the Collector may, without making
any further inquiry, make an award according to the terms of such an agreement, and such an

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award need not be in the prescribed Form 14. Such an agreement is not liable to be registered
under the provisions of the Registration Act, 1908.

The award is then to be filed in the office of the Collector and is to be treated as final and
conclusive evidence, as between the Collector and the interested persons (whether or not such
persons appeared before him) as regards the true area and value of the land and the of the
compensation amount amongst the interested persons. [S, 12]

Clerical or arithmetical errors appearing in the award may be corrected by the Collector either
on his own motion or on an application from an interested person or a local authority.
However, this can be done only within six months from the date of the award.

The Supreme Court has observed (in Harishchandra Raj Singh v. Deputy Land Acquisition
Officer, AIR 1961 SC 1500) that the award of the Collector is merely an offer or tender of the
compensation amount (as determined by the Collector) to the owner of the land, who may
either accept such offer or have the matter referred to the court for its determination.

Step 8: Taking of possession and payment of compensation

When the Collector has made an award under S. 11, he has the power to take possession of
the land which thereupon vests absolutely in the Government, free from all encumbrances. [S.
16]

At the same time, the Collector must also make payment of the compensation awarded by
him to the persons entitled thereto. [S. 31]

In case the amount of compensation is not paid on or before taking possession of the land, the
Collector is liable to pay interest on the amount at the rate of 9% p.a. If the delay in making
the payment is one year or more, interest is to be paid at the rate of 15% p.a. [S, 34]

Summary of the procedure for acquisition of land under the Act

The appropriate Government can acquire land under the Act by following the eight steps
summarized below, namely, -

Step 1: Preliminary survey (in Maharashtra only): In the State of Maharashtra, a preliminary
survey may be carried out by an officer of the State Government to determine whether land in
any locality is needed, or is likely to be needed, for any public purpose.

Step 2: Notification: A Notification regarding the proposed acquisition of the specified land
is to be published in the Official Gazette and 2 daily local newspapers, one of which at least
should be in the regional language. A public notice of the substance of the Notification is also
to be put up at convenient places in the locality.

Step 3: Filing of objections: The next step is the filing of objections against the proposed
acquisition by interested persons, that is, owners, occupiers or others who have some interest
in the land, giving them an opportunity to raise their claims against the move of the
government to acquire the land. All persons aggrieved by the proposed acquisition are
required to file their objections in writing before the Collector within thirty days from the

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date of the Notification. After hearing all objections and making necessary inquiries, the
Collector files a report before the appropriate Government.

Step 4: Declaration: If the appropriate Government is satisfied, after considering the report of
the Collector, that any particular land is needed for a public purpose, a declaration is made to
that effect within a period of one year from the date of the Notification and is to be published
in the same way as the Notification.

Step 5: Direction to the Collector: Once the land is declared to be needed for a public
purpose, the appropriate Government must direct the Collector to cause the land to be
marked, measured and a plan thereof to be made.

Step 6: Notice to interested persons: The Collector must then cause public notices to be given
at convenient places on or near the land, stating that the Government intends to take
possession of such land and that compensation claims may be filed before him by all persons
interested in the land. The notice must require all interested persons to appear personally or
through an agent before the Collector at a time and place mentioned in the notice, not
however being less than fifteen days from the publication of the notice.

Step 7: Inquiry and award: The Collector must then proceed to inquire into the objections
filed by interested persons as regards the measurement of the land, the value of the land (as
on the date of publication of the Notification) and the respective interests of persons claiming
compensation. After making the necessary inquiries, the Collector must make an award (in
the prescribed form and signed by him), stating (a) the true area of the land, (b) the
compensation which, in his opinion, should be allowed for the land, and (c) the
apportionment of such compensation amongst the claimants. If the award is not made by the
Collector within two years from the publication of the declaration, all the acquisition
proceedings taken earlier lapse.

Step 8: Taking of possession and payment of compensation: When the Collector has made an
award as above, he has the power to take possession of the land which thereupon vests
absolutely in the Government, free from all encumbrances. The Collector must also make
payment of the compensation awarded by him to the persons entitled thereto. In case the
amount of compensation is not paid on or before taking possession of the land, the Collector
is liable to pay interest on the amount as provided in S. 34 of the Act.

Note on Possession of land by the Government in cases of urgency?

area required for defence of India or for national security or for any emergency arising out of
natural calamity or for any other emergency with the approval of parliament.

Special provisions have been made in S. 17 of the Act for the acquisition of land in cases of
urgency. These provisions can be summarised as under:

(a) Firstly, in cases of urgency, the appropriate Government may, on the expiry of fifteen
days from the date of publication of the notice to interested persons, direct the Collector to
take possession of the land needed for a public purpose although no award has been made by

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the Collector in respect of that land. In such cases, the land thereupon vests absolutely in the
Government, free from all encumbrances.

(b) Secondly, (1) if due to any sudden change in the channel of any navigable river or other
unforeseen emergency, it becomes necessary for any railway administration to acquire
immediate possession of any land for maintenance of the railway traffic or for making on
such land, a riverside or ghat station or for providing a convenient connection to any such
station; or (2) if the appropriate Government considers it necessary to acquire immediate
possession of any land for maintaining any structure or system pertaining to irrigation, water
supply, drainage, road communication or electricity, the Collector may, immediately after the
publication of the notice to interested persons (Step 6, above) and with the previous sanction
of the appropriate Government, enter upon and take possession of such land, which thereupon
vests absolutely in the Government, free from all encumbrances.

The Collector cannot, however, take possession of any building or part of a building, without
first giving to the occupier thereof, at least 48 hours' notice of his intention to do so - or such
longer notice as would be reasonably sufficient to enable the occupier to remove his movable
property from the building without unnecessary inconvenience.

At the time of taking possession, the Collector must also offer to the interested persons,
compensation for the standing crops and trees, if any on such land and for any damage
sustained by them on account of the sudden dispossession. If such an offer of the Collector is
not accepted, these amounts are to be added in the final compensation that is paid.

Before taking possession of such land under clause (a) or clause (b) above, it is obligatory on
the part of the Collector to pay eighty per cent of the compensation amount (as estimated by
him) to the persons entitled to the land. If such an amount exceeds the amount of
compensation ultimately awarded under the Act, the excess amount is to be refunded by the
parties who received the compensation within three months from the date of the Collector's
award. If such amount is not so refunded, it can be recovered from the concerned persons as
arrears of land revenue.

If, however, the Notification issued by the Government does not expressly indicate any
urgency for the acquisition, urgency expressed in departmental files would not be relevant.
(Sudhir Chaudhary v. Union of India, AIR 1955 Del. 391)

Explain the Role of COURT Under LAA? procedure?S.18 S.28?

Ss. 18 to 28-A of the Act contain provisions regarding a reference to the court and the
procedure to be followed in cases where the award of the Collector is not acceptable to the
persons interested in the land being acquired under the Act.

Under S. 18 of the Act, after the Collector has made an award, if any interested person has
not accepted such an award, he may, by an application in writing made to the Collector,
require that the matter be referred by the Collector for the determination of the court. As seen
earlier, under S. 3 of the Act, the word "court" refers to the principal civil court of original
jurisdiction.

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Such an application may be filed by an interested person, whether his objection is as regards -

(a) the measurement of the land; or

(b) the amount of the compensation; or

(c) the persons to whom such compensation is payable; or

(d) the apportionment of the compensation amongst the interested persons.

The application must, however, state the grounds on which the objection is filed.

If the person filing such an objection was present before the Collector or was represented
before the Collector, the application is to be filed within six weeks from the date of the
Collector's award. In other cases, the application is to be made within six weeks from the date
of the notice issued by the Collector under S. 12 of the Act or within six months from the date
of the Collector's award, whichever period expires first. [S, 18]

Under an amendment of the Act applicable only in Maharashtra, any order made by the
Collector on an application under S. 18 is subject to revision by the High Court as if the
Collector were a "court" subordinate to the High Court under the Code of Civil Procedure,
1908.

Under S. 19 of the Act, when making such a reference, the Collector must state the following
in writing for the information of the court, namely, -

(a) the situation and extent of the land, with particulars of any trees, buildings or standing
crops thereon;

(b) the names of the persons who he has reason to think are interested in the land;

(c) the amount awarded for damages and paid or tendered under S. 5 or S. 17 of the Act and
the amount of compensation awarded under S. 11 of the Act;

(d) the amount paid (or deposited) under S. 17;

(e) if the objection is as regards the amount of the compensation - the grounds on which the
amount of the compensation was determined;

(f) a schedule containing the particulars of the notices served upon, and the statements made
to or delivered by, the parties interested in the land.

The court then serves a notice specifying the day on which the court will proceed to
determine the objection. Such a notice is to be served on:

- the applicant;
- all persons interested in the objection - except those who have consented to receive
payment of the compensation under the award without any protest; and
- the Collector - in cases where the objection is as regards the area of the land or the
amount of the compensation.
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The hearing is to be in open court and the scope of the inquiry is to be restricted to a
consideration of the interests of the persons affected by the objection.

Note on Matters to be considered when determining compensation?

Under S. 23 of the Act, the court must take the following six matters into consideration when
determining the amount of compensation to be awarded for acquisition of land under the Act,
namely -

1. the market value of the land on the date of the publication of the Notification under S. 4 of
the Act;

2. any damage sustained by the interested person, by reason of the taking of any standing
crops or trees which may be on the land at the time when the Collector takes possession of
the land;

3. the damage, if any, sustained by the interested person, at the time of the Collector's taking
possession of the land, by reason of severing such land from his other land (if any);

4. the damage, if any, sustained by the interested person, at the time of the Collector's taking
possession of the land, by reason of the acquisition injuriously affecting his other property,
movable or immovable, in any other manner or his earnings;

5. if, in consequence of the acquisition of the land by the Collector, the interested person is
compelled to change his residence or place of business, the reasonable expenses (if any)
incidental to such change; and

6. the damage, if any, bona fide resulting from the diminution of the profits of the land
between the time of the publication of the declaration under S. 6 of the Act and the time of
taking possession of the land by the Collector.

In addition to awarding the market value of the land under clause (1) above, the court must
also award:

(a) an additional sum equal to 30% of such market value in consideration of the compulsory
nature of the acquisition; and

(b) an additional amount calculated at the rate of 12% of such market value for the period
from the date of the publication of the Notification under S. 4 of the Act upto the date of the
award of the Collector or the date of taking possession of the land, whichever is earlier.

the concept of 'market value' plays an important role in the determination of compensation
payable for acquired land. Additionally, it is the market value on the date of the Notification -
and not on the date of taking possession that is relevant. This can lead to unfair, and even
absurd consequences in some cases. It is for this reason that the 2007 Amendment of the Act
proposed that the basic compensation in all cases of land acquisition would be the market
value of the land as at the date of its acquisition, rather than on the date of its Notification.
However, as stated earlier, this amendment of the Act, though passed by the Lok Sabha,
lapsed when the Lok Sabha was dissolved.

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As observed by the Supreme Court, the concept of 'market value' envisages a price which a
willing purchaser would pay for a bona fide transfer to a willing seller at the material time
under a genuine transaction. (Bhagwathula Sammanna v. Special Tehsildar & Land
Acquisition Officer, 1991 (4) SCC 506).

Therefore, the price of the sale of some other land in the neighbourhood within a reasonable
time before or after the date of the Notification would be a good piece of evidence and would
provide reliable data to calculate the value of the acquired land. (Osman Khan v. State of
Maharashtra, 1994 Mah. L. J. 1103)

The Supreme Court has (in Shaji Kuriaksose v. Indian Oil Corp. Ltd., (2001) 7 SCC 650) laid
down that the following five factors pertaining to comparable sales should be kept in mind
when ascertaining the market value of the acquired land, namely, -

- the sale of another land relied upon must be a genuine transaction;

- the sale deed of such land must have been executed around the time of the date of issue
of the Notification in respect of the acquired land;
- the land covered by the sale must be in the vicinity of the acquired land;
- the land covered by the sale must be similar to the acquired land; and
- the size of the plot of land covered by the sale must be comparable to the size of the
acquired land.

Note on Matters to be neglected when determining compensation?

S. 24 of the Act lays down eight matters which are to be "neglected" when ascertaining such
compensation, that is, eight matters which must not be taken into consideration when
determining the amount of compensation, namely, -

(i) the degree of urgency which led to the acquisition of the land;

(ii) any disinclination of the person interested in the land to part with the land which is being
acquired;

(iii) any damage sustained by the interested person which, if caused by a private person,
would not render such a person liable in a suit;

(iv) any damage which is likely to be caused to the land after the date of the publication of
the declaration under S. 6, by or in consequence of the use to which such land will be put;

(v) any increase in the value of the land likely to accrue from the use to which it will be put
when acquired;

(vi) any increase to the value of some other land of the interested person, likely to accrue
from the use to which the acquired land will be put;

(vii) any outlay or improvements on, or disposal of the land acquired, commenced, made or
effected without the sanction of the Collector after the date of the Notification under S. 4 of
the Act; or

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(viii) any increase to the value of the land on account of its being put to any use which is
forbidden by the law or which is opposed to public policy.

Order of the court

After considering all the relevant matters listed in S. 23 of the Act and keeping out of
consideration all the eight matters enumerated in S. 24 thereof, the court passes an order as
regards the compensation payable in respect of the land acquired under the Act. However,
this amount cannot be less than the amount awarded by the Collector under S. 11 of the Act.
In other words, the court has the power to increase the amount of the compensation but has
no power to reduce the amount already fixed by the Collector. [S, 25]

Object of LAA 2013: are

+ To ensure a humane participative informed and transparent process for the land acquisition
for

- Industrialization,
- Development of essential infrastructure facilities and
- Urbanization

With the least disturbances to the owners of the land and other affected families.

+ To provide just and fair compensation to the affected families whose land has been
acquired or proposed to be acquired or are affected by such acquisition.

+ to make adequate provisions for such affected persons for their rehabilitation and
resettlement.

+ to ensure that the cumulative outcome of compulsory acquisition should be that affected
person become partners in development leading to an improvement in their post-acquisition
social and economic status and

+ for matters connected therewith or incidental thereto.

Administrator [S. 3(a)]: The term 'administrator' is defined to mean an officer appointed for
the rehabilitation and resettlement of affected families under S. 43(1) of the Act.

Affected area [S.3(b)]: "Affected area" means such area as may be notified by the
appropriate Government for the purposes of land acquisition.

Affected family [S. 3(c)]: "Affected family" includes -

(i) a family whose land or other immovable property has been acquired;
(ii) a family which does not own any land but a member or members of such family
may be agricultural laborers, tenants including any form of tenancy or holding of
usufruct right, sharecroppers or artisans or who may be working in the affected
area for three years prior to the acquisition of the land, whose primary source of
livelihood stands affected by the acquisition of land;

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 (iii) the Scheduled Tribes and other traditional forest dwellers who have lost any of
their forest rights recognized under the Scheduled Tribes and Other Traditional
Forest Dwellers (Recognition of Forest Rights) Act, 2006 due to acquisition of
land;
(iv) a family whose primary source of livelihood for three years prior to the
acquisition of the land is dependent on forests or water bodies and includes
gatherers of forest produce, hunters, fisher folk and boatmen and such livelihood
is affected due to acquisition of land;
(v) a member of the family who has been assigned land by the State Government or
the Central Government under any of its schemes and such land is under
acquisition;
(vi) a family residing on any land in the urban areas for preceding three years or more
prior to the acquisition of the land or whose primary source of livelihood for three
years prior to the acquisition of the land is affected by the acquisition of such land.

Appropriate Government [S.3(e)]: "Appropriate Government" means, -

(i) in relation to acquisition of land situated within the territory of a State, the State
Government;

(ii) in relation to acquisition of land situated within a Union territory (except Puducherry), the
Central Government;

(iii) in relation to acquisition of land situated within the Union territory of Puducherry, the
Government of Union territory of Puducherry;

(iv) in relation to acquisition of land for public purpose in more than one State, the Central
Government, in consultation with the concerned State Governments or Union territories; and

(v) in relation to the acquisition of land for the purpose of the Union as may be specified by
notification, the Central Government.

In respect of a public purpose in a District for an area not exceeding such as may be notified
by the appropriate Government, the Collector of such District shall be deemed to be the
appropriate Government.

Cost of acquisition [S. 3(i)]: "Cost of acquisition" includes -

(i) amount of compensation which includes solatium, any enhanced compensation ordered by
the Land Acquisition and Rehabilitation and Resettlement Authority or the Court and interest
payable thereon and any other amount determined as payable to the affected families by such
Authority or Court;

(ii) demurrage to be paid for damages caused to the land and standing crops in the process of
acquisition;

(iii) cost of acquisition of land and building for settlement of displaced or adversely affected
families;

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(iv) cost of development of infrastructure and amenities at the resettlement areas;

(v) cost of rehabilitation and resettlement as determined in accordance with the provisions of
this Act;

(vi) administrative cost, -

(a) for acquisition of land, including both in the project site and out of project area lands, not
exceeding such percentage of the cost of compensation as may be specified by the
appropriate Government;

(b) for rehabilitation and resettlement of the owners of the land and other affected families
whose land has been acquired or proposed to be acquired or other families affected by such
acquisition;

(vii) cost of undertaking Social Impact Assessment Study.

Land Acquisition Costs means the full cost of all land to be acquired for the Public Project,
either by fee simple title or other control, and either through negotiated purchase or eminent
domain, including the cost of legal proceedings in eminent domain, and compensation for
land and standing structures or crop, relocation, goodwill, fixtures, equipment,
environmental remediation, and related costs, as described in the MOU.

Family [S. 3(m)]: "Family" includes a person, his or her spouse, minor children, minor
brothers and minor sister’s dependent on him. However, widows, divorcees and women
deserted by families are to be considered separate families. Also, an adult of either gender
with or without spouse or children or dependents is to be considered as a separate family for
the purposes of this Act.

Displaced family [S. 3(k)]: "Displaced family" means any family, who on account of
acquisition of land has to be relocated and resettled from the affected area to the resettlement
area.

Land [S. 3(p)]: "Land" includes benefits to arise out of land, and things attached to the earth
or permanently fastened to anything attached to the earth.

Holding of land [S. 3(n)]: "Holding of land" means the total land held by a person as an
owner, occupant or tenant or otherwise.

Land owner [S. 3(r)]: "Land owner" includes any person, -

(i) whose name is recorded as the owner of the land or building or part thereof, in the records
of the authority concerned; or

(ii) any person who is granted forest rights under the Scheduled Tribes and Other Traditional
Forest Dwellers (Recognition of Forest Rights) Act, 2006 or under any other law for the time
being in force; or

(iii) who is entitled to be granted Patta rights on the land under any law of the State including
assigned lands; or
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(iv) any person who has been declared as such by an order of the court or Authority.

Landless [S. 3(q)]: "Landless" means such persons or class of persons who may be -

(i) considered or specified as such under any State law for the time being in force; or

(ii) in a case of landless not being specified under sub-clause (i), as may be specified by the
appropriate Government.

Market value [S. 3(u)]: "Market value" means the value of land determined in accordance
with S. 26.

Person interested [S. 3(x)]: "Person interested" means -

(i) all persons claiming an interest in compensation to be made on account of the acquisition
of land under this Act;

(ii) the Scheduled Tribes and other traditional forest dwellers, who have lost any forest rights
recognized under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition
of Forest Rights) Act, 2006;

(iii) a person interested in an easement affecting the land;

(iv) persons having tenancy rights under the relevant State laws including share-croppers by
whatever name they may be called; and

(v) any person whose primary source of livelihood is likely to be adversely affected.

Requiring body [S. 3(zb)]: "Requiring body" means a company, a body corporate, an
institution, or any other organization or person for whom land is to be acquired by the
appropriate Government, and includes the appropriate Government, of land is for such for
subsequent transfer of such land is for public purpose to a company body corporate, an
institution, or any other organization, as the case may be, under lease, license or through any
other mode of transfer of land.

Small farmer [S. 3(ze)]: "Small farmer" means a cultivator with an un-irrigated land holding
upto two hectares or with an irrigated land holding up to one hectare, but more than the
holding of a marginal farmer.

Marginal farmer [S. 3(t)]: A marginal farmer means a cultivator with an un-irrigated land
holding upto one hectare or irrigated land holding upto one-half hectare.

Public purposes: The following are examples of public purposes for land acquisition in India
as defined by Section 2(1) of the Act:

 For any work essential to the national security, defence, or safety of the people, or for
strategic reasons pertaining to the navy, military, air force, and armed forces of the
State, including central paramilitary forces; or

 For infrastructure projects, such as those listed below, specifically:

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 1. All actions or things mentioned in the notice issued by the Government of India’s
Department of Economic Affairs (Infrastructure Section) number 13/6/2009-INF,
dated March 27, 2012, with the exception of private hospitals, private schools, and
private lodging;

2. Projects which involve agro-processing, the provision of agricultural inputs,

warehousing, cold storage facilities, and marketing infrastructures for agriculture and
related industries like dairy, fisheries, and meat processing, established or owned by
the relevant government, a farmers’ cooperative, or an institution established by
statute;

3. A plan for mining operations or industrial corridors, as well as national investment

and manufacturing zones, as specified in the National Manufacturing Policy;

4. A project to provide sanitary facilities and water harvesting buildings;

5. A project for institutions or programmes for education and research that are run or
supported by the government;

6. A project for sports, healthcare, tourism, and space programme transportation;

7. Any infrastructural facility that the Central Government may notify in this respect
after notifying Parliament of the notification;

 An initiative for families who were impacted by the project;

 Housing projects or any income groups that the relevant government may from time to
time specify;

 The supply of land for residential uses for the weaker sections in rural and urban
regions, or a planned development project, or the development of village areas or any
place in urban areas;

 Project for residential purposes to the poor or landless or to those living in disaster-
prone regions, or to people who have been displaced or otherwise impacted by the
execution of any project conducted by the Government, any local authority, or a
company owned or managed by the State.

Note on SOCIAL IMPACT ASSESSMENT?

Ss. 4 to 9 of the Act have introduced a new concept in the land acquisition law prevailing in
India, namely, Social Impact Assessment (SIA).

S. 4 provide that whenever the appropriate Government intends to acquire land for a public
purpose, it must carry out a SIA study in the affected area. Such a study is to be made in
consultation with the Panchayat, Municipality or the Municipal Corporation of that area.
Such Government must also ensure that the SIA study is completed within a period of six
months from the date of its commencement.

The SIA study must include the following six important areas, namely, -

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(a) an assessment as to whether the proposed acquisition serves a public purpose;

(b) estimation of affected families and the number of families among them likely to be
displaced;

(c) the extent of lands, public and private, houses, settlements and other common properties
likely to be affected by the proposed acquisition;

(d) whether the extent of land proposed for acquisition is the absolute bare-minimum extent
needed for the project;

(e) whether land acquisition at an alternate place has been considered and found not feasible;

(f) a study of social impacts of the project, and the nature and cost of addressing them and the
impact of these costs on the overall costs of the project vis-a-vis the benefits of the project.

Whilst undertaking the SIA, the appropriate Government must, inter alia, take into
consideration the impact that the project is likely to have on various components, such as –

- livelihood of affected families;

- public and community properties, assets and infrastructure, particularly roads, public
transport, drainage, sanitation, sources of drinking water, sources of water for cattle,
community ponds, grazing land, plantations;
- public utilities such as post offices, fair price shops, food storage godowns, electricity
supply, health care facilities, schools and educational or training facilities, anganwadis,
children parks, places of worship, land for traditional tribal institutions and burial and
cremation grounds.

A public hearing must also be held whilst preparing the SIA, so that the views of the affected
families may be ascertained, recorded and included in the SIA report. (S, 5)

Copies of the SIA report must be made available in the local language, to the Panchayat,
Municipality or Municipal Corporation (as the case may be) and also to the offices of the
District Collector, the Sub-Divisional Magistrate and the Tehsil. Copies of the report are also
to be published in the affected area and uploaded on the website of the appropriate
Government (5, 6)

The SIA report is then to be evaluated by an independent multi- disciplinary Expert Group
constituted by the appropriate Government. The Expert Group must include the following:

(a) two non-official social scientists;

(b) two representatives of Panchayat, Gram Sabha, Municipality or Municipal

Corporation, as the case may be;

(c) two experts on rehabilitation; and

(d) a technical expert in the subject relating to the project.

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if the Expert Group is of the opinion that -

(a) the project does not serve any public purpose; or

(b) the social costs and adverse social impacts of the project outweigh the potential
benefits,

it must make a recommendation, within a period of two months that the project should be
abandoned forthwith, giving details and reasons for the decision. If, inspite of such a
recommendation, the appropriate Government proceeds with the acquisition, it must ensure
that its reasons for doing so are recorded in writing.

If, on the other hand, the Expert Group is of the opinion that -

(a) the project will serve any public purpose; and

(b) the potential benefits outweigh the social costs and adverse social impacts, -

it must make specific recommendations with details and reasons, within a period of two
months, whether the extent of the land proposed to be acquired is the absolute bare minimum
extent needed for the project and whether any "less displacing options" are available. (S, 7)

S. 8 then imposes a responsibility on the appropriate Government to ensure that -

(a) there is a legitimate and bona fide public purpose for the proposed acquisition which
necessitates the acquisition of the land identified;

(b) the potential benefits and the public purpose referred to in clause (a) outweighs the social
costs and adverse social impact as determined by the Social Impact Assessment that has been
carried out;

(c) only the minimum area of land required for the project is proposed to be acquired;

(d) there is no unutilized land which has been previously acquired in the area;

(e) the land, if any, acquired earlier and remained unutilized, is used for such public purpose
and make recommendations in respect thereof.

The appropriate Government must also examine the report of the Collector, if any, the Report
of the Expert Group on the SIA study and then recommend such area for acquisition, which
would ensure minimum adverse impact on the affected individuals. (S. 8)

If, however, land is proposed to be acquired by invoking the urgency provisions under S. 40
of the Act, the appropriate Government may not undertake the SIA study. (S. 9)

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