Law Watch
Compensation in land acquisition
S M Masum Billah & Shakhawat Shamim
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Photo: www.photo.webbangladesh.com |
The Constitution of the Peoples' Republic of Bangladesh have enshrined right to property as a fundamental right. Article 42 of the Constitution runs as thus: (1) “Subject to any restrictions imposed by law, every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property and no property shall be compulsorily acquired, nationalized or requisitioned save by authority of law”. (2) “A law made under clause (1) shall provide for the acquisition, nationalization or requisition with compensation and shall either fix the amount of compensation or specify the principles on which, and the manner in which, the compensation is to be assessed and paid, but no such law shall be called in question in any court on the ground that any provision in respect of such compensation is not adequate”. It appears that right to property is not absolute in nature and its sanctity has been qualified by certain considerations. It is understandable that acquisition of land is inevitable in order to carry out developmental activities. But question is that how cheap an individual's fundamental right can be, so as to surrender it to the altar of 'acquisition'? Article 42 provides a safety valve for the law makers that 'no law can be called into question in the courts of law on the ground of inadequacy of compensation'. Can this proposition be paraphrased as such: you are given a right, but it may be taken away merely by giving inadequate compensation! If it is so, how should we term this two reverse attitude of the constitution? However, a liberal reading of the Article demands that the compensation determining authorities should develop 'the principles' and 'manner' of acquisition. The deprivation of fundamental right to property (in our case it is land) can be justified in developing such standard principles and manner. Do we have such principles? If we have what are those? And do these principles win the test of 'principles' as contemplated by the constitution and other established jurisprudence?
'Right to land' is rather posed from a negative angle in Article 42. In opening words, it reminds us first 'any restrictions imposed by law'! Whereas, to provide you an example, Nepali Constitution has guaranteed first the 'right to property' then it speaks about some restrictions. It perhaps does not matter, but certainly is indicative of state's indifference towards right to land of the citizens.
'Under the Acquisition and Requisition of Immovable Property Ordinance, 1982, the compensation scheme is governed by certain considerations. According to Section 7, The Deputy Commissioner may, on any appointed day, enquire into any objections, inter alia, on the value of the land acquired and the interest of the persons claiming the compensation and make an award with respect to the amount as he thinks adequate. Section 8 provides that in determining an award for compensation the Deputy Commissioner must take into consideration the market value of the land on the date of the publication of notice. This is often considered as unfair means of determining compensation as in this way no subsequent accrual is taken into account while paying compensation. That means the opportunity cost of the land is hardly a factor in determining amount of compensation. Such consideration specially encourages the pauperization process of the people who own the piece of land as a sole means of survival. In the decision of Fomento R & H Ltd. v. Gustavo Ranato da Cruz Pinto Case , the Indian Court held that: “market value on the basis of which compensation is payable under Section 23 (in Bangladesh, section 8) of the Act means the price that a willing purchaser would pay to a willing seller for a property having due regard to its existing condition, with all its existing advantages, and its potential possibilities when laid out its most advantageous manner, excluding and advantage due to the carrying out of the scheme for the purpose for which the property is compulsorily acquired.” Such a consideration is unheard of in Bangladesh. However, beside the market value, any damage sustained by the person interested taken into account in determining the compensation, under the provision of section 8. Section 9 of the above legislation provides some matters which should not be considered in determining compensation. The degree of urgency and disinclination to part with the property are such grounds. In case of compulsory acquisition land owners are compelled to sacrifice their emotional attachment over the ancestral land.
Attachment to land has not received soft corner in Bangladeshi laws. To reiterate, Article 42 (2) of the Constitution of People's Republic of Bangladesh contains a bar, no question can be put in question before any Court on the ground that any particular compensation is not adequate! It is in this place where the administrative authorities come into play.
Where the U. S. Supreme Court takes the position that the determination of compensation is judicial not legislative function, Bangladesh polity, on the other side, has put an extraordinary restriction and a distinctive feature over the right to property. American Courts held that the proper measure of “just compensation” is “fair market value”, i.e., the price that a willing but unpressured buyer would pay, with both parties fully informed of the property's good and bad features. This approach also takes into account the property's highest and best use (i.e., its most profitable use) which is not necessarily its current use or the use mandated by current zoning if there is a reasonable probability of zone change.
Thus the award of adequate compensation amount has wider amplitude. As this is a purely administrative decision, it depends on administrative practice and orders from State authorities. So it opens the door of value discrepancy between the amount required by the land owners and the value to be awarded by the authorities. This situation is more vulnerable in our country. As we know, in determining the values of compensation to be awarded for any property the Deputy Commissioner shall take into consideration the 'market value' of the property. But in practice, the market value is calculated by the Official at the district on the basis of available Record of Rights and Records of Transfer of Property. In Bangladesh, it is a common practice of under reporting the value of land in transfer deeds just to avoid the revenues. So before ensuring the adequate compensation to the land owners, reform our registering system of transfer deeds seems imperative. So long compensation would determine solely on the basis of market value, land owners never have any chance to get the satisfactory compensation. On other hand, there are also a few example of fake transfer at an artificially high level taking place in anticipation of land being acquired, in order to raise the level of compensation. Moreover our land record system is very disorganized and outdated one. Most of the people do not get registered their land by the previous owner. As a result, determination of the real owner takes long time and payment of compensation is delayed. In America, when payment of compensation is delayed, the owner of the acquired land is entitled to receive interest on the award of compensation that accrues from the time of acquisition up to the time of payment. But no such provision can be found in our law, even in the Indian Sub-continent. Lack of sufficient fund is often used as an excuse of delay of payment. Although there is arbitration forum for remedy but jurisdictional limitation and caseloads are two barriers in getting expedient and adequate compensation.
At present, every acquisition process does not go un-protested by the affected people. It is largely because of politics of development and lack of transparent mechanism in providing compensation for the acquired property. Vast multitude of multiple human beings is being appalled by the terrorism of development. As a result development process instead of becoming a process of inclusion has become an instrument of exclusion. Therefore, the gap between the state and people has widened pervasively. The state now needs to rethink its land acquisition law, policy and strategy with a moral compass that cares for justice and rights of the mass people.
The writers are teachers of law at Jagannath University Dhaka and BGC Trust University, Chittagong respectively.
