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State must do it the right way

On the process of compulsory acquisition of private lands by the State or arms of the State, some statutory or State agencies, do not properly follow or observe correct procedures when entering into occupation or possession of the lands of private citizens.

Citizens can go to the courts for relief and redress.

The procedure for compulsory acquisition of land by the State is outlined by the Land Acquisition Act No.28 of 1994 in three (3) main stages.

The first stage involves the publication of the intended acquisition by the State of particular lands in the Gazette as well as notification to people having some interest in the land.

The second stage involves gaining access to or possession of the lands to commence work through an order from the President authorising the Commissioner of State Lands to take possession and apply the land for its intended use (without the formal vesting in land by the State).

The third stage involves the formal acquisition of land, that is, the formal vesting of the land in the State. Here the President, by order, will declare the land is required for public purposes and the formalities for vesting will be completed.

The act also deals with compensation for displaced landowners/occupiers [section 11], emergency acquisition [section 5(4)] and acquisition by other authorities [section 10].

It is evident over the years the process of land acquisition by the State has been a long and exhaustive one, fraught with delays. These usually include:

• Failure by requesting agency to provide relevant documentation on a timely basis for the initiation of acquisition proceedings.

• Time expended in the negotiation process on compensation payable to landowners.

• The funds available for land acquisition.

The most common area for complaints seemed to fall in the area of compensation.

Prior to the 1994 legislation, compulsory acquisition was governed by the Land Acquisition Act Chp.58:01. In Re The Constitution of T&T and The Application of Samair Bansraj and others, (No. 729 of 1983), the State proposed to enlarge what was at the time the Princess Margaret Highway, to convert it into a dual carriageway system.

The applicants owned portions of the land that fell within the path of the proposed expansion. The State accordingly decided to acquire under the Land Acquisition Act, chp.58:01.

The applications deposed in affidavits to the fact that apart from promising them adequate compensation, the State had promised to relocate them by giving them building lots free of charge.

However the judge held that the State had sought to mitigate the full effects of the act by allowing the applicants a reasonable time to find alternative accommodation.

While the application was rejected, one of the main arguments raised was that the former act did not provide for the “prompt and adequate payment of compensation at or before the taking of the acquired property.”

In response, the judge reasoned the former act was an existing law under section 6 of the Constitution and as such was protected from the “taint of unconstitutionality” by that section.

Through improvements in the 1994 legislation, certain problems have been addressed, namely:

• Notice of extended publication, ensuring not just official notice but actual notice by daily newspapers (as well as Gazette) and personal service by section 3 of the 1994 act. Also allows seven days to elapse before the State enters the land and gives occupiers six weeks to make representation to the President, from the date of the notice publication.

• Allows the right to claim compensation even without the formal vesting in lands by the State. Under section 4, a period of two (2) months is allowed from the date of publication of the notice before an order for possession by the State is made. Also, the order is published as required in section 3 of the act.

Compensation is now available expeditiously. Legislation now provides for advance payment to landowners (prior to formal vesting in land by the State) and valuations assessed at increased interest rates of nine per cent.

Recognition of the need for emergency acquisition situations by section 5(4) of the act which allows the State to acquire lands without publishing the notice to the landowner when the President is of the view that such an acquisition is necessary to expedite the acquisition process in the national interest.

The benefits of compulsory acquisition of lands by the State should not be ignored. Such acquisitions:

• Allow the Government or State agencies to provide adequate and affordable housing, schooling, roads and shelter to all citizens.

• Assist in the national physical development of the country by establishing viable self-sustaining settlements;

• Facilitate the expansion of highways and byways, roads and avenues and vending areas such as municipal markets to encourage economic activity in communities.

It is, therefore, little wonder the aim of the new legislation should be to balance the necessary right of the State to acquire lands with the right of the individual to be compensated justly and expeditiously for giving up ownership of his property. However, there is still need for the Government and State agencies to be mindful of the fundamental rights of citizens to their constitutional right of enjoyment of property so if the State wants to acquire property then they must do it the right way.