Comparative study of Land pooling Acts of various Studies

Land pooling has developed as a potent strategy for urban land development across the globe because of its comparative benefits over other strategies. Property owners make contributions of part of their land to support the development of infrastructure and amenities while also contributing to the internal financing of the project via the sale of reserve plots.

Urban peripheral regions may benefit from land-pooling, which is the process by which distinct individual landholdings can be combined into a single unit. Pooling initiatives are self-sustaining, and the expenses and revenues of each project are split among the landowners that participate. In addition to providing local governments with a strong instrument for implementing their municipal land use plans, it also helps to ensure an appropriate supply of available urban land.

Land pooling has the potential to be a successful technique for public infrastructure projects, particularly in small but expanding cities where the opportunity of well-planned greenfield development arises as a result of the rural-to-urban shift that is occurring. Land pooling has been utilised for urbanisation initiatives in Japan, Germany, Korea, the United States, Australia, India, and Thailand, among others, as a more inclusive and less expensive alternative to acquiring land.

Land pooling as a method of urban rejuvenation is becoming more popular across the globe as a means of achieving efficient, impartial, and long-term urban development. Land pooling evolved in several nations as a result of continued hostility to traditional urban regeneration strategies. However, there is limited empirical information on the experiences of land pooling societies, especially in developing Asia.

This article investigates how effectively the land pooling scheme’s execution adheres to welfare efficiency principles. We also examine at the effect of land pooling programmes on the welfare of original landowners, especially small landholders, and their influence on urban spatial expansion in this article, and conclude that land pooling has failed to deliver on its promises.

The Concept of Land Pooling

There are three ways that the Land pooling method helps with urban development. First, it helps with planning by putting together and rearranging land for better planning, then using economic processes to retrieve operational expenses, and then redistributing the economic benefits of development (called “betterment”) between land-owners and development agencies.

Land re-assembly, land re-arrangement, and repartition are some of the names used to describe this process.

To summarise, these are the stages:

Initiation (generally by plea from a vast bulk of property-owners in a particular area to the local authority). Regroupment by order may be used to compel opposing landowners to donate their property to the program. Declaration of the scheme’s boundary limitations, either by a state body acting under enabling law or by a private landowners’ group. It is possible to organise an organisation of landowners, complete with rules of association, directors, and meeting procedures.[1]

Preparation of a redevelopment strategy by the development agency or consultants, including establishing future uses and re-planning the road and plot layout, as well as the selection of a site. Buildings slated for destruction or renovation, street closures, planned public spaces, and plots set aside for private development may all be identified using this method. Before and after adjustments, plot area measurements were taken. (The readjusted plots may be found using computer programmes.)

Costing: This will appraise the market rate of all saleable plots as well as expected infrastructure development expenses.[2]

Secondary rights (tenants, mortgagors) are safeguarded when plots are returned to landowners. Typically, half of the original land area will be kept for roads and public areas, as well as cost equalisation land, allowing the other half to be redistributed as close to the original location as feasible.

There must be an assurance that land values will not fall and that the landowner will not be put at danger. The right to withdraw from the project, with the value of the property being recovered by the municipality. Landholders will be assigned plots that cover 60% of the area of the land they contributed to the project in the first place. Owners may choose to accept cash instead of land. The land that is returned, on the other hand, will be properly serviced and available for sale as urban lots.

Implementation: As the project progresses, the agency sells the “reserve” or “expense” land, and the proceeds should cover the infrastructure costs. The majority of these plots are sold through advertising and public auction. Landowners who get 60 percent of their original plot area back after a development project is worth 240 percent more than their initial contribution if the property is serviced (exempt from land transfer tax).[3]

The approach may be used in a variety of scenarios, including:

Allows for the re-planning of pre-industrial mediaeval patterns for current road layouts.

Expansion of cities into peri-urban regions without adequate planning or infrastructure When past land ownership patterns and development have been interrupted or destroyed by natural or human catastrophes (fire, flood, earthquakes, conflict devastation), with displaced people and unclear ownerships, rebuilding is necessary. In high-density urban settings, multi-level or vertical replotting is used. Regeneration locations in metropolitan regions where land assembly may be challenging and holdouts must be compensated exorbitantly. protection of the environment zones, so-called “antiquated subdivisions” (where larger densities are desired)

There are a few prerequisites for Land pooling to be efficient:

The procedure is governed by legal instruments (dispute resolution) Since the process is complicated and demands consistency, there is enough supporting technical skill Adequate cadastral records, with ownership verified through a formal landtitling system (as advocated by the World Bank and de Soto), though the technique can also be applied to land with no known owner. A development agency that has public trust, whether it is a governmental agency, a private real estate company (REC), or a joint venture.

Political acceptability, notably the willingness of landowners to share development advantages between the public and private sectors. Presence of a land market with well-established valuation standards (allowing for comparable land prices to be determined from real transactions) and growing land values (normally found in urban expansion situations). There are several advantages to be found.

The process ensures fully serviced urbanisation at no expense to taxpayers. According to the public authority, old land patterns may be replaced by new ones that are suited for planned urban development. Land can be acquired for public uses, and physical infrastructure can be funded by the developer’s share of revenues. The benefit to landowners is that they may gain from urban growth while still completing their broader societal commitments.

It allows huge projects to benefit from economies of scale, and it decreases land speculation by deterring holdouts (withholding land for future gain by a kind of ransom).

The complexity and difficulty of the procedures, as well as the adverse position of small landowners, are some of the drawbacks. It’s an approach that’s best suited to high-value ventures with significant benefits. Landowners are being coerced into cooperation by the Zoning Prefectural Government, which is threatening them with downzoning.

Dharam Chand & Others v. The State Of Haryana & Others.

The petitioners were the landlords of 17 Kanals and 18 Marlas of land located in the revenue estate of Village Garhi Alawalpur, Sub Tehsil Dharuhera, District Rewari, and their land was obtained for the general welfare by virtue of a notice dated 6.9.2012 made under Section 4 of the Land Acquisition Act, 1894 (for short, the Act), namely, the development and utilisation of land for sector roads in Sector 22, 23, and 24, Dharuhera, and the petition On 4.7.2013, a notification under Section 6 of the Act was made, and the award was handed down on 13.12.2013.[4]

The respondent-State has been adopting policies with regards to time to protect the interests of landholders, and in the year 2012, the Haryana Urban Development Authority (HUDA) announced a Land Pooling Scheme for the construction of residential sectors on 10.9.2012.

Under the said plan, landholders were given an option to become stakeholders in the development process, and therefore, landholders whose property was expected for new construction had the choice of accepting monetary compensation as provided by the Act, as well as non-statutory advantages under the rehabilitation and relocation policies, or seeking remuneration of developed plots as a full and final settlement.

Initial objections has been raised that the petitioners cannot claim allocation of plot under the Land Pooling Scheme because the petitioner’s land was acquired for the creation of sector roads in Sector 22, 23, and 24 at Dharuhera, not for carving out residential sectors. The Land Pooling Scheme, for which a notification was issued on September 10, 2012, is exclusively applicable to acquisition proceedings.[5]

The appellants’ lawyer contended that under the Plan, landholders who choose the Land Pooling Scheme are obligated to a developed residential site in the form of a residential plot, and also that the system is also relevant to acquiring deliberations undertaken for the intention of development and utilisation of land for sector roads, so the complainants are entitled to a plot under the Land Pooling Scheme.

He also argued that the petitioners’ land was procured for the production and application of land for sector roads, and that they’re being deprived of their right to evaluation for allotment of plots under the Scheme simply because their land was used for sector roads, even though sector roads are a necessary element of any residential area, and residential properties cannot be envisioned without them.

Respondents, on the other hand, have maintained their argument made in the sworn affidavit that the petitioner’ case is not protected by the Scheme due to paragraph 3 of the Scheme. It is further maintained that the petitioners’ land was bought solely for the purpose of developing sector roads, and as a result, the petitioners’ claim for allocation of a plot is not sustainable long term and has been correctly rejected by judgement dated 24.7.2014.[6]

After taking into account the opposing arguments of the parties, the court determined that the present writ petition should be granted because, as the court acknowledged, the land of the petitioners was obtained for a social benefit, namely, the advancement and utilisation of land for sector road construction.

Because sector roads constitute one of the essential components of a residential area, it would be ridiculous to conclude that the petitioners had no title to a plot simply because their property was not obtained for residential development.

Without roadways in the sector, one can only image what the residential area would be like. Sector roadways and residential areas are complementary to one another, and the notion of a residential neighbourhood without roads is illusory. The development of a road is an important stage in the development of the residential sector. There can’t be a residential building unless there’s a road.

On the basis of the respondents’ acquisitions of their land holdings for development and exploitation of land for sector roadways, the petitioners are qualified for consideration for distribution of plots under the Land Pooling Scheme.

Protection of Individual Property against Arbitrary Executive Authority

Individuals are protected by Article 300A[7] against executive authority’s arbitrary actions. The Supreme Court concluded in Bishamber Dayal Chandra Mohan v. State of Uttar Pradesh[8] that the state or its executive officials have no authority to take the law into their own hands and remove a person by executive order. ‘Before we leave with this matter, we consider it is our obligation to emphasise that the executive action taken in this instance by the State and its agents is detrimental of the fundamental principles of the rule of law,’ the Court said.

State of Himachal Pradesh vs. Wazir Chand

The following are the circumstances that gave birth to the two petitions that resulted in these two related appeals: In the year 1949, he was a partner of M/s. Prabhu Dayal and Gowri Shanker of the Jammu and Kashmir State in the wood business carried on in that State under the name and style of “The Kashmir Woods.”[9]

Individuals are protected by Article 300A from the arbitrary actions of executive authority. The Supreme Court held in Bishamber Dayal Chandra Mohan v. State of Uttar Pradesh[10] that the government or its executive officers do not even have the authority to take the law out of their own hands and dismiss a person by executive order. ‘Before we part with this case, we consider it is our obligation to emphasise that executive action being taken in this instance by the State and its agents is detrimental of the fundamental principles of the rule of law,’ the Court added.

He maintained that the company in Chamba was his only responsibility and that the partnership firm “The Kashmir forests” was uninvolved in any way. Prabhu Dayal’s case was that he established the firm “The Kashmir Woods” in 1943 as his sole propriety concern, that he later added Trilok Nath Mahajan as a partner in this concern, that in the year 1949, Sardar Bhagwan Singh persuaded the partners of this firm to enter into a joint venture with him in order to sell crude drugs and herbs, that a new company “Himachal Drug Nurseries” was established Trilok Nath was accused of exploiting the Jammu books to show a fictitious investment of Rs. 30,000 by his elder brother Wazir Chand in the firm “Kashmir Woods,” and of making Wazir Chand the sole owner of “Himachal Drug Nurseries” and transferring the Chamba worries to him without the knowledge of the other partners.[11]

Wazir Chand and Triok Nath both refused to believe these claims. ” Their case was, the Trilok Nath was the sole owner of the Chamba concern, that he obtained the leases in his own name and not for the Jammu firm from the Chamba, forest department, first in the year 1949, and then in the year 1950, that as he had no capital of his own, he borrowed a sum of Rs. 30,000 from his brother and made him a partner with him in this business and that as later on he was unable to contribute his share of the capital, the partnership was dissolved on 31st August 1950, and in consideration of a sum of Rs. 20,000 he, Trilok Nath, relinquished and transferred by means of a stamped deed of dissolution made on 10th December 1950 all his rights in the Chamba concern to Wazir Chand who thus became the sole owner of all the goods belonging to this concern in Chamba and came into possession of the same.”[12]

(3.) Prabhu Dayal reported to the Jammu police on April 3, 1951, “that Trilok nath had made duplicate accounts for submission before the income-tax authorities and had committed misappropriation under section 406 of the Indian Penal Code. The matter was taken under investigation by Amar Nath, a sub-inspector of police in Jammu and Kashmir.”

During the inquiry, “the Jammu Police arrived in Chamba on the 25th and 26th of April 1951 and, with the help of the Chamba police, seized 289 bags of medicinal herbs valued at around Rs. 35,000 that were in the actual physical possession of Wazir Chand or his men without revealing to, or acquiring orders from, any magistrate or other relevant authority.”

The commodities were distributed to many superdars in various locations around Himachal Pradesh. Wazir Chand protested vigorously against the seizures, claiming that the seizures were unlawful and without authority and that the commodities should be freed, but his protests were in vain.

Land Acquisition under Land Acquisition, Rehabilitation and Resettlement Act

The Land Acquisition, Rehabilitation and Resettlement (LARR) Act 2013 governs land acquisition in India. The Land Acquisition Act of 1894 was repealed by this Act.[13]

The primary goal of this legislation is to ensure that impacted households are compensated, rehabilitated, and relocated in accordance with established norms and regulations. The Act primarily focuses on providing sufficient compensation to persons whose properties are acquired according to government directives. The Central or State Government has the authority to purchase property against the wishes of the person, but they must ensure that the people who have been harmed are paid for their losses. Property obtained under the Act should only be utilised for the public good.

The LARR Act specifies processes that the state government must follow in order for the land purchase to be legally lawful. The process starts with giving the person who is affected a preliminary notice, and it ends when they get the help they need to get back on their feet.[14]

The public good:

This Act emphasises the importance of public purpose by stating that property may only be purchased by the competent authorities if it will be used for public purposes. The word “public purpose” is defined in the Act, and property may only be acquired from persons when they have met the conditions set out in this Section. It categorises public purpose into two categories: strategic and infrastructural. This section gives the State Government some rights and also places restrictions on it when it comes to purchasing land.

The definition of “public purpose” has been expanded by the Law Commission of India to include the reason for which the State may desire to purchase property under the Land Acquisition Act.

The Supreme Court determined in Habib Ahmed v. State of Uttar Pradesh[15] that neither the notification nor the declaration may be annulled on the grounds that the property was not required for a public purpose. The State Government must assess whether the land is necessary for a public purpose or not. The Court said that it is the Court’s responsibility to evaluate whether a purchase is for public purposes or not whenever the matter arises. However, the government seems to be the best arbiter of whether a purchase is for a public purpose. It is not, however, the sole judge.[16]

Only if the land purchase meets the standards of public purpose and includes compensation for the affected households can it be considered constitutional.

In the case of Hamabai Framjee Petit v. Secretary of State,[17] the government granted a lease on particular property in Bombay, and they also had the authority to take over control of the land throughout the length of the lease, but only after providing compensation to the subjects of the lease. After a period of time, the government issues a notice to reclaim control of the property and utilise it for the purpose of providing housing for public employees. The court determined that the government’s possession resumption is permissible since the property resumption is for the public good.

State of Karnataka v. All India Manufacturers Organization[18] is the most recent Supreme Court decision on public purpose. In this case, land far away away from the actual alignment of the road and its periphery had been obtained for the purpose of creating a highway, and thus, even if the Highway Project was assumed to be for the public purpose, the purchase of land far away would not amount to a public purpose nor would it be covered by a public purpose (the KIAD Act).”

In Kedar Nath Yadav versus State of West Bengal & Others,[19] the lands in issue were purchased by the State Government for a specific company (TML) at the company’s request. TML was also able to pinpoint the precise area and location of the property.

The site in question was being purchased for TML’s ‘Small Car Project,’ according to the notices submitted under Sections 4 and 6 of the L.A. Act. Given the preceding, such a property purchase cannot by any stretch of the imagination be considered a ‘public purpose’ transaction rather than one for a corporation. If the land purchase in this scenario does not result in a profit for the corporation.[20]

Conclusion

Governments may use Land Pooling to manage and fund the unified subdivision of distinct private landownership for planned expansion. It is a potentially crucial strategy for enhancing urban development and land availability since it has the potential to be extensively implemented in India and other mixed-economy nations.

The Indian experience has proven that land pooling offers governments with a politically, financially, and operationally realistic way of managing planned development of private landownership. It is politically possible because most landowners are usually in favour of it.

It is financially possible since there is no investment on land assets, and the costs of construction and maintenance may be repaid quickly from the increased land value created by the pooling programs. Administratively, pooling may be done since municipalities can start with smaller initiatives and hire consultants to oversee them.

About the Author:  Rahul Saini is a 2^nd year student at Damodaram Sanjivayya National Law University, Visakhapatnam, Andhra Pradesh.

Note: The views in this article are personal only.

Bibliography

• Law of Land Acquisition and Compensation (2008) by Awasthi
• Using the Development Plan-town Planning Scheme Mechanism to Appropriate Land and Building Urban Infrastructure (2009 by S. Ballaney & B Patel
• Use of Land Pooling and Reconstitution for Urban Development: Experiences from Gujarat, India (2013) by S. Mathur.
• Land Pooling for Resubdivision and New Subdivision in Western Australia (1988) by R. W. Archer
• Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013.

End Notes

[1]38 S. MATHUR, USE OF LAND POOLING AND RECONSTITUTION FOR URBAN DEVELOPMENT: EXPERIENCES FROM GUJARAT, INDIA 199–206 (Habitat International, 2013).

[2]B PATEL AT EL.,USING THE DEVELOPMENT PLAN-TOWN PLANNING SCHEME MECHANISM TO APPROPRIATE LAND AND BUILDING URBAN INFRASTRUCTURE (India Infrastructure Report, New Delhi: Oxford University Press, 2009).

[3]DR. AWASTHI, LAW OF LAND ACQUISITION AND COMPENSATION 14 (Dwivedi Law Agency, Allahabad,1st ed.,2008).

[4]Dharam chand & others v. the state of haryana & others  2015 PNH 5008.

[5]DR. AWASTHI, LAW OF LAND ACQUISITION AND COMPENSATION 14 (Dwivedi Law Agency, Allahabad,1st ed.,2008).

[6]Dharam chand & others v. the state of haryana & others  2015 PNH 5008.

[7]INDIA CONST. Art. 300 A.

[8]Bishamber Dayal Chandra Mohan v. State of Uttar Pradesh 1982 1 SCC 39.

[9]Wazir Chand vs The State Of Himachal, 1954 AIR 415.

[10]Wazir Chand vs The State Of Himachal, 1954 AIR 415.

[11]B PATEL AT EL.,USING THE DEVELOPMENT PLAN-TOWN PLANNING SCHEME MECHANISM TO APPROPRIATE LAND AND BUILDING URBAN INFRASTRUCTURE (India Infrastructure Report, New Delhi: Oxford University Press, 2009).

[12]Dr. Awasthi, Law Of Land Acquisition And Compensation 14 (Dwivedi Law Agency, Allahabad,1st ed.,2008).

[13]Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013.

[14]38 S. Mathur, Use Of Land Pooling And Reconstitution For Urban Development: Experiences From Gujarat, India 199–206 (Habitat International, 2013).

[15]Habib Ahmed v. State of Uttar Pradesh, AIR 1965 All 344.

[16]B Patel At El.,Using The Development Plan-Town Planning Scheme Mechanism To Appropriate Land And Building Urban Infrastructure (India Infrastructure Report, New Delhi: Oxford University Press, 2009).

[17]Hamabai Framjee Petit v. Secretary of State, (1911) 13 BOMLR 1097.

[18]State of Karnataka v. All India Manufacturers Organization, 2005 SCC ONLINE KAR 264.

[19]Kedar Nath Yadav versus State of West Bengal & Others, 2016 SCC ONLINE SC 885.

[20]Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013.