27 May 2021 9:04 AM GMT
The draft Lakshadweep Development Authority Regulation 2021 (hereinafter referred to as the Regulation) is a proposed regulation to provide for the development of towns in Lakshadweep. It is to be enacted by exercising powers conferred by Article 240 of the Constitution, under which the President has the power to make regulations for the peace, progress, and good government of the...
The draft Lakshadweep Development Authority Regulation 2021 (hereinafter referred to as the Regulation) is a proposed regulation to provide for the development of towns in Lakshadweep. It is to be enacted by exercising powers conferred by Article 240 of the Constitution, under which the President has the power to make regulations for the peace, progress, and good government of the Union territory of Lakshadweep. The power of the President to legislate under Article 240 is so immense that, any regulation made thereunder may repeal or amend any Act made by Parliament which is for the time being applicable to the Union territory and, when promulgated by the President, shall have the same force and effect as an Act of Parliament which applies to that territory.
The Regulation provides several provisions for the development of townships, acquisition, alteration, and transfer of the landed properties owned by the residents of Lakshadweep. Further, it proposes to impose restrictions on the use of landed properties in Lakshadweep.
As per Section 5 of the Regulation, the Government may, by notification declare any area in Lakshadweep to be a "Planning Area" for the purposes of the Regulation, and on such declaration, the Regulation shall apply to such area. One may note that the "Government" here means the Administrator of Lakshadweep appointed by the President under Article 239 of the Constitution.
After the declaration of the Planning Area as per Section 5, according to Section 7, the Government, in consultation with the Prescribed Authority, may, by notification, constitute in respect of that area an authority to be called the "Planning and Development Authority" of that area to perform the functions assigned to it under the Regulation. The "Prescribed Authority" here means the authority notified by the Government as the prescribed authority for purposes of the Regulation.
The functions of the Planning and Development Authority, include framing and implementing "Development Plans" and "town planning schemes" for the Planning Area and, acquiring the properties of the residents of Lakshadweep to implement the said Development Plans and town planning schemes.
Once the Planning and Development Authority is constituted it shall frame Development Plans as per Sections 16 and 18. After the preparation of a Development Plan and after obtaining the approval of the Government for publication, as per Section 22, the Planning and Development Authority shall publish, by notification, and also in one or more local newspapers, of the preparation of the draft Development Plan, indicating therein the place or places where copies of the same may be inspected, and inviting objections in writing to the draft Development Plan within such period as may be specified in the notice which shall not be later than 2 months. It is further provided therein that, the publication of a notification under Section 22 shall, notwithstanding anything contained the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013(hereinafter referred to as the Land Acquisition Act), be deemed to be a notification duly made under Section 11 of the said Act. The objections to the draft Development Plan shall be heard by a committee constituted by the Planning and Development Authority. After hearing the objections, the committee shall submit its report to the Planning and Development Authority and it may make such alterations to the draft Development Plan as it considers proper and make a final Development Plan.
Thereafter, the Planning and Development Authority shall submit its final Development Plan, to the Government for its Approval as stated in Section 23. After obtaining such approval, according to Section 24, the Planning and Development Authority shall publish by notification, and also in one or more local newspapers, of the approval of the final Development Plan, indicating therein the place or places where copies of the Development Plan may be inspected. Once such notification is published the Development Plan shall come into operation. It is further provided that, such publication shall, notwithstanding anything contained in the Land Acquisition Act, be deemed to be a declaration duly made under Section 19 of the said Act. One may note that, once a declaration is made under Section 19 of the Land Acquisition Act, it shall be conclusive evidence that the land is required for a public purpose and, after making such declaration, the appropriate Government may acquire the land in such manner as specified under the Act.
As stated earlier, the President may by a regulation made under Article 240 repeal or amend any Act made by Parliament which is for the time being applicable to the Union territory. Hence, the regulation could amend the provisions of the Land Acquisition Act which are applicable to Lakshadweep. However, the amendments as per Section 22 and Section 24 would defeat the very objectives of the Land Acquisition Act. A few of the very important objectives of the Land Acquisition Act, as stated in its preamble, are to ensure, in consultation with institutions of local self-government and Gram Sabhas established under the Constitution, a humane, participative, informed, and transparent process for land acquisition. Section 11 of the Land Acquisition Act was enacted in view of the said objectives, which is why as per sub-clause 2 of the Section, the notification is to be informed to the local self-government concerned and as per sub-clause 3 of the Section, the nature of the public purpose involved, reasons necessitating the displacement of affected persons, summary of the Social Impact Assessment Report and particulars of the Administrator appointed for the purposes of rehabilitation and resettlement under Section 43, are mentioned in the notification under Section 11. No such particulars as required under Section 11 of the Land Acquisition Act are available under the Development Plan published under Section 22.
Further, another very important objective of the Land Acquisition Act, as stated in its preamble, is to provide for adequate provisions for rehabilitation and resettlement of the persons and families affected by the land acquisition. Section 19 of the Land Acquisition Act was enacted in view of the said objective. As per Section 19, the declaration made thereunder shall have an area identified as a resettlement area for the affected families and it shall also provide for a summary of the rehabilitation and resettlement scheme. It is further provided in the Section that, no declaration under the said Section shall be made unless the summary of rehabilitation and resettlement scheme is published along with such declaration. No such resettlement area or summary of rehabilitation and resettlement scheme as required under Section 19 of the Land Acquisition Act are available under the Development Plan published under Section 24. Therefore, Section 22 and 24 of the Regulation defeats the very objectives of the Land Acquisition Act.
According to Section 26, within one month of the coming into operation of any Development Plan, any person aggrieved by any provisions contained therein may make an application to the District Court questioning the validity of the Development Plan to the extent it is inconsistent with the provisions of the Regulation. It is also stated therein that, other than the aforesaid, the Development Plan shall not, either before or after it has been approved, be questioned in any manner, in any legal proceedings whatsoever.
Section 29 states that, any land required, reserved, or designated in a Development Plan shall be deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act. This provision which generally states that any land required, reserved, or designated in a Development Plan shall be deemed to be land needed for a public purpose, is arbitrary because public purpose has to be determined on a case to case basis, analysing the facts and circumstances of each case, as laid down by the Supreme Court in State of Haryana and Others v. Vinod Oil and General Mills and Another 2014 (15) SCC 410. Further, the expert committee constituted under Section 7 of the Land Acquisition Act is the authority to conduct a Social Impact Assessment study and determine upon the facts and circumstance of each case, whether the project would subserve public purpose or not, the same was held by the High Court of Kerala in Ayana Charitable Trust (formerly known as Gospel for Asia) and Another v. State of Kerala and Others 2020 KHC 795.
As per Section 33, on and from the date on which a draft Development Plan is published as per Section 22, every land use, every change in land use, and every development in the area covered by the Development Plan shall conform to the provisions of the Regulation and the Development Plan, as finally approved by the Government under Section 23. This provision has drastic consequences because, under a Development Plan, the Planning and Development Authority could allocate areas or zones of land for use of residential, commercial, industrial, agricultural, or other purposes, therefore, as per Section 33 even the existing properties of the people of Lakshadweep would have to be altered, to be in accordance with the Development Plan. Further, if the area where the houses of the people of Lakshadweep are located are not designated as residential areas, then they might be forced to leave out their residential houses.
Section 35 states that, once an area is declared as a Planning Area, no development shall be permissible there unless a permission is obtained under the Section and a certificate from the Planning and Development Authority concerned is obtained after the payment of a development charge. Any development without complying with the aforesaid provisions shall be deemed to be an unauthorised development.
According to Section 40, a person intending to sub-divide his plot or make or layout a private street, on or after the date on which a draft Development Plan is published as per Section 22, should obtain a sanction from the Planning and Development Authority for doing so.
Section 43 provides for punishment for the contravention of various provisions of the Regulation, which is a fine that may extend to Two lakh rupees and in the case of a continuing contravention with a further fine which may extend to twenty thousand rupees for every day during which such contravention is continued after conviction for the first such contravention. Section 44 provides for the powers of the Planning and Development Authority to require the removal of unauthorised development.
Section 48 empowers the Planning and Development Authority to frame town planning schemes to implement the proposals contained in the Development Plan, such town planning schemes when approved by the Government as per Section 60 become final and enforceable. According to Section 52, the town planning schemes could provide for alteration, the laying out or re-laying out of original plots, belonging to the residents of Lakshadweep. As per Section 53, the Planning and Development Authority could transfer the ownership of a plot from one person to another. Section 61 states that all lands required according to the town planning scheme shall be absolutely vested with the Planning and Development Authority. Further, once the town planning scheme comes to force any person occupying any land under the scheme could summarily be evicted. According to Section 62, the Planning and Development Authority, in its discretion, could allot the reconstituted plot to any person. Further, the said authority is empowered to determine the compensation payable to the people whose original plots were acquired. Section 82 to 88 provides for the transfer of reconstituted plots and payment of compensation to the owners of the original plots.
Section 125 states that every order passed or direction issued by the Government or the Prescribed Authority or order passed or notice issued by any Planning and Development Authority under the Regulation shall be final and shall not be questioned in any suit or other legal proceeding, other than as expressly provided in the Regulation.
According to Section 130, the provisions of the Regulation, the rules, and regulations made under it shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, save as provided in the Regulation.
The Regulation provides the Government and the Planning and Development Authority constituted by the Government manifestly arbitrary powers to acquire, alter and transfer the properties owned by the residents of Lakshadweep. It would hit the fundamental rights of the residents of Lakshadweep guaranteed Articles 14 and 21 of the Constitution. Lakshadweep consists of numerous small Islands and the population density there is very high. Landed properties are scarce there. It would be very difficult for a resident of Lakshadweep to obtain a suitable property, in the event of acquisition of his landed properties due to the lack of land, the particular geography, and the community life of Lakshadweep. Therefore, no amount of compensation would be sufficient to repair the loss that he would suffer on such an acquisition. In this regard, the dictum laid down by the Supreme Court in Olga Tellis and Others v. Bombay Municipal Corporation and Others 1985 (3) SCC 545 assumes significance wherein it was held that the right to life under Article 21 includes the right to livelihood. A residence and a source of income are essential for livelihood. The same may be restricted by the procedure established by law. However, the procedure established by law should be just, fair, and reasonable. Further, Article 300A of the Constitution provides that no person shall be deprived of his property save by authority of law. However, the authority of law should be exercised in a reasonable and non-arbitrary manner as was held by the Supreme Court in Ramana Dayaram Shetty v. The International Airport Authority of India and Others 1979 (3) SCC 489 that, the principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is projected by Art.14 and it must characterise every State action, whether it be under the authority of law or in the exercise of executive power without making of law.
Views are Personal
The Author Is an Advocate Practicing at the High Court of Kerala.
He is an Associate at M/S Cyriac And Cyriac Advocates And Solicitors
Click here to read/download the draft regulations