Kerala Gazette No.12 dated 24th March 2009.

PART I

Section i

GOVERNMENT OF KERALA

Law (Leg. Publication) Department

NOTIFICATION

No. 15552/Leg. Pbn. 3/2008/Law.

Dated, Thiruvananthapuram, 1st September, 2008.

The following Act of Parliament, published in the Gazette of India

Extraordinary Part II, Section I, dated the 28th March, 2008 is hereby republished

for general information. The Bill as passed by the Houses of Parliament received

the assent of the President on the 28th March, 2008.

By order of the Governor,

P. S. GOPINATHAN,

Law Secretary.

G. 730/2008/Kannur.

THE RAILWAYS (AMENDMENT) ACT, 2008

(ACT NO. 11 OF 2008)

ACT

further to amend the Railways Act, 1989.

BE it enacted by Parliament in the Fifty-ninth Year of the Republic of India as

follows:—

1. Short title and commencement.—(1)

This Act may be called the

Railways (Amendment) Act, 2008.

(2)

It shall be deemed to have come into force on the 31st day of

January, 2008.

Amendment of Section 2.—In Section 2 of the Railways Act, 1989

(24 of 1989), (hereinafter referred to as the principal Act),—

(a) after clause (7), the following clause shall be inserted, namely:—

‘(7A) “competent authority” means any person authorised by the Cen-

tral Government, by notification, to perform the functions of the competent

authority for such area as may be specified in the notification;’;

(b) after clause (29), the following clause shall be inserted, namely:—

‘(29A) “person interested” includes,—

(i) all persons claiming an interest in compensation to be made on

account of the acquisition of land under this Act;

(ii) tribals and other traditional forest dwellers, who have lost any

traditional rights recognised under the Scheduled Tribes and Other Traditional

Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007);

(iii) a person interested in an easement affecting the land; and

(iv) persons having tenancy rights under the relevant State laws;’;

‘(37A) “special railway project” means a project, notified as such by

the Central Government from time to time, for providing national infrastructure for

a public purpose in a specified time-frame, covering one or more States or the

Union Territories;’.

3. Insertion of new Chapter IV A.—After Chapter IV of the principal Act, the

following Chapter shall be inserted, namely:—

‘CHAPTER IV A

LAND ACQUISITION FOR A SPECIAL RAILWAY PROJECT

20A. Power to acquire land, etc.—(1) Where the Central Government is

satisfied that for a public purpose any land is required for execution of a special

railway project, it may, by notification, declare its intention to acquire such land.

(2) Every notification under sub-section (1), shall give a brief descrip-

tion of the land and of the special railway project for which the land is intended

to be acquired.

(3) The State Government or the Union Territory, as the case may be,

shall for the purposes of this Section, provide the details of the land records to

the competent authority, whenever required.

(4) The competent authority shall cause the substance of the

notification to be published in two local newspapers, one of which shall be in a

vernacular language.

20B. Power to enter for survey, etc.—On the issue of a notification under

sub-section (1) of Section 20A, it shall be lawful for any person, authorised by

the competent authority in this behalf, to—

(a) make any inspection, survey, measurement, valuation or enquiry;

(b) take levels;

(d) set out boundaries and intended lines of work;

(e) mark such levels, boundaries and lines placing marks and cutting

trenches; or

(f) do such other acts or things as may be considered necessary by

the competent authority.

20C. Evaluation of damages during survey, measurement, etc.—The

damages caused while carrying out works on land such as survey, digging or

boring sub-soil, marking boundaries or cutting trenches or clearing away any

standing crop, fence or forest or doing such other acts or things which may

cause damages while acting under Section 20B particularly relating to land which

is excluded from acquisition proceeding, shall be evaluated and compensation

shall be paid to the persons having interest in that land, within six months from

the completion of the said works.

20D. Hearing of objections, etc.—(1) Any person interested in the land

may, within a period of thirty days from the date of publication of the notification

under sub-section (1) of Section 20A, object to the acquisition of land for the

purpose mentioned in that sub-section.

(2) Every objection under sub-section (1), shall be made to the

competent authority in writing, and shall set out the grounds thereof and the

competent authority shall give the objector an opportunity of being heard, either

in person or by a legal practitioner, and may, after hearing all such objections and

after making such further enquiry, if any, as the competent authority thinks

necessary, by order, either allow or disallow the objections.

Explanation.—For the purposes of this sub-section, “legal practitioner”

has the same meaning as in clause (i) of sub-section (1) of Section 2 of the

Advocates Act, 1961 (25 of 1961).

(3) Any order made by the competent authority under sub-section (2)

shall be final.

20E. Declaration of acquisition.—(1) Where no objection under sub-

section (1) of Section 20D has been made to the competent authority within the

period specified therein or where the competent authority has disallowed the

objections under sub-section (2) of that Section, the competent authority shall, as

soon as may be, submit a report accordingly to the Central Government and on

receipt of such report, the Central Government shall declare, by notification, that

the land should be acquired for the purpose mentioned in sub-section (1) of

Section 20A.

(2) On the publication of the declaration under sub-section (1), the

land shall vest absolutely in the Central Government free from all encumbrances.

(3) Where in respect of any land, a notification has been published

under sub-section (1) of Section 20A for its acquisition, but no declaration under

sub-section (1) of this Section has been published within a period of one year

from the date of publication of that notification, the said notification shall cease

to have any effect:

Provided that in computing the said period of one year, the period

during which any action or proceedings to be taken in pursuance of the

notification issued under sub-section (1) of Section 20A is stayed by an order of

a court shall be excluded.

(4) A declaration made by the Central Government under sub-section

(1) shall not be called in question in any court or by any other authority.

20F. Determination of amount payable as compensation.—(1) Where any

land is acquired under this Act, there shall be paid an amount which shall be

determined by an order of the competent authority.

(2) The competent authority shall make an award under this Section

within a period of one year from the date of the publication of the declaration

and if no award is made within that period, the entire proceedings for the

acquisition of the land shall lapse:

Provided that the competent authority may, after the expiry of the period

of limitation, if he is satisfied that the delay has been caused due to unavoidable

circumstances, and for the reasons to be recorded in writing, he may make the

award within an extended period of six months:

Provided further that where an award is made within the extended

period, the entitled person shall, in the interest of justice, be paid an additional

compensation for the delay in making of the award, every month for the period

so extended, at the rate of not less than five per cent. of the value of the

award, for each month of such delay.

(3) Where the right of user or any right in the nature of an easement

on, any land is acquired under this Act, there shall be paid an amount to the

owner and any other person whose right of enjoyment in that land has been

affected in any manner whatsoever by reason of such acquisition, an amount

calculated at ten per cent. of the amount determined under sub-section (1), for that

land.

(4) Before proceeding to determine the amount under sub-section (1) or

sub-section (3), as the case may be, the competent authority shall give a public

notice published in two local newspapers, one of which shall be in a vernacular

langauge inviting claims from all persons interested in the land to be acquired.

(5) Such notice shall state the particulars of the land and shall require

all persons interested in such land to appear in person or by an agent or by a

legal practitioner referred to in sub-section (2) of Section 20D, before the

competent authority, at a time and place and to state the nature of their respective

interest in such land.

(6) If the amount determined by the competent authority under sub-

section (1) or as the case may be, sub-section (3) is not acceptable to either of

the parties, the amount shall, on an application by either of the parties, be

determined by the arbitrator to be appointed by the Central Government in such

manner as may be prescribed.

(7) Subject to the provisions of this Act, the provisions of the

Arbitration and Conciliation Act, 1996, (26 of 1996) shall apply to every arbitration

under this Act.

(8) The competent authority or the arbitrator while determining the

amount of compensation under sub-section (1) or sub-section (6), as the case

may be, shall take into consideration—

(a) the market value of the land on the date of publication of the

notification under Section 20A;

(b) the damage, if any sustained by the person interested at the

time of taking possession of the land, by reason of the severing of such land

from other land;

time of taking possession of the land, by reason of the acquisition injuriously

affecting his other immovable property in any manner, or his earnings;

(d) if, in consequences of the acquisition of the land, the person

interested is compelled to change his residence or place of business, the

reasonable expenses, if any, incidental to such change.

(9) In addition to the market value of the land as above provided, the

competent authority or the arbitrator, as the case may be, shall in every case

award a sum of sixty per centum on such market value, in consideration of the

compulsory nature of the acquisition.

20G. Criterion for determination of market value of land.—(1) The

competent authority shall adopt the following criteria in assessing and

determining the market value of the land,—

(i) the minimum land value, if any, specified in the Indian Stamp

Act, 1899 (2 of 1899), for the registration of sale deeds in the area, where the land

is situated; or

(ii) the average of the sale price for similar type of land situated in

the village or vicinity, ascertained from not less than fifty per cent. of the sale

deeds registered during the preceding three years, where higher price has been

paid, whichever is higher.

(2) Where the provisions of sub-section (1) are not applicable for the

reason that:—

(i) the land is situated in such area where the transactions in land

are restricted by or under any other law for the time being in force in that area or;

(ii) the registered sale deeds for similar land as mentioned in clause (i)

of sub-section (1) are not available for the preceding three years; or

(iii) the minimum land value has not been specified under the Indian

Stamp Act, 1899 (2 of 1899) by the appropriate authority,

the concerned State Government shall specify the floor price per unit area of the

said land based on the average higher prices paid for similar type of land situated

in the adjoining areas or vicinity, ascertained from not less than fifty per cent. of

the sale deeds registered during the preceding three years where higher price has

been paid, and the competent authority may calculate the value of the land

accordingly.

(3) The competent authority shall, before assessing and determining

the market value of the land being acquired under this Act,—

(a) ascertain the intended land use category of such land; and

(b) take into account the value of the land of the intended

category in the adjoining areas or vicinity,

for the purpose of determination of the market value of the land being acquired.

(4) In determining the market value of the building and other

immovable property or assets attached to the land or building which are to be

acquired, the competent authority may use the services of a competent engineer

or any other specialist in the relevant fields, as may be considered necessary by

the competent authority.

(5) The competent authority may, for the purpose of determining the

value of trees and plants, use the services of experienced persons in the field of

agriculture, forestry, horticulture, sericulture, or any other field, as may be

considered necessary by him.

(6) For the purpose of assessing the value of the standing crops

damaged during the process of land acquisition proceedings, the competent

authority may utilise the services of experienced persons in the field of agriculture

as he considers necessary.

20H. Deposit and payment of amount.—(1) The amount determined under

Section 20F shall be deposited by the Central Government, in such manner as may

be prescribed by that Government, with the competent authority before taking

possession of the land.

(2) As soon as may be after the amount has been deposited under

sub-section (1), the competent authority shall on behalf of the Central

Government pay the amount to the person or persons entitled thereto.

(3) Where several persons claim to be interested in the amount

deposited under sub-section (1), the competent authority shall determine the

persons who in its opinion are entitled to receive the amount payable to each of

them.

(4) If any dispute arises as to the apportionment of the amount or any

part thereof or to any person to whom the same or any part thereof is payable,

the competent authority shall refer the dispute to the decision of the principal

civil court of original jurisdiction within the limits of whose jurisdiction the land

is situated.

(5) Where the amount determined under Section 20F by the arbitrator is

in excess of the amount determined by the competent authority, the arbitrator

may award interest at nine per cent. per annum on such excess amount from the

date of taking possession under Section 20-I till the date of actual deposit

thereof.

(6) Where the amount determined by the arbitrator is in excess of the

amount determined by the competent authority, the excess amount together with

interest, if any, awarded under sub-section (5) shall be deposited by the Central

Government, in such manner as may be prescribed by that Government, with the

competent authority and the provisions of sub-sections (2) to (4) shall apply to

such deposit.

20—I. Power to take Possession.—(1) Where any land has vested in the

Central Government under sub-section (2) of Section 20E, and the amount

determined by the competent authority under Section 20F with respect to such

land has been deposited under sub-section (1) of Section 20H with the

competent authority by the Central Government, the competent authority may, by

notice in writing, direct the owner as well as any other person who may be in

possession of such land to surrender or deliver possession thereof to the

competent authority or any person duly authorised by it in this behalf within a

period of sixty days of the service of the notice.

(2) If any person refuses or fails to comply with any direction made

under sub-section (1), the competent authority shall apply—

(a) in case of any land situated in any area falling within the

metropolitan area, to the Commissioner of Police;

(b) in case of any land situated in any area other than the area

referred to in clause (a), to the Collector of a District,

and such Commissioner or Collector, as the case may be, shall enforce the

surrender of the land, to the competent authority or to the person duly

authorised by it.

20J. Right to enter into land where land has vested in Central

Government.—Where the land has vested in the Central Government under

Section 20E, it shall be lawful for any person authorised by the Central

Government in this behalf, to enter and do other act necessary upon the land for

carrying out the building, maintenance, management or operation of the special

railway project or part thereof or any other work connected therewith.

20K. Competent authority to have certain powers of civil court.—The

competent authority shall have, for the purposes of this Act, all the powers of a

civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908)

in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and

examining him on oath;

(b) requiring the discovery and production of any document;

(d) requisitioning any public record from any court or office;

(e) issuing commission for examination of witnesses.

20L. Utilisation of land for the purpose it is acquired.—(1) The land

acquired under this Act shall not be transferred to any other purpose except for

a public purpose, and after obtaining the prior approval of the Central

Government.

(2) When any land or part thereof, acquired under this Act remains

unutilised for a period of five years from the date of taking over the possession,

the same shall return to the Central Government by reversion.

20M. Sharing with landowners the difference in price of a land when

transferred for a higher consideration.—Whenever any land acquired under this

Act is transferred to any person for a consideration, eighty per cent. of the

difference in the acquisition cost and the consideration received, which in no

case shall be less than the acquisition cost, shall be shared amongst the persons

from whom the lands were acquired or their heirs, in proportion to the value at

which the lands were acquired, and for the purpose, a separate fund may be

maintained which shall be administered by the competent authority in such

G. 730/2008/Kannur.

manner as may be prescribed by the Central Government.

20N. Land Acquisition Act 1 of 1894 not to apply.—Nothing in the Land

Acquisition Act, 1894 shall apply to an acquisition under this Act.

20-O. Application of the National Rehabilitation and Resettlement

Policy, 2007 to persons affected due to land acquisition.—The provisions of the

National Rehabilitation and Resettlement Policy, 2007 for project affected families,

notified by the Government of India in the Ministry of Rural Development vide

number F. 26011/4/2007-LRD, dated the 31st October, 2007, shall apply in respect

of acquisition of land by the Central Government under this Act.

20P. Power to make rules in respect of matters in this chapter.—(1) The

Central Government may, by notification, make rules to carry out the purposes of

this Chapter.

(2) In particular, and without prejudice to the generality of the

foregoing power, such rules may provide for all or any of the following matters,

namely:—

(a) the manner of appointment of arbitrator under sub-section (6) of

Section 20F;

(b) the manner in which the amount shall be deposited with the

competent authority under sub-sections (1) and (6) of Section 20H;

for the purposes of Section 20M.’.

Repeal and savings.—(1) The Railways, (Amendment) Ordinance, 2008

(Ord. 2 of 2008) is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken un-

der the principal Act, as amended by the said Ordinance, shall be deemed to

have been done or taken under the corresponding provisions of the principal

Act, as amended by this Act.