The lie of the land

Posted in ACCOUNTABILITY by NNLRJ INDIA on March 30, 2011

The court presses home its power to intervene when ‘little Indians lose their small property’ to land acquisition by state governments

M J Antony / New Delhi March 30, 2011, 0:33 IST

Parliament has not been able to pass an updated land acquisition law for several years, though this is a burning issue and innocent blood has been shed in many states. Meanwhile, the Supreme Court continues to deliver judgments in which disputes arose several decades ago. Two such decisions in recent weeks deal with the governments’ claim of urgency in land takeovers. The governments’ subsequent conduct showed the acquisition was neither pressing nor imperative. The court, therefore, underlined that the landowner’s right cannot be “flattened and steamrolled” on a mere declaration that the acquisition is urgent.

Section 17 of the Land Acquisition Act of 1894 empowers the government to acquire land for urgent reasons without following the procedure of giving land losers a hearing. This provision is prone to great abuse, as illustrated in the two judgments.

Incidentally, this is not the only provision that has been consistently manipulated by governments to benefit powerful interests. The omnibus term “public purpose” is a woolly and hard-to-contradict excuse for land acquisition. The rate of compensation is another sore point in the acquisition law, because of which farmers have to climb the shaky ladder of law up to the Supreme Court to demand a just amount. The litigation often turns out to be the only bequest for their children.

Returning to the urgency clause, the judgment in the appeal case State of West Bengal vs Prafulla Churan reveals the high-handedness of the state government. The land in Kolkata was acquired first in 1944 under the Defence of India Act. While the government still held possession, it invoked the West Bengal Requisition and Control Act in 1959 to continue to hold on to the land. This was challenged by the owner and the Calcutta High Court asked the government to return the land to the owner. But the government invoked the “urgency” clause in the Land Acquisition Act on the grounds that the land was required for the state ceramic development board. The litigation continued with the government losing all the way. Now it has lost in the Supreme Court too.

The court stated that all schemes relating to development of industrial and residential areas must be urgent in the context of the country’s need for increased production and more residential accommodation. Yet, the very nature of such development schemes does not appear to demand emergent action to eliminate summary enquiries that are imperative. The development of an area or a city takes many years so there is no reason that summary enquiry as contemplated under Section 5-A may not be held and objections of landowners may not be considered.

In the second judgment dealing with the “urgency” claim, Dev Sharan vs State of UP, the government wanted to build a new jail in Shahjahanpur because of congestion — 1,869 people are lodged in a 140-year-old, dilapidated building at present. But the noble intention would not justify the deprivation of the property rights of the agriculturists. The government moved slowly and took nearly a year to complete the acquisition process. There was sufficient time to give the landowners a hearing. Unfortunately, the writ petitions of the farmers were dismissed by the Allahabad High Court; it approved of the emergency requirement of the government.

On appeal, the Supreme Court noted the recent negative trend in land acquisition and pointed out how it affected the property rights of the citizens. The law is of colonial, pre-constitutional vintage, said the judges, and it is “drastic and expropriatory in nature as it confers on the state a power which affects person’s property right. Even though right to property is no longer fundamental and was never a natural right, and is acquired on a concession by the state, it has to be accepted that without right to some property, other rights become illusory. This court is considering these questions especially in the context of some recent trends in land acquisition.”

What follows after a discussion on the rampant misuse of the amorphous phrase, “public purpose”, should awaken state governments eager to take over land and give it to industries. The judgment reads: “The courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the state. If public purpose can be satisfied by not rendering common man homeless and by exploring other avenues of acquisition, the courts, before sanctioning an acquisition, must in exercise of their power of judicial review, focus their attention on the concept of social and economic justice.” Even during the current election fever, no political party has seriously taken up this raging issue.

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