Land as Commodity: The Ideological Basis of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

Dr. V.Krishna Ananth, Associate Professor, Department of History, Sikkim University.

krishnananth@gmail.com

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, that replaces the Land Acquisition Act, 1894, we are told is a measure that will ensure justice to the farmer in the event his farmland is sought to be converted to non-agricultural purposes. It is held that the infirmities contained in the 1894 Act that led to class anger as witnessed in Singur, Nandigram, Kalinganagar and elsewhere during the past couple of decades have been taken care and the new law will help firm up the path of industrial development as well as render justice to the farmer whose land will be acquired.

This, however, is not true. If the 1894 Act was rooted in the logic of a colonial politico-legal premise, the 2013 Act is a product of the logic of a neo-colonial politico-legal set-up. In other words, if the 1894 Act was consistent with the Right to Private Property as fundamental to the system, the 2013 Act, in fact, denies to the land-holder any such fundamental Right to the land-loser and even denies him such protection that were conferred upon the farmers by the Supreme Court in recent times. The fact is that the 2013 law also seeks to illegitimate any struggles against land acquisition.[1]

Further, the 2013 law, at one stroke, is intended to nullify a set of judgments by the Supreme Court, between March and July 2011, by which farm lands acquired by the Uttar Pradesh Government in NOIDA in the name of development, were ordered to be returned to the land-owners. The three judgments, in fact, had  put the lid on attempts at grabbing agricultural land, particularly around the urban cities and these were based on the philosophical premise of Article 39 (b) and (c) of the Constitution read in harmony with Article 21 of the Constitution. They lent a sense of legitimacy to the struggle against compulsory acquisition of agricultural land in many parts of the country. The message that came out in all those instances was that farm lands be left with the farmers and the tendency to grab land for industries and more specifically housing the urban rich around the cities and the towns ought to be checked.

The 2013 Act provides for legitimating the contrary. As for instance, Section 2 (1) (b) contains a list of sectors where this Act shall apply and this includes acquisition of land for tourism; the fact is that tourism is now an industry and land acquisition for setting up resorts, health tourism and any such business proposition that is now on the ascent is possible under the new Act. There was the possibility of such indulgence being challenged under the 1894 Act. Likewise, the 2013 Act specifies what is fair compensation and also lays down the quantum of compensation for land acquired including the solatium. With this, in the larger context of our jurisprudence (the procedure established by law rather than the due process of law) the scope for stalling indiscriminate acquisition of farm lands in the name of development is considerably restricted. In other words, where it was possible for a land-loser in the earlier regime to defend his cause in the higher judiciary against acquisition for building a tourism resort on grounds that it was not a public purpose (as defined under Section 3 (f) of the 1894 Act) such a process is no longer possible now.

This and some other provisions in the 2013 Act renders those other provisions as Section 4 that mandates a Social Impact Assessment on such alienation of land or Section 16 that presupposes a rehabilitation plan in place before the notification for acquisition of land is issued as insignificant.[2] It is all about the procedure and is based on a premise that acquisition of agricultural land is an inevitable and indisputable measure in the cause of development and nation building. Similarly, the 2013 Act also contains Section 40, which is as bad as Section 17 of the 1894 Act: It provides for short circuiting all the steps including the Social Impact Assessment in the event of an emergency.

In short, the 2013 law is premised upon treating land as a commodity and thus renders fair compensation as the only requirement for compulsory acquisition; in other words, an adaptation to the ideology of market economy. It is, in many ways, akin to the Primitive Accumulation as carried out earlier than the capitalist transformation and suggests to free the peasantry as against the bondage of the peasant class to the land. This essay is an attempt to unravel this ideological aspect behind the 2013 Act in comparison with the 1894 Act that it has replaced and establish the shifting ideological premise on which the Constitution was founded foregrounding the farmers’ right to his land. It is then imperative to first trace the substantive changes that went into restricting the scope of the 1894 Act from within the scope of Article 31 of the Constitution as it stood at the time of adopting the Constitution on November 26, 1949, the insertion of Articles 31 A, 31 B and 31 C of the Constitution, the various decisions of the Supreme Court in these regard and finally the deletion of Article 31 of the Constitution in 1978.[3] This long trajectory was marked by incessant battles between the Legislature and the Judiciary which also ensured a certain sense of finality in the shift away from the colonial scheme with regard to land as private property to fit into the larger principle of egalitarianism outlined in the Constitutional scheme. In other words, the three decades after November 1949 was marked by a conscious movement towards this shift.

I

           

That the 1894 Act was meant to be used only in order to acquire private property for such public purposes as building roads, government offices and hospitals was never concealed. However, as the term public purpose remained undefined, the law, as it stood, could lend itself to acquisition of property from the landlords for redistribution among the tenant farmers too. The colonial regime, interestingly, was aware of the potential for, what they considered, mischief in the event of a representative government taking office under the Constitutional Reforms proposals of 1935. Such powers were available under the provisions of the Land Acquisition Act, 1894 where the elected regimes were committed to render relief to the tenant farmers. Section 299 of the Government of India Act, 1935, meant to prohibit the elected Governments from undertaking any such legislations or measures was hence brought into the Act. The Section, indeed, was an injunction against the compulsory acquisition of land without providing for compensation and the Provincial Assemblies could introduce and pass legislations, impeding the right to property, only after obtaining sanction from the Governor of the province. [4]

It is another matter that the injunction of this nature did not come in the way of the Indian National Congress government in the United Provinces from enacting the United Provinces Tenancy Act, 1939, by which the landlords were prohibited from evicting tenants who defaulted on rent payment. This Act was challenged by the landlords and the challenge was repulsed by the Federal Court as well as the Privy Council when the landlords took the case on appeal subsequently.[5] The important point here is that the idea of Eminent Domain and against the individual’s right to property was raised in a substantive way even as early as in the 1930s and the leadership of the Indian National Congress had recorded its commitment to the thinking that property in general and land in particular belonged to the society and in that sense the state and that there was no way that the state could be denied of its right to compulsory acquisition of private property for a public purpose. It is also evident, from the records of the times, that a certain sense of clarity had evolved as to the meaning of public purpose. The Indian National Congress had perceived public purpose as not only from the framework of building schools, factories and hospitals but had also perceived public purpose from the point of view of equitable distribution of resources in general and land in particular. The movement was in the direction of building a socialist set-up and an anti-zamindari sentiment was inherent to the national struggle for independence.

This was made explicit in the manifesto of the Indian National Congress for the elections in 1946 when the party committed itself to abolition of intermediaries between the state and the tiller in the agrarian sector. Following this was Jawaharlal Nehru’s speech on December 9, 1946, while moving the Objectives Resolution in the Constituent Assembly. The first draft of the Constitution, as presented by the Fundamental Rights sub-committee, in which the Right to Property was proposed as a Fundamental Right – Article 24 – raised apprehensions among a cross section of the members in the Assembly. The fact is that Article 24, as it was worded in the Draft, was the same as Section 299 of the Government of India Act, 1935. When it was introduced in the Assembly on May 2, 1947, the House decided to postpone the discussion on this issue. The mandate was that it required substantive changes to the state’s power to compulsorily acquire property as restricted by Section 299 of the 1935 Act. The Nehruvian imprint was evident when this provision was sought to be amended in a substantive manner and when Nehru himself moved the amendment before the Assembly on September 10, 1949. In his speech, Nehru made it abundantly clear that the Congress was committed to zamindari abolition and that the measures to eradicate it will be carried out. This was also stated with clarity in the Reports of the National Planning Committee and the Congress Agrarian Reforms Committee, both presented in 1949.[6]

Article 31 of the Constitution, as adopted on November 26, 1949, thus seemed to enable the state to acquire private property for public purpose and the only condition in such an acquisition was that the owner of the private property be compensated. It is noteworthy that the makers of the Constitution were cautious enough to avoid qualifying that the compensation had to be adequate. These certainly were a restriction of the Right to Property and in that sense a step closer to the concept of Eminent Domain. The debate in the Constituent Assembly and Nehru’s reply before the Article was adopted revealed that the independent regime was committed to the abolition of landlordism (whether it existed in the name of zamindari, taluqdari or any such classification in the different provinces). Clauses 4 and 6 of Article 31 made this explicit. Redistribution of land among the tenants was indeed a principle and stated  categorically in the Constitution even while guaranteeing the Right to Property as a Fundamental Right. It may be added here that while Nehru laid this forthright in the assembly, Vallabhai Patel too was unambiguous on this issue at all stages during the discussion. It is also important to note that the various Provincial Assemblies were already in the process of enacting legislations to abolish the zamindari system and redistribute the land to the tenant farmers.

II

However, the same Article 31 was invoked as a device by the landlords to challenge the validity of land reforms laws. This legal challenge, however, was repulsed by way of the Constitution (First Amendment) Act, 1951, by which, Articles 31 A and 31 B (along with the Ninth Schedule) were added to the Constitution. Interestingly, the amendment was carried out by the Constituent Assembly itself. In the 25 years since then, one finds a constant interaction, antagonistic at times, between the Parliament and the Judiciary. In all those instances, the subject matter happened to be the various laws and constitutional amendments involving the individuals’ Right to Property.

The Constitution (Fourth Amendment) Act, 1955, the Constitution (Seventeenth Amendment) Act, 1965, the Constitution (Twenty Fourth) Amendment, 1971, the Constitution (Twenty Fifth Amendment) Act, 1971 and the Constitution (Twenty Ninth Amendment) Act, 1972 were all intended to overwhelm the judicial decisions on certain measures in tune with Article 39(b) and (c) of the Constitution. The judicial decisions, in this context were those in the Bela Banerjee case, the Vajravelu Mudaliar case and the Golaknath case, in that order. In the same period, private property also came to include industrial and financial enterprises in addition to agricultural land. And in the end, when a 13 member Constitutional Bench of the Supreme Court decided, by majority, to uphold Parliament’s right to amend the Constitution in order to restrict and even curtail the scope of the Fundamental Right to Property in order to give effect to the principles laid down under Article 39(b) and (c) of the Constitution in the Keshavananda case, it marked a culmination of the process that began at the time of drafting the Constitution. The decision in the Keshavananda case, in April 1973, was also a categorical endorsement by the Supreme Court of the idea of socialism as spelt out in the Constitution and its scheme. The concept of Eminent Domain was established explicitly. It is important to note here that the majority decision in this case had proclaimed the Basic Structure doctrine, and it is necessary to note that the judges who proclaimed this doctrine relied upon the Preamble of the Constitution as the source from where the Basic Structure was to be located. 

In a subsequent judgment, when,  by way of the Constitution (Forty Second Amendment) Act, 1976, the word `socialism’ was inserted into the Preamble among many other changes to the Constitution, another Constitution Bench of the Supreme Court held the insertion to be valid and even held that the insertion had only made explicit something that was implicit hitherto. That was in the Minerwa Mills case decided in 1980. The Bench, in this case, had also put the stamp of approval on the Constitution (Forty Fourth Amendment) Act, 1978 by which Article 31 of the Constitution stood deleted among other changes.

Article 31 of the Constitution had remained an obstacle in the path of legislations attempting to give effect to Article 39(b) and (c) until then. However, it is important to note here that the purpose behind the deletion of the Article was somewhat different. The experience during the Emergency, when individual liberty was annulled by the transient majority that the ruling Congress party enjoyed in Parliament during the 19 months between June 25, 1975 and March 21, 1977, had led the Janata Government to ensure that political democracy was not curtailed in the name of economic democracy with as much ease as it was sought to be done by way of the Constitution (Forty Second Amendment), 1976. The motive was to render the Fundamental Rights unimpeachable and permanent. It was considered necessary, by the Janata leaders, to ensure that Article 31, which guaranteed the Right to Property too as a Fundamental Right was no longer denied its placed at the same pedestal as the Freedom of Expression and the Right to Legal Remedy. The amendment, that sought to render any dilution of the individual right to freedom amendable only after obtaining the approval of the people by way of a referendum (which was not the case until then) did not intend to give the same status to the Right to Property and thus lay the ground for another round of legal challenges against legislations to give effect to the provisions under Article 39(b) and (c).

III

            Acquisition of private property, or nationalization, ceased to be the Government’s policy even in the 1980s. A case in point was that of the cotton textile mills in Bombay. A number of them, in the private sector, found their market shrinking. Apart from the obsolete technology, their market share began to decline significantly due to the advent of polyester fibre. In another time, such mills were nationalized and brought under the National Textile Corporation. The 1980s witnessed a crisis in the case of the NTC itself and the Government of the time was not really concerned with protecting employment in the sector. The private mills in Bombay, faced with a serious crisis, were waiting for an opportunity to close down. A strike, called for by an independent labour union leader, Datta Samant, was used as an opportunity by the mill owners. The Government let the mills close down and several thousand workers were simply left in the lurch. Rather than nationalization, the thinking began to veer around privatization. The July 1991 economic policy resolution formalized this thinking. An official paper, in fact, recommended the closure of as many as 244 Central Public Sector Enterprises and more than half of those happened to be units that were nationalized after they were rendered unworthy by private entrepreneurs. All this could be the subject matter of another study.

Experience in the three decades since the 1980s, was one where the application of the law, as settled, led to a consequence that was just the opposite of such an intention. In what could be described as the unintended consequence, with the deletion of Article 31 from the Constitution and the rendering of the Right to Property as a mere legal right, the state’s right to compulsory acquisition of property (land in particular) began to be used, most often, to defy Article 39(b) and (c). It may be said that the legislative process against large landholdings through legislations in the various States by the 1960s and the system of zamindari (or the various other names by which it had existed) were rendered illegal by that time. The idea of Land Reforms had been completed, at least in the legislative domain, by this time. The concept of Eminent Domain, where the state’s right over land overwhelmed that of the individual, was meant to sanction compulsory acquisition of land from the small and medium farmer in the name of public purpose. The emerging context also meant a redefinition of the public purpose itself.

From the earlier premise of redistribution of resources in an egalitarian sense, public purpose came to be defined as dispossessing the small and the medium farmer and transferring the property thus acquired to private manufacturers and in many instances, for such purposes as housing and even amusement facilities in the private sector. This certainly meant depriving the small producer of his means to livelihood and the concentration of resources in the hands of a few. The neo-liberal state began seeing this move as inevitable and viewed it as a public purpose in the context of urbanisation. Unlike in the early decades after independence, where acquisitions for industrial purpose were predominantly done in cases of barren land in the countryside and where employment opportunities for the dispossessed in the industries were a real option, the nature of industry in the neo-liberal context has been such that the scope for employment for the land loser was restricted and more in the nature of ancillary services and thus different from the factories that came up in the earlier phase. This transition is significant and had its impact in the evolution of the jurisprudence in the realm of property rights.

The political shift to dispossess the peasant was achieved by resorting to Section 17(1) of the 1894 Act and thereby dispensing with an enquiry under Section 5 A of the Act. This was attacked by the Supreme Court as early as in 2004. [7] The decision in the instant case, did not hold back the state from compulsory acquisition of land. The idea of development in the neo-liberal era (since 1991) meant compulsory acquisition of land for such purposes as housing; and with the advent of the ICT enabled services during this period, acquisition of land closer to the urban centres became the norm as distinct from the earlier scheme where industrialisation happened far away from the metropolis.[8] This provoked resistance, including ones that led to the dispossessed fighting pitched battles with the state and its repressive arm such as the ones in Kalinganagar in Orissa and Singur and Nandigram in West Bengal. [9]

It was in this context that the Supreme Court intervened, thrice between March and July 2011, reiterating the principle spelt out in the 2004 judgment cited above. It will make ample sense to discuss in detail the three cases and the judgments thereon from the scope of this paper.

IV

            The Dev Sharan case was among the first of these moves in which the Supreme Court struck down such acquisitions. It may be noted here that the Supreme Court, in this case as well as a couple of others, struck down the acquisition on procedural grounds involving a specific provision of the Land Acquisition Law, 1894 and also raised larger Constitutional questions involving the Fundamental Rights and the Directive Principles of State Policy while doing so. On March 7, 2011, a Supreme Court bench consisting of Justices G.S.Singhvi and Asok Kumar Ganguly struck down acquisition of agricultural land in the Sahranpur District in Uttar Pradesh; the land was acquired for construction of a District jail and was part of a scheme for building modern jails in several parts of Uttar Pradesh.[10]

            In his petition before the Allahabad High Court, Dev Sharan, one of those whose lands were sought to be acquired challenged the acquisition on two grounds; one that there were barren lands elsewhere that could be acquired for the purpose of building a jail; and two, that there was no emergency as such and hence invoking Section 17 of the 1894 Act and the consequent waiver of the enquiry under Section 5 A of the Act was unwarranted and that it denied him the right to record his objection as provided for in the law. The Allahabad High Court, on November 25, 2009, rejected the contentions and held that it was beyond the scope of the court to interrogate as to whether the emergency existed or not. An appeal was raised against this before the Supreme Court.

               The contentions before the Supreme Court were on two points:  (1) whether the State Government was justified in acquiring the said pieces of fertile agricultural land, when there were alternative sites of unfertile banjar land available; and (2) whether the State Government was justified in dispensing with the inquiry which is mandated to be conducted under Section 5A of the Act, especially when one year elapsed between the notifications under Section 4 and the one under Section 6. In fact, the Supreme Court was to decide as to whether the Allahabad High Court had erred insofar as it upheld the factum of urgency in the absence of a categorical finding, an enquiry under Section 5A would have been detrimental to public interest. The case rested on the point that the scheme to build a new prison was under  consideration of the State Government for several years and that there was no material fact to justify the abridgement of the appellants' right of raising an objection to acquisition and of a hearing under Section 5A of the Land Acquisition Act, 1894.

            Finding that there was force in the argument, Justice Ganguly, speaking for Justice Singhvi as well, held as follows:

“In connection with land acquisition proceeding whenever the provision of Section 17 and its various sub-sections including Section 17(4) is used in the name of taking urgent or emergent action and the right of hearing of the land holder under Section 5A is dispensed with, the Court is called upon to consider a few fundamentals in the exercise of such powers.”[11]

Stressing the fact that the Land Acquisition Act, 1894 was `a pre-Constitutional legislation of colonial vintage’ Justice Ganguly added that it `is a drastic law, being expropriatory in nature as it confers on the State a power which affects person's property right.’ The judge went on to hold that:

“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 the 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. This Court is of the opinion that the concept of public purpose in land acquisition has to be viewed from an angle which is consistent with the concept of a welfare State.”[12] (emphasis added)

            It may be noted here, in this context, that the Supreme Court, had clarified as to what constitutes public purpose in its judgment in the Kameshwar Singh case. Justice S.R.Das had stated so categorically that acquisition to serve the ends of Article 39(b) of the Constitution as such will constitute a public purpose. This position was upheld on many occasions thereafter by the Supreme Court. The most decisive judgment, in this regard, happened to be the majority decision in the Kesavananda case by which Article 31C was held valid. In the instant case, Justice Ganguly, speaking for Justice Singhvi, went on to stress that Section 3(f) of the Land Acquisition Act, 1894,[13] had to be interpreted on the same lines. The court held:

“The concept of public purpose cannot remain static for all time to come. The concept, even though sought to be defined under Section 3(f) of the Act, is not capable of any precise definition. The said definition, having suffered several amendments, has assumed the character of an inclusive one. It must be accepted that in construing public purpose, a broad and overall view has to be taken and the focus must be on ensuring maximum benefit to the largest number of people. Any attempt by the State to acquire land by promoting a public purpose to benefit a particular group of people or to serve any particular interest at the cost of the interest of a large section of people especially of the common people defeats the very concept of public purpose. Even though the concept of public purpose was introduced by pre-Constitutional legislation, its application must be consistent with the constitutional ethos and especially the chapter under Fundamental Rights and also the Directive Principles.[14] (emphasis added)

            Justice Ganguly, then, went into the scope for judicial intervention in cases of land acquisition in accordance with the larger Constitutional scheme and stressed the importance of Article 13 of the Constitution in this regard. He also held that that the Fundamental Rights have not been allowed to remain as they were insofar as their scope was concerned and have to be seen as in the manner in which they have been interpreted time and again by the Supreme Court. He held:

“In construing the concept of public purpose, the mandate of Article 13 of the Constitution that any pre-constitutional law cannot in any way take away or abridge rights conferred under Part­ III, must be kept in mind. By judicial interpretation the contents of these Part III rights are constantly expanded. The meaning of public purpose in acquisition of land must be judged on the touchstone of this expanded view of Part-III rights. The open-ended nature of our Constitution needs a harmonious reconciliation between various competing principles and the overhanging shadows of socio-economic reality in this country.”[15] (emphasis added)

The bench, then, came to the specifics of the instant case to hold that:

“Therefore, the concept of public purpose on this broad horizon must also be read into the

provisions of emergency power under Section 17 with the consequential dispensation of right of hearing under Section 5A of the said Act. 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.”[16] (emphasis added)

            In doing so, the two-member bench relied upon an earlier decision by the Supreme Court where the role of the judges of the higher judiciary, while deciding issues of importance to the society, was outlined; that they shall not act as mere umpires but adopt a goal oriented approach.[17] Justice Ganguly, speaking for Justice Singhvi, relied on the principle enunciated in the Naganatha Iyer case. The principle laid down by the court, in that case was:

 “While dealing with welfare legislation of so fundamental a character as agrarian reform, the Court must constantly remember that the statutory pilgrimage to 'destination social justice' should be helped, and not hampered, by judicial interpretation. For, the story of agrarian redistribution in Tamil Nadu, as elsewhere, has been tardy and zigzag, what with legislative delays, judicial stays and invalidations, followed by fresh constitutional amendments and new constitutional challenges and statutory constructions, holding up, for decades, urgent measures of rural economic justice which was part of the pledges of the freedom struggle. It is true that judges are constitutional invigilators and statutory interpreters; but they are also responsive and responsible to Part IV of the Constitution being one of the trinity of the nation's appointed instrumentalities in the transformation of the socio-economic order. The Judiciary in its sphere, shares the revolutionary purpose of the Constitutional order, and when called upon to decode social legislation must be animated by a goal oriented approach. This is part of the dynamics of statutory interpretation in the developing countries so that Courts are not converted into rescue shelters for those who seek to defeat agrarian justice by cute transactions of many manifestations now so familiar in the country and illustrated by the several cases under appeal. This caveat has become necessary because the judiciary is not a mere umpire, as some assume but an activist catalyst in the constitutional scheme.”[18] (emphasis added)

`In other words’ held Justice Ganguly, `the words public purpose must be viewed through the prism of Constitutional values as stated above and that this principle in our  jurisprudence forces the Court to construe any expropriatory legislation like the Land Acquisition Act very strictly.’[19] The stress clearly was that the higher judiciary, in such instances, shall pierce the veil insofar as the “public purpose” is concerned rather than relying upon the statement by the acquisitioning authority as conclusive.

               Justice Ganguly, speaking for Justice Singhvi as well, then cited a catena of cases, decided even after the Constitution (Forty Fourth Amendment) Act, 1978, deleted Article 19(1) (f) and Article 31 of the Constitution, where the Supreme Court had held that though the right to property has ceased to be a fundamental right, it would however be given an express recognition as a legal right and also as a human right. The basis for this was reliance upon the various international covenants, namely, the Declaration of Human and Civic Rights.[20]

               Justice Ganguly’s order in the instant case thereafter dealt with the relevance and the history of Section 5A of the Land Acquisition Act, 1894. It was an insertion, almost 30 years after the 1894 Act came into vogue. The Calcutta High Court in J.E.D. Ezra vs. The Secretary of State for India and others, where the properties of one Ezra were sought to be acquired under the 1894 Act for expansion of the offices of the Bank of Bengal, rejected the argument that there must have been a chance for the person whose property was going to be taken away to object to such acquisition based on the principles of natural justice. However, the judges held out that they had rejected the plea only because there was no such provision in the Act. It was in order to remedy this shortcoming in the 1894 Act that an amendment by way of inserting Section 5A was introduced on July, 11, 1923.[21]

               Citing the decision by a three-judge bench of the Supreme Court where the relevance of Section 5A of the Land Acquisition Law, 1894 where the court underscored that “the right to file objection under Section 5-A is a substantial right when a person's property is being threatened with acquisition and we cannot accept that right can be taken away as if by a side-wind,”[22] Justice Ganguly, speaking for Justice Singhvi went on to cite a catena of similar cases since then where the Supreme Court had dealt with Section 5A in relation to Section 17 of the Land Acquisition Act, 1894 and held that the provision to dispense with an enquiry before acquisition as such could be sanctioned only after probing as to whether an emergency existed at all.[23]

               Central to the decision in the instant case was a judgment by the Supreme Court in the Union of India vs Mukesh Hans case,[24] in which the three-member bench of the Supreme Court, in a unanimous judgment, had held as follows:

“The mere existence of urgency under Section 17 (1) or unforeseen emer­gency under Section 17(2) would not by themselves be sufficient for dispensing with 5A inquiry. If that was not the intention of the Legislature then the latter part of sub­section (4) of Section 17 would not have been necessary and the Legislature in Section 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically 5A inquiry will be dispensed with. But then that is not language of the Section which in our opinion requires the appropriate Govern­ment to further consider the need for dis­pensing with 5A inquiry in spite of the ex­istence of unforeseen emergency. This un­derstanding of ours as to the requirement of an application of mind by the appropri­ate Government while dispensing with 5A inquiry does not mean that in and every case when there is an urgency contemplated un­der Section 17{1) and unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the need for dis­pensing with 5A inquiry. It is possible in a given case the urgency noticed by the ap­propriate Government under Section 17(1) or the unforeseen emergency under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the in­quiry under Section 5A but then there is a need for application of mind by the appro­priate Government that such an urgency for dispensation of the 5A inquiry is inherent in the two types of urgencies contemplated under Section 17(1) arid (2) of the Act.”[25]

               Applying this principle, which clearly was the ratio decidendi in the Mukesh Hans case, Justice Ganguly, speaking for Justice Singhvi held:

“… the time which elapsed between publication of Section 4(1) and Section 17 notifications, and Section 6 declaration, in the local newspapers is of 11 months and 23 days, i.e. almost one year. This slow pace, at which the government machinery had functioned in processing the acquisition, clearly evinces that there was no urgency for acquiring the land so as to warrant invoking Section 17 (4) of the Act.”[26]

Although the bench found the construction of jails to be a public purpose and upheld the government’s powers to acquire private land for that purpose, it quashed the acquisition proceedings in the instant case and held:

“For the reasons aforesaid, we hold that the State Government was not justified, in the facts of this case, to invoke the emergency provision of Section 17(4) of the Act. The valuable right of the appellants under Section 5A of the Act cannot flattened and steamrolled on the `ipsi dixit' of the executive authority. The impugned notifications under Sections 4 and 6 of the Act in so far as they relate to the appellants' land are quashed. The possession of the appellants in respect of their land cannot be interfered with except in accordance with law.”[27] (emphasis added)

               The judgment is significant for more than one reason. The Supreme Court bench, in this case, decided in the way it did, relying upon a catena of cases decided at an earlier point of time. The trend had been to treat the right to be heard, under Section 5A of the Land Acquisition Act, 1894 as a necessary condition for acquisition of land. This had been the case in the several decisions of the apex court since Nandeshwar Prasad and until Mukesh Hans. In that context, the decision by the Allahabad High Court to dismiss the writ petition in the instant case was certainly a case of judicial indiscipline. The Supreme Court, in this instance, set this right. The second important aspect of the judgment in the instant case was that the Supreme Court described the Land Acquisition Act, 1894 as an “appropriatory legislation” and went on to hold that the courts examine the procedure as well as the purpose “very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the State.” The judgment also laid down that:

“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 its power of judicial review, focus its attention on the concept of social and economic justice.”[28] (emphasis added)

               Although the judges, in the instant case, held that the State Government may pursue with the acquisition of land, including that of the appellant in the case, after providing an opportunity to object under Section 5A, the implication of the decision was that where the enquiry was mandated, it was possible for the owner of the land to be acquired to establish that such acquisition would deprive him of his livelihood and thus save the land from being acquired. This certainly was a radical departure from the prevailing trend where it seemed that the judiciary simply endorsed the retreat of the State from the socialist principles as enshrined in the Preamble of the Constitution and elaborated in Article 39(b) of the Constitution. The same bench, in a couple of other judgments, elongated these principles further. The first such instance was in the Greater NOIDA Industrial Development Authority case[29]

               In this case, the persons whose land was to be thus acquired then raised a writ petition before the Allahabad High Court seeking that the acquisition proceedings be quashed on the following grounds:

(i)                That the land cannot be used for industrial purposes because in the draft Master Plan of Greater NOIDA (2021), the same is shown as part of residential zone.

(ii)              That they had already constructed dwelling houses and as per the policy of the State Government, the residential structures are exempted from acquisition.

(iii)            That the State Government arbitrarily invoked Section 17(1) read with Section 17(4) of the Act and deprived them of their valuable right to raise objections under Section 5-A.

(iv)            The acquisition of land is vitiated by arbitrariness, mala fides and violation of Article 14 of the Constitution inasmuch as lands of the Member of Legislative Assembly and other influential persons were left out from acquisition despite the fact that they were not in abadi, but they were not given similar treatment despite the fact that their land was part of abadi and they had constructed dwelling units. [30]

The High Court, however, dismissed the writ petitions on December 15, 2008 and the dispossessed raised an appeal in the Supreme Court. Dealing with the appeal, the two-member bench of the Supreme Court, consisting of Justices Singhvi and Ganguly, held at the outset that there was force in the grounds raised by the petitioners. Justice Singhvi, speaking for Justice Ganguly as well in this case, held:

“It is relevant to mention here that excluding the enquiry under Section 5-A can only be an exception where the urgency cannot brook any delay. The enquiry provides an opportunity to the owner of land to convince the authorities concerned that the land in question is not suitable for purpose for which it is sought to be acquired or the same sought to be acquired for the collateral purposes. It is pertinent to mention here that the respondents No. 1 and 2 without the application of mind dispensed with the enquiry on the ground of urgency invoking the power conferred by Section 17 (1) or (2) of the Act. Further, the respondent No. 1 and 2 without  application of mind did not consider the survey report of the abadi of the village Makaura where the entire land is being used for the purpose of residence and grazing of cattle[]s in Khasra No. 394. Further, the petitioners were surprised to find that their land have not been included in the abadi irrespective of the same is in use for habitation and keeping the cattle and other uses. The petitioners have constructed their houses and using the same for their residence and keep their cattle[]s and agricultural produce. The survey report clearly shows that the impugned Khasra No. 394 is in use for residence.”[31] (emphasis added)

Unlike the Allahabad High Court, the Supreme Court in this case, ordered the different respondents to file their response by way of an affidavit. In his counter affidavit, the Land Acquisition Officer stated that the urgency clause was invoked, in this case, for a variety of grounds and among them were the following:

·         “That the land in the adjoining villages was already acquired by the Greater Noida Industrial Development Authority. Thus, the acquired land was urgently required for continuity of infrastructure services and planned Industrial Development of the Area. If, the proposed land was not acquired immediately and delay in this regard would lead to encroachments and would adversely affect the Planned Industrial Development of the Area.’’

·         That the acquired land consists of 246 plots numbers with 392 recorded tenure holders. If objections are to be invited and hearing be given to such large number of tenure holders, it would take long time to dispose of the objections thereof and would hamper the planned development of the area.

·         That reputed industrial houses who are interested in investing in the State and in case the land is not readily available, they might move to other states and such a move would adversely affect the employment opportunities in the State.” [32] (emphasis added)

A number of documents too were let in, as evidence, by the Government to establish its point that there was a sense of urgency and hence Section 17(4) had to be invoked. Justice Singhvi, in his order, where he spoke for Justice Ganguly, objected to the manner in which the Allahabad High Court had dealt with the writ petition. The bench held:

“At the outset, we record our disapproval of the casual manner in which the High Court disposed of the writ petition without even calling upon the respondents to file counter affidavit and produce the relevant records. A reading of the averments contained in paragraphs 11 and 16 and grounds A and F of the writ petition, which have been extracted hereinabove coupled with the appellants' assertion that the acquisition of their land was vitiated due to discrimination inasmuch as land belonging to influential persons had been left out from acquisition, but their land was acquired in total disregard of the policy of the State Government to leave out land on which dwelling units had already been constructed, show that they had succeeded in making out a strong case for deeper examination of the issues raised in the writ petition and the High Court committed serious error by summarily non-suiting them.”[33]

Justice Singhvi then dwelt at length into the long history of the Land Acquisition Act, 1894 and the context in which Section 5A came to be inserted into the Act and placed the whole provision in its context. He said:

“The Act, which was enacted more than 116 years ago for facilitating the acquisition of land and other immovable properties for construction of roads, canals, railways etc., has been frequently used in the post independence era for different public purposes like laying of roads, construction of bridges, dams and buildings of various public establishments/institutions, planned development of urban areas, providing of houses to different sections of the society and for developing residential colonies/sectors. However, in the recent years, the country has witnessed a new phenomena. Large tracts of land have been acquired in rural parts of the country in the name of development and transferred to private entrepreneurs, who have utilized the same for construction of multi-storied complexes, commercial centers and for setting up industrial units. Similarly, large scale acquisitions have been made on behalf of the companies by invoking the provisions contained in Part VII of the Act.”[34] (emphasis added)

Justice Singhvi, thereafter went on to speak about the implication of this trend in a forthright manner. “The resultant effect of these acquisitions,” he said, “is that the land owners, who were doing agricultural operations and other ancillary activities in rural areas, have been deprived of the only source of their livelihood.”[35]  This indeed was a significant statement by the judges and they also emphasized that in such situations and the larger context where most of those whose lands were taken away were innocent of their constitutional and legal rights were forced to “reconcile with deprivation of land by accepting the amount of compensation offered by the Government and by thinking that it is their fate and destiny determined by God.” The judges clearly displayed their empathy to the cause of the farmers deprived of their livelihood this way when they said: “Even those who get semblance of education are neither conversant with the functioning of the State apparatus nor they can access the records prepared by the concerned authorities as a prelude to the acquisition of land by invoking Section 4 with or without the aid of Section 17(1) and/or [36]17(4).” And in what can certainly be seen as a comment on the Allahabad High Court’s order, the judges held:

“ Therefore, while examining the land owner's challenge to the acquisition of land in a petition filed under Article 226 of the Constitution, the High Court should not adopt a pedantic approach, as has been done in the present case, and decide the matter keeping in view the constitutional goals of social and economic justice and the fact that even though the right to property is no longer a fundamental right, the same continues to be an important constitutional right and in terms of Article 300-A, no person can be deprived of his property except by authority of law.” [37] (emphasis added)

            The judgment, significant in many ways, also laid down that “in cases where the acquisition is made by invoking Section 4 read with Section 17(1) and/or 17(4), the High Court should insist upon filing of reply affidavit by the respondents and production of the relevant records and carefully scrutinize the same before pronouncing upon legality of the impugned notification/action because a negative result without examining the relevant records to find out whether the competent authority had formed a bona fide opinion on the issue of invoking the urgency provision and excluding the application of Section 5-A is likely to make the land owner a landless poor and force him to migrate to the nearby city only to live in a slum.’’ (emphasis added)[38] These, after all, were the law as laid down by the Supreme Court and in unambiguous terms in the Mukesh Hans case by a three-judge bench of the Supreme Court in 2004. Justice Singhvi, speaking for Justice Ganguly, in this instant case went a step further and added:

“If the acquisition is intended to benefit private person(s) and the provisions contained in Section 17(1) and/or 17(4) are invoked, then scrutiny of the justification put forward by the State should be more rigorous in cases involving the challenge to the acquisition of land, the pleadings should be liberally construed and relief should not be denied to the petitioner by applying the technical rules of procedure embodied in the Code of Civil Procedure and other procedural laws.”[39]

The judges then stressed that the approach, in such cases, must be “goal oriented’’ rather than being that of an umpire as held by the bench in the Naganatha Ayyar case. The bench, in the instant case also stressed that the burden of proving that an emergency existed and that invoking the provisions of Section 17(4) and thus dispensing with the enquiry under Section 5A of the Act rested with the State. The court held:

“… an assertion by the appellants that there was no urgency in the acquisition of land; that the concerned authorities did not apply mind to the relevant factors and records and arbitrarily invoked the urgency provisions and thereby denied him the minimum opportunity of hearing in terms of Section 5-A (1) and (2), should be treated as sufficient for calling upon the respondents to file their response and produce the relevant records to justify the invoking of urgency provisions.”[40]

            After this long but clear narrative of the law, as laid down by the Supreme Court hitherto and illustrating how the High Court decision was untenable, Justice Singhvi, speaking for Justice Ganguly as well, went on to cite from a Common Law judgment and extracted a principle enunciated to buttress their decision:

“Even God did not pass a sentence upon Adam, before he was called upon to make his defence. `Adam’ says God, `where art thou? hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat’”

to underscore the need for an enquiry before executing the acquisition in this context.[41] The bench, in the instant case, thus went on to foreground the principle of natural justice and its cardinal maxim audi alteram partem (that none shall be punished without being heard). Justice Singhvi relied on a judgment by the Supreme Court, as early as in 1973, to drive home this point. A three-judge bench, in the Sayeedur Rahman vs State of Bihar[42] had held as follows: In that case, the bench had stressed the importance of the right to be heard and held as follows:

“… This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of the rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessity of not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision than the practice of giving hearing to the affected parties.”[43]

The bench, in the instant case also cited the judgment in the M.S.Gill vs Chief Election Commissioner, where a Constitution bench of the Supreme Court had underscored the right to be heard in as many words.[44] Justice Singhvi also cited the decision in the Maneka Gandhi case[45] to buttress the view of the bench in the instant case. The bench then went on to list out a set of nine principles, based on the various decisions arrived at by the Supreme Court over the years. They were:[46]

(i)                Eminent domain is a right inherent in every sovereign to take and appropriate property belonging to citizens for public use. To put it differently, the sovereign is entitled to reassert its dominion over any portion of the soil of the State including private property without its owner's consent provided that such assertion is on account of public exigency and for public good…

(ii)              The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly.

(iii)            Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that compulsory taking of one's property is a serious matter. If the property belongs to the economically disadvantaged segment of the society or people suffering from other handicaps, then the Court is not only entitled but is duty bound to scrutinize the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the land owner is likely to become landless and deprived of the only source of his livelihood and/or shelter.

(iv)            The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of Sections 4, 5-A and 6 of the Act. A public purpose, however laudable it may be, does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, the State can invoke the urgency provisions and dispense with the requirement of hearing the land owner or other interested persons.

(v)              Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even few weeks or months. Therefore, before excluding the application of Section 5-A, the concerned authority must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired.

(vi)            The satisfaction of the Government on the issue of urgency is subjective but is a condition precedent to the exercise of power under Section 17(1) and the same can be challenged on the ground that the purpose for which the private property is sought to be acquired is not a public purpose at all or that the exercise of power is vitiated due to mala fides or that the concerned authorities did not apply mind to the relevant factors and the records.

(vii)          The exercise of power by the Government under Section 17(1) does not necessarily result in exclusion of Section 5-A of the Act in terms of which any person interested in land can file objection and is entitled to be heard in support of his objection. The use of word ‘may’ in sub- section (4) of Section 17 makes it clear that it merely enables the Government to direct that the provisions of Section 5-A would not apply to the cases covered under sub-section (1) or (2) of Section 17. In other words, invoking of Section 17(4) is not a necessary concomitant of the exercise of power under Section 17(1).

(viii)        The acquisition of land for residential, commercial, industrial or institutional purposes can be treated as an acquisition for public purposes within the meaning of Section 4 but that, by itself, does not justify the exercise of power by the Government under Section 17(1) and/or 17(4). The Court can take judicial notice of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial or institutional areas usually take few years.  Therefore, the private property cannot be acquired for such purpose by invoking the urgency provision contained in Section 17(1). In any case, exclusion of the rule of audi alteram partem embodied in Section 5-A (1) and (2) is not at all warranted in such matters.

(ix)             If land is acquired for the benefit of private persons, the Court should view the invoking of Section 17(1) and/or 17(4) with suspicion and carefully scrutinize the relevant record before adjudicating upon the legality of such acquisition. (emphasis added)

Applying these principles to the instant case, Justice Singhvi, speaking for Justice Ganguly as well, held that there was nothing sustainable in the affidavit and the explanations by the Government to justify invoking the urgency clause. The judges held:

“Even if planned industrial development of the district is treated as public purpose within the meaning of Section 4, there was no urgency which could justify the exercise of power by the State Government under Section 17(1) and 17(4). The objective of industrial development of an area cannot be achieved by pressing some buttons on computer screen. It needs lot of deliberations and planning keeping in view various scientific and technical parameters and environmental concerns. The private entrepreneurs, who are desirous of making investment in the State, take their own time in setting up the industrial units. Usually, the State Government and its agencies/instrumentalities would give them two to three years' to put up their factories, establishments etc. Therefore, time required for ensuring compliance of the provisions contained in Section 5-A cannot, by any stretch of imagination, be portrayed as delay which will frustrate the purpose of acquisition.”[47] (emphasis added)

The importance of the judgment, in this case, is in the fact that it reversed a trend, in recent years, where the State’s powers to acquire private property for a public purpose are used for causes contrary to the intentions of the law makers. The more important point is that the court, in the instant case, sought to place the law on its legs and this was achieved by relying upon a catena of its own case laws. The most salient feature of this judgment was in the fact that the two-judge bench enlisted the principles upon which the various High Courts shall decide challenges to acquisition of land under the Land Acquisition Act, 1894. Justices Singhvi and Ganguly, in doing so, had in fact placed the 1894 Act in a position where it shall subserve the Constitutional scheme in general and Article 39(b) in particular.

The same bench decided on another case on similar lines on July 6, 2011. This case too involved acquisition of land in the Gautham Buddha Nagar in Uttar Pradesh and more specifically in villages adjoining Delhi. Apart from the issue of invoking Section 17(4) and thus dispensing with the enquiry under Section 5A of the Land Acquisition Act, 1894, the challenge in this case was also against the conversion of land thus acquired in the name of planned industrial development being put to use for construction of multi-storeyed housing apartments by private builders. It was evident that the conversion – from industrial purposes to housing projects promoted by private builders – was approved by the concerned authority, in this case, even before the notification under Section 6 of the 1894 Act was issued.

Justices Singhvi and Ganguly, on July 6, 2011, upheld the Allahabad High Court order confirming that invoking Section 17(4) in the process was unjustified and also that the conversion of the land was malafide, particularly where the said land was handed over to private builders and hence cannot be seen as serving any public purpose. In doing so, Justice Singhvi, speaking for Justice Ganguly, made the following observation:

“The facts brought on record unmistakably show that the whole exercise of acquisition was designed to serve the interest of the builders and the veil of public purpose was used to mislead the people in believing that land was being acquired for a public purpose i.e. planned industrial development. This is the reason why even before the issue of notification under Section 6(1), the process for change of land use was initiated and completed with unusual haste and without waiting for the Government's approval to the modification of the Development Plan, the Authority offered and allotted the acquired land to the builders for construction of multi-storeyed complexes. This was nothing but a colourable exercise of power by the State Government under the 1894 Act and in our considered view, the High Court did not commit any error by recording a conclusion to that effect.”[48]

The judges then went on to speak out their mind before dismissing the appeals. They said:

“Before concluding, we consider it necessary to reiterate that the acquisition of land is a serious matter and before initiating the proceedings under the 1894 Act and other similar legislations, the concerned Government must seriously ponder over the consequences of depriving the tenure holder of his property. It must be remembered that the land is just like [a]mother, of [for] the people living in the rural areas of the country. It is the only source of sustenance and livelihood for the landowner and his family. If the land is acquired, not only the present but the future generations of the landowner are deprived of their livelihood and the only social security. They are made landless and are forced to live in slums in the urban areas because there is no mechanism for ensuring alternative source of livelihood to them. Mindless acquisition of fertile and cultivable land may also lead to serious food crisis in the country. In the result, the special leave petitions are dismissed.”[49] (emphasis added)

This concluding portion, indeed, is significant. It may appear that the judges went beyond the law. However, on close scrutiny, they simply adopted a goal oriented approach rather than behaving as mere umpires. The goals that they adopted were not mere subjective wishes of their own minds but the imperatives set by the Preamble of the Constitution, the Fundamental Rights and the Directive Principles of State Policy. In many ways than one, the decisions in the three cases where land acquisition proceedings were quashed, Justices Singhvi and Ganguly clearly identified the goals as stated in the Constitution. And in a very specific sense, they brought Article 39(b) to the foreground by speaking against depriving the rights of the farmer in all those instances. The higher judiciary had identified this Constitutional scheme in its decision upholding the Constitution (First Amendment) Act, 1951 and thus cleared the path of hurdles in giving effect to land reforms across the nation. By restricting the State’s right to compulsorily acquire the small pieces of land, held by farmers who were not the same as the landlords in pre-independent India who held large tracts as their own, the two-judge bench had only followed the larger mandate.

V

The judgments in the three cases ought to have remained the law until a larger bench decided another way or until the law itself was amended by Parliament and till such time such amendment was  struck down by the apex court. The enactment of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and its notification in the Gazette with effect from January 1, 2014, we have in place a law that renders the three judgments discussed above redundant. And as if the new law (LARR Act hereafter) was not bad enough to the farmer and others sections of the people sought to be dispossessed, the new Government amended the law by way of an ordinance.[50]

A short discussion on some of the specific provisions of the LARR Act will show the ideological basis to it and establish that the intention behind this legislation was anything but protecting the rights of the farmers and instead it is tailored to take care of the demands of the neo-liberal state. In other words, the LARR Act has more in common with the Enclosure Acts passed by England’s Parliament in the hundred years between 1750 and 1850 to that dispossessed the peasantry there and thus aided capitalist industrialisation. Lest it is mistaken and sounding historicist, I must add that there are differences too.  Nevertheless, it is important to stress here that there are striking similarities between the de-peasantisation that was achieved in England then and that is sought to be done here today. It is also the point here to establish that the 1894 Act, as much as Article 31 of the Constitution, were interpreted, at various stages, to defend the rights of the farmers (the peasantry against the land lord and the state), culminating in the three judgments discussed in the previous section of this paper; and that the LARR Act, in its design, has the potential to reverse all these judge made laws and thus aid the neo-liberal regime to dispossess the farmer.

It is important in this context to identify the ideological premise behind the 1894 Act. It was that the land-owner had unbound right over the property and to litigation over the quantum of compensation. It may be noted that the 1894 Act had substantially amended the existing law with regard to acquisition of property (as it existed from 1870) by knocking off the provision therein that the assessment of compensation by the assessor appointed by the District Collector/Magistrate as final and beyond challenge. Section 299(2) of the Government of India Act, 1935, further reiterated this and these have been discussed earlier in this paper. It is also pertinent to note here that the 1894 Act was further amended, in 1984, to include a solatium in addition to the compensation.[51] The LARR Act, however, has set the solatium amount equivalent to 100 per cent of the compensation amount.[52] While this may sound to be in tune with the objectives of the legislation: “to ensure ... a humane, participative, informed and transperant process of land acquisition”[53] the fact is that it is based on an ideological premise that reduces the farmland to mere monetary terms and the farmer a trader of his property. One is reminded of Marx’s commentary on the so called Primitive Accumulation: “The so called primitive accumulation, therefore, isnothing else than the historical process of divorcing the producer from the means of production.”[54]

If this is only a deduction, there is indeed a more direct provision in the LARR Act that should establish the ideological premise behind the Act. And that is how the Act defines `public purpose’. Section 2 wherein the scope of the Act is defined. While this Section, for most parts, reads the same as Section 3 (f) of the 1894 Act, there is a significant addition to the definition of public purpose in this new Act. Clause 2 (1) (vi), in the instant law, reads as follows: `project for sports, health care, tourism, transportation or space programme.’ It may be pointed out here that `tourism’ is an addition to the purpose for which compulsory acquistion of land can now be carried out. And as if to ensure that this is not left for interpretation by the courts (in the event a judge, as in the instances discussed in the previous section of this paper call as to whether tourism is at all a public purpose for compulsory acquisition of land), Section 3(za) of the LARR Act (definitions), makes it clear that “public purpose” means the activities specified under sub-section 1 of Section 2.   

            Seen in the context of the definition of such concepts as health-care, housing and entertainment in the neo-liberal era, with a section of the upper middle class and the budgeoning professional class seeking to redefine development, one cannot escape the temptation of returning to Marx, where he quotes, with a sense of approval, a set of letters from Robert Somers to The Times in the context of the famine of 1847: “In the highlands, new forests are springing up like mushrooms... Sheeps were introduced in the glens which had been the seats of communities of small farmers; and the latter were driven to seek subsistence on coarser and more sterile tracks of soil. Now deer are supplanting sheep; and these are once more dispossessing the small tenant, who will necessarily be driven down upon still courser land and to more grinding penury. Deer forests and the people cannot coexist...”[55]

Well. The deers and the parks are a metaphor. The neo-liberal regime is certainly not acquiring land and the LARR Act is not intended only to build tourist resorts, which is indeed bad enough, when it is done by dispossessing the cultivator and divorcing him from his means of production. The larger concern is that of housing the budgeoning urban professional and acquisition of land for this as was done in and around Delhi which the Supreme Court struck down in the cases discussed earlier in this paper. It may be stressed here that as against the instances discussed in this paper, acquisition of farm lands for housing projects and divorcing the cultivator from his means of production had happened with such impunity across the country and political parties across the spectrum had resorted to this in the couple of decades after 1991. The judgments between March and July 2011, could have helped preventing such land grabs; but the LARR Act certainly has foreclosed that possibility! In other words, notwithstanding claims to the contrary, the 2013 Act will ensure that gated enclaves with manicured lawns and water bodies where the bent and the beautiful can walk around and enjoy clean air while those who owned those lands and cultivated on them will be sent scurrying to the towns and swell the workforce that is already facing unemployment and under-employment.

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[1] This assessment is true of the law even before the amendment of December 31, 2014. The The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014 was promulgated on December 31, 2014.  The Ordinance amends the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act 2013).  The amendment, carried out by way of the Ordinance (after the BJP-led government’s effort to have it done failed for want of numbers in the Rajya Sabha because the Congress refused support), in fact renders the law more anti-farmer than it was.

[2] It must be added here that the 2014 Ordinance, amending the Act, empowers the government to exempt projects in  five categories -- (i) defence, (ii) rural infrastructure, (iii) affordable housing, (iv) industrial corridors, and (v) infrastructure projects including Public Private Partnership (PPP) projects where the central government owns the land -- from having to go through the Social Impact Assesment through a notification:

[3] Article 31, which guaranteed the Right to Property as a Fundamental Right was deleted and Article 300 A inserted by way of the Constitution (Forty-fourth Amendment) Act, 1978.

[4] Section 299 (2) of the Government of India Act, 1935, read as follows: “Neither the Federal nor a Provincial Legislature shall have power to make any law authorizing the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest in, or in any company owning, any commercial or industrial undertaking, unless the law provides for the payment of compensation for the property acquired and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, it is to be determined.”.

[5] Thakur Jaganath Baksh Singh vs United Provinces, IA-73-1946-123. See page 131

[6] It may be noted, here in this context, that the Indian National Congress in this period had refrained from addressing the rights of the landless agricultural workers over the land they tilled. It may be stressed here that the idea of land reforms, in fact, was restricted to addressing the aspirations of the middle and rich peasantry rather than in the sense of redistribution of land to the tiller. This remains an agenda only on the margins of our political and juridical discourse even now. 

[7] Union of India vs Mukesh Hans , (2004) 8 SCC 14. The bench consisted of Justices N.Santosh Hegde, Ashok Bhan and A.K.Mathur. In that, Justice Hegde spoke for the others. The case involved acquisition of land by the Delhi administration, in 1988, to provide the space for the annual festival called `Phool Walon Ki Sair’ in Mehrauli village in Delhi. Based on the instructions issued by the Lt. Governor, proceedings were initiated to acquire the earmarked land for the purpose A notification acquir­ing 72 bighas of land was mooted under the stated public purpose of Planned Devel­opment of Delhi. During the process of pre­paring the acquisition notification, the rec­ommending authorities felt that provisions of Section 17(1) of the Act should be uti­lised to facilitate urgent acquisition of the required land. Hence notices were put up at  different levels that the draft notification may indicate the need for urgency in in­voking Section 17(1) of the Act. As the usual bureaucratic procedure was not pro­ceeding at the required pace, the Delhi Ad­ministration wrote a letter to the Deputy Commissioner, call­ing upon the said officer to ensure that the concerned draft notification in regard to the said acquisition should be sent to that of­fice without further delay. A notification dated 30-6-1988 under Section 4(1) of the Act, came to be published and it stated the public purpose to be “planned De­velopment of Delhi.” This notification spe­cifically stated that the Lt. Governor was of the opinion that provision of sub- section (1) of Section 17 of the Act is applicable to this acquisition and that he was pleased to note under sub-section (4) that the provisions of Section 5A of the Act do not apply. Si­multaneously, a declaration under Section 6 of the Act as well as the notice under Sec­tion 7 of the Act were also published.

[8] I am not celebrating the Nehruvian paradigm that transformed villages into industrial hubs and thus promoted employment and built townships. This model too had its own infirmities and the destruction of the environment apart from causing displacement. However, it is necessary to stress that the industrialization then and the concept of planning that dominated the era did ensure that the nation was saved from landing in the dependency trap as did happen to those that won independence in the 1940s. Similarly, the alternate paradigm, built around the concept of intermediate technology and sustainable development (such as Schumacher’s Small is Beautiful) emerged in the public discourse only in the post-Nehruvian era. It is as much relevant that Gandhi’s Hind Swaraj, despite being in circulation at the time of independence was rejected by Nehru even in Gandhi’s own times.

[9] This is not an exhaustive list of the instances of resistance. A comprehensive research and documentation of such resistance and their outcome across the country is warranted. It is also necessary to note here that the zeal with which the CPI-M-led Left Front Government went about in Nandigram and Singur were not un-matched. The much trumpeted Gujarat model of development was possible because of a similar zeal; it is then important to stress here that Gujarat and such other States as Tamil Nadu and Maharashtra did not inherit a legacy of political democracy that was nurtured in West Bengal by the communist movement and that legacy laid the foundations for a successful battle against dispossession. The fact is that protests against compulsory acquisition of farm lands had come to haunt the neo-liberal regime.

[10] Dev Sharan vs State of UP (2011) 4 SCC 769.  The facts of the case, in this instance, are as follows: Appellants Dev Sharan and others, were aggrieved by the acquisition of their fertile agricultural land by the Uttar Pradesh government for construction of a modern jail in Shahjahanpur by invoking the emergency provisions of the Land Acquisition Act, 1894, and without conducting an enquiry where the land owners could have raised their objections. The Allahabad High Court upheld the acquisition and the Special Leave Petition were directed against this judgment of the Allahabad High Court.

[11] (2011) 4 SCC 769. paragraph 14.

[12] Ibid. paragraph 15.

[13] Section 3[(f): The expression “public purpose” includes-

(i) The provision of village-sites, or the extension, planned development or improvement of existing village-sites;

(ii) The provision of land for town or rural planning;

(iii) The provision of land for planned development of land from public funds in pursuance of any scheme or policy of Government and subsequent disposal thereof in whole or in part by lease, assignment or outright sale with the object of securing further development as planned;

(iv) The provision of land for a corporation owned or controlled by the State;

(v) The provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by Government, any local authority or a corporation owned or controlled by the State;

(vi) The provision of land for carrying out any educational, housing, health or slum clearance scheme sponsored by Government, or by any authority established by Government for carrying out any such scheme, or, with the prior approval of the appropriate Government, by local authority, or a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a State, or a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State;

(vii) The provision of land for any other scheme of development sponsored by Government or, with the prior approval of the appropriate Government, by a local authority;

(viii) The provision of any premises or building for locating a public office, but does not include acquisition of land for companies.

[14] (2011) 4 SCC 769. paragraph 16

[15] Ibid. paragraph 17.

[16] Ibid. paragraph 17.

[17] The reference here was to the decision in the Authorised Officer Thanjavur and another vs Naganatha Iyer (AIR-1979-SC-1487). This was an appeal involving as to whether land in excess of the ceiling imposed by the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961, even if such lands were transferred to different owners after the law was enacted and before it was given effect. Section 22 of the Act had, in fact, laid down that such transfers in the interim period would be voidable. And in accordance with this, some such transfers were declared void and those lands were to be appropriated in accordance with the Law. Those land holders approached the Madras High Court with a plea that Section 22 was unconstitutional. The Madras High Court, even while upholding the decision to appropriate such lands parceled out during the period between the enactment and the law being brought into force, refrained from speaking on the larger question of its Constitutional validity. The appeal before the Supreme Court was preferred by the state seeking that the law be laid down in this regard. A two-member bench of the Supreme Court bench consisting of Justices V.R.Krishna Iyer and A.P.Sen, held Section 22 as valid and also laid down the principle of interpretation insofar as such legislations are concerned. 

[18] See AIR-1979-SC-1487, paragraph 1. In this case, Justice Krishna Iyer spoke for Justice Sen as well. Also see (2011) 4 SCC 769, paragraph 18 where Justice Ganguly quotes this part of the judgment as aid.

[19] (2011) 4 SCC 769, paragraphs 19-20.

[20] An important case in this regard, and cited as such in the instant judgment was the decision in the Chairman, Indore Vikas Pradhikaran vs. Pure Industrial Coke and Chemicals Ltd. and Others [(2007) 8 SCC 705]. In that case, the Supreme Court upheld a decision by the Indore Bench of the Madhya Pradesh High Court quashing acquisition of land for expansion of the city. [See (2011) 4 SCC 769, paragraphs 22-24].

[21] The context and the imperative of this insertion was explained in the Statement of Objects and Reasons to the Amendment Act. It read as follows: “The Land Acquisition Act I of 1894 does not provide that persons having an interest in land which it is proposed to acquire, shall have the right of objecting to such acquisition; nor is Government bound to enquire into and consider any objections that may reach them. The object of this Bill is to provide that a Local Government shall not declare, under section 6 of the Act, that any land is needed for a public purpose unless time has been allowed after the notification under section 4 for persons interested in the land to put in objections and for such objections to be considered by the Local Government.” [See (2011) 4 SCC 769, paragraph 29].

[22] Nandeshwar Prasad and Others vs Government of Uttar Pradesh and Others (AIR-1964-SC-1217). In that case, a three-judge bench consisting of Justices P.B.Gajendragadkar, K.N.Wanchoo and K.C.Das Gupta had declared that enquiry under Section 5 A of the Land Acquisition Act, 1894 was a necessary condition for compulsory acquisition of land. Speaking for the bench, Justice Wanchoo stressed that under the Land Acquisition Act an order under S.17(1) or S. 17(4) can only be passed with respect to waste or arable land and it cannot be passed with respect to land which is not waste or arable and on which buildings stand. (See paragraph 11 of the judgment).

[23] The bench, in the instant case, relied upon the following judgments of the Supreme Court: Hindustan Petroleum Corporation Limited vs Darius Shahpur Chennai and Others [(2005) 7 SCC 627] in which the court had held that the right conferred under Section 5A has to be read considering the provisions of Article 300-A of the Constitution and, so construed, the right under Section 5A should be interpreted as being akin to a Fundamental Right. The Supreme Court had then held that the same being the legal position, the procedures which have been laid down for depriving a person of the said right must be strictly complied with. In the Essco Fabs Private Limited and Others vs State of Haryana and Others [(2009) 2 SCC 377], the Supreme Court had held that whereas sub-section (1) of Section 17 deals with cases of “urgency”, sub-section (2) of the said section covers cases of “sudden change in the channel of any navigable river or other unforeseen emergency” and that even in such cases, i.e., cases of "urgency" or "unforeseen emergency", enquiry contemplated by Section 5-A cannot ipso facto be dispensed with which is clear from sub-section (4) of Section 17 of the Act..

[24] (2004) 8 SCC 14. The bench consisted of Justices N.Santosh Hegde, Ashok Bhan and A.K.Mathur. In that, Justice Hegde spoke for the others. The case involved acquisition of land by the Delhi administration, in 1988, to provide the space for the annual festival called `Phool Walon Ki Sair’ in Mehrauli village in Delhi. Based on the instructions issued by the Lt. Governor, proceedings were initiated to acquire the earmarked land for the purpose A notification acquir­ing 72 bighas of land was mooted under the stated public purpose of Planned Devel­opment of Delhi. During the process of pre­paring the acquisition notification, the rec­ommending authorities felt that provisions of Section 17(1) of the Act should be uti­lised to facilitate urgent acquisition of the required land. Hence notices were put up at  different levels that the draft notification may indicate the need for urgency in in­voking Section 17(1) of the Act. As the usual bureaucratic procedure was not pro­ceeding at the required pace, the Delhi Ad­ministration wrote a letter to the Deputy Commissioner, call­ing upon the said officer to ensure that the concerned draft notification in regard to the said acquisition should be sent to that of­fice without further delay. A notification dated 30-6-1988 under Section 4(1) of the Act, came to be published and it stated the public purpose to be “planned De­velopment of Delhi.” This notification spe­cifically stated that the Lt. Governor was of the opinion that provision of sub- section (1) of Section 17 of the Act is applicable to this acquisition and that he was pleased to note under sub-section (4) that the provisions of Section 5A of the Act do not apply. Si­multaneously, a declaration under Section 6 of the Act as well as the notice under Sec­tion 7 of the Act were also published.

[25] Ibid. paragraph 32.

[26] (2011) 4 SCC 769, paragraph 38. (Notification under Section 4(1) was issued on June 4, 2008 and the Declaration under Section 6 was issued on August 10, 2009).

[27] Ibid. paragraph 41.

[28] Ibid. paragraph 18.

[29] (2011) 5 SCC 553 In this case, A notification under Section 4(1), read with Sections 17(1) and (4) of the Land Acquisition Act, 1894, for acquisition of 205.0288 hectares land of village Makora, Pargana Dankaur, Tehsil in the Gautam Budh Nagar (adjacent to Delhi) was issued by the Uttar Pradesh State Government. This notification, issued on March 12, 2008, was also of the same nature as in the case discussed in the previous section of this article and thus the land owners whose lands were to be acquired for a “public purpose” were denied an opportunity to raise objections under Section 5A in an enquiry. The “public purpose” as stated in the notification was “planned industrial development in District Gautam Budh Nagar through Greater Noida Industrial Development Authority.” The State Government was of the view that the said land was urgently required, for the planned industrial development in the district and that it was as well necessary to eliminate the delay likely to be caused by an enquiry under Section 5A of the 1894 Act and hence justified to invoke Section 17 (4) of the Act to ensure that the provisions of Section 5A of the said Act, shall not apply. A section of those whose land was sought to be acquired in this case then made a representation to the Chairman-cum-Chief Executive Officer of the Development Authority. They sent copies of that representation to the Chief Minister, the Principal Secretary, Housing and Urban Development, Government of Uttar Pradesh, the District Magistrate and the Special Officer, Land Acquisition, Gautam Buddh Nagar with the request that their land may not be acquired because they had raised construction on those lands as early as some 30-35 years ago and were using the property for abadi/habitation. No one heeded the representation and the State Government issued the notification under Section 6 that is to be read with Section 9 of the Land Acquisition Act on November 19, 2008. In other words, the time taken between the notification under Section 4(1) and Section 6 of the 1894 Act was eight months and seven days.

[30] See Ibid. paragraph 5.

[31] Ibid. paragraph 6.

[32] See Ibid. paragraph 9.

[33] Ibid. paragraph 15.

[34] Ibid. paragraph 17. It may be noted that Part VII of the Land Acquisition Act, 1894 (consisting of Sections 38 to 44B) deals with land acquisition for the purpose of being handed over to private companies. The law distinguishes acquisition for such purposes from the ‘public purposes’ as it is otherwise and the distinction is merely on the question of who pays the compensation. Part VII lays down that the compensation amount as well as the other costs for acquisitions for purpose of transfer to private companies shall be paid by the recipient of the land and the government’s responsibility rests with identification of the land to be acquired, notifying the acquisition as per the provisions of the Act and facilitating the disbursal of compensation. Some instances of such acquisitions are those in Singur in West Bengal, Kalinganagar in Orissa, etc. (For a detailed exposition of the law in this regard, see A. Ghosh, The Land Acqusition Act, 1894, pp 982-1008). 

[35] Ibid. paragraph 18.

[36] Ibid.

[37] Ibid.

[38] Ibid.

[39] Ibid.

[40] Ibid. paragraph 19. The bench relied on an earlier judgment by a three-member bench of the apex court for this. In that case (Narayan Govind Gavate vs State of Maharashtra), the Supreme Court had examined the correctness of the judgment of the Bombay High Court whereby the acquisition of land by the State Government by issuing notification under Section 4 read with Section 17(1) and 17(4) for development and utilisation as residential and industrial area was quashed. The High Court held that the purpose of acquisition was a genuine public purpose but quashed the notifications by observing that the burden of proving the existence of circumstances which could justify invoking of urgency clause was on the State, which it had failed to discharge.  The Supreme Court upheld the High Court judgment in that case.

[41] Ibid. paragraph 24. The case law, Cooper v. Wandsworth Board of Works, involved an act by the District Board that had brought down Cooper’s house because he had failed to comply with The Metropolis Local Management Act. The Act required the plaintiff to notify the board seven days before starting to build the house. Cooper argued that even though the board had the legal authority to tear his house down, no person should be deprived of their property without notice. Despite the lack of express words in the statute, the court recognized the right of hearing before the plaintiff's house built without permission was demolished in the exercise of statutory powers. The Lords, in that case, held that Cooper was entitled for a hearing.

[42] (1973) 3 SCC 373.

[43] Ibid. paragraph 11.

[44] (1978) 1 SCC 405. In that case, Justice V.R.Krishna Iyer, speaking for two others in the bench had held as follows: “Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes it, applies when people are affected by acts of authority. It is the hone of healthy government, recognised from earliest times and not a mystic testament of Judge-made law. Indeed, from the legendary days of Adam -- and of Kautilya's Arthasastra -- the rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case-law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system.

“Once we understand the soul of the rule as fair play in action -- and it is so -- we must hold that it extends to both the fields. After all, administrative power in a democratic set-up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Nor is there ground to be frightened of delay, inconvenience and expense, if natural justice gains access. For fairness itself is a flexible, pragmatic and relative concept, not a rigid, ritualistic or sophisticated abstraction. It is not a bull in a china shop, nor a bee in one's bonnet. Its essence is good conscience in a given situation: nothing more -- but nothing less. The ‘exceptions’ to the rules of natural justice are a misnomer or rather are but a shorthand form of expressing the idea that in those exclusionary cases nothing unfair can be inferred by not affording an opportunity to present or meet a case. Text-book excerpts and ratios from rulings can be heaped, but they all converge to the same point that audi alteram partem is the justice of the law, without, of course, making law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation.” (See paragraphs 43 and 48)

[45] AIR-1978-SC-597. It may be noted that the Maneka Gandhi case was the first instance where the principle of due- process-of-law was explicit in our judicial history.

[46] (2011) 5 SCC 553. Paragraph 53.

[47] Ibid. paragraph 55.

[48] Greater Noida Industrial Development Authority vs Devendrakumar and Others (2011) 12 SCC 375

[49]Ibid.

[50] I must stress here that it is futile to expect the Congress party’s opposition to the amendments (that forced the ordinance route to the amendments) is only on some specifics and certainly not a substantive position that is pro-farmer. This was clear when such Congress led State Governments in Maharashtra and Haryana (both these States have gone into the BJP’s hands at the time of writing this paper) had sought amendments to the LARR Act to further aid big business. See Land and Livelihoods Once More: The proposed amendments of the new land acquisition law will be a huge step backwards, EPW, October 18, 2014, page 9 for an informed comment on this aspect.

[51] Section 23 of the Act was amended to enhance the quantum of solatium from the existing 15 per cent to 30 per cent of the market value of the property acquisitioned, in 1984. This, however, was left to the court to award, but the Act laid out that this was not discretionary. 

[52] See Section 30 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.  

[53] See the preamble to the LARR Act, 2013

[54] Karl Marx, Capital, Volume 1, Progress Publishers, Moscow, 1954. page 714

[55] Ibid. Page 731.