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Litigation Skills Specialised

My land is lying unused. Can I have it back? How to initiate repatriation under the 2013 land acquisition law

CommunitiesAndLegalAction_KanchiKohliEven as presentations were underway at a meeting on land rights somewhere in the capital, a lady seated next to me craved some specifics. “What is the latest with the land acquisition process in the country? Someone told me that I could actually get my land back? It had been taken away a decade ago.” Pushpa behan was among several people who had come for the meeting from the eastern part of the country and had lost her land to the expansion of a government-owned iron ore mine.

I pulled out the latest version of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“The RFCLARR Act). I knew that some of its clauses would apply to the question that she had raised.

We were temporarily distracted by a voice from the dais that informed the audience that the RFCLARR Act had replaced an 1894 land acquisition law under which the government had the power to acquire land for public purposes. A notice and a short time frame to move out of your home is all that people had. The RFCLARR Act had faced criticism but it had come a long way from the 1894 law and had linked the process of land acquisition with corresponding resettlement and rehabilitation obligations.

During a short tea break, we decided to step out to the canteen to talk at length. Our discussion soon revealed that about 20 families had lost about 100 hectares of agricultural land when the state government had issued them notices for evacuation. While their homes remained with them, the loss of their land had an impact on their source of livelihood. While she did not have many details, she also knew of others who had faced similar issues in neighbouring areas.

When we sat down to look at the Hindi version of the law together, I read out the two relevant clauses. Since the legalese was difficult to fathom, we broke it down. Just as we were talking, a few others from her village joined us. It was turning out to be an impromptu study session.

Section 101 is clear and simple. It says that “when any land acquired under this Act remains unutilised for a period of five years from the date of taking over the possession, the same shall be returned to the original owner or owners or their legal heirs, as the case may be, or to the Land Bank of the appropriate Government by reversion in the manner as may be prescribed by the appropriate Government.” This however, applies only to land acquired under the 2013 law. That was not the case with Pushpa behan’s land.

Image from Vinoth Chandar's photostream on Flickr. CC BY 2.0

Image from Vinoth Chandar’s photostream on Flickr. CC BY 2.0

I asked Pushpa and the others if they had received any “award” or been paid compensation following the notice that their land was being acquired. Under the 1894 law, an award had to be issued by a District Collector or District Magistrate (depending on the state). Such an award would include details such as the true area of the land, the amount of compensation due, and the list of people among whom the compensation would be apportioned. Three scenarios could have emerged:

(1) no award was issued;

(2) an award was issued; and

(3) an award was issued but the physical possession of land was not taken and no compensation was paid.

Is repatriation possible?

Clauses (1) and (2) of Section 24 of the RFCLARR Act deal with these three scenarios. When no actual award was issued pursuant to a land acquisition notice under the 1894 law, then all the provisions related to compensation in the 2013 law would apply under Section 24(1)(a). The compensation available under the 2013 law is much higher and has to be determined using a range of criteria including market value of the land and damages incurred by standing crops or trees.

But this was not the case with Pushpa behan and the others from her village. They fell into the third category. Even though an award had been made in relation to the land that had been acquired, no compensation had been paid and physical possession of the land had not taken place for over eight years. Under Section 24(2), in such a situation, the proceedings of land acquisition undertaken so far would be deemed as lapsed and a fresh process would now need to be initiated under the 2013 law. This includes a detailed process of social impact assessment and the seeking of the consent of 70 per cent of the landholders in case the project is a public sector project or 80 per cent if there is private sector involvement.

(Left) The former Union Minister for Rural Development, Shri Jairam Ramesh addressing a press conference on Land Acquisition Bill, in Jaipur on September 15, 2013. (Right) The Union Minister for Road Transport & Highways and Shipping, Shri Nitin Gadkari addressing a Press Conference, during an Interaction with Farmer's Association on land acquisition, in Hyderabad on June 01, 2015. Both images from PIB.

(Left) The former Union Minister for Rural Development, Shri Jairam Ramesh addressing a press conference on Land Acquisition Bill, in Jaipur on September 15, 2013. (Right) The Union Minister for Road Transport & Highways and Shipping, Shri Nitin Gadkari addressing a Press Conference, during an Interaction with Farmer’s Association on land acquisition, in Hyderabad on June 01, 2015. Both images from PIB.

Does this mean that we have a chance to say no to this acquisition and possibly get back our land?” one person in the group enquired. In principle, yes, I said, but we still had to test it out. The 1894 law had no provision for social impact assessment or any provision about seeking consent and that is why many project authorities feel that the 2013 law would make it impossible for land to be acquired.

He asked, “if the compensation had been paid and physical possession taken in the last 5 years, then this possibility would not arise, right?” That’s what the law says as of now, I replied.

What next?

Several groups across the country have taken steps with the help of lawyers to get better compensation or to restart land acquisition processes under the 2013 law. In fact there is recent news that Reliance Industries has challenged this legal provision in the Gujarat High Court in response to a case filed by farmers.

But the 2013 law does not say that these processes need to be initiated through the courts alone. It is perhaps even possible to do so by approaching the departments that had first initiated land acquisition proceedings and where the records lie.

It would have been useful to have a set of executive rules to enable these provisions but the two and half years of the existence of this law has seen such resistance from the government that little attention has been paid to issue enabling rules. The clauses we had discussed were at the heart of a series of ordinances promulgated to amend the 2013 law and which were allowed to lapse last year.

For now, we know that these provisions are in place and are open for all to use. Pushpa smiled, took the copy of the Hindi text of the law from me and said, “Well, we have the clause in our favour for now and we have to try and use it. Get our paperwork in order and get going.” The half and hour we spent discussing what was and what could be had opened many doors.

Kanchi Kohli is a researcher working on law, environment justice, and community empowerment.

Categories
History Supreme Court of India

Amendments to shield eminent domain from the courts have left the Constitution without private property rights

Since Independence, there have been several special laws that have been used by both Union and state governments to acquire land Suhrith_Parthasarathyfrom private individuals. Many of them continue to exist. But, for more than a century, the Land Acquisition Act of 1894 has stood as the centrepiece of the Indian state’s policy of expropriation, used most frequently to acquire private property.

Viewed broadly, the 1894 statute canonised a power of eminent domain, which was thought to be a facet intrinsic to a sovereign. The law gave the authority to government to acquire private land for what the state perceived to be a public purpose, in exchange for a compensation, which, when determined under the process prescribed by the statute, was almost always grossly derisory.

The Union Minister for Rural Development in the UPA government, Jairam Ramesh (left), and Union Minister for Urban Development in the NDA government, Venkaiah Naidu, addressing press conferences on the land acquisition law in September, 2013 and March, 2015.

The Union Minister for Rural Development in the UPA government, Jairam Ramesh (left), and Union Minister for Urban Development in the NDA government, Venkaiah Naidu, addressing press conferences on the land acquisition law in September, 2013 and March, 2015 respectively.

It also allowed the state the authority to acquire land unbothered by the economic and social impact that the acquisition might have on the landowner. The statute did not prescribe any social or environmental impact assessment as a precondition for expropriation, and it also imposed no obligation on the government to rehabilitate those displaced by the acquisition. The lack of any safeguards in favour of the landowner effectively meant that the poor person’s land was viewed as the sole property of the state, as property that could be subjected to legally sanctioned fraud and plunder. It was in this backdrop that in early 2014, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“LARR Act”) was brought into force to replace the 1894 law.

The new act was designed to bring an end to a century-long form of oppression. It sought to define the public purpose, for which land could be acquired, with particular clarity; in cases where land was to be acquired for a private project, the consent of at least 80 per cent of the landowners was mandated; the state was barred from acquiring land for the purposes of establishing private hospitals and private educational institutions; a detailed social impact assessment (“SIA”) and an environmental impact assessment was mandated as a precondition to any acquisition; and, most crucially, compensation for lands acquired was to be fixed at four times the market value of the land, in cases where the property was situated in a rural area, and at two times the market value for properties situated in an urban area.

In all, the LARR Act, which was enacted on a largely bipartisan platform, was meant to usher an era of a more participative democratic process, where the people could have a genuine say in how their land is used. Unfortunately, these changes were far too short-lived.

Immediately upon assuming office, the Narendra Modi-led government criticised the LARR Act as a measure aimed at thwarting development. The premise of the new government’s argument was that expropriation of private property through powers of eminent domain stimulates economic growth, and brings about greater commercial expansion. The LARR Act, as they saw it, was simply antithetical to commonly understood notions of eminent domain.

Their solution, while awaiting parliamentary approval to amend the law, was to bring forth an ordinance. This ordinance, which amends the LARR Act, among other things, does the following. One, it removes a previous bar on acquisitions by the state for the purposes of establishing private hospitals and educational institutions. Two, it removes the necessity to secure the consent of landowners when property is acquired for the purposes of redistribution to private entities. Three, it eliminates the requirement for an SIA when land is acquired for a special category of purposes, including for the purposes of national security and the defence of India, and for purposes of establishing “industrial corridors,” and “infrastructure” projects.

As is plainly evident, the proposed amendments, which are presently in force through the operation of the ordinance, seeks to revert us to a slightly modified version of the 1894 law, by virtually removing the spine of the LARR Act. The changes amount, as G. Sampath, wrote in The Mint, to what the Marxist geographer David Harvey might have described as “accumulation through dispossession.” The question now is: would these changes, if ultimately enacted by Parliament, be constitutionally sustainable?

Eminent domain and the constitutional right to property

The Constitution of India, as originally enacted, on the one hand, guaranteed to citizens a right to property, while, on the other hand, implanted in the state an express authority to take property through an exercise of a power of eminent domain. Article 19(1)(f), subject to reasonable restrictions in the public interest, guaranteed to all citizens the right to acquire, hold and dispose off property. Article 31 provided that any acquisition of property by the state may be done only for a public purpose and upon payment of compensation, through a validly enacted law. What this meant was that once a person’s privately owned property was acquired by the state in accordance with Article 31, his or her right to hold the property subject to reasonable restrictions under Article 19 was rendered otiose.

In the earliest cases that emanated in post-Independence India out of the exercise by the state of its power to acquire property, the Supreme Court tended to view Article 31 as an embodiment of a power of eminent domain, which inheres in the state as a sovereign.

The term “eminent domain,” wrote Justice Mahajan in State of Bihar v. Kameshwar Singh, (1952) 1 SCR 889, could be traced back to the year 1625 and to the great jurist Hugo Grotius’s work, De Jure Belli et Pacis. “The property of subjects is under the eminent domain of the State, so that the State or he who acts for it may use and even alienate and destroy such property,” wrote Grotius, “not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends these who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that when this is done the State is bound to make good the loss to those who lose their property.”

The meaning of eminent domain, in its irreducible terms, was, therefore, according to Justice Mahajan, (a) a “power to take” land (b) “without the owner’s consent,” (c) “for the public use,” after payment of compensation. In the initial years, the power, thus understood, seemed to impede the state in implementing its socialistically driven policies of expropriating land owned by zamindars more than it benefited it. Yet, as we have seen in the decades since, the very idea of viewing eminent domain as a power that is intrinsic to a sovereign has proved problematic. (Usha Ramanathan, “A Word on Eminent Domain”, Displaced by Development – Confronting Marginalisation and Gender Injustice).

Justice Vivian Bose, however, notably warned against using a “doubtful” term such as eminent domain to understand the Indian state’s power to acquire property. Doubtful, not because the term is “devoid of meaning,” but because it enjoys a different shade of meaning in different countries. “In my opinion, it is wrong to assume,” he wrote in Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning & Weaving Co. Ltd., AIR 1954 SC119, “that these powers are inherent in the State in India and then to see how far the Constitution regulates and fits in with them. We have to interpret the plain provisions of the Constitution and it is for jurists and students of law, not for Judges to see whether our Constitution also provides for these powers and it is for them to determine whether the shape which they take in India resemble any of the varying forms which they assume in other countries.”

The final draft of Article 31, which constitutionalised the power of eminent domain, was arrived at purely through compromise. There were some in the Constituent Assembly who believed that land had to be usurped from zamindars, without payment of any compensation (or at any rate, by paying only a minimal, meagre amount) to help herald a more equal and just society, while there were others who argued for a strong protection of property rights, requiring the fulfilment of elements of due process prior to any expropriation. The ultimate provision, contained in Article 31, which was almost literally adopted from Section 299 of the Government of India Act, 1935, as Namita Wahi has pointed out, pleased neither group. It merely transferred the debate on the right to property to the court halls around the country. And, contrary to popular discourse, barring few instances where the courts have restrained Parliament’s powers, by objecting to specific acquisition laws, judges have predominantly allowed the state substantial leeway in exercising its power of eminent domain.

Amending the Constitution, protecting eminent domain from the courts

The Supreme Court of India

The Supreme Court of India

Yet, it was in fear of intervention by the courts that the First Amendment to India’s Constitution (whose validity was upheld by the Supreme Court in Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458) was introduced in 1951, inserting not only Article 31A, which immunised land reform laws from challenges against violation of fundamental rights, but also Article 31B and concomitantly Schedule IX to the Constitution, which protected 13 particular legislation from challenge under Part III of the Constitution, with added retrospective effect. By virtue of these amendments, the crux of the challenge to the Bihar Land Reforms Act, 1950, which had been struck down by the Patna High Court, prompting the first amendment, was effectively rendered futile. Nonetheless, the Supreme Court, in State of Bihar v. Kameshwar Singh, (1952) 1 SCR 889, found that the Act, which sought to redistribute estates in Bihar, was based on a legitimate public purpose, and was therefore in consonance with Article 31.

Immediately after Kameshwar Singh’s case, the Supreme Court rendered a judgment, in State of West Bengal v. Bela Banerjee, AIR 1954 SC 170, which was significant in its elaboration of the importance of the right to property (Seervai, Constitutional Law of India), and which ultimately led to the Constitution’s Fourth Amendment. Here, a provision of the West Bengal Land Development and Planning Act, 1948 was challenged as violating Article 31, as it limited the compensation payable to the market value of the land as on December 31, 1946.

The word “compensation,” as used in Article 31, the Supreme Court ruled, referred to a “just equivalent of what the owner has been deprived of,” and, therefore it found that the provision offended the Constitution. As a result of this decision, Parliament introduced the fourth constitutional amendment and altered Article 31(2) to provide that a law under which compensation is determined for acquisition of land could not be questioned on the ground that such compensation is inadequate.

This amendment, as the legendary constitutional law scholar H.M. Seervai wrote, was considered in four different cases, P. Vajravelu Mudaliar v. Special Deputy Collector, Madras, AIR 1965 SC 1017, Union of India v. Metal Corporation of India, AIR 1967 SC 637, State of Gujarat v. Shantilal Mangaldas, AIR 1969 SC 634, and RC Cooper v. Union of India, AIR 1970 SC 564 (“the Bank Nationalisation Case”). Each of these cases contradicted the other on the issue of compensation under Article 31. Ultimately, it was the decision in the Bank Nationalisation Case, which was heard by a bench of ten judges, that proved most telling, rendering the fourth amendment’s purport nugatory, and reverted the law to the position established previously by the court in Bela Banerjee. The Supreme Court held in the Bank Nationalisation Case that the word compensation as used in Article 31, even after the fourth amendment, continued to denote a just equivalent of what the landowner had been deprived of. As had become common by now, when a court’s ruling tended to affect the ideology of the government in power, what resulted was a constitutional amendment: in this case, the 25th amendment.

Through this, Article 31(2) was altered, and the word “compensation” was replaced with the word “amount”; acquisitions under Article 31 were expressly removed from being subject to the right guaranteed under Article 19(1)(f), as was held in the Bank Nationalisation case; and laws giving effect to the directive principles contained in clauses (b) and (c) of Article 39 could no longer be questioned on the ground that they violated the rights guaranteed in Articles 14, 19 or 31.

Eventually, the Supreme Court in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, struck down the last limb of the 25th amendment alone. Here, a 13-judge-bench famously held that constitutional amendments could not be used as a tool to abrogate the basic structure of the Constitution: in this case, the power of the courts to judicially review Parliamentary law.

For the purposes of the right to property, though, it was Justice Khanna, whose opinion in Kesavananda proved the most decisive, that continues to resonate. He held that the right to property was not a part of the basic structure in his efforts to illustrate the fact that fundamental rights could, in limited circumstances, be annulled through constitutional amendment.

The jagged hole left by the 44th amendment

The decision in Kesavananda heralded an era of a battle between the government and the court over who holds the ultimate authority to interpret the Constitution. The give and take between Parliament and the Supreme Court may not quite have completely thwarted the state’s program to bring forth land reforms—if anything, the courts sought to place the odd impediment that they found was mandated under the Constitution.

But governments, impatient as they were, thought it necessary to bring forth a plethora of constitutional amendments aimed at placing land laws completely beyond the scope of judicial review. Ultimately, in 1978, the Janata Party, which had come into power following the Indira Gandhi-enforced Emergency, through the 44th constitutional amendment, removed altogether the guarantee of the right to property as a fundamental right. Both Article 19(1)(f) and Article 31 were completely obliterated. In their place, Article 300A was introduced, according the right to property the mere non-fundamental status of a legal right. These amendments, as Seervai argued, failed to grasp that Articles 19(1)(f) and 31 “were so closely interwoven with the whole fabric of our Constitution that those rights cannot be torn out without leaving a jagged hole…”

In the short run, the 44th amendment might have even helped in bringing forth more equivalence in land ownership, as desired by the government at the time. But, during the decades that followed, with an atmosphere of neo-liberalism taking over the Indian polity, the amendment has only contributed towards increasing discrimination. The power of eminent domain has been regularly abused to serve private interests. As Namita Wahi has pointed out, a number of measures have been introduced to place property at the hand of select institutions and corporations, often transcending constraints of public purpose contained in the original doctrine of eminent domain. (Namita Wahi, “State, Private Property and the Supreme Court”, Frontline).

For instance, “with the enactment of the Special Economic Zones Act in 2005,” wrote Wahi, “the acquisition of land by government to hand over to private industry which had happened in an ad hoc manner in previous decades became official government policy.” The meaning of “public purpose” has been expanded to absurd lengths, and different governments have overseen the most arbitrary expropriation of land, particularly from farmers, through the archaic, and draconian, Land Acquisition Act of 1894. These acquisitions have been rarely, if ever, disturbed by the courts, and even the compensation paid to individual landowners has been seldom enhanced.

What’s more, state governments also enacted their own special legislation to acquire land, bypassing, in the process, even the minimal safeguards contained in the central law.

Thus far, the Supreme Court has not ruled on the merits of the validity of the 44th constitutional amendment. It has only occasionally taken the pains to point out that the removal of the right to property from Part III has accorded substantial leeway to the state in expropriating land. (See for example, KT Plantation Pvt Ltd. v. State of Karnataka, (2011) 9 SCC 1.) Most of the Supreme Court’s decisions seem to indicate that it too has been equally buoyed by the supposed joys of liberalisation.

When viewed in this context, the LARR Act of 2013 represented a substantial breakthrough. It sought to realign the nature of property in India, by guaranteeing to citizens a right to own and hold land, which ought to ideally enjoy fundamental status. To the extent that it provided not only for an enhanced and more just compensation, but also for a social and environmental impact assessment, and for a voice to landowners, the LARR Act was a decidedly successful piece of legislation. It is therefore that the present ordinance, which seeks to remove many of the integral facets of the LARR Act, has to be considered as an anathema. To make things worse, by virtue of the 44th amendment, the state can today argue convincingly that the ordinance is legally valid and that it stands on substantial constitutional bedrock.

None of the diktats of the LARR Act, which have been removed by the ordinance, can be considered as constitutionally mandated, if we were to assume that the 44th amendment has accorded the state a carte blanche over private property, as some Supreme Court decisions seem to suggest. (See for example, Jilubhai Nanbhai Khachar v. State of Gujarat, AIR 1995 SC 142).

A historic re-interpretation of the Constitution is required

The state, unless convinced by the abiding public sentiment on the matter, would argue in the case of the proposed amendments: firstly, that the consent of landowners and the conduct of an SIA are simply not required as a matter of constitutional guarantee, and secondly that in the absence of an express prohibition of acquisition by the state for private purposes, the argument that the ordinance violates traditional notions of eminent domain, in allowing acquisition of land for private educational institutions and private hospitals, does not pass muster.

To negate such submissions, we would require the Supreme Court to shed its apathy, and to interpret the Constitution in its right spirit. The court will have to reconsider the understanding of eminent domain that has pervaded its jurisprudence, over the years. The removal of the fundamental right to property, by the 44th amendment, cannot be considered as a final nail in the coffin of rights over land.

To rebut the notion that eminent domain inheres in a sovereign, we might require an intervention that transcends mere judicial review, an intervention that is democratically justifiable. But what the courts can do is to examine Article 14, and the basic guarantee to the people of equal protection of the laws. Interpreted in its finest light, the right to equality ought to impose a superior obligation on the state to protect private property, and to give people a genuine say in how their land is used. To not hold so would negate the very idea of citizenship.

(Suhrith Parthasarathy is an advocate practising at the Madras High Court.)

Categories
Human Rights

Namita Wahi: New land acquisition law is a step towards creating a “culture of justification”

NamitaWahi_podcast_LandAcquisitionResettlementAndRehabilitationBill2013Land acquisition is always a controversial issue in countries with aspirations of rapid economic growth, where land is scarce. A few weeks ago, India came closer to replacing the 119-year-old Land Acquisition Act, 1894 (“the 1894 Act”) with the Land Acquisition (Resettlement and Rehabilitation) Bill, 2013 (“the Bill”). The Bill has cleared both houses of Parliament and will soon become law. Namita Wahi, a Fellow at the Centre for Policy Research and an S.J.D. Candidate at Harvard Law School, spoke with us about the Bill.

Ms. Wahi said that the Bill was a step towards creating a culture of justification during the government’s forcible acquisition of property. Even though the Bill shifts the balance of power between the competing interests involved, the struggle amongst them will continue even after the Bill becomes law.

She spoke of the shifting political, economic, and legislative contexts in which the 1894 Act operated, the main drawbacks of that law, and how the Bill has tried to remedy these problems. The Bill tries to expand the number of persons who are recognised to have interests in the land being acquired, limit the reasons for which government can acquire land, limits the government’s ability to invoke “urgency” and bypass the safeguards under the law, and provides for higher compensation. She also identified the exemption granted to the laws applicable to several sectors such as electricity, railways, coal, and mines from the provisions of the law as a major drawback and cautioned that the layers of bureaucracy proposed by the Bill may have unjust outcomes.

Ms. Wahi’s doctoral dissertation is on “The Right to Property and Economic Development in India”. She has written extensively on the Land Acquisition Bill and the history of the fundamental right to property, including here, here, here, and here.