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Conflicts over land acquisition still continue

| | in Bhubaneswar

The draconian manifestation of the doctrine of “eminent domain” has held its sway in independent India. The Supreme Court has sporadically tried to needle the 1894 colonial legislation. Being a colonial law, this Act continued as an instrument of state oppression and forced displacement. Some amendments came in 1984 which were marginal without altering the core mischief of the 1894 Act.

In July 2011, the then Government embarked upon a people-oriented ambitious project to rewrite the law relating to land acquisition. The almost confiscatory Act was replaced by the Land Acquisition, Rehabilitation and Resettlement Act which was passed by Parliament in 2013. The Bill had the support of all parties. Some amendments suggested by the then Leader of Opposition in Lok Sabha Sushma Swaraj were readily accepted and made part of the law. The opening speaker in the debate in Parliament was Rajnath Singh, who welcomed the new law. He specifically welcomed the law which provided for greatly enhanced compensation, consent of those whose land was sought to be acquired and detailed rehabilitation and resettlement provisions (including employment, land for land, and other beneficial schemes). The dramatic changes in the 2013 Act altered the inter se relationship between the individual and the state by empowering the individual in a suitable manner.

The 2013 Act also incorporates a retrospective clause. Its Section 24 provides that under certain circumstances, acquired land could be returned to the affected families. Thousands of families had previously given up all hope to have the acquisition proceedings set aside resulting in the land being returned to the original owner under Section 24. This section was upheld and imbued with substance by several judges of the Supreme Court and various High Courts. Upon coming to power, the present Central Government brought in a draconian Ordinance on January 1, 2015, a year after the promulgation of the new Act, to render Section 24 inoperative. The Ordinance also attempted to do away with pro-farmer provisions in the 2013 Act. There was overwhelming protest by a large number of parties led by the Congress. On August 30, 2016, Prime Minister Modi announced withdrawal of the proposed Ordinance in his “Mann ki Baat” speech.

The Supreme Court is now at a crossroads. The Indore Development Authority Vs Shailendra (February 2018) has in effect implemented the provisions of the latest Ordinance relating to the retrospective clause. This was at variance with the views of other Benches on the issue; and now, it necessitates a Constitution Bench of five judges to decide whether the section has to be interpreted expansively or in a narrow sense.

There have been persisted conflicts concerning land acquisition initiated decades earlier, where the acquired land was lying unused, bringing no benefit to the original owner or to the state. The conditionalities had to be laid down to determine in which cases land was to be returned to the former owners. In course of the Parliament debate, after taking into consideration the views of all political parties, a set of criteria were arrived at. There would be three categories. The first would comprise of those for whom the land acquisition award had been made less than five years prior to the coming into force of the new law on January 1, 2014 and after January 1, 2009. In such cases, the new law would not apply and the proceedings would continue under the old law. The second category covers cases where the award had not been made by the date the new law came into force, but the acquisition proceedings have been initiated. In such cases, the land owners would be entitled to enhanced compensation and all other rehabilitation and such benefits provided under the new Act though the acquisition process would proceed under the 1894 Act. The third category relates to cases where the land acquisition award had been made five years or more prior to the new Act coming into force. If compensation had not been paid or there had been no physical possession of the land, it was contended that five years was enough time for the acquiring authority to resolve all disputes, failing which it made no sense to hold on to the land for such a prolonged period without utilisation for such a professed purpose. The Indore Development Authority case does two things: One, it relaxes the existing definition of compensation paid from the active requirement of offering the compensation and depositing the same in court. This view has been pronounced by a three-judge Bench of the Supreme Court in a landmark 2014 decision. Now pursuant to this decision, an offer followed by deposit in the Government’s treasury is sufficient to qualify as compensation paid; Two, on the subject of physical possession, it lays down that the period, where the Government is prevented from taking possession of land on account of the stay order or injunction shall not be counted towards the stipulated five-year requirement. The 2013 Act had no such qualifying clauses. The reasons were that the compensation would have to be offered in an effective manner rather than a mere passive act of tokenism of depositing the money in the treasury where in any way it would continue to lie. The second is notwithstanding the stay order; five years is sufficient for a Government to resolve any pending litigation on the subject. These new requirements laid down by the Supreme Court in the Indore case would lead to rendering the section inoperative. What is disturbing is that the present interpretation is in conflict with a majority of the Supreme Court’s earlier decisions ascribing a meaning in an expensive manner in favour of the land owner. Rightly, these judgments interpreted the section in favour of securing the land owners’ interest over those of the state. This was in keeping with the legislative intent inherent in the Act of 2013, which was never meant to help the state hold on to its land banks or to deny return of land on the basis of narrow technical interpretations. The question that would be posed is far-reaching. If a land owner refuses compensation, should that land be forcibly acquired by the Government through the lip service of “development”. The Supreme Court has been active in its interpretations in the conflict between the rights of individual and the state. The legislative safeguards are now more well-defined and purposive.

The youth power has a significant role to play in articulating the views before the Constitution Bench, which, it is hoped, would make the legislative safeguards stronger than before. Protracted holding of land acquired without achieving the so-called emergent purpose is not a desirable situation. Five years is a long period for the state to ensure that proper utilisation of the land is made. The need of the hour is a pro-people progressive interpretation of the provisions of the new Act, which is in keeping with democratic norms. Though right to property has been deleted from the chapter of Fundamental Rights, it reemerges as Article 300-A. Any law made or the deprivation of property has to stand the tests of Articles 14, 19 and 21. The power to acquire has to be rigidly governed and interpretations have to be in favour of the land owners. People’s voice is required to be heard. We must not forget that a draconian colonial law has been replaced by a democratic and progressive law in tune with the other mandatory provisions of the Constitution. Debates and seminars in this matter require the involvement of one and all. Surely, this concerns us all!

(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)





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