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| M J Antony: Hidden seeds of wrath | |
| OUT OF COURT | | M J Antony / New Delhi December 17, 2008, 0:12 IST | |
 Till the courts rule on ambiguous land acquisition laws, tensions will rise again as and when land is acquired.
Though the alarums and excursions over land acquisition for special economic zones have temporarily died down, the Land Acquisition Act still carries the seeds of bloody strife. Judgements are being delivered by the courts on various aspects of the archaic law which underwent only one major amendment in 1984, that is, to make land available for companies. Otherwise, the three points of conflict are intact. The government can use its sovereign power (eminent domain) under three circumstances, all vague as defined in the law. It could be for a public purpose, in case of urgency or unforeseen emergency. These hazy definitions saw the year that is coming to a close see litigation in the Supreme Court and the high courts, revolving around the purpose and manner of exercising the state power.
The climax of this contentious chapter was the judgement passed by the Supreme Court a few weeks ago in Essco Fabs Ltd vs State of Haryana. The chronology of the dispute evidently points to political and extraneous considerations in the acquisition. In December 1982, the land was notified for acquisition. After two-year-long proceedings, the final notification came in 1984. However, the acquisition proceedings could not be completed within the stipulated period due to unspecified reasons and the notification lapsed and the land stood released.
This land was then bought by an export-oriented unit which invested huge amounts for expansion. It sought government permission to change the use of land in 1991. The request was rejected on the ground that the land was proposed to be acquired. Ten more years passed by, and now the land was notified for acquisition for “urgent purpose”. Under this clause, the government can take away the right of the land owner to raise objections against the take-over. The urgency claimed in this case was the building of a road. It was not just the company which was affected. Another export firm and a teachers’ housing colony were also caught in this inexplicable urge of the government to build a road urgently. They alleged that they were victims of “oblique and ulterior” motives. Their attempt to get justice from the high court was futile. In appeal to the Supreme Court they were successful.
This sort of pre-notification and post-notification delays are not uncommon and the political climate plays a definite role in it. The bureaucracy acts in tandem at times, but it also can cause hurdles even if the government wants to move fast. In an earlier judgement, Chameli Singh vs State of Uttar Pradesh (1996), the Supreme Court had remarked thus: “Very often the officials, due to apathy in implementation of the policy and programmes of the government, themselves adopt dilatory tactics to create cause for the owner of the land to challenge the validity or legality of the exercise of the power to defeat the urgency to dispense with the provision to hear objections from the land owners.” It was a case of acquisition of land for building houses for the Dalits and it was bound to meet obstacles. However, the court cut the Gordian knot then.
The crucial question in these cases was whether the land owners can be deprived of their valuable right to place objections in ‘urgent’ take-overs. The right to own property is not a fundamental right but a constitutional right under Article 300A which, the Supreme Court has often said, has the “flavour” of a fundamental right and in any case is a ‘human’ right. Therefore, the ‘urgency’ and ‘emergency’ provisions should be applied with caution. The invocation of urgency deprives the land owner of his right under Section 5A of the Land Acquisition Act.
The present judgement in the Haryana case dilutes the power of the government to fast-track acquisitions by disregarding the opposition of the land owners. It says: “Even in cases when the government intends to acquire land in cases of urgency or unforeseen emergency, it is still required to follow the procedure for hearing objections before issuance of the final notification.”
However, this rule is not absolute. The government can just declare that the procedure for hearing objections is dispensed with and in that event, the government can go ahead with the final notification for acquisition. Thus, the right of the land owner can be wiped out by a mere declaration of the government. Just as the pronouncement of the government that the acquisition of land is for public purpose cannot normally be questioned in a court of law, the assertion that the land is required urgently also is final and the court would be wary of going behind the official proclamation. These infirmities in the Act and the courts’ reluctance to go into their legal validity might revive social tension when land is required for infrastructure development.
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