M J Antony: Land for the boys

Favouritism in the allotment of plots is as bad as grabbing them

In its wisdom, the state giveth and the state taketh away. When it acquires farmlands claiming eminent domain, there is blood on the streets. However, when it quietly bestows largesse on chosen ones, it is barely noticed. At worst there is a lawsuit.

There were a dozen lengthy judgments from the Supreme Court in the past two months on land acquisition disputes — a mark of the times. But the biased award of public land to the favoured few also figured in three prominent decisions.

One was the allotment of a bigger plot in exchange for the smaller one, purportedly for a school in which cricketer Sourav Ganguly had a special interest. The Calcutta High Court had not found anything wrong in the grant. However, the Supreme Court found the transaction arbitrary and illegal. His talent in the cricket field does not confer on him any expertise in the field of education, the court said. Bona fide ends cannot be achieved by questionable means (Humanity vs State of W Bengal).

“This court,” said the judges, “has not been able to get any answer from the state why on Ganguly’s request to the minister, the government granted allotment with remarkable speed (within one month) and without considering all aspects of the matter. This court does not find any legitimacy in the action of the government which has to act within the discipline of the constitutional law. The state has failed to discharge its constitutional role.”

A few weeks earlier, former Madhya Pradesh chief minister Uma Bharti bore the brunt of judicial censure for bestowing land for a favoured organisation (Akhil Bhartiya Upbhokta Congress vs State of MP). The court underlined that the conferment of any benefit must be founded on sound, transparent and discernible and well-defined policy. It should be free from discrimination and arbitrariness.

The judgment said: “The distribution of largesse like allotment of land, grant of quota, permit licence etc by the state and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the state.”

The third case highlighted the role of civil servants in the distribution of urban land near the capital (NOIDA Entrepreneurs Association vs NOIDA). There were many questionable aspects, like the conversion of land for purposes different from the master plan and some people getting lucky enough to exchange their original plots for bigger ones in better locations. Therefore, the Supreme Court referred the investigation to the CBI, after a preliminary probe by its own commission.

The court explained the role of the government in such matters again. It said: “State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse etc, acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a trustee. State actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution…The public trust doctrine is part of the law of the land. The doctrine has grown from Article 21 of the Constitution. In essence, the action or order of the State or State instrumentality would stand vitiated if it lacks bona fides, as it would only be a case of colourable exercise of power.”

The rules covering distribution of public property are thus comparatively clearer than the law on acquisition of private land. Allotment of public assets can be tested on the principles of fairness, non-discrimination and other norms set by Articles 14 and 21 of the Constitution.

However, the land acquisition law is caught in a web of intractable issues like defining the evasive “public purpose”, assessing just compensation related to the market value and rehabilitation and employment of the land-losers. The 1894 Land Acquisition Act has invited a blood-red burial due to industrialisation. The rioting has woken up the law-makers to the need for an alternative legislation. But they are still tinkering with alternative models.

State governments in hot spots like in Uttar Pradesh have come up with hasty prototypes, mainly to score brownie points over the Centre. But the issue is too important to be left to the mountebanks. Before anyone thinks of another fast in Delhi maidans putting forward the land question, the draftsmen should fast-track the enactment by coming up with a satisfactory Bill in the next parliamentary session.