M J Antony: Hostile land acquisitions

OUT OF COURT

Experience shows it is difficult to prove ulterior motive in take-over.

Almost every notification for land acquisition these days is followed by someone crying foul, alleging that the authorities had either favoured an influential party or wreaked vengeance on a disobliging one. It is good ammunition for the media that flaunt the badge of investigative accomplishments. However, when the charges of mala fide are taken to the court, hardly any pass the test of judicial scrutiny. It is not always that the accusations are not totally unfounded, but the courts insist on very high standards of proof in such cases. This is because, as the Supreme Court said in Gulam Mustafa vs State of Maharashtra, "it (mala fides) is the last refuge of a losing litigant."

In a recent case, the Supreme Court emphasised that the person who alleges dishonest motive has the heavy burden to prove it with evidence. The party against whom the allegations are made must be named and given a chance to defend itself; vague allegations against unknown persons would not do. These strict rules are to be followed because allegations are easily made than made out.

These remarks were made while dismissing the appeal, Girias Investment Ltd vs State of Karnataka. The grievance in this case was that the acquisition of land for an access road to the Bangalore airport was far in excess of the need and the alignment was changed to benefit some influential persons though alternative routes were available. The Supreme Court dismissed the appeal as the charges of mala fides could not be substantiated.

There are normally two ways by which malice or lack of good faith could be made out. First, that the government action was taken with the specific object of damaging the interest of the complaining party. Second, such action is aimed at helping some party which results in damage to the other. In this case, neither was proved. The persons who benefited by the change in the acquisition plan were ordinary persons without any influence in the power structure.

However, in rare cases, the allegations could stick. In State of Punjab vs Gurdial Singh (1980), it was found that the acquisition of land was on account of the mala fides of the then chief minister as the land owner was a political rival. The ostensible public purpose in this case was the setting up of a mandi, but it was "coloured" by malice. The court said: "If the public purpose in view is shown to be not the goal pursued, but the private satisfaction of wreaking vengeance, if the moving consideration in the selection of land is an extraneous one, the law is derailed and the exercise is bad. Not that this land is required for the mandi, but that mandi need is hijacked to reach the private destination of depriving an enemy of his land through backseat driving of the statutory engine." In another Supreme Court judgment, S N Patil vs Dr MM Gosavi (1987), the Gurdial Singh case was followed and the allegations of bad faith were proved against the then Maharashtra chief minister.

The case of Collector vs Raja Ram Jaiswal (1985) was a contest of legal nerves between two powerful but bad neighbours, with the Allahabad municipal board caught in between. The Hindi Sahitya Sammelan was given a large piece of land for building a library complex. But it did not use the land for a long time. Its immediate neighbour happened to be a well-connected individual and he wanted to build an air-conditioned cinema. The Sammelan then woke up and complained that the cinema would destroy its academic environment. It approached the authorities asking for the neighbour's land for the hoary purpose of building a theatre and auditorium, but in fact to foil the plan for the cinema next door. The Sammelan won the battle with the authorities. But not in the Supreme Court. It said that if the power to acquire land is exercised for an "extraneous, irrelevant or non-germane consideration, the acquiring authority can be charged with legal mala fides."

In BEML Employees House Building Coop vs State of Karnataka (2005), the Supreme Court quashed the acquisition as the lands belonging to some persons who were similarly situated as the employees' coop were released and the state government could not show any reason for this hostile discrimination. These cases are, however, exceptions to the rule. In hundreds of cases not only in land acquisitions, but also in cases of dismissals from service, admission to educational institutions and other disputes, the allegations of mala fides are routinely raised by lawyers and readily dismissed by the courts.