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Acquisition of land for developmental purposes has historically been a contentious issue, not only for a country like India, but in many parts of the world. Allocating a scarce resource like land in competing and often conflicting uses is not without complications. What aggravates this problem is the involvement of government as an active ‘taker’ of land as it adopts the responsibility of transferring it for alternative uses. Over the years, this has given rise to long drawn conflicts, both in the form of legal battles as well as mass movements, fought by the dispossessed groups against the land taking authorities. The common thread of resistance running through many of such conflicts, like Singur and Nandigram in West Bengal, anti-Posco and Kalinganagar struggles in Orissa or anti-SEZ movements in Maharashtra, is that agricultural or forested lands and tribal settlements are being acquired by the government for setting up of private enterprises in the name of purported ‘public purpose’.

Clearly, this calls for a review of how ‘public purpose’ has been defined by the law of the land and also to see the way in which the judiciary and the legislature have tried to address people’s concerns about the same. In the Indian context, the archaic Land Acquisition Act of 1894, based on the principle of ‘eminent domain’ provided an extremely broad definition of the clause and has left enough space over the years for the discretion of the government on this matter. Even the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013, which has taken the place of the colonial act of 1894, has failed to address the shortcomings of its legal predecessor, in so far as the ‘public purpose’ clause is concerned.

The lax scope of what constitutes a ‘public purpose’ in successive legal doctrines has opened up several loopholes in interpretation of the clause by different stakeholders and has been at the root of many legal battles. A closer look into court judgements on land acquisition corroborates the same fact. Aggrieved landowners have repeatedly challenged the government’s action on the ground that the proposed purpose for acquiring their land is not justifiable to them and are clearly meant for setting up of private enterprises. The judiciary’s token response in such instances has been to simply not engage with the discussion of what represents a ‘public purpose’ by merely upholding the decision of the government. The Supreme Court’s observation in  Bajirao Kote’s case[1] is particularly noteworthy here, “it is primarily for the state government to decide whether there exists public purpose or not, and it is not for the Supreme Court or the high courts to evaluate the evidence and come to its own conclusion whether or not there is public purpose.” The same reasoning resonated in a number of other court judgements as well. Thus, it had almost become a trend for the courts to adopt a “hands-off” attitude when it came to curbing the unrestricted power at the hands of the government.

Legally, all that was required to validate government’s decision on this matter was bearing a part of the cost of acquisition, however small it might be, from public funds. Given this logic in place, literally any act of acquisition by the government could then be justified in the name of public benefit, by paying as less as a penny, with literally no regard to the genuine public utility of it. The judiciary’s role in safeguarding the interests of the state reached ridiculous proportions in Indrajit C. Parekh of Ahmedabad vs. State of Gujarat [2]. In this case, the state government had borne a token amount of just one rupee from the exchequer towards acquisition and that alone had been enough to grant it a public use status.

In the midst of such repeated conflicts, the attitude of unfailing judicial deference to government actions started showing some signs of change in a few judgements of recent past. In the 2011 Supreme Court case of Dev Sharan vs. State of Uttar Pradesh [3], the Apex Court itself had critiqued the state’s efforts at diluting the said clause by pointing out that, “Any attempt by the State to acquire land by promoting a public purpose to benefit a particular group of people or to serve any particular interest at the cost of the interest of a large section of people especially of the common people defeats the very concept of public purpose.” A similar active and critical stance, against government action, was adopted by several benches in subsequent cases as well.

Unfortunately, the shift in the judiciary’s approach to this issue has seemed to play very little role in amending the definition of the concerned clause in the 2013 Act. The latter has brought about a number of much-discussed amendments like the requirement of consent from the landowners while acquiring land, ensuring rehabilitation and resettlement and enhancing the compensation amount manifold. However, when it comes to modifying the ‘public purpose’ clause, the legislative intent has been found to be extremely weak. As India moves towards rapid urbanisation, the absence of a taut definition of what can be termed as a ‘public purpose’ would continue to trigger aggressive litigations while still leaving ample scope of manipulation by the land acquiring authorities to suit their needs.

 

[1] Bajirao T. Kote (Dead) By Lrs. and Another vs. State of Maharashtra and Others, 1994 INDLAW SC 685.

[2] Indrajit C. Parekh of Ahmedabad and Another vs. State of Gujarat and Others, 1975 INDLAW SC 579.

[3] Dev Sharan and others vs. State of Uttar Pradesh and others, 2011 INDLAW SC 149.

 

The views expressed in this piece are those of the author, and don’t necessarily reflect the position of CBGA. You can reach Simonti Chakraborty at

si*****@cb*******.org











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