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More tips for lawmakers by MJ Antony


The proposed land acquisition Bill should adopt scores of suggestions coming from judges.

Few laws have drawn criticism from the Supreme Court with such regular frequency as has the Land Acquisition Act, all the more so in recent times as the weak links in the archaic law have led to continuing legal and political battles and bloodletting.

Last month, the Supreme Court identified five areas of conflict arising from the inadequacies of the 1894 Act. More such areas have been pointed out in earlier judgments and the court has made several suggestions, wearing the cap of the Law Commission, as it were. Since a new Bill is being debated, the comments of the court in the past and in the new judgment (Bondu Ramaswamy vs Bangalore Development Authority) should be considered by the lawmakers.

The problems listed by the court are: Absence of proper survey and planning before embarking upon acquisition; indiscriminate use of emergency provisions; notification of areas far larger than what is actually required, and then making arbitrary deletions and withdrawals from the acquisitions; offer of low amounts as compensation by the collectors leading to long and expensive litigation; inordinate delay in payment of compensation; and absence of any rehabilitation measures.

The court was dealing with the plight of farmers whose land was being taken over for urban development. Their situation is particularly delicate, as they do not know alternative means of livelihood, are generally uneducated and incompetent in managing huge amounts received as compensation. In addition, there is bitterness against the government and the beneficiaries of the acquisition.

“There is a general feeling among the land losers that their lands are taken away to benefit other classes of people; that this amounts to robbing Peter to pay Paul; that their lands are given to others for exploitation and enjoyment, while they are denied their land and their source of livelihood,” the judgment explained, and added: “When this grievance and resentment remain unaddressed, it leads to unrest and agitations. The solution is to make the land losers also the beneficiaries of acquisitions so that the land losers do not feel alienated but welcome the acquisition.”

Some ways suggested to avoid confrontationist situations are to start with proper planning, adequate counselling and timely mediation. “Where the acquisition is for industrial or business houses (for setting up industries or special economic zones), the government should play not only the role of a land acquirer but also the role of a protector of the land losers,” the judgment said. It added, “As most of the agriculturists/small holders who lose their land do not have the expertise or the capacity for negotiated settlement, the state should act as a benevolent trustee and safeguard their interests.”

In order to make acquisitions smooth, speedy and litigation-free, various alternatives like providing employment, equity participation, annuity benefits, ensuring regular income for life, and rehabilitation in the form of housing or new business should be made an integral process of the scheme. If the government and development authorities act as “facilitators” for business houses, mining companies or colonisers, the court warned that there would be hostility towards the takeover.

Though the court acknowledged that it was discussing subjects that are considered to be in the realm of government policy, it was doing so “to draw attention of the government and development authorities to some probable solutions.” It asked the Law Commission and Parliament to revisit the old law. The judges remarked that they had come across development projects that were not for providing housing plots, but for generating employment and funds for the staff.

Earlier, the court has dealt with other sore points of land acquisitions — like the undefined and “unruly horse” of “public purpose” misuse of emergency provisions, and the ubiquitous dispute over the amount of compensation — and set guidelines, largely ignored by the authorities.

Another blind spot in the law is the total absence of environmental concerns as these were not in the mind of the colonial draftsmen. A few years ago in the Karnataka Industrial Area Development Board vs C Kenchappa case, the high court and the Supreme Court introduced into land acquisition procedures several rules for sustainable development (a clear instance of judicial lawmaking) and made it compulsory to get clearance from the state pollution control board before handing over the land for development. Whether the authorities are aware of the order or following it is another matter.

The court has even raised the right to hold property as a “human right” in its 2007 decision in the Pure Industrial Coke case. “Earlier, human rights referred to the claim of an individual’s right to health, livelihood, shelter and employment, but now property rights are also incorporated in the definition of human rights,” the judgment said, quoting the UN declaration, General Assembly resolutions and John Adams. Looking down from those lofty heights, the reality is more like “sky above, mud below”.