Land acquisition is not a new phenomenon in
India
Principle of ‘eminent domain’ and forcible acquisition
The debate has been
pitched in terms of forcible acquisition in the public interest, and how to
define the public interest. However, there is an underlying and deeper question
on whether any action can be taken on the basis of what is known as ‘eminent
domain’, or the overall power of the State with regard to the citizens, under
which the ‘taking’ of private property also comes in.
The State, whether
in a democracy or other form of government, does pass various laws to control
actions of individuals and groups. In a democracy, however, there is an
underlying understanding that any individual liberties (such as are guaranteed
in the Constitution) will not be curtailed unless there is a very significant
public, or collective, cause or benefit. In other words, the State cannot take
from one group in order to benefit another group. This is of course a narrow
concept of ‘public interest’, but too broad an interpretation would allow the
state, i.e. the government in power, to bend the law in favour of a particular
group or even individual, by dressing up the cause for action as serving some
national interest. The support to private entrepreneurs, for example, is
projected as the State’s duty to keep the economy moving. This sort of
reasoning can justify the taking of private property and common resources
(water, soil) from some sections (e.g. the rural poor) and transferring them to
the industrialists. No doubt the economy develops through private enterprise
and private capital, but the question is, how far should the State use its
power as ultimate owner of the nation’s resources, in favour of what are after
all individual commercial players.
Individual rights have been historically
over-ridden in countries that were run by personal dictatorships, and
ironically even in advanced states which claimed to be socialist or people’s
dictatorships. In modern liberal democracies, however, the dominant power of
the State has been moderated by the need to follow a prescribed process to come
to a decision that a certain cause is in the public interest, and to accomplish
the ‘taking’ in a transparent and equitable manner (by giving a reasonable
compensation for the resources taken by the State). In the USA US United States
The US courts have upheld the right of
government to acquire private real property in a variety of cases, e.g. for
transportation (communications), water supply, construction of public
buildings, defence readiness, and most of all, for establishing public parks
and setting aside open space, preserving places of historic interest and
natural beauty, and protecting environmentally sensitive areas.
Land acquisition and eminent domain in India
The position of eminent domain has been a
subject of intense investigation and discussion in India Britain
or Western Europe ). It is often assumed that
the ruler has total propriety rights on all property, and in fact even the great
political writer Karl Marx held that traditional Indian land tenure epitomised
the ills of “oriental despotism”, and
that the emancipation of the suffering masses would not be realised unless the
system of private property titles were developed (see Draper, 1977). Under such
circumstances, the argument was put forth that the British colonial government
also inherited this absolute proprietorship of all land and property once they
took over the territorial jurisdictions of the Indian rulers or chiefs, big or
small, whether by military conquest or by agreement:
Baden-Powell, for instance, after an
exhaustive multi-volume survey of land tenure in India (the first volume of
which he incidentally dedicated to Dr.Dietrich Brandis, the founder of the
forest service in India), has this to say:
“There can be no doubt that in the
latter part of the eighteenth century, when British administration began, the
different native rulers who preceded us, had asserted rights as the universal
landowners. That being the case, our Government succeeded, legally, to the same
claim and title”. (Baden—Powell, 1892, Vol.I, p.216)
Land Acquisition Act (LAA) 1894 (as amended)
This of course was a ground for issuing the
first official Land Acquisition Act, 1894 in British India
(which we will refer to as the LAA). This Act, with periodic amendments, served
the country even after independence, until it was replaced by the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act of 2013, one of the flagship legislations achieved under the
UPA-2 government (Ramesh & Khan, 2015), known popularly as the LARR Act. The
LAA 1894, as modified up to 01 September 1985, with the most significant excerpts
from the amendments of 1962 and 1984, is available on the web at
dolr.nic.in/hyperlink/acq.htm.
The LAA (1894) follows the pattern that
will be familiar to those who have dealt with the Indian Forest Act (indeed,
the IFA itself can be seen as another vehicle for the sequestration, rather
than acquisition, of a sizeable chunk of land and natural resources or uncultivated
revenue ‘waste’ (which may not necessarily be wasteland in the literal sense). These lands were partly used as village
commons, and the remoter tracts were part of the royal domains. In any case, they were not in private hands, but it called for some
accommodation of traditional uses and compensation for some interests when the
State proceeded to take possession of them for an overarching public interest
(the preservation of the vegetation, and with it the soil and water balance of
the country, which would be termed environmental conservation today; see
Barton, 2002). The intent to acquire land
in the LAA 1894 is first notified (even the section number, Section 4, is the
same for the parallel section to notify intent to form reserved forest in the
IFA), then the parcels measured and marked out, a detailed hearing held, and a
decision arrived at by the authorised official (the District Collector). There is provision for appeal to the Court,
and guidelines on arriving at the compensation to be paid.
One of the interesting issues is the definition
of “public purpose”, which is to include the provision and development of
village-sites, town and rural planning, including schemes intended for later
disposal of the developed land by lease, assignment, or outright sale “with the
object of securing further development”; providing land for a “corporation
owned or controlled by the State”; provision of land for residential purposes
to the poor or landless persons etc., provision of land for educational,
housing, health, slum clearance, scheme etc., land for “any other scheme of
development sponsored by Government or with the prior approval of the
appropriate Government, by a local authority”; and for locating a “public
office”, but “does not include acquisition of land for companies” (presumably,
apart from those State corporations referred to above). The second interesting
point is that any person “interested” in the notified land may file objections,
but only those persons are recognised as interested parties “who would be
entitled to claim an interest in compensation if the land were acquired”, so
apparently the Act at this stage did not envisage taking on board objections in
the broader public interest.
The third matter of interest here is, of
course, the basis of arriving at the compensation value, contained in Section
23, “Matters to be considered in determining compensation”, and Sec.24,
“Matters to be neglected”. Thus, the Court (or the Collector in the first
instance) should “take into consideration” 1) the market-value of the land on
the date of notification, 2) damage to any crops, trees at the time of taking
possession by the Collector, 3) damage due to severing of the land, 4) any
other damage at the time of taking
possession, 4) damage at the time of taking possession, to any other land, or his earnings (Italics added), 5)
reasonable expenses for change of residence, if called for, 6) any loss
suffered due to diminution of profits between notification and taking
possession. In addition, the Court was also to award an amount calculated at
12% of the market value “so calculated” from the date of notification to the
date of award of the Collector or the date of taking possession, whichever is
earlier. A further sum of 30% on “such market value” was to be added “in
consideration of the compensatory nature of the acquisition” (this is what is
sometimes termed the “solatium”, i.e a payment to assuage the injured feelings
of the awardee.
Of the matters that should not
figure in the Court proceedings, the interesting item is “any increase to the value
of the land acquired likely to accrue from the use to which it will be put when
acquired”, or equally any such increase to any other land of the awardee;
apparently, the Act did not entertain any desire to make the awardee a partner
in any capital gains that would accrue due to the later use. This would be a major sticking point in
recent years, when erstwhile owners have tended to get enraged at the windfall capital
gains enjoyed by downstream beneficiaries. Interestingly, this is also
indicated in the US Uniform Appraisal Standards (“Yellow Book”, 2000, p.18 and
footnote 52): “The use to which the government will put the property after it
has been acquired is, as a general rule, an improper highest and best use. It
is the value of the land acquired which is to be estimated, not the value of
the land to the government. If it is solely the government’s need that creates
a market for the land, this special need must be excluded from consideration by
the appraiser.” Further on, the Yellow Book (p.19) provides the basis of
assessing market value, that is by support from “confirmed sales of comparable
or nearly comparable lands having like optimum uses.” If these are not
available the “development approach” can be used (ibid.).
Another matter of interest is the separate
chapter in the LAA 1894 on “Temporary occupation of waste or arable land” (Part
VI). Even for such purposes, the Collector is to give notices and decide
compensation to anyone having an interest in such land, subject to appeal to
the Courts. At the expiry of the period of taking over, the land will be
restored and additional compensation paid for any damage to it.
Part VII of the original LAA provides for
“Acquisition of Land for Companies”. Here the company has to first get consent
from the government for the acquisition of the required land, for the purposes
of building dwellings for the workers, or for the construction of some work,
that is “likely to prove useful to the public”; and enter into an agreement
with the government for the cost of the land to be acquired, etc. However, a
further clause states that land acquisition for a private company can be agreed
to only for one of the purposes, i.e. providing dwelling houses for employees.
We will next deal with the perceived
shortcomings of the older LAA (1894 amended in 1962, 1984).
References
Baden-Powell, B.s H. 1892. The Land-Systems of British
India . Clarendon Press, Oxford Delhi
Barton, Gregory A. 2002. Empire Forestry and the Origins of Environmentalism.
Cambridge University
Press, Cambridge , UK
Draper, Hal. 1977. Karl Marx’s Theory of Revolution. Vol.I. State New York South Asia , Delhi-110091.
Ramesh, Jairam and Muhammad Ali Khan. 2015.
Legislating for Justice. The Making of
the 2013 Land Acquisition Law. Oxford
University Press, New Delhi
United States Department of Justice. 2000. Uniform Appraisal Standards for Federal Land
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