The Evolution in Recognition of Land Rights in India: A Study of Legislations Pertaining to Acquisition of Land
7 Pages Posted: 12 Jan 2021 Last revised: 9 Apr 2021
Hitabhilash Mohanty
Supreme Court of India
Susampad Hota
Odisha High Court
Date Written: November 6, 2020
The land is one of the most coveted assets in India, which also makes it the most disputed. And fragmented laws and lack of awareness of existing regulations do not help in any way. In the context of land law, the states have their own unique set of laws pertaining to the acquisition, possession, and sale of land. The land has an interesting history in India. Beginning with purely commercial interests, India’s land laws have evolved over time, albeit slowly, to include the interests of individual owners. But we still have a ways to go. It was in 1894, that the first Land Acquisition Act enacted by the British Government of India, which forms the basis for all land laws today came into being. It applied to all states in India except for Mysore, Hyderabad, and Travancore, the princely states that had the right to exercise their own land laws. In 1947, India adopted the Land Acquisition Act and enforced it across “all the provinces of India” without exception. After languishing in the Parliament for many years, passing through multiple referrals and calls for amendments, the Land Acquisition Rehabilitation and Resettlement Bill, (LARR) 2011 was introduced again by the UPA government. In 2013, it was passed and became effective from 2014. The bill focused on bringing in more transparency by underlining the rights of the people who stood to lose land during the process of acquisition.
Keywords: Enactment, Land Acquisition, Land Law
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Hitabhilash Mohanty (Contact Author)
Supreme court of india ( email ).
Tilak Marg New Delhi, Delhi 110201 India
Odisha High Court ( email )
Chandini Chowk High Court Cuttack, 753002 India 8117866785 (Phone)
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India's legal regime governing the compulsory acquisition of private land by the state for "public purposes" has long been criticized for breeding corruption and insufficiently protecting landowners and local communities. Attempts to overhaul the Land Acquisition Act, 1894 (LAA) have faced stiff resistance from powerful interests within and outside the state. When the United Progressive Alliance government took power in 2004, few would have guessed that it would seek to replace the LAA with legislation that imposes more rigorous standards for the compulsory acquisition of land and detailed rules for addressing the needs of displaced people. Yet, in 2011 the government introduced the Land Acquisition, Rehabilitation and Resettlement Bill (LARRB). This article argues (1) that the LARRB displays certain distinctive characteristics shared by other rights-related statutes enacted under the UPA government; (2) that the emergence of this distinctive—and unforeseen—piece of legislation was driven largely by India's approach to creating Special Economic Zones; and (3) that both the LARRB's content and the process by which it was introduced have implications for debates of wider theoretical significance, including the increasingly hybrid nature of rights, and the desirability of combining insights from the literatures on "policy feedback" and "policy entrepreneurs."
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Pacific Affairs is a peer-reviewed, independent, and interdisciplinary scholarly journal focussing on important current political, economic, and social issues throughout Asia and the Pacific. Each issue contains approximately five new articles and 40-45 book reviews. Published continuously since 1928 under the same name, Pacific Affairs has been located on the beautiful campus of the University of British Columbia, Vancouver, Canada, since 1961. The journal is committed to providing to the scholarly community and the world at large high quality research on Asia and the Pacific that takes readers beyond the headlines and across multiple disciplines.
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The Extent, Causes, And Implications For India’s Land Policies: Story Of Uttar Pradesh
- Akansha Dubey
- Akansha Dubey, The Extent, Causes, And Implications For India’s Land Policies: Story Of Uttar Pradesh , June 2018.
Land conflicts in India impact Rs 12 trillion in investment. More than a quarter of 80 high-value projects are stalled due to land conflicts (RRI & ISB, 2016). Indian courts are clogged with land and property disputes making the ownership and transfer of land difficult and costly. Of 30 million pending cases in state-level courts two-thirds are related to land or property (Daksh, 2016). When India is looking to surge ahead and compete with Asian economies land reform policy becomes a matter of concern. India’s system of land administration fails to deliver the level of tenure security and operational efficiency needed to boost land-related investment, improve governance, and reduce informality. Reasons for such failure can be found in incomplete and overlapping records, as well as, institutional overlap and inefficiency, all of which can be traced to the original objectives of land administration. Many scholars believe this incites excessive property litigation, which delays projects, hampers investment and affects quality of life.
This paper studies the problem of increasing land litigation in India. It studies disputes through a state-level case study and prioritizes possible sources that encourage litigation. The study evaluates land-related litigation in Uttar Pradesh (UP), the largest agrarian Indian state that suffers from a high instance of land disputes. The author relies on qualitative and quantitative methods like content analysis of cases and interviews of stakeholders. The study explores dominant land issues, how these issues change with recent amendment to land acquisition laws, and the role of state-specific laws in land conflict outcomes.
Findings show that pending land reforms since 1950’s encourage land litigation in U.P. Other issues like land acquisition and possession are contributors as well. Agricultural land is a source of such land disputes. Study shows that the Indian government’s recent reformation of land acquisition laws fails to show any correlation with land acquisition cases in U.P. State-specific laws dominate the applicable law and correlate with high outcomes in favor of the government. Clearly, land policy in India needs to focus on expediting the post-independence land reforms. We can no longer to neglect the role of state government in reducing such litigation. More clarity is needed on the federal-state relationship on land matters.
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Land Acquisition and National Security
Waleed nazir latoo.
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Student at National Law University Delhi, India
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Historically, land acquisition in India has been a contested subject. The reason being, the tussle between the state to acquire land for various kinds of public purposes and the rights of the individual to enjoy their private property. In such a state of affairs, the state has enjoyed the right to eminent domain which enables it to acquire land for a justified public purpose which covers a wide range of subjects. At the same time the corresponding deprivation of land can lead to various sort of hardships to the individuals. Land being an important human right, it, thus, becomes essential to examine this conflict in light of the evolving jurisprudence on the right to eminent domain if the state and the contours of public purpose for which land may be acquired by the state. This paper seeks to examine the procedural framework for the acquisition of land under the colonial laws and the recent legislation which was passed in 2013 by the Parliament of India. It shall be argued that while there is set a definite procedure for the acquisition of land, it is imperative to strictly define the contours of terms like acquisition of land for “public purpose”, where “national security” is also enumerated as one of the public purposes. The paper shall make a case for mandatory requirement of Social Impact Assessment Study before any proposed land acquisition by the executive wing of the state.
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International Journal of Law Management and Humanities, Volume 4, Issue 2, Page 199 - 211
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This is an Open Access article, distributed under the terms of the Creative Commons Attribution -NonCommercial 4.0 International (CC BY-NC 4.0) (https://creativecommons.org/licenses/by-nc/4.0/), which permits remixing, adapting, and building upon the work for non-commercial use, provided the original work is properly cited.
Copyright © IJLMH 2021
I. Introduction
In a nascent democracy like India, there have always been continuous tussles between the rights of an individual and the interests of the larger community which is manifested through the actions of the state. At each juncture, there has been an active effort to move towards a more balanced system where there is a semblance of conciliation between the rights and aspirations of an individual and the actions of the state. There have always been attempts at providing the precise formulation of the personal space of an individual and determining the extent to which state can pave its way into it. Inherent in such an attempt is the effort to reflect the choices that are validly recognised by the society. [1] One such conflict is the process of land acquisition by the state for its various developmental and infrastructural projects which aim at serving the larger public good and are motivated to serve maximum happiness to the maximum lot.
Historically, the process of land acquisition by government has been governed by the Land Acquisition Act of 1894 [2] . Being a colonial legislation, it did not provide for adequate compensation and rehabilitation process. As such it was replaced by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. [3] This statute aims at ensuring a land acquisition process which is “humane, participative, informed and transparent”. The primary objective of the act is to make the affected persons partners in development leading to an improvement in their post-acquisition social and economic status.
This paper shall analyse the procedure established by the said statute to acquire land for companies with special reference to the defence sector. Given the importance of companies in fostering economic growth and development it becomes of vital importance to critically engage with their land acquisition process so that the interests of the ordinary land holders are not put it peril. In the course of this paper, it shall be argued that there is need for a very strict interpretation of the term “public purpose” so as to restrict the scope for any misuse by the executive as its definition is very vague and imprecise. While there are selective heads for public purpose, it also includes some very broad phrases like, “national security”, “defence of India”, “investment and manufacturing zones” and the like.
Secondly, it shall also be argued that the Social Impact Assessment study which is provided in the Act is a step in the right direction and needs adherence in letter and spirit so as to not make the Act vulnerable to challenges of constitutionality, as a non-dedicated study would contravene the principles of reasonable, just and fair procedure as has been held in the case of Maneka Gandhi v Union of India. [4]
II. Land acquisition in India
“Land is not a mere commodity, but an essential element for the realization of many human rights.” [5] In International law, land is considered to be an integral part of the human rights regime. It is so because, land does not merely depict an owned property rather it is a source of livelihood and earnings to many and at the same time is central to the economic rights of an individual or a group. In various parts of India itself, it is also related to peoples’ regional identities and also forms a part of their socio-cultural rights and aspirations. [6]
In the industrial world of today, developmental projects by both governmental and private companies have led to “socio-economic polarisation” which has escalated the loss to land owners and environment at large. [7] Unhindered ownership of land is essential to the realisation of a variety of basic individual rights which include housing and property rights, business rights and the like. It must be noted at the outset that improved security of tenure for land and property can make crucial and very critical contribution to ensuring social and economic progress in both rural as well as urban settings. It can very well help in alleviating poverty, reducing gender inequality and promoting peace and security. [8] The Supreme Court of India has also held that, without right to hold property other rights become illusory. [9]
Conflicting with these rights is the aspiration of a developed economy harboured by every government that is at the helm of affairs. Right since independence, India has been on an upward spiral of developmental and infrastructural projects. There have been huge investments in such projects. The primary resource being used is land which is acquired from the ordinary citizens of the Indian household. [10] Since independence, the acquisition of land was governed by the colonial law i.e. the Land Acquisition Act of 1894. The next section shall discuss the operation of this act and the land acquisition process for companies specified therein.
- The Land Acquisition Act of 1894- Post Independence Functioning
Part VII of the now repealed Land Acquisition Act, 1894 provided for an illustrative scheme for the acquisition of land for companies. The need for the specific laws relating to the acquisition of land for companies was first felt in the 1860s. In 1863, a special legislation was introduced by the colonial government which provided for the provisions relating to “acquisition of land for companies for the construction of works of public utility.” [11] Section 41 of the 1894 Act provided for the acquisition of land by companies for public purpose. [12] This foundational principle of land acquisition was motivated by the famous maxim salus populi suprema lex which means that the welfare of the general population is the supreme law. The individual right to land was considered ancillary to the general interests of the public.
Thus, a preliminary observation about the colonial laws reveals the fact that the aim of the process was not meant to be a mere mechanical process rather the acquisition of laws was aimed to serve a greater public good by recognising the right to non-interference in the enjoyment of land by the respective land owners. As has been noted by Hopkins, it is a “characteristic of land law that practically and socially significant problems are distilled into a paradigm of the acquisition of property rights and the priorities of competing claims.” [13] It is the balancing of these competing claims which the law relating to land acquisition has been trying to address since its inception.
While public purpose has been held to be supreme, the courts in post-independent India have, at times, shown urgency in protecting the land rights of the affected families. A constitution bench of the Supreme Court ruled in the early 1960s held that the process of land acquisition for a company should be for a valid public purpose and should not be found to be a “colourable exercise of power by the government.” [14] However, at the same time, the Act of 1894 being a colonial legislation, it did not truly aim to serve the greater public good. The decisions of the Supreme Court in the cases like R.K. Agarwalla v State of W.B [15] reflect the vagueness associated with the jurisprudence of land acquisition in India. In this case, the constitution bench of the court while giving a very liberal interpretation to the term “public purpose” held that public purpose can be any generic purpose which can even be beneficial for a small group of people or community and the fact that the proposed acquisition is primarily for the company will not affect the validity of the acquisition.
As late as 2007, the Supreme Court having evolved its own jurisprudence in the law on land and land rights, held public purpose to be dynamic and not static. While emphasising the right to eminent domain of the state, it was held that, the concept of public purpose should be inclusive of eminent matters like health, welfare, prosperity, safety and security of the public or community at large and hence, should not be precisely defined and its ambit be restricted to the general interest of the community. [16]
- The Fault of the Colonial Legacy
Given the procedural lacuna in the statute of 1894, it is quite evident and is manifested by the imperial theory that the primary aim of the statute was to acquire land for the colonial purposes. The process of the acquisition of land depended upon the whims and fancies of the rulers and the concerns and legitimate voices of the Indian landowners could easily be ignored. [17] Hence, undemocratic character and forceful imposition was the essence of the ’94 statute. Instead of addressing the “competing claims” in a more impactful and inclusive manner, the government in the post independent India did not bother itself to replace a colonial legislation. It rather used it as a means to further its infrastructural projects through such an orientation which favoured the government’s policies. [18]
With the growing Indian economy, the conflict over land and property has been achieving a dynamic position. In this light, the government’s privilege to eminent domain is to be, hence, understood in the spectrum of dispossession and disempowerment of the masses which had been perpetuated through a pre-constitutional colonial law. [19] As noted above, the vague jurisprudence around the fundamentals of the land acquisition laws has only expanded the scope and ability of the state to contravene the fundamental provisions of governance [20] and acquire land for a multiplicity of purposes which may not always be public in their character. Even the 2014 statute, as will be noted in the forthcoming sections, has not done much to cater to the aspects of dispossession by limiting and strictly defining the provisions enabling acquisition of land for public purposes.
The colonial continuity in laws which govern areas which are so fundamental to the rights and interests of an individual has juxtaposed the constitutional ideals with the laws modified to suit the group interests over the individual rights, which essentially are so dear to any democratic set up in the world.
III. Public purpose under the 2013 act
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has an interpretation clause which tries to extensively define the heads for public purpose under the statute. However, at the same time, the vagueness of terms relating to national security makes it a very potent tool to justify the eviction of land holders. Given the fact that India is heading towards privatisation in defence sector, it becomes obligatory to understand and limit the scope of “public purpose” in such context as well as otherwise.
It is essential that the contours of public purpose are viewed from such an angle so that they are consistent with the welfare of the state. It is also very important to note the fact that the concept of public purpose draws its inspiration from a pre-constitutional colonial legislation. Hence, subservience to the constitutional ethos has to be the real essence of the public purpose. It shall aspire to the development and welfare of the state and shall be reflective of the Directive Principles of State Policy as are enshrined in Part IV of the Constitution. [21] While there can be no definite definition of public purpose, it is essential that the elasticity [22] of terms like national security are strictly very restrictive.
- Acquisition of Land for Services
The promotion of the interests of defence is one of the most important aspects for policy makers in India. Also, implied is the fact that acquisition of land forms an important part of the policy process. The nodal agency for the acquisition of land for services and other Defence establishments i.e. Navy, Army, Air Force, DRDO etc is the Defence Estates Department. [23] For the initiation of any process of land acquisition, there is an internal process that goes within a coordinated system in the Ministry of Defence, after which the whole proposal is put forth before the competent authority so as to complete the procedural requirements of publication of notifications etc under the Act. [24] The question that needs to be asked next is that to what extent can there be acquisition of land for defence purposes. To put it in rather simpler words what is suggested is that are there any limits to the acquisition for defence purposes which can arguably come under the head “national security” as a public purpose. In answering these questions, the other primary legislation which needs to be taken into account is the Requisitioning and Acquisition of Immovable Property Act, 1952
- What is National Security?
While the Act of 2013 brings national security under the head of public purpose it does not strictly define as to what all constitutes (or what all are the aspects of) national security. In absence of any statutory definition of the same what is ought to be looked into is a varied spectrum of national security definitions so as to arrive at some sort of concrete understanding of an otherwise vague term.
National security involves the protection of a state from any kind of national crisis by means of a variety of power projections which may include economic power, military power, political power, diplomacy and any other thing of that sort. [25] It can be said to be the ability to protect and take care of a nation’s physical territory and its integrity so as to maintain its economic relations on prudent, fair and reasonable terms and to preserve its institutions from extra territorial disruptions. [26] As Hobbes has said, “national security is one route to ensuring people’s security; but there is ample evidence that national security is no guarantee for the security of all the people living in a country.” [27]
While interpreting the meaning of the term “national security”, the Supreme Court of United States of America held that, “we think it clear from the statute as a whole that that term was intended to comprehend only those activities of the Government that are directly concerned with the protection of the Nation from internal subversion or foreign aggression, and not those which contribute to the strength of the Nation only through their impact on the general welfare.” [28] The interpretation given by the U.S Supreme Court is essential to understand the fact that there can’t be any generalising implications of national security. This term has to be understood in the limited scope of things with respect to protection from external aggression which might be an act of war or anything that affects the sovereignty and integrity of the nation and at the same time might stretch to any act of internal disturbance which is imminently potent to disturb the stability of the state [29] .
National Security can, hence, said to be a function of a country’s external environment and internal stability along with their interplay and interaction with each other. “National Security is an aggressive blend of political resilience and maturity, human resources, economic structure and capacity, technological competence, industrial ban and availability of natural resources and finally the military might.” [30] The Supreme Court of India while expressing limitations and inability in defining precisely national security has held that it is inclusive of socio-political stability, territorial integrity, economic solidarity and strength, ecological balance, cultural cohesiveness, external peace etc. [31]
- National Security as a Public Purpose
Given the inconsistent approach of the judiciary in establishing a concrete law on “public purpose” and the right to eminent domain [32] , there has been a thorough and very logical approach of the land rights movements that there should be no right to eminent domain in case of acquisition of land for private corporations [33] . The question that we face is that how much benefit will accrue to an ordinary citizen when land is acquired for purposes which are “vital to national security”. The aim in the following paragraphs is to reconcile the aspects of public purpose and national security.
In order that a reconciliation of the two aspects be possible it is important to balance the individual rights with the interests of the state. Ignoring this facet shall, without fail, lead to dispossession, violation of human rights, disempowerment of masses and poverty of a large section of people.
While it is not necessary that the land acquired must be available to the whole public at large so as to satisfy the test of public purpose [34] , it is essential as part of a fair procedure that the strategic aspects of national security should be well defined and made logically comprehendible to the competent authority and the local population whose consent is necessary for the acquisition of land for private companies of any kind. Asymmetry in information would be violative of their rights and would amount to exploitation. It has also been held that an establishment of public purpose is required [35] , mere speculations would not suffice. Hence, the need for symmetric information.
While the case law is minimal on such an aspect of land acquisition, it is important to deal with this issue given the expansions in the acquisitions of land for army in the north [36] and north-eastern [37] parts of the country. In addition to issues of dispossession, it also has severe effects on environmental degradation. Many a time, what is ignored is the long-term impact on the safety of the inhabitants of that land and the area around it. There are reports of ammunition residues exploding at various places [38] and hence, causing a safety concern for the people, which obviously does not serve any public purpose. In a dispute between a private party and the Army over acquisition of land (as per the old statute) in Arunachal Pradesh, the High Court directed that there shall be due compliance with the procedure and requisite formalities shall be compulsorily followed. [39]
Hence, what can be deduced from the above analysis is the fact that there has to be definite and overwhelming purpose so as to classify an act for national security as one for the public purpose. The long- and short-term impact of the land acquisition, the environmental effects and the alternative options available should all be taken into account first before moving ahead with the acquisition procedure.
IV. Social impact assessment study
Having understood the dynamism of national security, it is of utmost importance to understand the concept of Social Impact Assessment Study as provided in the Act of 2013. The need to adhere to this programme is very intricately linked to the public purpose that is argued to be catered to by the acquisition of land. The Social Impact Assessment Study, provided by the legislature, is in furtherance of the aim to apply the principles of natural justice to cases of land acquisition.
Without prescribing for any exceptions section 4 of the Land Acquisition, Rehabilitation and Resettlement Act, 2013 reads as “Whenever the appropriate Government intends to acquire land for a public purpose, it shall consult the concerned Panchayat, Municipality or Municipal Corporation, as the case may be, at village level or ward level, in the affected area and carry out a Social Impact Assessment study in consultation with them” [40] . The aim of the Social Impact Assessment Study is multi-pronged. It aims at analysing how proposals affect people and help manage change. Additionally, it aims at identifying and mitigating adverse impacts, if any, of the land acquisition process.
Social Impact Assessment is the “process of assessing, in advance, the social impacts likely to flow from a project proposal.” Quantification of these impacts and the potential consequences are identified and necessary steps are aimed to be initiated. The culmination of this process can even lead to the rejection of a proposed project of acquisition. [41]
(A) Social Impact Assessment Study: The Right to Eminent Domain Prevails
In any case of land acquisition, be it for national security purposes or not, the question that first needs to be asked is that what essentially are the end-uses for which public interests will trump private property rights, and justify acquisition of land from a person who is not willing to part from it. [42] The role of the Social Impact Assessment is an instrument that enables assess and determine the implications of land acquisition on the affected community and people. [43] What is primarily worth taking note of the legislative intent which has developed the programme of SIA to minimise the risks that are involved in displacement, rehabilitation, compensation and resettlement. It also facilitates an informal mechanism of land acquiring strategy and, hence, saving both time as well as cost, in a process which is otherwise deemed to be tedious and brutally expensive.
Given the over-arching nature of the National Security Projects it is essential that the Social Impact Assessment concludes that such a project duly serves the public purpose and satisfies other conditions like, land acquired is bare minimum, alternative options have been considered, impact on inventory and the number of families that are likely to be displaced. [44] The Supreme Court of India has held that provisions like that of the SIA form part of natural justice and the affected parties should be given the right to hearing. [45] It is a necessity to give a notice to the affected families as natural justice is a part of the administrative law jurisprudence. [46] It has also been held in the case of Sooraram Pratap Reddy v Collector [47] that declaration of public purpose can be subjected to a limited judicial review and, hence, it is in the interest of the acquisition agencies as well to carry out a well-coordinated Assessment Study programme so as to avoid any judicial hassle. However, still the balance shifts towards the right to eminent domain of the state given that the very restricted nature of judicial review in cases of land acquisition by the state for a stated public purpose. [48]
While SIA study is mandated to be conducted in consultation with the local bodies, the government is not bound by the opinion of the expert group to whom this study is forwarded under the provisions of the Act. Hence, what is significant to note is the fact that again the it is the state which gets an upper hand in the mentioned public purpose [49] with a limited scope for judicial review. Additionally, under urgent circumstances the government can even seek for an exemption [50] from the Social Impact Assessment Study which, otherwise, forms the core of a due procedure under the Act.
(B) Social Impact Assessment, Environmental Impact Assessment and National Security
Traditionally national security is considered to be the domain of the central government and the armed forces. [51] In a militarily proactive country like ours, it is important to realise the fact that it is the people of a nation who constitute the basis and foundation of national security. If people are allowed to work in coordination and tandem with the institutions of the state without getting stuck in the nexus of bureaucracy, they will be the promotors of national as well as environmental security. They will also be the harbingers of mass empowerment of the populace. [52] Hence, a strict adherence to the statutory requirements of assessment study and at the same time elasticising the scope of judicial review in cases of acquisition for defence purposes which are potentially going to increase in the future will enable a just procedural framework that will likely be more transparent and subject to scrutiny and critical engagement. [53]
Except where specifically prescribed for, the adherence to SIA/EIA study is necessary as has been noted by the Bombay High Court. [54] In this case, the HC held that the applicability of sections 4 to 15 of the RFCTLARR is hardly necessary in MRTP Act, and the in cases under MRTP Act if the state legislature deems fit, it can do away with the assessment study. What can be deduced is that SIA should be followed as a matter of procedure as well as natural justice so as to, at least, create a semblance of conciliation between the competing interests.
The importance of SIA in matters of national security can hardly be undermined. Given the rapid growth and requirements of India’s indigenous defence related developments, it becomes of utmost importance to not overlook the interests of the ordinary citizens who are a significant part of the nation building process and contribute through their sweat and blood for the security and integrity of the nation. [55] An extensive and elaborate Social Assessment Report should necessarily form a part of the land acquisition procedure for defence related activities. While India faces strong security challenges [56] , it is necessary that they do not overpower the ordinary people in India’s urban and rural areas.
At this point it is important to note the ordinance [57] brought by the government after the passing of the 2013 Act so as to ease out the process of land acquisition in certain cases which included the military and defence projects as well. In this context, it is also pertinent to realise that till 2015 around 50 million acres of land was acquired by land for minimal compensation and without proper assessment studies. [58] Hence, there are many such and other related issues and problems relating to land acquisition, resettlement and rehabilitation in India, both in rural and urban areas. They need to be dealt with great care for future availability and use of land/ properties. [59]
V. Conclusion
The problem of land acquisition dates back to the pre-constitutional colonial era. In the aftermath of independence, the government of India continued the land acquisition process under the colonial Land Acquisition Act of 1894. Given the rampant developmental projects undertaken in both the public and private sector huge land masses were acquired for the vehemently argued public purpose. This led to the displacement, dispossession and disempowerment of a lot of people in both urban and rural areas. Interesting to note is the fact that the SC has limited the scope of judicial review in cases of land acquisition for a purpose leaving it for the state to decide what is the best for the public.
In a very important realisation, the government brought into a force a new land acquisition legislation in 2014 which enhanced the resettlement, rehabilitation and compensation programmes for the affected families. Given the various land movements in India [60] , the government tried to bring the principles of natural justice into the Act and make it more democratic and equitable. However, the vague notions of national security and the reluctance of the courts to adjudicate upon such issues leaves a potential lacuna in the Act which brings national security in the domain of public purpose. In such a case, public purpose should not be determined by the extensive nature of public projects, rather a limited criteria of building infrastructure for combating internal instability and external aggression should be adhered to in letter and spirit.
Furthermore, the executive upper hand on the finality of the Social Impact Assessment Study inhibits the scope of a fair democratic process of land acquisition where the consent and concern of the affected families should be given due credence. Additionally, the exemption from such study in emergency situations needs to be carefully dealt with and there should always be executive and administrative urgency in rehabilitating the affected families.
Lastly, the recent adventure of the government to exempt military and defence related infrastructure form Social Impact Assessment Study should be not pursued further and the judiciary should take up the process of evolving a strict jurisprudence on public purpose and at the same time increase the scope and extent of judicial review in land acquisition processes by the government for private companies and otherwise.
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[2] The Land Acquisition Act, 1894, No. 1, Acts of Parliament, (1894) (India).
[3] The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, No. 30, Acts of Parliament, (2013) (India).
[4] Maneka Gandhi v. Union of India, (1978) A.I.R. S.C. 597 (India).
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[10] Alice Thorner, Nehru, Albert Mayer and Origins of Community Projects, 16 EPW 117 (1981).
[11] Om Prakash Aggarwala, Commentary on the Land Acquisition Act 1270 (8 th ed. Universal Law Publishing 2007).
[12] The Land Acquisition Act, 1894, No. 1, Acts of Parliament, , s 41, (1894) (India).
[13] Nicholas Hopkins, Home as Wealth (Nigel Gravells ed. Landmark Cases in Land Law Hart Publishing 2013).
[14] Valjibhai Muljibhai Soneji v. State of Bombay, (1964) 3 S.C.R. 686 (India).
[15] R.K. Agarwalla v. State of W.B, A.I.R. 1965 S.C. 995 (India).
[16] Daulat Singh Surana v. Collector (LA), (2007) 1 S.C.C. 641 (India).
[17] Mohammad Asif, Land Acquisition Act: Need for an Alternative Paradigm, 34 EPW 1564 (1999).
[19] Preeti Sampat, Limits to Absolute Power: Eminent Domain and the Right to Land in India, 48 EPW 40 (2013).
[20] INDIA CONST. pt. 4.
[21] Bhim Singh v. Union of India, (2010) 5 S.C.C. 538 (India).
[22] Kedar Nath Yadav v. State of West Bengal, (2017) 11 S.C.C. 601 (India).
[23] DGDE, Acquisition < https://www.dgde.gov.in/acquisition>
[25] Ogwezzy Michael C., Olugbenga Oke-Samuel & Ogwezzy Oluwatosin O, Legal Challenges Arising from Environmental Insecurity Within the Broad Context of Human Rights and National Security in Nigeria and Other Jurisdictions, 8 GJLDP 63 (2018).
[27] Robin Coupland, Security, Insecurity and Health, 85 Bull World Health Organ 181 (2007).
[28] Kendrick M. Cole v. Philip Young, (1956) S.C.C. OnLine U.S. S.C. 83.
[29] Bradenburgh v. Ohio 395 U.S. 444 (1969).
[30] Bhavya, Evolving Facets of National Security , Legal Service India < http://www.legalservicesindia.com/ar ticle/683/Evolving-Facets-of-National-Security.html>
[31] Ex-Armymens’s Protection Services (P) Ltd. v. Union of India, (2014) 5 S.C.C. 409 (India).
[32] Jayanta Bandhyopadhyay and Tapas Roy, Political Challenge of an Intensifying Conflict Over Land, 47 EPW 22 (2012).
[34] Saddruddin Suleman Jhaveni v. J.H. Patwardan, A.I.R. 1965 Bom. 224 (India).
[35] State of Bombay v. Bhanji Munjhi (1955) 1 S.C.R. 777 (India).
[36] India’s defences eat away at farmland along border with Pakistan, Al Jazeera (Oct. 30 2019), < https://www.aljazeera.com/news/2019/10/india-defences-eat-farmland-border-pakistan-191030061758417.html>; Athar Parvaiz, Tribal Population of Jammu and Kashmir cries foul about non-implementation of Forest Rights Act , Mongabay (Jan. 16 2020), < https://india.mongabay.com/2020/01/tribal-population-of-jammu-and-kashmir-cries-foul-about-the-non-implementation-of-the-forest-rights-act/> 0
[37] Rahul Karmakar, Army’s Land Acquisition Makes all Householders in Arunachal Pradesh Village a Millionaire, The Hindu (Feb. 8 2018), <https://www.thehindu.com/news/national/other-states/armys-land-acquisition-makes-every-household-in-this-arunachal-pradesh-village-a-millionaire/article22688747.ece>.
[38] Masood Hussain, Operation Falah: Army in Jammu and Kashmir Clears up Explosive Debris at Tosa Maidan, Economic Times (Aug. 16 2014), <https://economictimes.indiatimes.com/news/politics-and-nation/operation-falah-army-in-jammu-and-kashmir-clears-up-explosive-debris-at-tosa-maidan/articleshow/40312110.cms>.
[39] Shri Sojee Meyor v. State of Arunachal Pradesh W.P. (C) 235(A.P.) 2014 (India).
[40] The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, No. 30, Acts of Parliament, s4, (2013) (India).
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[42] M R Madhavan, Land Acquisition Process Can Take 50 Months, PRS (Jun. 9 2013) <https://prsindia.org/tags/social-impact-assessment>.
[43] Centre for Science and Environment, Social Impact Assessment (SIA) and Social Impact Management Plan (SIMP)- An Indicative Structure 4 (2017).
[44] The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, No. 30, Acts of Parliament, s 4(4), (2013) (India).
[45] Chandrakanth Adinath Utture v. State of Maharashtra, (2016) 6 S.C.C. 150 (India).
[47] Sooraram Pratap Reddy v. Collector, (2008) 9 S.C.C. 552 (India).
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[49] Arjun Bhagi and Pranshu Chopra, The New Land Acquisition Act: Analysing the Act, the 2014 Amending Ordinance and the Act’s Impact on the Indian Infrastructure Sector, 5 GJLDP 27 (2015).
[50] The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, No. 30, Acts of Parliament, s 9, (2013) (India).
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Policy Briefs & Reports
Land acquisition in india: a review of supreme court cases (1950-2016), namita wahi, ankit bhatia, pallav shukla dhruva gandhi, shubham jain, upasana chauhan.
Centre for Policy Research
February 27, 2017
India faces serious challenges in creating development processes that generate economic growth while being socially inclusive, ecologically sustainable, politically feasible, and in accordance with the Rule of Law. Equitable and efficient acquisition of land by the state for economic development projects, including infrastructure and industry, lies at the heart of these challenges.
Simultaneously, securing constitutionally guaranteed land rights to the poorest and most vulnerable communities in India against the state and other dominant communities, has been considered crucial to their economic and social empowerment. Land is not only an important economic resource and source of livelihoods, it is also central to community identity, history and culture. Unsurprisingly then, throughout India, dispute over state acquisition of land that deprives people of their land rights spans various dimensions of economic, social, and political life.
How do we mitigate this conflict?
The CPR Land Rights Initiative report on ‘Land Acquisition in India: A Review of Supreme Court cases from 1950-2016’, offers some preliminary answers to this question. Not only is this report the first comprehensive country-wide study of land acquisition disputes since India’s independence, but also for the first time ever analyses these disputes along various metrics, such as i) public purpose, ii) procedure for acquisition, iii) compensation, iv) invocation of the urgency clause, v) pendency of claims, and vi) tracks trends with respect to distribution of disputes across geography and time, and central and state laws. The Report also analyses litigation under the newly enacted Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act) for the three year period, 2014 to 2016.
A detailed presentation of the findings from the report can be accessed here.
Key findings:
Reasons for inequity between state and land losers: The Report concludes that the political and social contestation over land acquisition stems from the inherently coercive nature of the land acquisition process, which creates a severe imbalance of power between the state and land losers. While much of this imbalance was created by the text of the Land Acquisition Act, 1894, a considerable part of it could also be attributed to executive non-compliance with the rule of law. The result is a situation of great inequity for the land losers. Legal reform under the LARR Act should be implemented by government, not subverted to redress these inequities: The Report finds that specific provisions of the LARR Act are steps in the right direction to redress the imbalance of power that was built into the Land Acquisition Act, 1894 in so far as: i) they empower livelihood losers along with title-holders to bring claims for compensation and rehabilitation, ii) bring compensation requirements in accordance with existing reality, and iii) introduce requirements of consent and social impact assessment. The Report shows that litigation helps channelise political contestation of state action into legal as opposed to extra legal disputes. Therefore, by empowering hitherto disempowered land losers to bring claims under the LARR Act, the Act will help preempt extra-legal conflict. Since conflict inevitably stalls or derails legitimate development projects, it is in the interest of the government to comply with, and not subvert the LARR Act. Legal reforms must be supplemented by administrative and bureaucratic reforms: The Report highlights that legal reform is a necessary but not a sufficient precondition for ensuring greater equity and efficiency within the land acquisition process. In the absence of administrative and bureaucratic reforms, the introduction of the LARR Act will not succeed in eliminating inequities and inefficiencies embedded within the implementation of existing land acquisition procedures. In fact, the increase in procedural requirements under the LARR Act implies an even greater need for securing executive compliance with the rule of law, in order to translate the equities intended by these additional procedures into reality for land losers. Types of administrative reforms required: Such administrative reforms include building of state capacity to meaningfully comply with the increased procedural requirements stipulated by the LARR Act, and designing institutional structures that incentivise such compliance with the rule of law. This, in turn, requires a serious mind-set shift within the government toward accepting the reform enshrined in the LARR Act, and not subverting it as we have seen in both the LARR Ordinance, and the state amendments to the LARR Act, as also the rules adopted to implement the LARR Act in the states.
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