Right of eminent domain - The New Indian Express

Right of eminent domain

Published: 13th October 2011 10:44 PM

Last Updated: 16th May 2012 06:47 PM

Borrowed from the concept that all land belongs to the Crown, our land laws start with the preamble that all land belongs the State. However, the State allocates the land in rural areas to agriculturists in ownership rights under the ryotwari system, in which the landowner becomes its bhoomiswami. In urban areas land is held on lease or in freehold. The State has the right to acquire this land if needed for public purpose. Under Article 31A of the Constitution if the land is within a prescribed ceiling, acquisition can only be done on payment of at least full market value. The sovereign right to acquire is known in the West as the Right of Eminent Domain. In India this right is exercised through the Land Acquisition Act.

The Preamble of the Constitution makes India a socialist republic. When read with Articles 38 and 39 of the Constitution this means that the role of the State in the sphere of economics will always be much larger than in a free market economy. If the State is to proactively promote the welfare of the underprivileged, if the State is to ensure economic growth with equity, if the State is to prevent the concentration of wealth and means of production in a few hands, it will have to take the initiative in ensuring that there is gainful employment, fundamental improvement of the infrastructure and the creation of an economy which generates wealth, promotes welfare and provides full employment. The State will also have to take the lead in creation of social infrastructure such as education, healthcare and social security. All these are activities which will have to be translated into the building up of assets and this can only be done if land is available for the purpose. The exercise of the right of eminent domain by the State is, therefore, unspokenly mandated by the Constitution itself and the duties it imposes on the State.

Under the Land Acquisition Act, the State may acquire land for public purpose because public purpose is not clearly defined. The land acquisition officer’s certificate that acquisition is for public purpose is enough. This has led to widespread misuse of the Act, an example being the Supreme Court’s strictures on the UP government for transferring land acquired in Greater NOIDA for industrial purpose to private builders for construction of housing for profit, while changing land use from industrial to residential.

A group of protests, of whom the most prominent is the Narmada Bachao Andolan under the leadership of Medha Patkar, has awakened our conscience to the fact that for major projects, especially river valley projects, there is large scale displacement of people in the catchment, leading to impoverishment and destitution. This movement has ultimately progressed into one which not only highlights the problems of the displaced, but is now opposed to almost every form of development, whether it be a dam, a canal, a road, a power station, city expansion, institution building and even setting up of a new mandi. All mining activities are opposed. This has applied a major brake on all development projects.

We have the contrast of China where, for example, in building the Three Gorges Dam the government displaced 30 lakh people. For the expansion of Beijing for the purpose of the Olympic Games 10,000 farmers were displaced and resistance was brutally suppressed. India cannot and must not follow the Chinese path, but nor can it reach a stage of total paralysis in the matter of development because land cannot be acquired. Since we cannot build projects in the air and everything has to be rooted in earth a fair and equitable method of land acquisition has to be worked out. Jairam Ramesh, under pressure from the National Advisory Council and activist NGOs, is introducing a new Land Acquisition Bill which will make it almost impossible for land to be acquired. No doubt we need to have a strict interpretation and definition of what is public purpose. Certainly land cannot be acquired for private business. Nor can land acquired for public purpose and allotted to a corporate body be transferred to any other hands and nor can its use be altered. This must be legally ensured.

One problem relating to compensation is that market value is determined by registered sale deeds and it is a well known fact that almost all deals relating to land are undervalued and paid for substantially in black money. We have to find a legal way, without inviting complaints of corruption, whereby a land acquisition officer can ascertain the true market value. It is suggested that it should be mandatory for every district collector to publish a rate list of land value, ascertained by expert advice which looks at real and not registered value. This list should be officially recognised and should be the basis of fixation of compensation by the land acquisition officer. We must also try and ensure that in an irrigation project, if need be by acquiring surplus land in the command, the displaced are given irrigated land so that their livelihood is protected. Rehabilitation must include not only an annuity but also assurance of gainful work because if people are idle they will only drink away the compensation amount. Nothing can harm society more than a group of unemployed people with some money in hand.

Having said that the new Act must provide for easy and publicly acceptable acquisition of land for genuine public purpose. Instead of doing that the new Bill makes it impossible to acquire land. One of the provisions seems to be that irrigated and double-cropped land cannot be acquired. The whole of the Punjab, much of Haryana, Western UP and the Chambal Valley in Madhya Pradesh are irrigated and double cropped. Under the new Bill no land can be acquired in the Punjab for promoting public welfare like a canal, widening a road, setting up a power plant, etc.

Is this what we want to achieve? Had this provision been in the original Act there would be no Bhakra Dam, no canals, no Chandigarh, no new mandies, no industries in Ludhiana, no Arumbakkam, no Maraimalainagar, in fact nothing. Can we imagine Hoshangabad District without the Tawa Dam? Do we want a situation in which IIT Kanpur, IIM Ahmedabad and G B Pant Agriculture University would not exist? We need to acquire land where necessary, but in a just and equitable manner. We need a balance between total paralysis because land cannot be acquired and total injustice because people are displaced at will. Can we expect Jairam Ramesh to achieve this balance?

M N Buch, a former civil servant, is chairman, National Centre for Human Settlements and Environment, Bhopal.
E-mail: buchnchse@yahoo.com

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