The Supreme Court’s judgment in the Singur land acquisition case reflects two parallel strands of thinking that have informed its land acquisition jurisprudence: the state’s model of “development” versus farmers’ livelihoods. It has not been able to properly weave the two into a coherent jurisprudence on eminent domain. The same dichotomy is written into the latest land acquisition laws as well, but procedural protections may mean fewer Singur-like situations in the future.
The long and violent struggle over land for Tata Motors in Singur is finally drawing to a close. The Supreme Court struck down the land acquisition proceedings (Kedar Nath Yadav v State of West Bengal and Others 2016) initiated by the then Communist Party of India (Marxist)-led government as having been undertaken without following the proper procedures under the Land Acquisition Act, 1894. The land has now been directed to be returned to the original landowners within a period of 10 weeks. Between 2006, when the plan for a Tata Nano car factory was mooted, and this judgment, we have seen enormous upheavals in Singur, leading to a wider debate on land acquisition law in India, and eventually to the promulgation of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (LARR) Act, 2013, ostensibly with a view to make the process fairer towards those losing land.
The LARR Act prompted a backlash from industry, which complained that acquiring land for setting up projects to provide jobs has become virtually impossible. A legislative move to dilute some of the provisions of the LARR Act has been held up in Parliament in the face of strong resistance from farmer and civil society organisations, with the attempt to have it passed by way of an ordinance also having failed (Hebbar 2015).
It is not as if the Land Acquisition Act, 1894 forbade the acquisition of land for private companies. It provides a different set of procedures to be followed under Part VII of the act when the acquisition of land is on behalf of a private company. These procedures, in addition to the existing procedures for acquisition of land for “public purposes,” were supposed to ensure that the acquisition for the private company is also, in fact, for the intended public purposes and that the government machinery is not being put to use for purely private ends. What the history of battles over land acquisition over the last couple of decades shows is the unwillingness of the government to abide by the most basic procedural requirements in the face of pressure to ease the growth of industries and housing projects in the state.
The competing pulls of farmers’ livelihoods, on the one hand, and the need for “development,” on the other, are not just being played out politically, but have also found their way into the Supreme Court’s thinking on the matter of land acquisition. Specifically, the question as to whether the acquisition of private property from one set of parties for the benefit of another private party, such as a privately held company can constitute a “public purpose” has been grappled with by the Supreme Court over the years.
As far back as 1985, in the context of the Urban Land (Ceiling and Regulation) Act, 1976, the Supreme Court admitted that a “public purpose” could include transferring property to private industry, but with the caveat that such power should not be exercised mala fide.1 The use and abuse of the term “public purpose” by governments over the years has made the Supreme Court’s hope seem a little naïve. Yet, courts have by and large upheld land acquisition for companies as being for “public purposes,” save in a few exceptional circumstances. The exceptional circumstances have usually been where the government has invoked the “emergency” provisions of the Land Acquisition Act, 1894 to deny farmers a hearing before acquiring the land for a private company.2
While courts were happy to give a wide leeway to the government to justify land acquisition proceedings in the interests of economic development,3 the recent trend, perhaps post-Singur and other illegalities coming to light, has been to hold the government’s justifications for land acquisition to closer scrutiny and strike them down if they do not follow the strict letter of the law. There has not yet been a judgment that satisfactorily ties these two approaches together in a coherent manner. This reflects in the two separate, partly concurring and partly dissenting judgments delivered by the two judges in the Singur case. Each judge writes his own opinion mirroring one of these two approaches to the question of land acquisition for private companies, but concludes nonetheless that the land acquisition proceedings were bad in law. The two opinions are worth unpacking in some detail.
Justice Gopala Gowda, the senior judge on the bench, clearly sees the whole acquisition in Singur as being driven by the sole purpose of handing over the land to Tata Motors to set up the factory. He is unimpressed with the interpolation of the West Bengal Industrial Development Corporation in the process, even though it would actually own the land and lease out the same to Tata Motors for a 99-year period. Having found that the acquisition being actually carried out to benefit a private company, he finds that the procedure found in Part VII of the 1894 Act not having been followed, the whole proceedings ought to be struck down. Concern for the farmers is writ large in his judgment, where he states,
What, however, cannot be lost sight of is the fact that when the brunt of this ‘development’ is borne by the weakest sections of the society, … who have no means of raising a voice against the action of the mighty state government, as is the case in the instant fact situation, it is the onerous duty of the state Government to ensure that the mandatory procedure laid down under the LA Act and the Rules framed there under are followed scrupulously. (Kedar Nath Yadav v State of West Bengal and Others 2016: para 63)
Justice A K Mishra, on the other hand, sees the whole matter from the point of view of the state government trying to encourage industrialisation in the state and inviting industries to set up factories in the state. In contrast to what Justice Gowda has to say, Justice A K Mishra frames the issue very differently. He says,
Acquisition of land for establishing such an industry would ultimately benefit the people and the very purpose of industrialization, generating job opportunities hence it would be open to the State Government to invoke the provisions of Part II of the Act. When Government wants to attract the investment, create job opportunities and aims at the development of the State … such acquisition is permissible for public purpose. (Kedar Nath Yadav v State of West Bengal and Others 2016: para 7)
Here Justice Mishra seems to conform to the older view that greater leeway be given to the state government in deciding what should be “public purposes” given its intentions to create jobs, “develop” the state, etc.
Despite their differing world views on the matter of how to approach the question of whether a land acquisition is indeed for “public purposes,” they both agree that the rigour of the law, insofar as the requirement to give a hearing to those losing their land is concerned, had not been followed by the West Bengal government, and, therefore, proceeded to strike down the acquisition on this basis.
For students of judicial process, the Singur judgment provides an excellent example of how judges can arrive at opposite conclusions (is it an acquisition for “public purposes”?) simply by framing their questions differently. Their approach to constructing the story behind the land acquisition leads to different conclusions, whether they see it as Tata Motors looking to get prime agricultural land in West Bengal for a factory or West Bengal trying to step up its industrialisation efforts in order to provide jobs to people in the state.
Neither approach is inherently wrong. Both judges in the Singur land acquisition case cite a long line of precedents that supports their particular world view on what should count as “public purpose.” Yet, through the long and detailed discussion by precedent, no satisfactory consensus emerges as to what is actually meant by “public purposes” for the purposes of the land acquisition law; even more so when the prevailing economic paradigm in India has changed so much over the last 40 years or so.
Perhaps this is why the LARR Act keeps faith in the procedural safeguards rather than substantive limits on what constitutes “public purposes.” Under the LARR Act, where for the acquisition for government purposes and activities a procedure similar to the 1894 Act prevails (with additional requirements to carry out a social impact assessment and a duty to rehabilitate those affected as well), acquisitions on behalf of private entities require the obtaining of “consent” from a supermajority of landowners. The West Bengal government’s experience of Singur should be a lesson for governments around India—that procedural safeguards are not obstacles to be bypassed, but important checks in the exercise of a great power.
1 Opinion of Justice Krishna Iyer in Maharao Sahib Shri Bhim Singhji v Union of India (1985).
2 See, for instance, Greater Noida Industrial Development Authority v Devendra Kumar (2011).
3 See, for instance, Pratibha Nema v State of Madhya Pradesh (2003).
Greater Noida Industrial Development Authority v Devendra Kumar (2011): SCC, SC, 12, p 375.
Hebbar, Nistula (2015): “Land Ordinance Gets a Burial,” Hindu, 31 August, viewed on 12 September 2016, http://www.thehindu.com/news/national/land-acquisition-ordinance-bill-gets-a-burial/article7597517.ece.
Kedar Nath Yadav v State of West Bengal and Others (2016): SCC OnLine, SC, p 885.
Maharao Sahib Shri Bhim Singhji v Union of India (1985): AIR, SC, p 1650.
Pratibha Nema v State of Madhya Pradesh (2003): SCC, SC, 10, p 626.
- See more at: http://www.epw.in/journal/2016/38/law-and-society/supreme-courts-schizophrenic-approach-land-acquisition.html#sthash.cA4Y2q5c.dpuf