Right to possess land cannot be taken away without enquiry: Court

http://www.thehindu.com/todays-paper/article1533904.ece

New Delhi, March 13, 2011
J. Venkatesan


‘Concept of public purpose cannot remain static for all time to come'

Giving a new dimension to poor farmers whose land is acquired for public purpose, the Supreme Court has held that the right to possess land being a right to property cannot be taken away without conducting an enquiry under the Land Acquisition Act (LAA).

Giving this ruling, a Bench of Justice G. S. Singhvi and Justice A. K. Ganguly said: “Admittedly the LAA, a pre-Constitutional legislation of colonial vintage is a drastic law, being expropriatory in nature as it confers on the State a power which affects a person's property right.”

The Bench said “the concept of public purpose on this broad horizon must also be read into the provisions of emergency power under Section 17 with the consequential dispensation of right of hearing under Section 5A of the LAA. The courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the State.” Writing the judgment, Justice Ganguly said: “Even though right to property is no longer a fundamental right, and was never a natural right, and is acquired on a concession by the State, it has to be accepted that without right to some property other rights become illusory. The concept of public purpose cannot remain static for all time to come.”

Taking note of recent trends in various States in land acquisition proceedings, the Bench said: “Any attempt by the State to acquire land by promoting a public purpose to benefit a particular group of people or to serve any particular interest at the cost of the interest of a large section of people, especially of the common people, defeats the very concept of public purpose.”

Expanding the scope of fundamental rights, the Bench said, “Even though the concept of public purpose was introduced by pre-Constitutional legislation, its application must be consistent with the Constitutional ethos and especially the Chapter under Fundamental Rights and also the Directive Principles.”

Fundamental Rights

The Bench made it clear that in construing the concept of public purpose the mandate of Article 13 (laws inconsistent with or in derogation or the fundamental rights) of the Constitution could not in any way take away or abridge the rights conferred under the Chapter on Fundamental Rights.

The Bench was of the view that the meaning of “public purpose” in acquisition of land must be judged on the touchstone of this expanded view of fundamental rights. “The open-ended nature of our Constitution needs a harmonious reconciliation between various competing principles and the overhanging shadows of socio-economic reality in this country,” it said.

“If public purpose can be satisfied by not rendering common [people] homeless and by exploring other avenues of acquisition, the courts, before sanctioning an acquisition, must in exercise of its power of judicial review, focus its attention on the concept of social and economic justice. While examining these questions of public importance, the courts, especially the higher courts, cannot afford to act as mere umpires,” the Bench added.

In the instant case, Dev Sharan and others were aggrieved over acquisition of their fertile agricultural land by the Uttar Pradesh Government for construction of a modern jail in Shahjahanpur by invoking the emergency provisions in the LAA and without conducting a proper enquiry. The Allahabad High Court upheld the acquisition and the present appeals are directed against this judgment. The Bench allowed the appeals and quashed the acquisition notifications.

It held that the possession of land by the appellants could not be interfered with except in accordance with law.