1. Introduction
Property is rooted in the human existence itself, more it so in the acquisitive society of modern times. The dichotomy of property for use, and property as power, has been increasingly recognized in the modern States. The visionaries of distributive justice have always made a convincing argument for equitable distribution of material resources of production among the people in order to control abuses of power aspect of property and the resultant economic oppression. The governments of every modern welfare State has strived to attain this aspect of distributive justice as a predominant aspect in their societies.
Governments while trying to materialize this particular aim, make use of two basic policies for acquiring lands from its citizens, i.e., either taking it through their exercise of power of eminent domain or by purchasing it. At a glance, the policy of purchase looks more appealing as it places the land owner on a much better platform but like all other policy this too suffer from certain flaws. Likewise, on a quick look though the policy of acquisition through the exercise of power of eminent domain appears to be more State supportive it does have certain merits at the implementation level. This paper proposes to contrast the social desirability of these two policy measures in our system in relation to a range of decisive factors and also by taking into account the diverse opinions rendered by the judiciary in relation to these policy measures.
2. EMINENT DOMAIN AND RIGHT TO PROPERTY : AN OVER VIEW
Governments generally enjoy the ancient right of eminent domain, which is to say, the right to take land by fiat, usually on the condition that they pay fair compensation to the landowner. The right of eminent domain is the right of the Sate through its regular organization, to reassert either permanently or temporarily, its dominion over any portion of the soil of the State on account of public exigency and for public good. This power depends on the superior domain of the state over all property within its boundaries; it is supposed to be based upon an implied reservation by the state that property acquired by its citizens under its protection may be taken, or its use controlled, for public benefit irrespective of the wishes of the owner. The property is taken either for government use or by delegation to third parties who will devote it to public or civic use or, in some cases, economic development. An incident of this power is that property shall not be taken for public use without just compensation. It is trite knowledge that eminent domain is an essential attribute of sovereignty of every State and the authorities are universal in support of the definition of eminent domain as the power of the sovereign to take property for public use without the owner’s consent upon making just compensation.
The concept had its inception in the west and like many other legal concepts this concept was also subsequently assimilated into our legal system, though not in the strict sense of the term. The peculiar nature of the legal power of the State to acquire private lands for public purpose by law differs fundamentally from the other two great powers of social control exercised by the State, viz., police power and power of taxation. The incidence of exercise of the powers of the State power in case of taxation and police powers is uniform and equal between the subjects whereas the power of exercise of eminent domain takes away from a particular individual, subjected to the exercise of that power, something more than his dues from as his lawful share for the support of the state. On the other hand, the exercise of eminent domain is inherently unjust and disturbs the burden of equal distribution of burdens by throwing them on some proportionately greater burden, exacting greater sacrifice for the purpose of the State from the one rather than from the other. The difference consists exclusively in the nature of selective fall out of the exercise of the power of eminent domain. The power of eminent domain takes away from a particular individual, subject to the exercise of State power, something more than his dues from him as his lawful share for the support of the State. The exercise of eminent domain operates harshly and unequally by exacting special sacrifices from those unfortunate selected few. To nullify this unequal treatment the concept of compensation has been read in as an integral part of the exercise of eminent domain by the various legal systems around the world.
The Indian version of eminent domain is to be found in Entry 42, List III, which says “acquisition or requisition of property”. In State of Bihar v. Kameshwar Singh, the Supreme Court emphasized that the power to acquire property compulsorily meant power to take property for a public purpose and for compensation. The apex court went on to hold that the ideas of public purpose and compensation are very much inherent in Entry 42. In order to have a proper understanding of the concept of acquisition through the power of eminent domain we need to weigh against it the legal sanctity that is enjoyed by the people in relation to their property.
In this context, it is pertinent to analyze the stage of transition which was undergone by the ‘right to property’ in our legal system. To start with, the constitution at its inception through the provisions contained in Article 19 (1) (f) and Article 31 strived to protect the property rights as a fundamental right. With the passage of time article 31 got drastically modified through various constitutional amendments and lost its initial patina and appeal. The final blow to the individual property rights came about in 1978, by the Constitution 44th amendment, whereby Articles 19 (1) (f) and 31 were totally abrogated. Thus the right to property was eventually reduced to the status of a legal right. Articles 31A, 31B, 31C along with the Article 300A remains as a vestige of the past guaranteeing some minimal constitutional safeguards in relation to the right to property. Thus right to property which was initially incorporated as a fundamental right after so much deliberations in the constituent assembly had to yield to the pressure of social welfare schemes and get reduced itself to a mere legal right.
Article 31A was framed mainly with an intend to safeguard the various agrarian reform legislations which came about in the wake of 1960’s. As originally enacted the article safeguarded any law for acquisition of any estate by the State from attack on grounds of inconsistency with Articles 14, 19 and 31 - eventually implying that an acquisition could be made even without paying any compensation. However, the position got radically altered by the 44th Amendment whereby the protection extended by article 31A got altered in such a manner that any law providing for any of the acts specified therein shall not be deemed to be void on the ground of its inconsistency with Article 14 or 19. The protection afforded by this section to agrarian legislation is very expansive as it protects a law even if it’s confiscatory or discriminatory, or compensation payable under it is illusory. The various State Land Reforms Acts, law abolishing big landed estates and the alike providing for agrarian reforms came under the protection afforded by Article 31A. But, the apex court added a rider and held that its purpose being to further agrarian reforms the protection would be afforded only to legislations which had reference to agrarian reforms. In State of Kerala v. Gwalior Rayon & Silk Mfg. Co., Supreme Court went on to hold that once a law is found to have relation to agrarian reform, it is protected by Article 31A (1) (a), no matter how drastic its provisions may be.
The second proviso to Article 31A purports to guarantee compensation against acquisition in certain situations. It provides that the government must tender a value not less than market value in conditions where the land acquired is in the personal cultivation of the owner and is within the ceiling area. But this protection would also on a closer analysis appear to be illusory, as this safeguard can be claimed only if the land falls within the ceiling area and further, that the land is acquired by the government. The ceiling laws must be in effect in the first instance and it is very well within the domain of the government to set ceiling limits at levels favorable to them. Further, it is to the cultivating landholders that compensation has to be paid, and it is thereby discriminatory against the poor occupants and holders of property who do not cultivate the land. The millions of urban poor would be included among those who would have no right to compensation when their property has been acquired. Thus it can be seen that the individuals right to property was more or less reduced to a soul less structure through these various amendments which were brought about to further the cause of social welfare.
Thus it can be gauged that the ostensible purpose of repealing Article 31 was to free the legislature from the restraint of paying compensation for the property acquired. But doubts have been raised as to whether this purpose can be achieved at all – for it has been argued that the requirements of public purpose and compensation are inseparable concomitants of the power of eminent domain and, therefore, of Entry 42 List III as well. The courts can either start reading the two requirements into Entry 42, hold a law of acquisition bad on law if this prerequisite is not complied with, or it can hold that after the repeal of Article 31, these requisites cannot be spelt out from Entry 42. But even if the courts start adopting the first view, it cannot encompass the entire law of property. For quite a good deal of property law can be enacted outside entry 42. For instance, Parliament can if required enact a law interfering with the property rights under its residuary powers rather than under entry 42 and the State governments can also enact law affecting property under their exclusive power over land by virtue of Entry 18 List II. Such laws will be free from the constraint of compensation even if it interferes with property. There have also been arguments that through the introduction of Article 300A, the parliament intended to ensure that the constitutional obligation to pay compensation to the expropriated owner is not taken away. But time alone can show as to how the courts are going to interpret Entry 42 List III and Article 300A. Interestingly the courts in India have so far taken less conflicting approaches on this point whenever these issues have come up for judicial scrutiny and mainly they have always attempted to take an interpretation which would further the various agrarian legislations rather than adopting an interpretation which would obstruct its implementation but this has not attempted to be realized through disproportionate personal sacrifices. An in depth analysis of the approach made by the judiciary in this regard shall be made at a later stage of this paper wherein the various modalities devised by the courts in order to protect the individual rights will be looked into in detail.
3. POLICY OF PURCHASE
The policy of purchase is another method employed by the government in order to secure the property for their schemes. The policy is akin to a contract of sale between two private parties. The government can take over the land only if they agree to tender the amount claimed by the land owner. This policy provides the landholders a bargaining capacity which is more or less non existent in an acquisition made through the exercise of the power of eminent domain. Further, the policy has also an added advantage of prompt implementation of the government schemes as there are lesser or no instances of the landholders approaching the judiciary challenging the acquisition as vexatious or the amount tendered as inadequate. But wherein the land is held jointly by many people and even if one of them refuses to the purchase of the land by the government, the policy suffers. But joint ownership can in certain cases also prompt easy acquisition of land by the State especially, in situations wherein all the owners are not involved in agriculture over the particular stretch of land and those who are not involved might be tempted to sell the land and force the tiller of the land to sell it as well. The policy can also prop as an impediment in the way of implementation of welfare schemes by government in scenarios wherein the landholder refuses to sell the property.
However, this policy confers some kind of recognition for the concept of private property which has made it to be a laudable approach by the public in general. Further, it also relieves the judiciary from the burden of ensuring that the acquisitive policies of the State are carried out in a fair and reasonable manner and not in an arbitrary or capricious way. This policy has got added advantages in the wake of industrialization and globalization wherein the parties whose interest at stake are big industries who can very well afford to render the payment asked for by the landholders.
4. CONCEPT OF COMPENSATION: A JUDICIAL SCRUTINY
In order to make a comparative analysis between these policies it is very necessary to understand the various modalities that have been resorted to interpret and understand the concept of compensation in relation to right to property. The provision for acquisition of property was initially used in Article 31(2) of the Constitution. In State of West Bengal v. Bella Banerjee the term ‘compensation’ was held to mean “a just equivalent of what the owner has been deprived of.” The central government became uneasy at the judicial insistence on payment of full market value for the property acquired, as it thought that it would place an onerous burden on the country’s slender resources and would throw out of gear the envisaged socio economic programme involving reconstruction of property relations, especially in the area of agricultural land. To nullify this interpretation of the Supreme Court the parliament came up with the 4th Amendment of constitution in 1955 in Article 31(2) which provided that no law shall be called in question in any court on the ground that the compensation provided by law is not adequate.” But in spite of the amendment the Supreme Court in essence stuck to the view postulated in Bella Banerjee. In its bid to break through the shackles imposed by the 4th Amendment, and to afford some safeguard to private property, the Supreme Court in Vajravelu v. Special Deputy Collectortook the view that the amended Article 31(2) still retained the word compensation which meant that the view adopted in Bella Banerjee was still retained. The Supreme Court was careful to emphasize that this formulation had reference not to the adequacy of compensation but to ‘no compensation’ at all. Thus, the court asserted a power of judicial review of compensation in cases where the compensation was illusory or if the principles prescribed were irrelevant to the value of the property at or about the time of acquisition. The new formula was some what different from, rather less rigorous than, the Bella Banerjee view, but it still claimed a foothold in the area of compensation and did not completely vacate the field.
Thereafter, the apex court gave a jolt to the idea through its decision in Bank Nationalisation case wherein it was held that the constitutional guarantee of right to compensation connotes the equivalent in money of the property compulsorily acquired. Through these decisions the adequacy of compensation and the principles laid down by the legislature were made justiciable in as much as the court can look into the question as to whether the amount paid to the owner of the property is what may be regarded as compensation for loss of property. The Bank Nationalisation case was criticized on the ground that it ran counter to what the 4th amendment was designed to achieve.
Thus the question of justiciability of compensation stressed by the judiciary in Bank Nationalisation case became a sore to the government and as a remedial measure the 25th amendment of the constitution was brought about in 1971 by virtue of which the word ‘compensation’ was substituted by ‘amount’ in Article 31(2). Efforts were also taken to keep the law beyond the pale of challenge in any court, providing that “it cannot be assailed on the ground that the amount fixed or determined is not adequate. This amendment was followed by the land mark case of Kesavananda Bharati v. State of Kerala wherein the court held that the amount payable for acquired property either fixed by the legislature or determined on the basis of the principles engrafted in the law of acquisition cannot be wholly arbitrary and illusory. The court also added a rider that the Parliament cannot empower legislature to fix an arbitrary amount or illusory amount or an amount that virtually amounts to confiscation, taking all relevant circumstances of the acquisition into consideration. On this view of the matter, a restricted judicial view of the ‘amount’ payable for property acquired was still a possibility.
Cases such as State of Karnataka v. Ranganatha Reddy and Pathak Madan Mohan v. Union of India showed that challenges to the law of acquisition for the contravention of Article 31(2) continued notwithstanding the 25th Amendment.
As a consequence, it was the next logical step for the Government to enact the 44th Amendment Act and permanently amputate the requirement of compensation where property was compulsorily acquired. The whole complexion of the situation was changed by the 44th amendment of 1978 through which Article 31 providing for compensation and Article 19(1) (f) containing right to property were deleted. The deletion of Article 19(1) (f) by the 44th Amendment has also relieved the Government of the onus of having to adhere to the reasonableness test laid down in Article 19(5). Thus, the constitutional mandate for ensuring the payment of compensation was done away with and it was completely left to the judiciary to read in the aspects of fair compensation whenever any issue involving deprivation of property came up for their interpretation. The legislature was therefore in effect relieved of the burden of rendering compensation in cases of acquisition. But the obligation of paying compensation was not completely taken off from the legislature instead the courts read in the concept of compensation into Entry 42 List III which encompassed the concept of eminent domain.
The above stated constitutional modifications and the related interpretations by the judiciary have brought about tremendous changes in the various attributes that are made use of while determining the amount that is to be tendered while acquisitioning or requisitioning property from the individuals by the government. The field has now been left wide open for ushering in a new era of schemes for implementing schemes for furthering public welfare. It is yet to be seen as to how the requisite for making a fair compensation will be further evaded by the government.
5. EMINENT DOMAIN VIS-À-VIS LAND ACQUISITION
It is well recognized that the sovereign power of a State has adequate authority to command and appropriate for itself lands situate within its jurisdiction provided it is for the purposes of some public utility. The famous maxim ‘Salus populi est suprema lex’ i.e, ‘the welfare of the people is the paramount law’ is the corner stone of the law of land acquisition. But the modern tendency of the State to acquire lands may tend to become a menace to the owner of private property unless he is given a fair deal. It is improper for a State to appropriate or confiscate private property without paying due compensation. To be just, compensation must be adequate.
The counterpart to the law of eminent domain of America or the Law of Compensation of England is the law of Land Acquisition and Compensation of India. The Land Acquisition Act, 1894 forms the parent Act in India and it is the basis of all Central and State laws relating to compulsorily acquisition and compensation payable. Then again what the statute seeks to achieve is acquisition, not confiscation. And there remain embedded behind every law of acquisition the inbuilt condition namely, the right of the expropriated owner to receive compensation.
The Land Acquisition Act, 1894 applied originally to British India only and the native States out then had their own local laws for acquisition. After the Indian Independence Act, 1947 section 1 was amended by substituting the words “all the provinces of India” for the words “the whole of British India”. After the Constitution the term ‘Provinces of India’ was substituted by “the whole of India except Part B States”. Therefore, the law relating to Land Acquisition in India can now be identified as the Land Acquisition Act of 1894; the Acts passed by the native States and the Acts passed by some of the Part B States.
Besides the aforesaid Acts which directly deal with the acquisition of land, there are also other Acts of the Union and the States in which provision is made for such acquisition. There is no uniformity in the principles for the determination of the compensation under these Acts. The main points on which there are deviations can be summarized as: the scope and ambit of the expression ‘public purpose’ is different in various statutes. Further, the relevant dates for the determination of the market value of the land has been altered to the date of either the declaration under Section 6 of the 1894 Act or the date of a special notice, the issue of which is provided by the Acts. The principles for the determination of compensation laid down in the Land Acquisition Act, 1894 has also been materially altered in many of the local laws. But these alterations were held to have infringed Article 14 in many cases by the Supreme Court.
Sections 23 and 24 of the Land Acquisition Act lay down the main principles for computing compensation in the context of acquisition of property in India under the Act. The intention of section 23 taken as a whole is to provide a complete indemnity to a person whose land is compulsorily acquired. The different heads under which compensation can be awarded are enumerated under section 23. There may be circumstances besides those mentioned in section 23 which may very well be taken into account in awarding compensation for the lands acquired. Market value envisaged under section 23 (1) of the Act is designed to award just and fair compensation for the lands acquired and postulates price of the land prevailing on the date of publication of notification under section 4 of the Act.
Determination of compensation for compulsory acquisition involves consideration of a price which a hypothetical willing purchaser can be expected to pay for the lands in the existing as well as relatable potentialities. The market value of a piece of property for the purpose of section 23 is stated to be the price at which the property changes hands from a willing seller to a willing purchaser, but not too anxious a buyer. Prices fetched by similar lands with similar advantages and potentialities under bonafide transactions of sale at or about the time of the preliminary notification are the usual and indeed the best evidence of market value.
The methods of valuation of the land acquired under the Land Acquisition Act can be classified into three heads: opinion of valuators, price paid within a reasonable time for the lands adjacent to the lands acquired and possessing similar advantages and a number of year’s purchase of the actual or immediate prospective profits from the lands acquired. It is generally necessary to take two or all of these methods in order to arrive at a fairly correct valuation.
But in reality, in most of the situations the amount tendered to the owners whose land has been acquired of is very much less than the prevailing market price. The market price is determined taking into account the date of notification under section 4 and not the actual date of acquisition by the government. This puts the landholders in an unfavorable situation as the increase in the value of the land subsequent to the notification is not considered by the government. Further, section 24 of the Act postulates that the degree of urgency that led to the acquisition, the reluctance on the part of the owner and like factors are to be ignored while computing compensation. From this it can be fairly understood that the scheme of acquisition that is envisaged is more or less in the lines of a compulsory acquisition along with the provision for a nominal compensation.
Accordingly it can be gauged that there are different standards for fixing the compensation amount under various schemes of law and that there is no uniform approach adopted through out the country. In addition the amount rendered as compensation always fails to serve the purpose of recompensing the person who has been deprived of the property. Thus the field of compensation in our legal system is in a flux with rather contradictory and ambiguous guidelines which in turn over burden the judiciary with the task of ensuring that fairness and reasonableness are complied with during the implementation of any acquisition program by the government. The judiciary has successfully read in the aspects of reasonableness and fairness into the aspects of compensation that has so far taken place in the name of agrarian reforms.
But the task becomes more complex especially in the current scenario wherein the land acquisition programs are largely resorted to by the State so as to facilitate expansion of private business in the wake of liberalization of Indian economy. The concept of compensation needs to be revamped in the modern system which is more industrialization and economic development oriented. In the present model it is not the State that is utilizing the acquired land but rather the private industrial groups who have much better resources at their disposal when compared to the slender resources of the State.
6. WHAT THE OWNERS WANT AND WHAT THE GOVERNMENTS DO
Land acquisition, either for state sponsored development or for private business projects, have faced opposition in the past and this is a continuing phenomenon even now. However, what had changed over the years are the reasons for opposition that have become far more broad based now. In the initial years the State resorted to acquisition so as to better equip the tillers of the soil. Acquisitive methods were resorted in order to ensure an equitable sharing of the resources amongst the people and to attain the status of a welfare State in the long run. But with the passage of time acquisition for the purpose of agrarian reforms narrowed down and instead acquisition for the purpose of industrialization took the lead. The standards that are to be considered for determination of compensation in the case of these two scenarios cannot be the same as the actors in these two models are different and also the resources at their disposal vary to a large extend.
With liberalization and globalization of Indian economy, opportunities for expansion of private business have increased many folds, especially in infrastructure. This has increased the demand for land that would often require conversion of forest and agricultural areas to mining, industrial, infrastructure and urbanization projects etc. The early land use changes triggered by development, industrial and infrastructure projects have resulted in a highly skewed benefit accrual bias towards a small base of project promoters or some sections of the society. However, wider sections of the society, especially those who were dependant on land for livelihoods but gave up their lands, willingly or under different degrees of coercion, have witnessed a worsening of their living standards leading to a compromised Pareto optimality condition.
As there is ambiguity in definition of “public good”, governments often used Land Acquisition Act 1894, to acquire land for private business projects. Indiscriminate use of Land Acquisition Act by the governments to facilitate private business projects, in the guise of doing “public good” is severely contested by the communities. The communities perceive such dilution of legal provisions, more liberal legal clearances and indiscriminate use of Land Acquisition Act as government aligning with the private business without due regard for negative socio-economic and environmental impacts on the communities. The direct fallout of such a perception is the increasing public resistance to land acquisition for private industrial projects.
The recent problems of large corporate’s not able to acquire social consent such as Mittal and Vedanta in Orissa, Tata in West Bengal are but some of the examples that indicate, all is not well with land acquisitions by private business. Often, private business look at land acquisition process purely from the objective function of self gains compared to what will happen to the locals and other stakeholders. In other words, social costs are externalized. There is an implicit assumption therein that what is good for their industrial project, say, a piece of fertile land with good infrastructure support is also good for the nation and state, is also good for the locals, and is also good for the other players in the economy. Hence, such a corporate, in connivance of the state, is more likely to bulldoze other views and initiate the process of land acquisitions. Such erroneous assumptions and strong arm tactics only fuel equally violent protests from the affected communities, who get punished or sometimes get killed. It is like; we are okay with a few people suffering or getting killed in Nandigram or Kalinganagar for the larger good of the society.
The business community, aspiring to acquire land for their projects, should realize that the communities today are more frequently standing up and taking exception to the presence of companies, or the ways in which the companies are conducting themselves. These challenges are less about opposing project activities per se than many would think. Rather, the opposition to land acquisitions and projects is a manifestation of an increasing desire on the part of the local population to have some measure of control over their own future.
The way out to this dilemma lies not in a complete stoppage of the acquisition mechanisms aimed at furthering industrialization in our country but rather ensuring a smooth implementation of the various allied schemes by the government. The rift between the landholders and the State can be considerably reduced if the land that is sought to be achieved is fallow or waste land because social consent is easier to obtain in the case of these lands. Gaining social consent to operate becomes a very tough job if the land selected is fertile and predominantly supports livelihoods of local communities. Tata Motor’s Singur project in West Bengal faced this problem right from the word go since the major portion of the land they selected was fertile multi crop agricultural land. LN Mittal group’s proposal to set up an integrated steel plant in Keonjahar district of Orissa also faced protests as the selected land was fertile multi crop, irrigated land.
In addition, perfect markets are places where there is enormous competition by both buyer’s and seller’s leading to ‘efficient price formation’. Land trade in India is highly taxed with transaction taxes being as high as 14% in many states. This would limit the trade of land and deals would often be underreported in value to avoid payment of taxes at such high rates. Supplementing to these, issues of income taxes and specific regulations pertaining to sale of agricultural land, the problem of low reported market valuations only increase. All these factors lead to a need for an excellent compensation package to the locals preferably a package that envisages sharing the future upside of the industrial project. Example from the OP Jindal group, stand out in this regard. JSW Bengal Steel in Salboni area chalked out a workable partnership with 700 marginal farmers owning 450 acres of land. The package was, JSW Bengal Steel offers one job per family and compensation for land acquired (approximately, Rs. 3 Lakhs per acre) – 50 per cent of the compensation in cash and the rest deposited as annuity policy, payable monthly. In addition, shares of the company, equivalent to the value of the land, are offered free of charge.
Also, slow pace of land acquisition process usually gives rise to locals being influenced by rent seeking agents. It also gives an opportunity to outsiders and media to meddle into the affairs of the acquisition process leading to complications and issues of information asymmetry.
As a proactive measure, it is always suggested that a private business interested in land acquisition should directly talk to the locals. This step helps as the private business would get a firsthand knowledge into community concerns. This would in turn help finding solutions to the deadlocks. This step ensures minimal scope for manipulation of the situation by middlemen and other private rent seeking agents. For instance, POSCO of South Korea always approached the government of Orissa to ensure a trouble free land acquisition process. By the time they realized that avoiding direct talks with the locals can be damaging it was too late as the local protests had intensified.
In a democracy, people and political parties have every right to take a stand in favor or against a particular Greenfield project. Private businesses have to often deal with political parties both in power and opposition, and yet keep equidistance. Given that political fortunes often change over time and political parties have their own regions of strength, aligning with one political party especially in public is flout with large amount of risk in terms of antagonizing the other political parties. It might even result in problems in gaining social consent to operate. Therefore, the industrial enterprises have to ensure a bit more transparency while charting out their major policies.
Consequently, in the modern scenario the utilization of the land acquisition laws by the State in order to further private business projects needs to be evaluated at a different standard as compared to the acquisition for agrarian reforms. In order to facilitate a smooth transition from an agriculturist society to an industrialist society the State machinery needs to bring about some deep-seated changes in their approach in relation to both implementation mechanisms as well as compensation measures. The concept of eminent domain alone would have sufficed in the acquisition of land for implementation of agrarian reforms in the late 1970’s but the present scenario is witnessing a huge shift in the value that is attributed to property as well as the purposes for which the lands are acquired are also in strict contrast with the earlier seen purposes. There needs to be a change in the policy adopted by the government in the case of acquisition for private purposes in the modern State. Strict adherence to the law of eminent domain or a complete dependence on the Land Acquisition Act would prop impediments in the way of these schemes and it would take another one decade for the judiciary to sort out the unsettled principles in this area. It would be desirable if the authorities could modify their modalities of acquisition and take up new measures which could incorporate the principles of both eminent domain and policy of purchase in a harmonious manner. This could go long way in ensuring a smooth realization of the various economic reform measures without unsettling the people’s right to have some certainty about their future and property. For that reason, it is suggested that the acquisition methods should take into consideration the changed capabilities of the acquiring entities as well as the purposes for which the acquired land is put to. In addition it is also pertinent to acknowledge the right of the landholders on their property and it is imperative that the holders of the land should be given a decisive role in the acquisition proceedings especially in relation to the determination of compensation. But this does not envisage the adoption of policy of purchase in its entirety but rather incorporating the elements of better bargaining capacity of the land holder in the acquisition proceedings under the power of eminent domain.
State of Bihar v. Kameshwar Singh, A.I.R. 1952 SC 252.
Supra 2.
A fast acquisition process leads to avoiding the attention of unnecessary rent seeking elements and problems of information asymmetry with the locals. It took Hyundai Motors less than six months to acquire 535 acres of land after it announced its decision to set up its second plant in Tamil Nadu (Industrial Economist, 29 April, 2007).
A fast acquisition process leads to avoiding the attention of unnecessary rent seeking elements and problems of information asymmetry with the locals. It took Hyundai Motors less than six months to acquire 535 acres of land after it announced its decision to set up its second plant in Tamil Nadu (Industrial Economist, 29 April, 2007).