M J Antony: Land acquisition pangs

OUT OF COURT

Conflicts over development delay infrastructure growth

Reconciling sustainable development and the urge for runaway industrialisation has been a difficult task for the courts for the past two decades. More so, as the law-makers have not considered this aspect while making legislations. Therefore, the judiciary is compelled to step in and fill up the gaps often. In two recent judgements relating to land acquisition for development work, the Supreme Court did this exercise.

In the first case, Karnataka Industrial Areas Development Board vs C Kenchappa, the court dealt with the petitions of farmers who lost their grazing fields due to allotment of their land to Gee India Technology Pvt Ltd. They invoked their fundamental right to livelihood. The high court heard their plea and ordered that the board should leave a one-kilometre buffer zone on the periphery of the village to maintain a green area. This would preserve their land for grazing of cattle, agricultural operation and for development of social forestry.

The high court made it a general rule that whenever there was acquisition of land for industrial, commercial or non-agricultural purposes, the authorities must leave a one-kilometre area from the village limits as a free zone or green area to maintain ecological equilibrium. The board appealed to the Supreme Court against this, quoting certain provisions of the state law.

The Supreme Court, while modifying the order, set a few more rules which should be noted by all state governments while taking over land and giving them to industries. Firstly, the court declared that in future, "Before acquisition of lands for development, the consequence and adverse impact of development on environment must be properly comprehended and the lands be acquired for development that they do not gravely impair the ecology and environment." It also asked the board to incorporate a condition for allotment that the allottee should obtain clearance from the state pollution control board before it is handed over for development. This should be mandatory for all projects sanctioned in future.

These might look like law-making, a task which constitutionally belongs to the legislature, but the court had to weave these concepts into the law. At present, the land acquisition and allied laws deal mainly with compensation. Though they speak of public purpose, the environmental aspects are totally absent in these laws. In the Land Acquisition Act, land could be allotted to industry for "work likely to be useful to the public" and witnesses and documents could be summoned for that purpose. However, the environmental aspects were specifically neither mentioned nor kept in mind by the law-makers, leading to a vacuum.

The justification for this judicial intervention is given in detail in the present judgement. It traces the development of environment law or what it calls the "judicial pilgrimage of the past four decades." Principles of far-reaching significance have been evolved during this period, although none of the modern legislations has incorporated them. One such is the "precautionary principle", propounded in Vellore Citizens Forum vs Union of India (1996). It briefly means that before a development work is undertaken, the government must anticipate, prevent and attack the causes of environmental degradation. The onus of proof is on the developer to show that his project is environmentally benign.

Another principle, "polluter pays", was developed in Indian Council of Environ-Legal Action vs Union of India (1996). According to it, the person who caused pollution must defray the costs of remedial measures. Yet another canon is the "public trust doctrine". It means that certain resources such as air, water and the forests have such great importance to the people that it would be unjustified to make them subject to private ownership.

However, the other judgement on land acquisition showed the pitfalls in attempting to strike a golden balance for achieving sustainable development. In this case, State of Karnataka vs All India Manufacturers Organisation, the Supreme Court found that the issues were hijacked by certain groups with political and ulterior motives. The case concerned the Bangalore-Mysore expressway and it was stalled for due to this litigation. Both the high court and the Apex Court examined the project and found that it could go on.

Owing to the absence of clear and modern guidelines on acquisition of land, the land owners tried to "scuttle" the mega project, as the court put it. They raised technical arguments like failure to serve notice on them, the vagueness of the notice when it was served, and the lack of public purpose in the acquisition. All these objections were rejected by the court. These may not be the last of such cases. Land acquisitions are going to increase with the awareness of the need for infrastructure. The existing laws, either the century-old central one or the truncated versions passed by the state governments, can't cope with all aspects. The burden, therefore, falls on the courts to negotiate all interests.