The Supreme Court (SC) judgment asking for Singur land to be returned to the original owners could likely open several cases of land acquisition carried out before 2009. But, the judgment will have no impact on land being acquired for Smart City projects, claim experts.
"The judgment again tosses in the air the concept of public interest", said Suhaan Mukherjee, partner at PLR Chambers, which specialises in public policy. The two judges have differed on whether the land acquired for the Tata Nano project in Singur was in public interest.
On Wednesday, a two-judge bench ruled as invalid the acquisition of land in Singur by the West Bengal government for a Tata Motors' project made in 2006. The judges have asked the state to return the 997 acres of land to the farmers, since the acquisition made under the Land Acquisition Act of 1894 was "perverse and illegal" by the then state government. The Singur land acquisition has been a watershed for land disputes in India. All political parties scurried to include their opposition for land alienation in their manifestos, which resulted in the stiffly worded The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Most states have since tried intermediate methods to take over land for construction projects. In Andhra Pradesh, for instance, the government has used a land lease model to build the new state capital Amaravati.
Speaking about the change in the philosophy of land acquisition under the National Democratic Alliance government, Amitabh Kant, CEO of Niti Aayog said it is critical to understand that the "upside" of the rise in value of land should not be captured by only those who are powerful, like the political parties in power. "Urbanisation cannot happen without monetisation of the value of land. But, this monetisation has to be put back in the cities", he said at a Brookings India event on Smart Cities. Using the same line of argument, the SC judges have also held it is "completely understandable" for the government to acquire land to set up industrial units. But, the impact of the "brunt of development" should not "fall on the "weakest sections of the society". It is the same argument that Kant has offered about the perils of upside being captured by those in power and real estate companies.
According to Mukherjee, the court verdict has not struck down the right of the government to acquire land. But, such acquisition cannot be for a private party. In the greenfield Smart City projects like those at Dholera in Gujarat and Shendra in Maharashtra, the acquisition by the state is clearly for a public purpose. Though those acquisitions, too, were made under the century old law, which has now been superseded by the new Act.
After the acquisition of land, if the state allots them by auction or some other transparent measure to a private party, the process would not be vitiated.
Former rural development minister Jairam Ramesh's OSD Mohammad Khan, who had written most of the Land Act of 2013, agreed that the judges have reopened the definition of public purpose when government acquires land. He said the judgment will apply to the thousands of cases pending in courts at various levels on land disputes between states and individuals prior to 2009. "I would say it is the last great case on the 1894 Act". He agreed with Mukherjee that it has again revived the questions about what defines public purpose in those cases where compensation has not been paid.
The Act of 2013 has a retrospective clause which allows even those cases settled in the past five years, ie, till 2009 before the Act came into force to be reopened. But, they have to demonstrate there was enrichment of a private party to do so. Smart City projects, for which land was acquired mostly post 2009, consequently cannot be reopened using the reference of the SC's Singur case, as they are not developer-specific. Both Khan and Mukherjee are sure that recent land acquisition orders cannot be questioned.
