M J Antony: 'Public purpose' in land acquisition

OUT OF COURT

The ambiguity of the phrase attracts political discord and litigation.

Several infrastructure projects are currently stuck in land acquisition hurdles. The purpose of the acquisition, the amount of compensation and the environmental impact are some of the major issues which stall the takeover. Among them, the objective of the acquisition is perhaps the most contentious question. The Land Acquisition Act is vague on this point and it attracts interference by politicians and vested interests. Therefore, the comprehensive discussion on this subject in the recent Supreme Court judgement, Daulat Singh vs First Land Acquisition Collector, is instructive.

In this case, the West Bengal government wanted to acquire a plot for housing the office of the deputy commissioner of police. The government has ultimately won the decades-old case in the Supreme Court. One of the points argued was whether the acquisition was for a "public purpose". The term has been defined in the Land Acquisition Act, but it is not exhaustive. Some of the grounds for acquisition are: provision of land for planned development from public funds in pursuance of any scheme of the government, provision of land for a corporation owned and controlled by the state and provision of land for any other scheme of development sponsored by the government, or with the prior approval of the appropriate government, by the local authority.

The power of the government to compulsorily acquire land is described as "eminent domain", a term originating in the 16th century. In the classical sense, the state may use the property of the citizens and use it in the case of extreme necessity or for ends of public utility. Private rights must give way in such sovereign intervention. The principle has survived with some modifications even now. Article 39 of the Constitution, in the Directive Principles of State Policy, enjoins the state to direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. The laws made with such objectives must be for public purpose.

Several judgements, not only of the Supreme Court, but also of the English and American courts, have found that the term public purpose is difficult to define. In the present judgement, the Supreme Court said: "Public purpose is bound to vary with times and prevailing conditions in the community or locality and, therefore, the legislature has left it to the state (government) to decide what is public purpose and also to declare the need of a given land for the purpose. The legislature has left the discretion to the government regarding public purpose. The government has sole and absolute discretion in the matter."

In one of the earliest decisions of the Supreme Court, State of Bihar vs Kameshwar Singh (1951), a Constitution bench admitted that the expression public purpose was not capable of a precise definition and has no rigid meaning. The point to be determined in each case is whether the acquisition is in the general interest of the community as distinguished from the private interest of an individual.

Who will judge whether the acquisition is for a public purpose? In the first instance, the government is the best judge in this matter, according to the Supreme Court in the present judgement. "But it is not the sole judge. The courts have jurisdiction and it is their duty to determine the matter whenever a question is raised whether a requisition order is or is not for a public purpose," the judgement emphasised, citing precedents. It also pointed out that though the government was the best judge in this matter, the rule is subject to one exception, namely, where there was a colourable exercise of the power, the declaration would be open to challenge at the instance of the aggrieved party.

What is the degree of public purpose which would justify the acquisition? According to the Supreme Court judgement in Babu Barkya vs State of Bombay (1961), it is any purpose in which "even a fraction of the community may be interested or by which it may be benefited." However, in Satya Narain vs District Engineer, (1962), it was clarified that a pure business undertaking though run by the government cannot be classified as public service. If the activity is such that it can be carried on by a private individual, it would not qualify for the term public service or purpose.

However, the ambiguity and vagueness of public purpose continue to dominate land acquisitions. The Mysore expressway row reached the Supreme Court, which gave its green signal some time ago. In another case reeking of politics, the small car project in Singur is also caught in land acquisition pangs. In view of the futility of litigation, it would be wiser if such problems are settled outside the courts.