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been undertaken, traces the prehistory of the LAA; how regulations and codes enacted by a corporate sovereignty impinged
upon the realm of law under the crown.2 It also focuses on the
disparate moments, legal, bureaucratic and often extralegal
methods employed to enact land acquisition and justifies the
existence of eminent domain principles in precolonial in order
to document the processes and narrative fictions that coalesced into our present understandings of states relation to
land and laws relation to ethics. Through this brief study, this
paper throws light upon the workings or the reality that law
constructs and enacts, often in counter-intuitive manner.
These recent revisions and articulations of land acquisition
laws, which are not only reshaping the landscape of a shining
India, but also unleashing dispossessions at an unprecedented
scale and restructuring relations between state and citizens,
necessitate a return to understanding the gaps between law
and justice on the one hand, and state relations to land on the
other. They also necessitate us to inquire more closely into the
premise from which we have been asking whether there can
be just land acquisition.3 In order to briefly address the question of justice or ethics from within the space of law, it is necessary to first turn to the opening paragraph of the Tenth Report
of the Law Commission of India: Law of Acquisition and Requisitioning of Land (1958) dealing with land acquisition. A significant legerdemain occurs in this opening statement through
which the questions of both justice and ethics were rendered
inconsequential within the domain of land and rights to property in the Constitution:
The power of the sovereign to take private property for public use
(called in America Eminent Domainan expression believed to have
been first used by Grotius) and the consequent rights of the owner to
compensation are well-established. In justification of the power, two
maxims are often cited: salus populi est suprema lex (regard for public welfare is the highest law) and necessitas republica major est quam
private (public necessity is greater than private necessity). A critical
examination of the various stages of evolution of this power and
its ethical basis will serve no useful purpose as the power has been
established in all civilised countries (Tenth Report on Law Commission
of India 1958: 1).
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ground4
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have noted, these new powers introduced statutory laws relating to land and property in Britains overseas empire (Guha
1963; Singha 1998; Washbrook 1981). This section will focus
on how the issue of eminent domain emerged and how the
public was defined in the process of formulating issues of land
acquisition and just compensation. The following section narrates a rather knotted historical trajectory of the states relation to land by demonstrating how the Company invoked both
customary law and statutory practice to delineate its authority
over land, especially wasted land in agricultural spaces and
accreted land primarily in urban spaces.
Early Legislation
One of the earliest pieces of legislation with respect to the acquisition of property was passed under the Bengal Regulation
1 of 1824:
A Regulation for enabling the officers of Government to obtain at a fair
valuation land or other immovable property required for roads, canals
or other public purposes, and for declaring in what manner the claims
of the zemindrs and of the officers in the Salt Department are to be
adjusted in certain districts, where lands are required for the purposes
of salt manufacture.
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first survey of urban property conducted by the revenue officials in 1797.11 The decades following the emergence of the
strip of land, especially from 1820 to 1860, marked a crucial
period in establishing and amending land acquisition laws in
Bengal and the creation of the idea of eminent domain. By the
1820s, the Hooghly had meandered so far west that it had deposited alluvial land approximately four miles long and roughly half a mile wide along the western banks of Calcutta.
In 1820, Esq Mackenzie, Secretary to the Territorial Department conducted the first survey of the riverbank and the newly
formed land in order to assess the extent and potential appropriation of this newly formed ground which the government
could then claim as its property (Territories Department Report 1820: Section 15). The Territories Department recommended improvements in the riverbank area by establishing a
Strand Bank Fund to raise money to improve the riverbank,
which would also be named the Strand Road. However, a
functioning Strand Bank Fund was not established until 1837,
a full 17 years after this initial recommendation. Through the
efforts of the Strand Bank Fund, the Territories Department
gradually secured the appropriation of riverfront lands from
the wealthy Indians and British residents for beautification,
trade and warehouse purposes.12 The emergence of the new
strip of land opened up a discussion of property rights upon
that space and a larger debate about the EICs ownership status
within colonial Bengal.
Buried under countless land acquisition laws of Bengal, this
unpublished report has not previously been part of the discussions around urbanisation and land acquisition. Yet, as a governing document or a graphic artifact,13 this Territories
Department Report mediated and transformed many social
relations into political and economic contracts, and thus, became
a very significant part of the 19th century social life of the city
in comparison to the later town planning records and master
plans. The epistemological space of this report as a bureaucratic document is vastly different from the town planning
maps, sanitary reports and land acquisition laws, all of which
were enacted in the aftermath of the changing course of River
Hooghly from 180405, which rendered the earlier forms of
cadastral revenue plans from 1797 redundant. The provision of
the report embedded itself in the social and political lives of
the citys residents through techniques of negotiation, contestation and creation of a new paper regime of deeds and
titles, unlike those of a legal act or master plan which only
offers an ideological framing to urban planning.14
The report began by stressing that, in Calcutta, the Company
had the double right of both the sovereign and the zamindar, and
therefore, it harnessed the laws of the sovereign alongside the
established custom. The availability of the newly formed alluvium land along the river, due to its changing course, opened
up a variety of claims. Mackenzie stressed, throughout the report,
that [t]he company is the general Zamindar [landlord] and as
such any new lands must, we conceive, be considered at its disposal (Territories Department Report 1820: Section 48). This
report illuminates how a corporate body of the joint-stock company produced itself as the sovereign body in a foreign land.15
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The British attempted to transfigure these heterogeneous communal spaces of the riverbank or ghats along this stretch into
clearly demarcated public space and simultaneously codified
customs into a legal system (Cohn 1996). The codification was
coterminous with the production of a market in land, and the
market masqueraded as the colonial idea of the public, one that
can be regulated, measured and disciplined (Birla 2009: 910).
The report further mentioned that, although the government
stood to accrue a considerable amount of revenue from this, the
immediate pecuniary gain was hardly the driving force behind
the Strand Bank project (Territories Department Report 1820:
Section 65). However, impulses much larger than mere pecuniary gains were at work here. Indeed, the economic basis of colonial legal production of spaces comes to light in this report.
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The Territories Department Report provides compelling evidence for the frustration encountered in attempts at mapping
in the face of the moving river. The primary problem with the
ghat, as far as the Territories Department officials were concerned, was the changing course of the river. Moreover, the alluvial deposit meant that the earlier pattah measurements from
1797 had been nullified (Territories Department Report 1820:
Sections 11, 13, 15, 16, 17 and 21).16 The major thrust of the report was to acquire lands which the Territories Department
found to be in excess of any previous documentation with the
pattah office, or spaces where inhabitants could not produce
any pattah, or recognisable land titles. Whenever residents,
mostly native, but sometimes also Europeans, failed to supply
the surveyors with documentation, the officials declared:
We are of the opinion that it is indisputably the property of the State and
it would be advisable to adopt measures for raising it with a view to the
appropriation of it to public purposes. We are not aware that any claim
is likely to be seriously maintained to this spot, though it has been occasionally used for the deposit of old guns and anchor, and thus a dubious
sort of occupancy has been exercised over a part of it by Messers Clarke
and Co on behalf of Mr Johnson. It may nevertheless be proper to state
the grounds on which we consider the title of Government to it to rest
(Territories Department Report 1820: Sections 2728).
At this point in time in 1820, paper became central in illuminating how the operations of colonial law and economy
merged in a moment of regularisation. This report became the
conduit which crystallised the moment of struggle in translating squatting or occupation by early British merchants
into ownership, ormore precisely statedcolonial conquest.
Early British writings about life in Calcutta often use the term
squatting to express British presence in Calcutta, and the
report clearly states that this survey must seal the translation
from squatting to conquest through the redefinition of the idea
of legality. The report prescribed an arbitrary provision for
applying to have the extra land counted as part of existing
ownership. However, by a sleight of hand, it stipulated that
papers legitimising ownership must be produced to justify
claims upon the newly emergent land. Finally, it foreclosed
even that ludicrous provision in the next sentence by saying
that in spite of any legitimate claim one may produce, the state
may decide to take over the land or refuse granting rights to it
(Territories Department Report 1820: Section 31). The eminent domain principle and justification for land grabs was perhaps never articulated more clearly and bluntly. Through
these bureaucratic manoeuvres, merchants of a joint stock
company turned themselves into landlords and laid the legal
groundwork for land acquisition in the colony.
Two decisive aspects of colonial law and economy converge
here: on the one hand, there was the attempt by the Company
agents to initiate a process whereby a heterogeneous body of
ownership practices was condensed into contractual paperbased exchange and establishment of rights. On the other
hand, the slippage between the terms interchangeably used in
the report points to the operation of colonial power as corporate sovereigntyas the Company, in the course of the report becomes the zamindar, then the government, and finally,
the State. This deliberate slippage throws light upon the
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unique political power of the CompanyState and how it calibrated its status between positions of deference and defiance,
between claims to be a mere merchant and an independent
sovereign (Stern 2011: 13). This unique position afforded the
Company the opportunity to produce itself as a precarious, yet
potent, form of corporate sovereignty, which forged its own
authority and delegitimised that of others with impunity. The
authority of the pattah was in the process of being refurbished
in the form of property deeds, and concomitantly, the claims
of the squatters were also being legitimised in the process,
thus, providing new definitions of squatting.
Following the publication of the Territories Department
Report, a Strand Bank Fund was set up to improve the ghats
along the citys predominantly European quarters, but by the
middle of the 19th century, the Strand Bank Fund began stretching its tentacles, both North and South, to the native parts of
the city. The present Strand Road that runs through the city was
constructed between 1852 and 1853 by using the accreted land
permanently, and exclusively, for purposes of public utility connected with the trade, the traffic, the health and the convenience of the community (WBSA 2012: 95). The process of producing the land along the ghat as public property with stipulated
land-use regulation was anything but easy and existing landuse patterns became expressions of fictional claims to property
and were rendered recalcitrant in the domain of law.17
It is perhaps of great significance that while the debates,
administrative surveys and property disputes were raging
around the construction of Strand Bank in the newly accreted
land, the Governor-General in council passed a law in 1825,
five years after the Territories Department Report pertaining
to disputes about accreted land. The Regulation for Declaring
the Rules to be Observed in Determining Claims to Land
Gained by Alluvion or by Dereliction of a River or the Sea, also
known as Regulation XI of 1825 had strict stipulations based on
local customs with regard to land gained through alluvion. It
If wasteland was the justification for the creation of state domain in revenue-generating agricultural land and forestland,
then the accretion and sudden exposure of land due to changing course of the river offered justification for land acquisition
in colonial Calcutta. This justification, although enacted
through the force of law, remained beyond the purview of recorded regulations set forth by the colonial officials. Precisely by remaining outside the pale of written regulations, the
possibility of articulating just land acquisition for public purposes was and continues to remain as an impossibility.
To conclude, let us return to the omissions with which I
began the article. The fundamental right to property undone
by an expanding scope of eminent domain doctrine, first
enacted feebly in the name of distributive justice in the 1950s,
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and later more emphatically in the name of administrative efficiency from the 1970s, and finally, violently under neo-liberal
development and growth in the last decade. Even if scholars
have turned to the exceptional status of eminent domain laws
from the LAA to RTFCTLARRA, perhaps a far grimmer proposition can be found in the recent argument that under the
Indian Constitution eminent domain is not exceptional power
given that the right to property is not a fundamental right
(Sampat 2013: 47, emphasis mine). If there were ever any radical
Notes
1 For two recent overviews of this period, see
Sampat (2013) and Ramanathan (2011).
2 I borrow the term corporate-sovereignty from
Philip Stern (2011).
3 Chakravorty (2013), Sampat (2013) and Sarkar
(2011) have grappled with this question and
each has successfully addressed many of the
intractable problems within this debate.
4 Ramanathan (2011) defines this specific neoliberal logic as a stage in which the state acts
like a facilitator in a friction-free process of
land transfer, while guaranteeing profits, by
recasting itself as the public in publicprivate
partnerships or PPP.
5 Both quotes are from the Constitution (Fourth
Amendment) Act, 1955, 27 April 1955. Article 31
(2), accessed on 19 November 2014; in http://indiacode.nic.in/coiweb/amend/amend4.htm.
6 For instance, this ruling was challenged in the
celebrated Keshavananda Bharti vs State of
Kerala, (AIR 1973 SC 146).
7 I borrow this definition from Sampat (2013) for
distinction between totalitarian and exceptional power.
8 For a study that briefly touches upon this period see Gupta (2012).
9 Prior to 1833 the rules, ordinances and regulations passed by the members of the EIC could
be enforced only after the Supreme Court registered it. After 1833 governor general in council could pass regulations without registering
them in the Supreme Court and they were
henceforth called acts (Field 1875: iv).
10 The regulations that preceded Cornwallis are
found in Colebrook (1793).
11 The Chief Engineer of Calcutta, Mark Wood
and William Baillie prepared a map with details of property measurements in 1797. The appendix with the property measurements were
attached to the Extract from the Proceedings of
his Excellency the Most Nobel the Governor
General in Council in the Territories Department, 24 March 1820, Judicial [Criminal], 1
April, 1820 West Bengal State Archives
(WBSA), Kolkata. (Hereafter embedded citation as Territories Department Report.)
12 Strand Bank Funds, Judicial, 10 October 1963,
Prog 12331, WBSA, Kolkata.
13 I am borrowing from Hull (2012) formulation
to explain how paper (both as a linguistic text
and as a non- and para-linguistic entity) mediates the act of governing with citizens acquiescence, contestation and use of governance. See
especially the Introduction and Chapters 1
and 4.
14 The master plans never become part of the
lived city, in ways smaller rulings, acts, reports
and surveys do. Reports of this nature become
important governing mechanism, as well as
petitioning mechanism in ways that comprehensive town plans never achieve. Yet, as Hull
(2012) shows scholars of South Asia turn to
these larger plans, and often ignore the smaller
reports which formed the everyday of
governmentality.
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