LAW & SOCIETY

Supreme Courts Schizophrenic

Approach to Land Acquisition
Alok Prasanna Kumar

The Supreme Courts judgment in

the Singur land acquisition case
reflects two parallel strands of
thinking that have informed its
land acquisition jurisprudence:
the states model of
development versus farmers
livelihoods. It has not been able to
properly weave the two into a
coherent jurisprudence on
eminent domain. The same
dichotomy is written into the
latest land acquisition laws as
well, but procedural protections
may mean fewer Singur-like
situations in the future.

he long and violent struggle over

land for Tata Motors in Singur is
finally drawing to a close. The
Supreme Court struck down the land
acquisition proceedings (Kedar Nath Yadav
v State of West Bengal and Others 2016)
initiated by the then Communist Party of
India (Marxist)-led government as having been undertaken without following
the proper procedures under the Land
Acquisition Act, 1894. The land has now
been directed to be returned to the original landowners within a period of 10
weeks. Between 2006, when the plan for
a Tata Nano car factory was mooted, and
this judgment, we have seen enormous
upheavals in Singur, leading to a wider
debate on land acquisition law in India,
and eventually to the promulgation of
the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement (LARR) Act,
2013, ostensibly with a view to make the
process fairer towards those losing land.
The LARR Act prompted a backlash
from industry, which complained that
acquiring land for setting up projects to
provide jobs has become virtually impossible. A legislative move to dilute some of
the provisions of the LARR Act has been
held up in Parliament in the face of
strong resistance from farmer and civil
society organisations, with the attempt
to have it passed by way of an ordinance
also having failed (Hebbar 2015).
Public Purpose

Alok Prasanna Kumar (alok.prasanna@

vidhilegalpolicy.in) is Senior Resident Fellow at
Vidhi Centre for Legal Policy, New Delhi.

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It is not as if the Land Acquisition Act,

1894 forbade the acquisition of land for
private companies. It provides a different set of procedures to be followed
under Part VII of the act when the acquisition of land is on behalf of a private
company. These procedures, in addition
to the existing procedures for acquisition of land for public purposes, were

supposed to ensure that the acquisition

for the private company is also, in fact,
for the intended public purposes and
that the government machinery is not
being put to use for purely private ends.
What the history of battles over land
acquisition over the last couple of decades shows is the unwillingness of the
government to abide by the most basic
procedural requirements in the face of
pressure to ease the growth of industries
and housing projects in the state.
The competing pulls of farmers livelihoods, on the one hand, and the need for
development, on the other, are not just
being played out politically, but have
also found their way into the Supreme
Courts thinking on the matter of land
acquisition. Specifically, the question as
to whether the acquisition of private
property from one set of parties for the
benefit of another private party, such as
a privately held company can constitute
a public purpose has been grappled
with by the Supreme Court over the years.
As far back as 1985, in the context of
the Urban Land (Ceiling and Regulation)
Act, 1976, the Supreme Court admitted
that a public purpose could include
transferring property to private industry, but with the caveat that such power
should not be exercised mala fide.1 The
use and abuse of the term public purpose by governments over the years has
made the Supreme Courts hope seem a
little nave. Yet, courts have by and large
upheld land acquisition for companies as
being for public purposes, save in a
few exceptional circumstances. The
exceptional circumstances have usually
been where the government has invoked
the emergency provisions of the Land
Acquisition Act, 1894 to deny farmers a
hearing before acquiring the land for a
private company.2
Singur Judgment
While courts were happy to give a wide
leeway to the government to justify land
acquisition proceedings in the interests
of economic development,3 the recent
trend, perhaps post-Singur and other
illegalities coming to light, has been to
hold the governments justifications for

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LAW & SOCIETY

land acquisition to closer scrutiny and

strike them down if they do not follow
the strict letter of the law. There has not
yet been a judgment that satisfactorily
ties these two approaches together in a
coherent manner. This reflects in the
two separate, partly concurring and
partly dissenting judgments delivered
by the two judges in the Singur case.
Each judge writes his own opinion mirroring one of these two approaches to
the question of land acquisition for private companies, but concludes nonetheless that the land acquisition proceedings were bad in law. The two opinions
are worth unpacking in some detail.
Justice Gopala Gowda, the senior
judge on the bench, clearly sees the
whole acquisition in Singur as being
driven by the sole purpose of handing
over the land to Tata Motors to set up the
factory. He is unimpressed with the
interpolation of the West Bengal Industrial Development Corporation in the
process, even though it would actually
own the land and lease out the same to
Tata Motors for a 99-year period. Having found that the acquisition being
actually carried out to benefit a private
company, he finds that the procedure
found in Part VII of the 1894 Act not having been followed, the whole proceedings ought to be struck down. Concern
for the farmers is writ large in his judgment, where he states,
What, however, cannot be lost sight of is the
fact that when the brunt of this development is borne by the weakest sections of the
society, who have no means of raising a
voice against the action of the mighty state
government, as is the case in the instant fact
situation, it is the onerous duty of the state
Government to ensure that the mandatory
procedure laid down under the LA Act and
the Rules framed there under are followed
scrupulously. (Kedar Nath Yadav v State of
West Bengal and Others 2016: para 63)

Justice A K Mishra, on the other hand,

sees the whole matter from the point of
view of the state government trying to
encourage industrialisation in the state
and inviting industries to set up factories
in the state. In contrast to what Justice
Gowda has to say, Justice A K Mishra
frames the issue very differently. He says,
Acquisition of land for establishing such an
industry would ultimately benefit the people
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SEPTEMBER 17, 2016

and the very purpose of industrialization,

generating job opportunities hence it would
be open to the State Government to invoke
the provisions of Part II of the Act. When
Government wants to attract the investment, create job opportunities and aims at
the development of the State such acquisition is permissible for public purpose.
(Kedar Nath Yadav v State of West Bengal
and Others 2016: para 7)

Here Justice Mishra seems to conform

to the older view that greater leeway be
given to the state government in deciding what should be public purposes
given its intentions to create jobs,
develop the state, etc.
Despite their differing world views on
the matter of how to approach the
question of whether a land acquisition
is indeed for public purposes, they
both agree that the rigour of the law,
insofar as the requirement to give a
hearing to those losing their land is concerned, had not been followed by the
West Bengal government, and, therefore, proceeded to strike down the
acquisition on this basis.
For students of judicial process, the
Singur judgment provides an excellent
example of how judges can arrive at
opposite conclusions (is it an acquisition
for public purposes?) simply by framing
their questions differently. Their approach
to constructing the story behind the
land acquisition leads to different conclusions, whether they see it as Tata
Motors looking to get prime agricultural
land in West Bengal for a factory or West
Bengal trying to step up its industrialisation efforts in order to provide jobs to
people in the state.
Neither approach is inherently wrong.
Both judges in the Singur land acquisition case cite a long line of precedents
that supports their particular world
view on what should count as public

purpose. Yet, through the long and

detailed discussion by precedent, no satisfactory consensus emerges as to what
is actually meant by public purposes
for the purposes of the land acquisition
law; even more so when the prevailing
economic paradigm in India has changed
so much over the last 40 years or so.
Perhaps this is why the LARR Act
keeps faith in the procedural safeguards
rather than substantive limits on what
constitutes public purposes. Under the
LARR Act, where for the acquisition for
government purposes and activities a
procedure similar to the 1894 Act prevails (with additional requirements to
carry out a social impact assessment and
a duty to rehabilitate those affected as
well), acquisitions on behalf of private
entities require the obtaining of consent from a supermajority of landowners. The West Bengal governments
experience of Singur should be a lesson
for governments around Indiathat
procedural safeguards are not obstacles
to be bypassed, but important checks in
the exercise of a great power.
Notes
1
2
3

Opinion of Justice Krishna Iyer in Maharao

Sahib Shri Bhim Singhji v Union of India (1985).
See, for instance, Greater Noida Industrial
Development Authority v Devendra Kumar (2011).
See, for instance, Pratibha Nema v State of
Madhya Pradesh (2003).

References
Greater Noida Industrial Development Authority v
Devendra Kumar (2011): SCC, SC, 12, p 375.
Hebbar, Nistula (2015): Land Ordinance Gets a
Burial, Hindu, 31 August, viewed on 12 September 2016, http://www.thehindu.com/news/
national/land-acquisition-ordinance-bill-getsa-burial/article7597517.ece.
Kedar Nath Yadav v State of West Bengal and Others
(2016): SCC OnLine, SC, p 885.
Maharao Sahib Shri Bhim Singhji v Union of India
(1985): AIR, SC, p 1650.
Pratibha Nema v State of Madhya Pradesh (2003):
SCC, SC, 10, p 626.

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