Save the farmers

To
Shri Narendra Modiji
Hon’ble Prime Minister of India
Prime Minister’s Office
New Delhi


Sub: Petition for introduction of certain salutary, people friendly and equitable provisions in the proposed amendment to The Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013.


Dear Mr. Prime Minister,

I would like to humbly petition you to incorporate the provisions suggested hereunder in the The Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 (hereinafter referred to as the 2013 Act), and also to drop the proposed amendment of Section 24(2) as provided in section 6 of The Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation & Resettlement (Amendment) Ordinance, 2014, in appreciation of the injustice caused to a large number of expropriated landowners, and to give them the long felt succour consistent with the fundamental principle of “sabka sath sabka vikas”, which you have very fittingly established as the central rule of governance in India. Some of the reasons for introducing these provisions are set out below.

1. Vast tracts of lands have been acquired by the Government for “public purpose” declared under Section 6 of the Land Acquisition Act, 1894 across the country. Very paltry and illusory compensation was offered to the expropriated poor farmers determined solely on the land values cited in the exemplars of sale deeds, which as is well known, reflect only a fraction of the price at which lands are actually bought and sold across the country because of the unhealthy practice endemic in the country to mention only a fraction of the price in the sale deeds for evasion of stamp duty and income tax. Therefore, the component of black money in a sale transaction is quite substantial rendering a sale deed poor indicator of actual market price. Consequently the compensation determined on the basis of such transactions is illusory and a fraction of actual market value of the land.

2. Many poor expropriated owners have not taken the illusory compensation offered by the Land Acquisition Officer, and were rendered paupers and landless without having any wherewithal.

3. Examples are many where having acquired the lands for a public purpose, the acquiring bodies often just hoarded the lands and kept them fallow for decades without utilization for the declared public purpose, and then diverted such lands for private purpose by allotting them to corporate houses for industrial purpose and also builders for commercial exploitation at much higher prices earning whopping profits and thus making unjust enrichment.

4. In large number of cases, to wit, for lands acquired for the Pimpri Chinchwad New Town Development Authority, Pune, the awards were made after expiry of limitation provided under Section 11A of the 1894 Act but to impart legitimacy were deliberately antedated to appear as made within the limitation. It is noticed that a large number of such awards were made on the last date of limitation in a hurry without obtaining the mandatory prior approval of the appropriate Government. As such, as per the law the land acquisition proceedings had lapsed rendering the awards null and void.

5. Similarly, in most of these cases symbolic or mere paper possession of the lands was taken without going on the lands and without getting the owners vacated from the lands by straightaway preparing panchanama of possession at the office of the Land Acquisition Officer, and thereafter allowing the owners to continue in physical possession of the lands unaffected by the so-called acquisition.

6. It is also observed that in many cases the provisions of the 1894 Act are used “as an engine of oppression by the administrative authorities” as aptly described by the Law Commission Report 1970, by forcibly evicting the persons interested from their homesteads and lands after 10 or more years without paying the compensation. The poor expropriated farmers were also not informed enough to approach the appropriate Court to have the acquisition proceedings quashed. Courts also do not entertain petitions by the expropriated farmers on the technical grounds of delay and laches leaving them in the lurch. In this woeful scenario in a large number of cases in the Pimpri Chinchwad Area the land owning farmers still continue residing in their homesteads in the so-called acquired lands, without having received compensation, and continue to cultivate these lands with the Sword of Damocles of forcible eviction ever hanging on their heads. It is submitted that they should be deemed to have perfected their title by adverse possession. Indeed a three-Judge Bench the Hon’ble Supreme in Govt. of A. P. v. Thummala Rao, (1982) 2 SCC 134, ruled that if there is bona fide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it and evict the person who is in possession of the property. The court further ruled that the question whether the title of the property came to be vested in the Government as a result of acquisition and the further question whether the expropriated owner encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit by the Government. Therefore, if the acquiring body now proceeds to evict the land owners from their lands it would be clearly tantamount to taking the law into its own hand.

7. In this connection it pays to refer to a report published in the Indian Express, Pune, dated 26.12.2001, about compensation owed by the Government of Maharashtra to the Project Affected Persons (PAPS) running into crores of rupees. I am enclosing an Article entitled “Justice According to Law or Expediency?—Need for Instilling Realism & Sensitivity to Justice Delivery Paradigm in Land Acquisition Matters” authored by me, published in the All India Reporter 2003 (Journal Section P. 193).

8. A three-Judge Bench of the Apex Court in Balwant Narayan Bhagade v. M. D. Bhagwat, AIR 1975 SC 1767, ruled thus:

“We think it is enough to state that when the Government proceeds to take possession of the land acquired under the Land Acquisition Act, 1894, it must take actual possession, since all interest in the land are sought to be acquired by it. There can be no question of taking symbolical possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough.”

9. In this connection it is appropriate to refer to what the then Prime Minister Atal Bihari Vajpayee had said in his inaugural address to the India Economic Summit organized by the World Economic Forum at New Delhi on 26th November 2000:

“If it is well-evident that globalization leads to increased opportunities, enhanced growth and real income, why are these not being universally accepted? Is it a communication failure? Is it merely an image problem?

Is it that Governments are unable to ensure that the fruits of development percolate to the grassroots? Or, is it that globalization is increasingly being perceived to be elite-driven, conferring benefits on large corporates while bypassing millions of poor and marginalized people? In India alone the number of such people is nearly 300 million. We need to ponder over these questions and come up with acceptable, convincing responses.

The effectiveness of these responses would partially lie in accepting that while globalization affords unbounded opportunities, these opportunities go hand in hand with obligations. The privilege of being world player must be matched with the responsibility of making the process universally acceptable by making it universally beneficial.

We in India are conscious that the rapid changes brought about by technology and globalizations have to be addressed with care and caution. We have to spread the benefits among all our people and manage the process of change with sensitivity. Government sees this as its responsibility.”

10. In the premises may I humbly appeal to you that such poor expropriated landowners who are still occupying their lands for which awards had been declared in violation of Section 11A of the 1894 Act, or physical possession was not taken in true sense of the term, or compensation was not paid to them, an appropriate provision on the lines suggested hereunder may please be introduced in the 2013 Act declaring that acquisition of such lands had lapsed and the title of lands had reverted to the owners without their having to approach any Court.

(1) Sub-section (2) of Section 24 be modified and replaced as under:

“Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but where the award was made after the expiry of limitation prescribed under Section 11A of the Land Acquisition Act, 1894 (1 of 1894) or where it was made without the mandatory prior approval of the appropriate Government required under the first proviso to Section 11, or where the physical possession (as distinguished from symbolical or paper possession) has not been taken or the compensation has not been paid to the interested persons the proceedings shall be deemed to have lapsed and title of the land shall be deemed to have reverted to the owner free from encumbrances and the Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act.”

(2) The proposed amendment to the 2013 Act by incorporating the proviso as mentioned in Section 6 of The Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation & Resettlement (Amendment) Ordinance, 2014 as the second proviso to Section 24(2) may please be dropped.

It is submitted that the proposed proviso is absolutely against those people whose lands were taken under the 1894 Act without paying compensation to them. S. 24(2) of the Act mandates that if an award was made 5 years or more before the commencement of the 2013 Act (1st January 2014), and if either the possession was not taken or compensation was not paid to the expropriated landowner then the acquisition shall be deemed to have lapsed. Our Supreme Court with respect has rightly construed that if the compensation has not been paid, or not deposited in the Court S. 24(2) would apply and the land shall revert to the owner, and if the Government wants the land it can acquire it by initiating fresh proceedings. This is a beneficial law. Many landowners have already during the last one year taken the benefit under S. 24(2). The proposed proviso on the other hand says that if the compensation is deposited in any account (which will mean in the Revenue Account of Government or even the account of the acquiring body) without the knowledge of the landowner then the benefit under S. 24(2) will not accrue to the landowner. This is downright unjust. Depositing the money in the court presupposes the Collector making a reference to the District Court which would have issued summons to the owner but if the compensation was merely deposited in any account as proposed in the Ordinance the landowner would be divested of the benefit conferred by Section 24(2) of the 2013 Act. Collector has to pay the compensation before taking possession or make a reference and deposit it in the court. That is the fair mandate of law. The proposed amendment provided under Section 6 of the Ordinance 2014 will make an invidious discrimination against the affected farmers under the 1894 Act, and will be contrary to the decisions of the Hon'ble Supreme Court [See: Pune Municipal Corporation v. Harakchand Misirimal Solanki, (2014) 3 SCC 183, et seq.].

(3) The following additional proviso may be added after the existing proviso to sub-section (2) of S. 24:

“Provided that an application by the person interested for lapsing of acquisition due to any of the reasons mentioned in this sub-section shall lie to the Land Acquisition, Rehabilitation and Resettlement Authority established under section 51 of this Act, without the requirement of a reference by the collector as provided under section 64, and shall be decided by such authority within the maximum period of six months.”

11. I strongly urge and pray your goodself to incorporate the above provisions so that the fruits of development being ushered in by the present Government under your able leadership percolate to the grassroots, and the injustice caused to the poor farmers are adequately addressed.

I shall be grateful on behalf of large number affected farmers if you would kindly give your thoughtful consideration to my humble suggestions.


Yours faithfully,


Dr. Arun Kumar Barthakur
Advocate, Bombay High Court
802, Sanghvi Heights
S. M. Road, Antop Hill
Wadala (East), Mumbai 400037
Mobile: 8408819588


Encl: Article entitled “Justice According to Law or Expediency?—Need for Instilling Realism & Sensitivity to Justice Delivery Paradigm in Land Acquisition Matters” AIR 2003 (Jour) 193.

By
Dr Arun Kumar Barthakur, Advocate, Bombay High Court
MA, LLB, PGDFM, PhD (Law)
Pune: B-14, Nilgiri Heights, Shivaji Housing Society, Behind Hotel J W Marriott, Senapati Bapat Marg, Pune- 411 016, Cell. 9422007966, 8408819588, E-mail: arunbarthakurakb@gmail.com.
Mumbai: 802, Sanghvi Heights, S. M. Road, Antop Hill, Wadala (East), Mumbai 400037