On Monday, a Gujarat High Court division bench of acting Chief Justice Jayant Patel and Justice N V Anjaria set January 25 as the date for hearing a special civil application by Reliance Industries against the standing law on land acquisition.
The matter has arisen out of land acquisition for Reliance’s special economic zone in Jamnagar. The wider significance of the case, across infrastructure projects, is about if and when acquisition made under an old law lapses under the current one.
At the centre of the debate is section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013. It says if land was acquired under the earlier 1894 Act five years or more before the new Act came into effect — this happened on January 1, 2014 — and if physical possession was not taken or compensation not paid, then the acquisition will be deemed lapsed.
In 2008, it was under the 1894 Act that the land was acquired for the Reliance SEZ. In 2014, a group of farmers moved the court seeking that the acquisition of their land be declared lapsed because they are still in possession of it. Reliance has now challenged the constitutional validity of section 24(2).
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The 2013 Act was passed during the UPA regime. The current NDA regime has been seeking to amend the Act by modifying the way the five-year period is calculated — it proposes that the period of any court stay or injunction be excluded while computing the five-year window. The amendment, however, has not yet cleared Parliament.
Clause and effect
Section 24(2) of the new Act reads: “In case of land acquisition proceedings initiated under the Land Acquisition Act of 1894 where an award under Section 11 has been made five years or more prior to the commencement of the Act of 2013 but the physical possession of land has not been taken or the compensation has not been paid, the proceedings shall be deemed to have lapsed as being illegal, unconstitutional and ultra vires.”
Reliance, apart from challenging the section, says it does not apply to the petitioner. “The petitioner humbly submits that the said provision is ex facie unreasonable and unconstitutional since it extinguishes the vested right of the company/beneficiary to obtain possession of the landholdings acquired for it by the state by prescribing period of limitation for taking possession and disbursement of compensation which operates as fait accompli by enactment of the very provision,” its civil application reads. “Such a provision was absolutely absent in the Act under which the land was acquired. In any event and in the alternative the said provision does not apply to the petitioner.”
Before Reliance petitioned the court, the farmers too had done so in 2014, seeking that the acquisition of their land be declared lapsed. Former acting chief justice V M Sahai, heading the bench hearing the farmers’ case, had recused in June last year. He said his confidence was shaken due to certain developments in the case.
The court has now made the farmers a party to Reliance’s case, along with the Centre and the state government.
“Around 2006, Reliance proposed the SEZ near Jamnagar,” said Anand Yagnik, senior lawyer who represents the 12 farmers. “It took over 4,494 hectares but about 30 hectares of this, across two villages, remained with farmers who refused to give it up. They never took money and continued farming. Under the 2013 Act, the farmers are demanding their right to their land.”
These farmers’ land in Kanachhikari and Kanalus villages is right inside Reliance’s SEZ. In 2008, the title deeds, locally known as saat bara na utara, were transferred to the SEZ but farmers such as Mehul Khetia, Hitendrasinh Jadeja and Punjabhai Modhwadia stayed there, cultivating three crops a year.
“My uncle Jitubha, whose land went to Reliance, got depressed and died after a heart attack,” said Jadeja. “All my neighbours who gave up their land are depressed. My land is so fertile, thank God I never gave it up.”
Reliance followed the SEZ law besides the 1894 Act in a contract it signed with the state government, then headed by Narendra Modi. It paid the compensation to the government, which deposited it in the treasury. More than 95 per cent of the land is in Reliance’s possession. The stretch with Khetia, Jadeja and the others is just 1.70% of the total SEZ area but its location is central.
Megha Jani, Reliance’s advocate, told The Indian Express, “Under the 1894 Act we had no time limit for taking possession. The old law’s section 11(a) says the award should be fixed within two years of notification. New obligations are imposed on us retrospectively… It was the duty of the state to take possession and give the money to farmers. We are suffering due to the state’s failure to act.”
When The Indian Express asked Yagnik about this, he said, “From 2008 till today, the collector has not taken possession. Reliance never went to court against it; they cannot now complain about the government’s laxity. The same collector’s office got possession of 95 per cent of the land for Reliance.”
The NDA’s argument was that the 2013 Act is impractical, very little land can be acquired for projects. Its amended bill, which introduced a relaxation in calculating the five-year window, was passed by the Lok Sabha but had to be sent to a Rajya Sabha joint committee due to lack of consensus. Amid opposition, the NDA last year formed a committee to take farmers’ views. More than 2,000 BJP supporters had sent representations, most opposing the amendments.
The court is yet to issue notices to respondents in the case but if and when it does, the Centre and the state will have to spell out their positions on 24(2).
[With Parimal Dabhi]