Arkavathy imbroglio: Justice at whose expense?

The elaborate judgment dealt with several constitutional questions. Six of these were purely legal in nature and have been held in favour of the state government. The seventh question related to the BDA’s modus operandi.

The concurrent finding of fact by the single judge and division bench of the high court was that the acquisition was vitiated on account of several factors such as non-application of mind, lack of proper survey, lack of proper information regarding suitability and availability of land and deletion of vast areas from the proposed acquisition.

The power of eminent domain is an aspect of sovereignty and is defined as the inherent power of a governmental entity to take private property, especially land, for public use, subject to reasonable compensation. While considering the issue, the principle of eminent domain had its full play. The court rejected all contentions of the land owners and upheld the power of the state to acquire land for public purpose under the BDA Act.

The most important issue was the manner in which the power was sought to be exercised. Judicial review of administrative action is a basic structure of the Indian constitution. All powers vested in any authority is a sacred trust. Judicial review is the answer to the question who guards the guards? The high court and supreme court are vested with the power of judicial review. It is the power of the court to ensure that public authorities responsible for ensuring accountability in government do so within the boundaries of their own lawful powers. In a constitutional democracy, the role of judicial review is to guard the rights of the citizens against abuse of official power. Every exercise of governmental power which affects the legal rights of any person must be shown to have a strictly legal pedigree. The affected person may resort to the courts of law which will invalidate the act if the legal pedigree is not found to be in order.

One of the contentions of the land owners was that the power of eminent domain had been abused and misused for corrupt purposes. The single judge and the division bench examined the facts and categorically recorded a finding concurrently that there was discrimination in acquisition of land; that there was non-application of mind and that the acquisition did not pass muster on the touchstone of non-arbitrariness.

The supreme court order, which confirmed these findings, also recorded that the BDA had not placed the true and correct position before it. It also found merit in the contention of the land owners that rich, powerful and persons with ‘connections’ and ‘money power’ had influenced the acquisition process. Without examining this, the court affirmed the concurrent finding of the single judge and the division bench that the process of acquisition was not fair.

Misdirection

It must be pointed out that there was a misdirection by the supreme court as regards the legal effect of such an acquisition process. The argument was not merely based on discrimination viz that someone else’s land was not acquired though that person was in a similar position or that someone else’s land, though notified initially, had not been acquired. The argument was that on a matter of principle the manner in which the BDA went about with the acquisition was unconstitutional. The court made the following observation: “In the absence of satisfactory explanations in such a case, it may be necessary to presume that there was misuse or abuse of the acquisition process.”

The court then examined various aspects of discrimination and the power of the court to grant relief where there had been discrimination. The court concluded that the division bench was right in upholding the acquisition process instead of setting it aside and such finding was in order to uphold public interest. The judgment went into some detail about the malady of land acquisition, the need for a new law governing it and the need to pay just compensation and provide for rehabilitation of the land losers.

The supreme court also went into the rationale to uphold the illegal acquisition. Two reasons given: first, many land owners had accepted compensation and that the layout formation too had started with BDA having spent money on it. It completely lost sight of the fact that rule of law had been totally violated by the state. The fact that some of the land owners had received compensation could not be a reason to throw out the land owners who had approached the court in due time and had proved through the maze of the high court and supreme court that the state did not act fairly. In effect, they were denied relief.

The other reason given by the supreme court was that development activities had been carried out by BDA by allotting plots and making provisional or actual allotments. When the land owners challenged the acquisition promptly, the matter was sub judice. This being the case, the BDA had taken a risk when it carried out development activity. As such, status quo should have been maintained until the court gave its order on the petition challenging the land acquisition.

If the BDA had taken the law to its hands and proceeded with its illegality, ignoring the due process of the court, should it end up being the beneficiary once the court established the illegality of its original action? Should those, whose contentions were upheld (in this case the land losers) by the court, end up not getting any relief?

(The writer is a senior lawyer)