The provision for urgent take-overs bypassing procedure is open to misuse by powerful interests.

Invoking "public purpose" to acquire agricultural land for industrial use has caused social tension and bloodshed in the past months. There is another seed of discord hidden in the antiquated Land Acquisition Act. If the developers have their way, they can bulldoze the procedure for acquisition in the name of "urgency". This word is as vague "public purpose" and the courts have written reams of judgments explaining them. Ultimately, it all depends on the facts of the case and the discretion of the court, as the Supreme Court said recently in Sheikhar Hotels vs State of Uttar Pradesh.

According to Section 5A, any person interested in the land notified for acquisition can object to the acquisition. However, under Section 17(1), in cases of "urgency", whenever the government so directs, the collector may take possession of the land for public purpose within 15 days, though no award has been made. What is worse is that once the acquisition is declared "urgent", all procedures of hearing objections and making the award are dispensed with. The colonial tinge of the 1894 Act is unmistakable here.

In the Sheikhar Hotels case, the land was required urgently for a ‘Transport Nagar' near Bulandshar on the national highway. The formality of receiving objections was dispensed with. Most land owners were satisfied with their compensation package, but some persons moved the Allahabad High Court. It rejected their objections as the project was indeed urgent, as the traffic congestion on the highway was getting out of hand. This view was upheld by the Supreme Court also.

While dismissing the appeal, the Supreme Court conceded that "there is no gainsaying the fact that the right to file objections under Section 5A is a valuable right and the governments are not given a free hand to dispense with it. This section is the only safeguard against the arbitrary exercise of power by the state." Having said that the judgment cautioned that "one should also not lose sight of the fact that invocation of the provision is sometimes imperative as in order to meet the urgency of the situation it needs to be invoked in public interest. Sometimes it may not be necessary at all and the state functionaries, out of over-zealousness, may invoke this provision which would seriously jeopardise the interest of the people. It depends upon case to case."

Traffic congestion has been coming for years and it is arguable whether such an emergency step was necessary when the national capital region was planned as early as in 1985. Hearing objections would take only a few months and the government could have waited till then. But the court in its wisdom felt that traffic congestion is sufficient reason to dump the procedures.

Various high courts have dealt with the norms for taking urgent steps in land acquisition. The Madras High Court has said that the urgency should not be a "cloak for tardy actions of the authorities and cover for laziness." A mere declaration of urgency is no excuse for dispensing with the hearing procedure, according to the Kerala High Court. The pretext of the government in that case was that the fund sanctioned for building a shopping centre would lapse if the project was further delayed. The Punjab High Court has emphasised that the urgency should be established in court. The Rajasthan High Court has ruled that the provision cannot be invoked to allot land for an industrialist.

A classic case of misuse of the provision is the Supreme Court decision in State of Punjab vs Gudial Singh (1980). An influential ex-minister wanted to spite certain people by taking over their land for setting up a mandi. The government invoked the provision. Its action was challenged in the high court and the politician lost there twice. The state appealed to the Supreme Court on his behalf only to receive strong criticism. The court said: "It is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Save in a real urgency where public interest does not brook even the minimum time needed to give a hearing, land acquisition authorities should not give up an enquiry having regard to the fundamental rights of the citizens. No constituency in our poor country can afford Kilkenny cat politics (sic) and personality cult."

The Supreme Court has declared several times in recent months, as in Indore Vikas Pradhikaran vs Pure Industrial Coke, that "the right to property is now not only a constitutional right but also a human right". On the other hand, what we now have is the SEZ Act 2005 which has more muscles to fight the rural poor than the land acquisition law.

Business Standard Ltd. Copyright 2008