Thursday, August 12, 2010

Fast-tracking land acquisition

Land acquisition related court litigation is arguably the biggest impediment to grounding infrastructure projects in India. Delayed and truncated projects due to land acquisition problems are a commonplace feature of India's infrastructure landscape.

In the battle between protecting private property rights (of the individual losing his/her land) and government's powers of eminent domain, oftentimes the former has prevailed over the later in the courts. At the least, such litigation ensures that the process of land acquisition becomes a tortuously long ordeal. All this imposes considerable, often prohibitive, entry-barriers on private developers of infrastructure projects.

Sometimes the litigation is over the extent of compensation to the paid, despite the specific provisions within the Land Acquisition Act that provides for the government to take advance possession of these lands once the notification is issued and compensation deposited. However, in urban areas, most often the litigation traces its roots to ownership claims. A private individual may be claiming rights on a government land, or there is an ongoing civil litigation between multiple private individuals.

In fact, when faced with a private claim on a government land which is under litigation (and invariably a status quo order), a long-drawn out stalemate is commonplace. On the one hand, while government cannot take possession of the land, on the other, any acquisition notification would require vacation of the status quo order. Further, for fear of weakening the government's claim (and attendant apprehensions of allegations), officials play it safe and hesitate to initiate land acquisition proceedings.

In this context, here is a proposal that enables governments to acquire lands quickly without compromising the sanctity of private property rights, especially in the later kind of cases.

Whatever be the details, fundamentally any such court case can be resolved into two components. One, the competing title claim of the individual(s) or a dispute on the compensation or any other legal/technical infirmity with the notification. Second, the utilization of the land for an infrastructure project or any other public purpose. A practical solution would be to separate these two dimensions, and address them independently.

In other words, separate the ownership (and its resultant) rights from utilization rights. Let the litigation take its own time and get settled. In the meantime, the acquiring government department/developer can deposit the market value with a court account, and then take possession of the land. Once the case is settled, the amount can be transferred to the account of the victor in the title suit. In this way, both the private property rights are protected and the eminent domain power of the government is preserved, and in the process facilitating swift site clearance and completion of the project.

In fact, taking this one step further, one could extend this logic to all lands, including those belonging to other government departments, especially those of the Union Government. Quite often, site clearance involving lands belonging to central government departments, like railways, PSUs and defense establishments, whose acquisition requires clearance at the highest levels (and is therefore extremely time-consuming), adversely affects projects. Urban infrastructure projects are the worst affected by such inter-government problems since these departments have massive establishments within cities.

Taken to its logical conclusion, assuming the public purpose is established, a legal framework that enables this twin-track approach can go a long way towards fast-tracking the implementation of infrastructure projects.

1 comment:

PrideOfMatchingham said...

Quite logical, clear, crisp and lucid.

The idea about depositing money with the bank is good so that ultimate winner can take it after winning the court battle (if he survives). But what makes you think the person would be willing to sell his property and at the rate assessed by revenue departments? In mumbai, the rate differential between actual market price of realty and collector's office can be anywhere between half to one third!

Hence much more than the method, I would like to read your views on Individual Rights (in not wanting to sell) VS Social Good (of the project which claims the individual rights).

Also, subordination of individual interest for social interest sounds good for the books but if one happens to be the one whose interests have been subordinated, it is bound to pinch.

I always like to quote myself on this" Things m,ight look good and true in generalities but not in particularities!"