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Litigation in Land Acquisition: Who Bears the Burden?*

Alok Prasanna Kumar

Introduction

The property of subjects is under the eminent domain of the State, so that the State or he who acts for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends these who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that when this is done the State is bound to make good the loss to those who lose their property. Hugo Grotius1

The concept of eminent domain is usually the starting point for discussions about land acquisition in India, whether in the specific context of private property rights2 or larger questions of justice in the context of marginalisation.3 While discussions of eminent domain and land acquisition in India have largely focused on issues, such as the right way to deprive someone of their lands, what compensation they should be offered, and what use the acquired land should be put to, a far more important question does not get sufficiently addressed, which is that of judicial delays in land acquisition litigation.

Land acquisition in India can be legislated by both the states and the union government, thanks to entry 42 in the concurrent list of the Seventh Schedule of the Constitution. While there was a Land Acquisition Act, 1894 (LAA) which was replaced by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARRA) at the union level, other union as well as state laws also provide for land acquisition, for example, the Requisition and Acquisition of Immoveable Property, 1952 at the union level and the Bangalore Development Authority Act, 1976. Under Article 254 of the Constitution of India, a union law prevails over state law in case of any conflict (doctrine of repugnancy), but as the Supreme Court has clarified in Bondu Ramaswamy v. Bangalore Development Authority,4 the LAA would not prevail over all state legislations providing for land acquisitions in case of conflict.55 Land acquisition can, therefore, take place under multiple laws which provide for different procedures, different bases, and different kinds of compensation for the property owner.

Litigation over land is one of the largest contributors to the ‘supply’ of cases in India’s civil courts. As per DAKSH’s Access to Justice Survey, 2016, nearly two-thirds of all civil cases are land and property disputes.6 Irrespective of the income of the survey respondent, more than half the cases they were involved in were land and property disputes.

As on 1 May 2019, the Land Reference cases (under the LAA and the RFCTLARRA) constitute about 2.38 per cent of all original civil cases in India, according to the National Judicial Data Grid. This may not necessarily reflect all the cases concerning land acquisition since the categorisation differs from court to court and there may be a provision to approach civil courts specifically for land acquisition cases under state and other laws.

Even assuming that land and property cases, and specifically land acquisition form a sizeable chunk of cases in the judicial system, in the normal scheme of things, this is not such a significant issue—after all, it is a hallmark of modern government that the citizen is entitled to approach a court of law against actions of the government she is dissatisfied with.

What sort of land acquisition disputes could potentially be litigated in court? There are two obvious categories:

  1. Type 1: Challenge to the land acquisition itself as being illegal on procedural grounds (for example, non-issuing of notice, failure to give a hearing, etc.) or substantive grounds (for example, no public purpose being served, purpose being acquired for contrary to statute, etc.).
  2. Type 2:Challenge to the compensation awarded.

This distinction is important because Type 1 cases are generally filed in the High Courts while Type 2 cases are generally filed in the trial courts, whether in the form of civil suits or in the form of land acquisition references. In the first of the two categories, the government has an interest in moving the case forward while the land owners do not and the reasons are obvious. In the latter, it is the converse for exactly the same reasons.

This situation is a classic example of the famous dictum that ‘possession is nine-tenths of the law’, which is that the person in factual possession of property or money has a much greater advantage than the person who does not. The question is does this also translate into the creation of perverse incentives for the parties to delay the proceedings in a given case?

To study this, this chapter examines data collected by DAKSH relating to trial courts in Karnataka and data collected by the Vidhi Centre for Legal Policy in relation to the Karnataka High Court to see if any obvious patterns emerge from the analysis. Given that each state in India has its own constraints and peculiarities in almost every respect, it would be somewhat hazardous to make a crossstate comparison without controlling strictly for all factors in question. To this end, this chapter limits the analysis of data from Karnataka that is available with DAKSH and Vidhi.

Methodology

As far as cases in the trial courts are concerned, both original petitions and appeals cases have been considered. As per the e-courts data available with DAKSH, these have been labelled ‘Land Acquisition Cases’, ‘LAC Miscellaneous’, and ‘LAC Appeal’. A total of 3,172 cases are present in the sample as shown in Table 3.1.1.

Table 3.1.1.Sample of Land Acquisition Cases in the Subordinate Courts

Given that there are very few LAC Miscellaneous cases, the original and appeals cases may be split into 2,262 original cases and 906 appeals cases. These cases come from across 12 districts in Karnataka. It may be pointed out here that Karnataka had amended Section 54 of the LAA to provide for a right of appeal to any court apart from a High Court notified for this purpose. A contrast between the two provisions is provided in Table 3.1.2.

Table 3.1.2.Comparison of the Land Acquisition Act Prior to and Post the Amendment

The status of these cases, as on the date on which the data was collected by DAKSH, is as shown in Table 3.1.3.

Table 3.1.3.Status of Land Acquisition Cases in the Subordinate Courts

These cases will be analysed in the next section of this chapter.

In the context of High Courts, only writ petitions filed between 2012 and 2016 in the High Court of Karnataka have been considered. The entire data was collected over a period of 20 days between 30 August 2017 and 20 September 2017 and reflects the position as of that date. This data formed the basis of Vidhi’s report on the High Court of Karnataka.7

Among the case data collected from the Karnataka High Court, I identified the cases concerning land acquisition on the basis of the classification of the case by the High Court.

Cases were classified as one of the following:

  1. LA
  2. LA(KIADB)
  3. LA(BDA)
  4. LA(BMP)
  5. LA(HS)
  6. LA(KHB)
  7. LA(KIADB)
  8. LA(RES)
  9. LA(UDA)

These cases were considered as ‘land acquisition cases’ for the purposes of the analysis. As mentioned earlier, land acquisition cases are not just in the context of the union land acquisition laws alone but happen at the state level also. However, in all these laws, the procedure in respect of the challenge to an award of land acquisition is the same as the one in the LAA. For example, in the Karnataka Industrial Areas Development Act, 1966, Section 30 declares that the LAA shall apply in so far as questions of enquiry and award by the Deputy Commissioner, the reference to Court, the apportionment of compensation and the payment of compensation, in respect of lands acquired under this law are concerned. In a similar manner, Section 33 of the Karnataka Housing Board Act, 1963 provides that the KHB may take steps to acquire land necessary for executing a housing or land development scheme in accordance with the RFCTLARRA.

Given the particular way in which case details are recorded in the Karnataka High Court, I have counted only individual cases and not petitions. As explained in Vidhi’s report,8 each case can consist of multiple petitions filed by the same person seeking the same relief but in respect of different parcels of land. Counting only the cases concerning land acquisition, I have found a total of 7,646 cases. The disposed and pending cases among these were as shown in Table 3.1.4.

Table 3.1.4.Status of Land Acquisition Cases in the High Court of Karnataka

The pending and disposed cases were broken up by year of filing as shown in Table 3.1.5.

Table 3.1.5.Status of Land Acquisition Cases in the High Court of Karnataka

While there are several definitions of what constitutes ‘delay’, the most cogent one still happens to be the Law Commission of India’s definition of the same in its 245th Report titled Arrears and Backlog.9 Simply put, a ‘delayed case’ has been defined to mean ‘[a] case that has been in the Court/judicial system for longer than the normal time that it should take for a case of that type to be disposed of’.10 This is to distinguish it from the term ‘pending case’ which is applies to every case which is in the system and has not yet been disposed of.

This leaves open the question as to what is the ‘normal time’ within which a case should be disposed of. The Law Commission does not prescribe a normal time within the report since it is dealing with a very wide variety of cases and no one inflexible time period can be prescribed for all cases. In a subsequent report, namely the 253rd Report on Commercial Division and Commercial Appellate Division of High Courts and Commercial Courts Bill, 2015, the Law Commission was of the view that a civil suit that is pending for less than two years would not be ‘delayed’.11 While this assumption was made for the purposes of analysing which civil cases on the original side can be considered ‘delayed’, it is a safe criterion to apply in the context of land acquisition references also, which are original petitions.

Thus, for the purposes of this chapter, it is assumed that land acquisition reference cases which have been pending for more than two years are ‘delayed’ cases.

Likewise, in first appeals cases also, even though the facts are already established and no further evidence is required to be admitted, a two-year limit for disposal of cases can be applied. Cases which take more than two years to be disposed can, therefore, be considered ‘delayed’.

In the context of writ petitions, although the procedures are much less complicated, given the enormous jurisdiction of High Courts and the burden of cases, it might be prudent to take a similarly relaxed definition of delay, that is, about two years. Even though disputed questions of fact are not admitted in High Courts, given the circumstances, a two-year limit for cases to be disposed of may be prudent.

Applying these definitions to the data in question, we can see what proportion of land acquisition cases is delayed and to what extent.

Analysis

Looking only at the disposed original land acquisition cases in the subordinate courts, of the 122 disposed cases, the average time taken to dispose a case is 723.86 days, that is, just short of two years. However, this does not necessarily give us a full picture since there are several more pending cases than disposed cases in the data collected by DAKSH.

Looking at pending cases, however, we find a very interesting pattern, as explained in Table 3.1.6.

Table 3.1.6.Average Pendency (in Days) for Land Acquisition Cases in the Subordinate Courts of Karnataka

We find an incongruous pattern in the data shown in Table 3.1.6—the average number of days for which an appeals case is pending (913.80) is greater than original petitions (315.50).

One potential reason could be because there are a few outliers when it comes to appeals cases that are skewing the smaller sample size as compared to the original petitions. One way to test for this is to see the median of the number of days the case is pending.

For pending appeals cases, the median value turns out to be 1,047 days or about three years. A distribution of the number of days a case is pending is shown in Figure 3.1.1.

figure 3.1.1.Distribution of Pending Land Acquisition Appeal Cases

The distribution of cases in Figure 3.1.1 suggests that there are no outliers but there is, in fact, a systemic problem in the manner in which appeals cases are moving through the system. Even though they are fewer in number than original petitions, they seem to be moving more slowly through the system.

Coming back to original petitions, are they likely to be disposed of in time? Keep in mind that we have a larger sample size in the ‘pending’ category than the disposed category and this might give us a better sense of the matter. A histogram of pendency for original petitions is shown in Figure 3.1.2.

figure 3.1.2.Distribution of Pending Original Land Acquisition Petitions

From the data in Figure 3.1.2, it does not seem as if there are many cases pending for more than two years and even the disposal data seems to suggest that delay is not a significant issue when it comes to original petitions.

What could explain the disproportionate delay problem in appeals cases? One answer could be that in the civil procedure system followed in India, given that parties still drive litigation forward, they may be disinclined to move the case forward when it is in their advantage to not do so. A party that has already received a favourable final order from a subordinate court in appeal may not be inclined to speed up the matter.

In the case of land acquisition appeals, the question decided in references is usually a question of compensation or enhancement of it. If such compensation is granted and paid, it would not be in the interest of the land owner to move the case forward. However, if the original petition has been turned down, it would definitely be in the land owner’s interests to move for swift conclusion of the appeal. Is this pattern borne out by the data?

For this purpose, the appellants in the appeals cases (all of which relate to amount of compensation) have been divided into government and non-government parties on the basis of the names of persons who have filed the appeal. This included the ‘Land Acquisition Officer’ or the ‘State of Karnataka’ and variants thereof, including their abbreviations.

Table 3.1.7.Break-up of Land Acquisition Appeal Cases Based on Parties

As per Table 3.1.7, while there are too few pending cases with government parties as appellants in the sample to draw any decisive conclusions, from the data on disposed of cases, it emerges that there is a vast disparity in the time taken to dispose of a case, depending on whether the appellant is a government party or not. While appeals filed by private parties are, on an average, disposed of within a two-year time period, the same cannot be said of appeals filed by the government parties. It cannot be a matter of chance or pure coincidence that while appeals filed by nongovernment parties take 555 days to be disposed of (about 18 months), appeals filed by the government take 1,376 days to be disposed of (about 46 months).

While these delays do not necessarily affect the land acquisition process itself (given that they are Type 2 cases since they are only appeals from references on questions of adequacy of compensation), they are nonetheless a cause for concern as they tend to slow down the judicial system itself. While it is not clear who is responsible for how much delay, this is an area of concern that deserves much greater study.

But what about the Type 1 cases, where the acquisition is itself challenged? Here, the government is almost never the petitioner and it is usually the land owner challenging the process in question.

First, let us consider a break-up of the average time it takes to dispose a case, and the time for which a case has been pending. The total number of cases in Table 3.1.8 is slightly different from the total number of cases mentioned in Table 3.1.5 since some cases with erroneous date of filing have been excluded.

Table 3.1.8.Average Pendency (in Days) for Land Acquisition Cases in the High Court of Karnataka

On its own, Table 3.1.8 does not tell us too much. A more nuanced break-up of the numbers is needed to draw any meaningful conclusions. If we were to break up the disposed cases by the number of years taken to dispose them, the data would be as set out in Table 3.1.9.

Table 3.1.9.Land Acquisition Cases Disposed by the High Court of Karnataka as per Age of the Case

More than 90 per cent of the disposed cases in Table 3.1.9 have been disposed within a two-year period. Only a relatively small number of cases took longer than two years to be disposed, and were ‘delayed’ by the definition we have adopted.

What about pending cases though? Details are set out in Table 3.1.10.

Table 3.1.10.Age of Pending Land Acquisition Cases before the High Court of Karnataka

When we look at pending cases, we find that less than 50 per cent of these are actually pending for less than two years.

An overall picture emerges, which is set out in Table 3.1.11.

Table 3.1.11.Progress of Land Acquisition Cases at the High Court of Karnataka

It emerges, therefore, that a little less than 25 per cent of cases in the sample were delayed. This may not suggest a systemic problem per se, but one which requires the High Court to nonetheless identify and address the delays being caused in land acquisition.

At present, there is no data to suggest whether a case is delayed more owing to grant of a stay order, but this is an interesting area for further examination.

Given that the data sets from the trial courts and the High Court are not collected in the same manner, it is not possible to compare them directly. It is, however, better to address the problem of delay on its own terms for each level of the judiciary.

Conclusions

The analysis of data leads us to a few conclusions listed below.

  1. Delays in Type 1 cases in Karnataka are significant; however, such cases do not constitute a large percentage of the total land acquisition cases filed in court.
  2. Delays in Type 2 cases appear to be more prevalent in appeals, particularly those filed by the government against adverse rulings in original cases.

Land acquisition is one of the leading causes of delays in the creation of transportation infrastructure in India.12 This is with reference to not just the process of land acquisition itself, but also litigation over land acquisition as well.13 A McKinsey report suggests that there are three causes for delays, namely, under-valuation of land price, dependence on state governments for land acquisition, and the ambiguous definition of the term ‘unencumbered land’.14

Much more data is required to draw the direct link between the delays in court procedure with the delays in land acquisition, specifically, what is the exact loss caused by delays in the judicial process. This is a complex calculation and requires a lot more data and analysis. However, future research may focus on the following paths to identify the exact scope of this problem. We can broadly split up these questions into two categories, costs incurred by delays due to litigation per se and costs incurred by litigation, increasing the compensation for property owners.

Delays Due to Litigation per se

  1. How often do courts injunct land acquisition proceedings, and for what reasons?
  2. How long do cases take to be disposed of by the courts when such an injunction has been granted? Is there a difference if no injunction has been granted?
  3. What is the increase in a project’s cost due to a stay granted in land acquisition?

Delays Due to Increased Compensation

  1. How often do courts increase compensation for property owners, and on what bases?
  2. How long do such cases take to be disposed of?
  3. What is the increase in the project’s cost due to increased payment of compensation (including interest and other costs)?
  4. Why are appeals filed by the government delayed more often?

With massive infrastructure projects being taken up across the country to facilitate economic growth, land acquisition issues will continue to slow down the process unless serious reforms are made. Even though land may be viewed purely as a factor for production in cold economic analysis, it is undeniable that in India, there is a strong emotional attachment to it on the part of the land owner. Negotiating the conflicting claims over land and how it ought to be used is going to be a key flashpoint in the coming decades, and one which India’s judicial institutions need to be better equipped to handle.

Notes

* The author wishes to thank Anamika Kundu, Chandni Parekh, and Sapni G. Krishna for their assistance in preparing this chapter.

  1. Hugo Grotius. 1625. ‘De Jure Belli et Paci’s’, cited in State of Bihar v. Kameshwar Singh (1952) 1 SCR 889.
  2. Suhrith Parthasarathy, ‘Thanks to Eminent Domain Defence, our Constitution has No Private Property Rights’, My Law Blog, available online at http://blog.mylaw.net/amendments-to-shield-eminent-domain-from-the-courts-have-left-the-constitution-without-private-property-rights/ (accessed on 1 May 2019).
  3. Usha Ramanathan. 2003. ‘A Word on Eminent Domain’, in Lyla Mehta (ed.), Displaced by Development: Confronting Marginalisation and Gender Injustice, p. 133. New Delhi: SAGE.
  4. (2010) 7 SCC 129.
  5. This principle has also been extended to the RFCTLARRA by the Karnataka High Court in Evershine Monuments v. State of Karnataka, ILR 2018 Kar 731.
  6. DAKSH, Access to Justice Survey 2015–16, available online at http://dakshindia.org/wp-content/uploads/2016/05/Daksh-access-to-justice-survey.pdf (accessed on 30 November 2019).
  7. Deepika Kinhal and Alok Prasanna Kumar. 2018. ‘A Study of Karnataka High Court’s Writ Jurisdiction’, Vidhi Centre for Legal Policy, available online at https://vidhilegalpolicy.in/reports/2018/2/21/a-study-of-karnataka-high-courts-writ-jurisdiction (accessed on 7 May 2019).
  8. Kinhal and Kumar, ‘A Study of Karnataka High Court’s Writ Jurisdiction’, p. 9.
  9. Law Commission of India. 2015. ‘Arrears and Backlog’, 245th Report, available online at http://lawcommissionofindia.nic.in/reports/Report245.pdf (accessed on 7 May 2019).
  10. Law Commission of India. ‘Arrears and Backlog’, 245th Report, p. 3.
  11. Law Commission of India. 2016. Commercial Division and Commercial Appellate Division of High Courts and Commercial Courts Bill, 2015, 253rd Report, available online at http://lawcommissionofindia.nic.in/reports/Report_No.253_Commercial_Division_and_Commercial_Appellate_Division_of_High_Courts_and__Commercial_Courts_Bill._2015.pdf (accessed on 7 May 2019).
  12. S.K. Patil, A.K. Gupta, D.B. Desai, and A.S. Sajane. 2013. ‘Causes of Delay in Indian Transportation Infrastructure Projects’, International Journal of Research in Engineering and Technology, 2(11): 71.
  13. Ram Singh. 2010. ‘Delays and Cost Overruns in Infrastructure Projects: Extent, Causes and Remedies’, Economic and Political Weekly, 45(21): 43.
  14. McKinsey and Co. August 2009. ‘Building India: Accelerating Infrastructure Projects’, available online at https://www.mckinsey.com/~/media/mckinsey/dotcom/client_service/Infrastructure/PDFs/01%20Building%20India.ashx (accessed on 19 December 2019).