Invocation of Urgency Clause in Land Acquisition — Hazy Contours of Judicial Review

In India, the State’s power of eminent domain finds expression in two statutory enactments – the Land Acquisition Act, 1894¹ and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013² (hereinafter, the old Act and the new Act respectively). While the new Act differs substantially from the old one on some important markers, namely, factors considered for computing the quantum of compensation, consent from affected people in some cases, social impact assessment, clauses on resettlement and rehabilitation, return of unutilised land, special provision with regard to food security, etc., both legislations allow the State to invoke urgency clause to bypass some important procedural safeguards and fastrack the acquisition process.³

Essentially, acquiring land for a public purpose in lieu of compensation to the landholders (regardless of consent on their part) is a testament to the massive coercive power wielded by the modern State. One of the important checks on this power comes in the form of procedural safeguards that are to be followed by the executive i.e. conducting a thorough Social Impact Assessment Study⁴ of the proposed piece of land for acquisition, publication of notification in the Official Gazette and newspapers, allowing objections from interested persons within 30 days of such publication⁵, allowing the opportunity of being heard to such objectors, submit a comprehensive report of all these proceedings along with personal recommendations and findings to the Government.⁶

The urgency clause appears as an antidote to bypass this elaborate procedure.⁷ Enquiry into the question – whether this antidote has been correctly administered by the executive or not, constitutes the sum and substance of scope of judicial review in land acquisition matters. For abundant clarity, it must be kept in mind that judicial scrutiny into validity of invocation of urgency clause only decides whether the State had good enough reason to bypass the procedural safeguards as guaranteed in the Act and does not tantamount to a verdict on legality of acquisition itself. But these procedural safeguards are not mere formal processes that can be bypassed at will. They are in fact important rights of the landholder to object to the acquisition and/or its various aspects, at the very threshold. In a way, these procedures embody the very principles of natural justice.⁸

Time and again, the Supreme Court has underlined the importance of pre-acquisition procedures as being substantive right⁹ vested in the landholders and the same cannot be violated in the absence of real urgency.¹⁰ Thus, wrongful invocation of urgency clause in matters where there is no urgency, only to expedite the process of acquisition has serious repercussions.

In Hamid Ali Khan v. State of U.P.¹¹, the Supreme Court tried its best to tread upon a tightrope in culling out the settled principles that should guide the extent of judicial scrutiny into urgency, while tacitly accepting that the unique facts of each case play an extremely crucial role in the interpretation of urgency. In the instant case, the urgency clause was invoked for the construction of a residential colony by the name of Bulandshahr Khurja Development Authority in Bulandshahr, Uttar Pradesh for the public at large.¹² Interestingly, this judgment discloses the discussion that had taken place between the executive authorities in order to establish the necessity and urgency of land acquisition and put it in the public domain for all to analyse.¹³ To thwart any “possibility of delay”, the urgency clause was invoked. Recording the finding that purpose of the acquisition was not exclusively housing development, the facts were distinguished from other cases to hold that no real reason was made out for urgency.

As enunciated in this very judgment, on one hand, the courts are required to have a “hands-off approach”¹⁴ in situations where the urgency clause is invoked provided there is any “relevant material on record howsoever meagre”¹⁵; and on the other hand, the courts are also expected to check whether “the Government had applied its mind before forming a subjective opinion, free from extraneous considerations”.

At this point, the question that begs consideration is – can the scope of judicial review then be precipitated in the form of a two-step procedure, where in the judiciary first checks the existence and relevancy of material-on-record with the executive and if satisfied on the first count, delves into finding out whether there was any real application of mind into that material?¹⁶ The former is an enquiry of a far more objective nature than the latter. And if the standard of judicial review is purported to be so strict, how do we reconcile it with a larger Bench decision putting forth an entirely different point of view?

The judgment in Union of India v. Mohiuddin Masood¹⁷, acquires particular relevance in this light; the same being an older 3-Judge Bench decision holding a greater binding value than Hamid Ali Khan v. State of U.P.¹⁸ It is worth noting that the public purpose in this case, was the establishment of one Battalion Headquarter of Indo Tibetan Border Police (ITBP) at Kanpur Nagar and to this effect, urgency clause was sought to be invoked by the State for the acquisition of land. By and large, the case turns on whether there was any delay between the publication of preliminary notification¹⁹ and declaration of intended acquisition²⁰ (three months) and “the chronological list of dates and events and the object and purpose forwhich the land was sought to be acquired”. Essentially, questions like whether there existed any relevant material, what was that relevant material, and whether there was any application of mind on the part of the executive to interpret urgency from that relevant material, were never dealt with. It is almost as if the purpose itself (having to do with national security) was sufficient to establish urgency and once that decision attained finality, distinguishing the case on the basis of facts to bring it in consonance with conflicting judgments,²¹ remained only a formality. Curiously enough, no previous judgment was cited as a precedent in the instant case to supplicate their stance.

In what can only qualify as obiter dicta, the Court goes on to observe that:

5.3. … As observed hereinabove, the total land acquired was 28.1398 hectares and other landowners have not questioned the acquisition. Therefore also, the High Court ought not to have set aside the notifications under Sections 4 and 6 respectively of the Act which were with respect to the acquisition of large chunk of land admeasuring 28.1398 hectares, which was not under challenge by the other landowners except Respondents 1 and 2 herein – original writ petitioners.²²

Such callous observations of the Supreme Court grant considerable leeway to High Courts across the country to water down the scope of judicial review while deciding cases on similar facts.

Having variable standards of judicial review, depending heavily on the facts of every case, leaves enough room for judicial discretion and allows for accommodating almost any viewpoint. “Distinguished on the basis of facts” seems to be the new weapon in the arsenal of the judiciary when it comes to the invocation of the urgency clause in land acquisition matters.

In a not so distant future, it will be incumbent upon the Supreme Court to read these two judgments together and strive for some resolution either by limiting the scope of a two-step judicial review procedure, as envisaged in Hamid Ali²³, to the peculiar facts of that case, or by carving out a separate standard of a lenient judicial review to interpret urgency clause invocation in those land acquisition matters where public purpose overlaps with national security issues. In the meantime, taking either of the two approaches will certainly add on to the complexity and already existing jurisprudence, but might take away some teeth from the third branch of governance.

In view of the importance placed upon the substantive rights of the landholders by the Supreme Court itself, it is desirable to have a strict, consistent, two-step judicial review for all matters in which land is sought to be acquired urgently by the State, regardless of the public purpose or “peculiar facts” of the case. However, any such clear pronouncement from the Supreme Court is yet to come.