WAS THE CONSTITUTIONAL VALIDITY OF THE LAND ACQUISITION ACT OF 1894 EVER CHALLENGED?
Author: Aniqua Zaki, V year of B.A., LL.B.(Hons.) from Jamia Millia Islamia
The land is sacred to people. People are more possessive of their lands than any other property. It's where they were born and it's where they have lived their whole lives, especially for farmers for whom their land brings them a source of income through agriculture. The Act of 1894 which gave power to the Government to deprive people of their land compulsorily without proper consents brought a lot of hardship to the people of our country. The persons deprived of their lands did not have proper compensation to fall back upon since the land gave them income daily and a one time compensation could never really be enough. The people went bankrupt without any source of income and rehabilitation. Once a land got acquired, all hope was lost.
CONSTITUTIONALITY OF THE LAND ACQUISITION ACT OF 1894
Till 2013 the Land acquisition Act of 1894 was germane to the whole of India for more than 100 years. Its constitutionality was challenged from time to time, but it never got repealed wholly. It was only with the application of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 that 1894 was repealed. This piece of draconian legislation as it has been called since time immemorial was enacted by the Britishers for their gain as could have been expected by them. The question should be why did it take so long after the independence to repeal such a law.
In Babu Barkya Thakur v. The State of Bombay, the petitioner petitioned the Supreme Court to exercise its powers under Article 32 of the Constitution because the notification under Section 4 of the 1894 Act is illegal and that the land acquisition proceedings are in violation of Articles 14, 19 and 31 of the Constitution and that the acquisition is not for a public purpose and is a malafide one. The Supreme Court held that the provisions of Article 31(2) make it clear that to compulsorily acquire a property, the acquisition must be for a public purpose and legal. But Article 31(5)(a) provides that nothing in clause (2) shall affect the provisions of any existing law other than a law to which the provisions of clause (6) applies (and certainly the 1894 Act is a law to which the provisions of clause (6) do not apply). Hence, even if the 1894 Act envisaged acquisition for a company which may or may not be for a public purpose, it would be saved by Article 31(5)(a) as an existing law.
In LilavatiBai vs The State of Bombay, the Supreme Court held that the constitutional validity of the Act could not be questioned under Articles 19(1)(f) and 31(2) by the decision given by this court in State of Bombay v. Bhanji Munji. The Act which does not come within the mischief of clause (6) of Article 31, falls within the ambit of the saving clause, i.e., clause 5(a), of the Article and was an existing law within the meaning of the Constitution and, therefore, valid at the commencement of the Constitution. Although it does not contain the expression “for a public purpose” as required by clause (2) of the Article.
Further, the court noted that clause (3) of the Article, which applies to laws made after the commencement of the Constitution, had no operation to the amending Acts which were in no way affected the main substantive provisions of the Act already passed, and the want of the President's assent in no way affected their validity. Because the Act was valid at the commencement of the Constitution and continued to be so, it is not in any way inconsistent with the provisions of Part III of the Constitution to attract the operation of Article 13. Therefore, the Amending Acts were equally valid in law.
In Smt. Somavanti And Others vs The State of Punjab And Others, the Supreme Court held that we are not interested here in a post-Constitution law but with a pre-Constitution law. The Act has been in operation since 1894. The court looked into the fact that the validity of the law had already been challenged before this Court in Babu Barkya Thakur v. The State of Bombay on the ground that it infringes the provisions of Articles 31(2) and 19(1)(f) of the Constitution. But the Court held that the law is a pre-Constitution law is protected from the application of Article 31(2) by the provisions of Article 31(5) (a). Further, the court followed the decision in the State of, Bombay v. Bhanji Munji and that in Lilavati Bai v. The State of Bombay and held that the attack under Article 19(1)(f) of the Constitution is also futile.
In Smt. Ratni Devi & Anr vs Chief Commissioner, Delhi & Ors, the court referred to Udai Ram Sharma & Ors. v. Union of India & Ors. while deciding the validity of the Amending Act of 1897. It says: “The validity of the Amending Act has been upheld by this Court in Udai Ram Sharma & Ors. v. Union of India & Ors. (1968) 3 S.C.R. 41 and reaffirmed in Aflatoon's case(supra). The contention that piecemeal acquisition under Notification dated 13 November 1959 under section 4 of the Act is bad is a challenge to the adequacy of compensation under section 23 of the Act. The Act is protected under Article 31(5) of the Constitution. Where the acquisition is for public purpose reasonableness is presumed for such public purpose. The challenge under Article 19 of the Constitution which, according to the petitioners and the appellants, is directed as a result of the Bank Nationalisation case (1970) 3 S.C.R. 530, can be restricted to procedural reasonableness.”
In Bai Malimabu And Ors. vs State of Gujarat And Ors., the constitutionality of Section 4 of the 1894 Act was challenged on the ground that it was confiscatory and it sought to deprive the appellants of their valuable lands thus violating their fundamental rights guaranteed under Articles 19(1) and 81 of the Constitution. The court did not think that the challenge to the section had any merit and did not feel any necessity in considering the question.
In Manubhai Jehtalal Patel And Anr. vs State of Gujarat And Ors., the court while checking the validity of Sections 4, 5A and 6 of the Land Acquisition Act 1894 observed that: “Vires of Section 4 were examined by this Court in Bai Malionahu etc. v. State of Gujarat and Ors. and it was held that Section 4 was intra vires the Constitution. In reaching this conclusion this Court referred to the two earlier decisions of this Court on the subject and held that Section 4 was intra vires the constitution. Nothing was made out to depart from this view. The reasons which weighed with this Court to uphold the validity of Section 4 would apply to the challenge to the vires of Section 5A and 6 of the Land Acquisition Act. We accordingly hold that Section 5A and 6 of the Land Acquisition Act are intra vires the Constitution. That disposes of the certificate.”
In Ramgir Uttamgir Goswami vs State of Gujarat & Anr, the Supreme Court held that: “The challenge to the vires of sections 4 and 6 of the Land Acquisition Act, 1894 no longer survive because of the validity of the sections having been upheld by this Court in Manubhai Jehtalal Patel and Anr. v. State of Gujarat and others.”
These case laws suggest that the Supreme Court had upheld the 1894 Act as constitutional since it came within the purview of Article 31(5).
Though the constitutionality of the above draconian law was challenged in a lot of cases the Supreme Court continued to uphold it till the date on which it got repealed by The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The Act of 1894 being a law made by the Britishers should have been repealed a long time ago and yet the people of this country suffered for more than a century at the hands of the archaic law. The right to fair compensation and transparency in land acquisition, rehabilitation and resettlement act, 2013 although, made the position related to compensation much better, however, it is not very feasible. The compensation to be awarded, the rehabilitation and settlement provisions feel a lot like empty promises.
Many critics were also of the opinion that this was a method for securing votes in the 2014 election and it can also be seen through the fact that some of the important matters which were raised by the 31st report of the Standing Committee on Rural Development about agricultural and multi-crop land as well as about narrowing the ambit of public purpose were ignored in the final run-up to the legislation.
Act no. 30 of 2013.
 1960 AIR 1203.
 1957 AIR 521.
(1955) 1 S.C.R. 777
 1963 AIR 151.
 1975 AIR 1699.
 (1968) 3 S.C.R. 41.
 AIR 1978 SC 515.
 AIR 1984 SC 120.
 AIR 1979 SC 515.
 1988 SCR (2) 776.
Act no. 30 of 2013.