Paper presented at the Conference of Lawyers for Social Justice, 

Indore, M.P., 25th-26th August, 2012 Planning, Development and

Displacement -- Some Legal and Constitutional  Issues

(By Kaleeswaram Raj, Advocate, High Court of Kerala)

Law is only a sophisticated form of politics. According to Mark Tushnet, even “the constitution matters”, not because it ensures protection of fundamental rights, but “because  it provides a structure for our politics.” (Mark Tushnet – WHY THE CONSTITUTION MATTERS, Universal, 2011.)

And politics is the activity that ultimately determines the individual’s and society’s control over the resources.

Resources are more than investments.  Those reflect something more than the economics of profit and loss of GDP and GNP.

Earth is the resource of resources.  Land is not only the most tangible form of resources, but their very foundation.

Therefore, the basic political, ecological and developmental questions are intrinsically related to issues of land, its distribution, user and management. Thus the Land Acquisition Act and the Town Planning statutes, while reflecting the political (i.e., executive or legislative) philosophy also enable their implementation. The question therefore is, to what extent the approach and schemes related to town planning, rehabilitation and development are just and equitable. I would suggest that deletion of Art. 19 (1) (f) of the Constitution by which the fundamental right to property was erased, was an amendment devoid of constitutionalism, from the victim’s point of view.

There was an apparent inertness in modifying the 19th Century Legislation on Land Acquisition.  At the same time, there was humpty number of occasions where the phrase ‘public purpose’ happened to be distorted or misused.  The emergency clauses in the Land Acquisition Act also were misused.  There were instances in Kerala  (Acquisition of Vast Areas of Coconut Plantations by the State Government for Backel Tourism Corporation.) where Agricultural lands were acquired claiming public purpose and  using emergency clauses in the statute, and thereafter transferring the lands  to private entrepreneurs for conducting bar hotels. In that episode, advancement of Tourism was the “Public Purpose” projected.

While the 1894 statute was retained as such, there was no legislative attempt to connect the various town planning statutes of different States, with the central statute on land acquisition.  No co-ordination was ever affected.  The State did not feel the need for a co-ordination either.

Article 19(1)(f) of the Constitution was omitted by way of 44th Amendment to the Constitution with effect from 20.6.1979.  Article 19(1)(f) as it stood spoke about right to property, as a fundamental right. After the amendment, even when the Town Planning statutes or the Land Acquisition Act were used against the citizens and even when the same resulted in total and out right eviction without rehabilitation, no serious thoughts were evoked in the country on the question of restoration of Article 19(1)(f). 

In Chairman, Indore Vikas Pradhikaran v. Pure Industrial Cock & Chemical Ltd. & Ors. (2007) 8 SCC 705) the Supreme Court was constrained to observe that even though there is no fundamental right to property, the deprivation of property would result in infringement of “human rights”.

The distinction between fundamental rights and human rights may be one capable of being explained theoretically.  But a situation where a citizen is unable to challenge the human right violation, because there is no fundamental right violation, is one that cannot be normally comprehended.

Modern constitutions often recognize right to property as fundamental right which is enforceable. See for example, Section 26 of the South African Constitution dealing with housing right (Constitution of the Republic of South Africa (1996) (Act No. 108 of 1996) published in the Gazette dated 18.12.1996.) .  According to Section 26 (1), the citizen has the right to have access to adequate housing.  Section 26(2) says that the State has a duty to take reasonable legislative and other measures to achieve the said constitutional objective.  According to Section 26 (3), no one can be evicted from their home or nobody’s home will be demolished without a judicial order passed after consideration of all the relevant circumstances. A legislation permitting arbitrary eviction cannot stand the test of constitutionality, going by Section 26 (3) of the South African Constitution. It is clearly the right to property that is re-defined and projected as right to dwelling house or as right to residence. It is more than an equivalent to Article 300 A of our Constitution, which also was incorporated by way of the very same 44th Amendment.Article 300A denotes a constitutional right,and not a fundamental right, vide Bishamber v. State of Uttar Pradesh (AIR1982 SC 33). In India,  even when the sole dwelling huts of marginalized  people get acquired by the State either by use or misuse of the statute or by a pro rich policy, there is no violation of fundamental right but only human right violation, going by our constitutional scheme,   as explained by the Supreme Court.  It is time to rethink whether the abrupt and total expulsion of Article 19(1)(f) of the Constitution was an amendment in the larger interest of the ‘public’ who form the ‘republic’.  A revisit to the Amending Act would pose questions related to lack of vision for the future and dearth of commitment to the poor. 

The decision in Bondu Ramaswamy & Ors. v. Banglore Development Authority & Ors.  (2010 (2) KLT SN 57 (C.No. 58) SC =  (2010) 7 SCC 129), however clarifies that the land acquisition in the country cannot be and should not be a matter of routine. The purpose requires to be explained and the need for judicial review is no longer limited in the matter as understood conventionally. There is a requirement of more rigorous judicial scrutiny in the  matter of acquisition and town planning.   The judicial indication, in Bondu Ramaswamy supra, reflect skepticism about the State’s actions.

In  Devsharan v. State of  U.P.((2011) 4 SCC 769), the Supreme Court held:-

“Admittedly, the Land Acquisition Act, a preconstitutional legislation of colonial vintage is a drastic law, being expropriatory in nature as it confers on the State a power which affects person’s property right.  Even though right to property is no longer fundamental and was never a natural right, and is acquired on a concession by the State, it has to be accepted that without right to some property, other rights become illusory.  There questions are being considered, especially, in the context of some recent trends in land acquisition.  The Supreme Court is of the opinion that the concept of public purpose in land acquisition has to be viewed from an angle which is consistent with the concept of a welfare State”.
                                                                                                                 (see para 15 of the judgment).

In my view, the above referred judgments of the Supreme Court contain an indirect and silent expression of regret over the repeal of Article 19(1)(f) and make an effort to underline the significance of the right to property.  It is a right which is relative, contextual and tentative.  It is a right that relates itself with the freedoms under Article 19 and dignified existence offered by Article 21. Therefore, in order to make the said right meaningful in the context of the Land Acquisition Act and the town planning statutes, there is a need to have a relook on repeal of Article 19(1)(f).  This, however, the Supreme Court did not venture to say. 

Very often it so happens in India that the implementation, invocation and even interpretation of the provisions  in the original town planning statute carry a clear affinity towards the interest of the middle class and the elites.  In the process, the marginalized remained as they were and often their conditions became worse.

The courts were by and large, maintaining that the open spaces in the cities and township, are amenities of the town. In Damodara Rao v. Municipal Corporation, Hyderabad (AIR 1987 AP 176)  the acquisition of land which was earlier earmarked as an open space for recreational purpose was sought to be acquired for residential quarters for employees of LIC.  The challenge by the local people was upheld by the Andhra Pradesh High Court.  Thus the recreational interests of the middle class were protected with an environmental flavour.  Likewise in Banglore Trust v. Mudappa (AIR 1991 SC 1902) attempt for conversion of open space into a Private Nursing Home was interdicted with a clarification that it is for the Banglore Development Authority to consider whether the scheme itself is to be altered.  Recently, in Girish Gas v. State of Maharastra (2012 ) 3 SCC 619), the Supreme Court came down heavily against unauthorized construction by holding that parts of the land reserved for public cannot be lightly tinkered with.

At the same time, when issues of town planning were confronted with the livelihood of the marginalized or the poor, the adjudication did not result in any comfortable preservation of human rights of those at the bottom.  Thus in Milkmen Colony Vikas Samithi v. State of Rajasthan & Ors.  (2007) 2 SCC 413) the cattle, along with the milkmen were told to stay away from the city of Jodhpur.  When the issue related to slum rehabilitation was considered by the Bombay High Court in Janhit Manch v. State of Maharastra (CDJ 2006 BHC 1273), the priority and emphasis were on the amenities of the city including the road and the railway rather than on rehabilitation of slum dwellers.

Relative lack of possibilities for legal recourse in the matter of town planning and developmental scheme resulted in large scale public upsurge in the matter.  Singur and Nandigram were only a few prominent episodes among hundreds of other less known movements.  These indicate the inevitability of people’s movement which were also necessitated due to lack of effective and meaningful legal remedies.  No wonder, in  (Devsharan v. State of U.P. (2011) 4 SCC 769), the Supreme Court had to hold that construction of jail is  “certainly a public purpose”!  

What is required is a partial, qualified, meaningful and effective restoration of Article 19(1)(f) so as to ensure that right to exist on earth (read, the land) is a fundamental right when the individual faces the threat of total displacement and is denied equitable rehabilitation. This  would in turn mean that in the  case of drastic displacement, right to be rehabitated attains the characteristics  of  fundamental right.  This should be constitutionally safeguarded, irrespective of the political decisions taken by the State in the matter of town planning or land acquisition. Also it should be clearly distinguished from the right to earn or to preserve excess/excessive property. An imaginative and modified incorporation of Article 19(1)(f)  should at least give effect to the decision of the Supreme Court in Karjan Jalasay Yojana Assargrasth Sahkar Ane Sangarsh Samithi v. State of Gujarat & Ors. (AIR 1987 SC 532) where it was held:-

“If any person who is dispossessed of any part of the acquired land in his occupation has his dwelling on such land and in consequence of taking possession he is deprived of such dwelling, the State Government will simultaneously with taking possession of such land, provide alternative dwelling to the person who is dispossessed.  So that the person dispossessed should not be without roof over his head even for a single day”.

2012 (2) KLT 214 -- Rama Moorthy v. Food Inspector

Deserves  Re-consideration ?

(By P. Rajan, Advocate, Thalassery)

The judgment of the Hon’ble High Court of Kerala, mentioned above pertains to the delay occurred in filing the complaint under the Prevention of Food Adulteration Act 1954, resultantly right of the accused to get a Report from the Central Food Laboratory is denied; reason being launching of prosecution after the expiry of the guarantee period for consumption of the food item; taken as the ground to terminate the prosecution; quashed the proceedings against all accused.

In the reported judgment the article taken sample of, by the complainant is vanaspathy manufactured by the petitioner’s company and on analysis by the Public Analyst, it is opined that the said sample did not confirm to the prescribed standard for the particular item; thus the complaint was launched. It is beyond controversy that the sale by the vendor, to the complainant was on 20.2.2003 and analysis was done on 27.3.2003 and the complaint was filed before the Court on 3.6.2003. The petitioner being the manufacturer of the article, was impleaded on 19.9.2005, on the request of the retail trader, under Section 20A of the Act.

The contention canvassed by the petitioner before the High Court was that the food item was unfit for use after the declared period shown on the container/packet. The delay in filing the complaint and summoning the petitioner to face the trial caused prejudice to the manufacturer, resulted in delay in getting a report from the Central Food Laboratory, by the petitioner. The High Court accepting the contention ruled in favour of the petitioner, thereby quashed the complaint. The Division Bench ruling reported in 1971 KLT 16 (Gopalakrisha Kurup v. State of Kerala) speaks otherwise; favours the prosecution.

The P.F.A Act does not prescribes any time limit for filing a complaint on receipt of the analyst’s report mentioning of adulteration or difference in contents, in violation of the standard shown in the P.F.A. Rules. In this particular case it is to be noted that without much delay the sample was analysed and the complaint was filed i.e., within seventy days. The article was packed in November 2002 and the same was best for consumption upto six months as revealed, as manufactured and packed in November 2002. The details of the report of the analyst which paved way for the prosecution also are not seen disputed by the petitioner. Supposing there was injurious adulterant in the food sample likely to remain and noticeable during a short period only, analysis by the Central Food Laboratory, like the examination by the Public Analyst need be done without any delay. Our High Court has held that though the Act prescribes 10 days only to apply under Section 13(2) of the Act to request for getting Central Food Laboratory report, this period can be waived and accused can file application even after ten days to ensure justice (1986 KLT 174 - Food Inspector v. Karingarappully Co-op. M. S. Society Ltd.). It is also held in another judgment that violation of any rule and prejudice due to such violation is to be considered by the court in P.F.A cases not on presumption but on proof (1986 KLT 852 - Food Inspector v. Varghese).

In food adulteration cases the commencement and completion of the offence take place on sale of the article to the Food Inspector, if the same is adulterated. Report of the analyst is an expert’s opinion to fortify scientifically the complainant’s case. If insect infested grain or pulse is the sample, damaged percentage in the quantity is above the permissible limit of insect infestation, visible to naked eyes, expert’s opinion is only a legal formality under the Act. Another vital circumstance is, where delay in analysis becoming crucial is, damaged grain or insect infested percentage of article in the entire stock is considerably low, to the level of the maximum permitted percentage, immediate analysis would prove the innocence of the vendor and delayed  analysis becoming prejudicial as increase of damaged/insect infested portion would increase by passage of time and cross the permitted limit. Examples are illustrative not exhaustive. It is pertinent to note that the charge being framed by the trial court in food adulteration cases is on materials available on the date of sale and analyst’s report and not basing on the C.F.L. report later on obtained, as explained u/S. 211 Cr. P.C., delay in filing the complaint, without any attempt to get a second report, is taken as a valid ground to invoke S.482 Cr.P.C, as the provision of law and rulings under the act are contra.

The High Court has pressed in to service rulings under the Drugs and Cosmetics Act 1940 and judgments under the Insecticides Act 1963 to hold that report from the Central Food Laboratory cold not be obtained due to delay in filing the complaint. P.F.A. Act being a self contained one and rulings are aplenty under the same Act, in the case reported the petitioner made no attempt even to send the remaining sample for analysis-just counted the chicks before its hatching. Courts often say in P.F.A cases when manufacturer/wholesale dealer is acquitted-small fry getting caught and big shark escape even by piercing the net, acquittal on technical ground takes place. Though Food Safety and Standard Act 2006 came into force, this ruling becomes a panacea for similar pending cases as the original accused also is exonerated, by the same judgment, thus relief extended to him also, though not asked for. 

………………….

How invincible is justice, if it be well spoken - Cicero.

Globalisation and the Judicial Sovereignty of India

 (By P.K. Suresh Kumar, Senior Advocate, High Court of Kerala)

There is a growing view that the power of the nation state is being eroded by globalisation.   But, I never knew that it would go to the extent of an award being passed by an Arbitral Tribunal in Singapore criticizing the Supreme Court of India for its delay in handling cases and directing the Government of India to compensate an investor from Australia for such delay. The award would send shock waves to any right thinking person and would compel him to wonder at the way in which the babus sitting in Delhi signing international treaties and also the manner in which our Government conducts international arbitrations. 

The case aforementioned arose in the following circumstances: In September, 1989 an Australian Company called White Industries entered into a contract with Coal India Ltd., for the ‘supply of equipment to and development of a coal mine at Piparwar’ in the State of Uttar Pradesh. Over a period, certain disputes arose between the parties and as provided by their contract, the disputes were referred to arbitration. In May, 2002, an Arbitral Tribunal in London, by its majority opinion passed an award in favour of White Industries for a sum of $ 4.08 Million. Coal India challenged the award in Calcutta High Court and White Industries made an application to the Delhi High Court for the enforcement of the award. The proceedings in both the courts went on for some time. In the meanwhile the Supreme Court rejected White’s application for transferring the Calcutta case to Delhi. White Industries had also filed an application in the Calcutta High Court to reject the application filed by Coal India as not maintainable.   That application was later rejected and finally the matter was taken to the Supreme Court. The Supreme Court, after hearing the matter at length, found that an important question as to whether a proceeding against an international award passed outside India could be entertained here arose in the matter. The case was, thereupon, referred to a larger bench as the Court doubted the correctness of its earlier decision in ‘Satyam Venture’, wherein it was held that the award passed outside India was amenable to the jurisdiction of Indian courts. The question is still under consideration of a larger bench.  

While so, White Industries invoked the provisions contained in a bilateral treaty between the Governments of India and Australia signed in the year 1999 and launched a claim for compensation from the Government of India. It was alleged that the claimant could not enforce the award it obtained against Coal India because of the delays on the part of the Indian Judiciary and, therefore, the Government of India is liable to compensate the Company. In an arbitral proceeding held at Singapore, the arbitral tribunal passed an award accepting the claim of White Industries and directed the Government of India to pay around Fifty Crores of Rupees to it.  

It is not the monetary part of the award that is important but the basis of the award. It is the incompetence of the Indian Judiciary that is taken as the basis for awarding compensation. The following words of the Arbitral Tribunal would send shudders down the spine of any Indian who believes that his nation is still a sovereign State: 

“The most recent delay in this case stems from the apparent inability of the Supreme Court to impanel a three judge bench in a timely manner and from the stay ordered of the enforcement proceedings by the Delhi High Court.”

“The Tribunal has no difficulty in concluding the Indian judicial system’s inability to deal with White’s jurisdictional claim in over nine years, and the Supreme Court’s inability to hear White’s jurisdictional appeal for over five years amounts to undue delay and constitutes a breach of India’s voluntarily assumed obligation of providing White with ‘effective means’ of asserting claims and enforcing rights.”

“Having reached the conclusion that an Indian court, acting reasonably and complying with India’s international obligations, would conclude that Coal India had not established that the Award ought to be set aside or not enforced, the Tribunal determines that White is entitled to full compensation for the loss it has suffered as a consequence of India’s breach of the BIT. This compensation includes:  a) the amount of A$ 4,085,180 payable under the award; b) interest on this amount at the rate of 8% from 24 March 1998 until the date of payment; c) the amount of US $ 84,000 payable under the Award (for the fees and expenses of the Arbitrators); and d) the amount of A$ 5,00,000 payable under the Award (for White’s costs in the ICC arbitration).”

Thus, an Arbitral Tribunal criticised the Indian Supreme Court and the Indian Judiciary in general and made the Government of India liable to compensate a company for the lapses on the part of the judiciary. This is nothing but an attack on the judicial sovereignty of the nation. The judicial function is one of the major sovereign functions of a State. No person or authority can be allowed to sit in appeal against the functions of the Judiciary except in accordance with the provisions of the Constitution of India. No outside agency can be allowed to evaluate the orders of the Indian Courts and to pronounce its opinion over the same. No international treaty could contain any provision or clause which enables any such agency to do so. 

The Indian Judiciary functions independently of the Executive Government of the State. Such independence is a basic feature of the Constitution of India. The concept of independence of judiciary, according to the Supreme Court of India, is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of Indian democratic polity. The Executive Government cannot, therefore, enter into any treaty, whether domestic or international, which would affect such independence of the judiciary. It is a shame on whoever has paved the way for a bilateral treaty being instrumental in awarding compensation on account of a sovereign function. The babus who sign the treaties shall remind themselves to go through the various clauses in treaties and agreements before putting their signatures and before fastening the whole nation with various liabilities. 

Now, another aspect to be examined is that whether the 1999 agreement between Australia and India would in anyway entitle an investor to make a claim of the present nature. On reading the whole agreement I feel that the counsel who appeared for India could have very well argued that what was protected by the agreement was only the investor’s right to be treated fairly and justly as per the laws and the system prevailing in the country and therefore the delay on the part of the judiciary would not give rise to a cause of action in favour of the claimant. But, no such argument was seen addressed. Anyway, it is not the merit of the award that is the subject matter of this article. 

The question is as to whether the Executive Government could have entered into an agreement which would empower an investor from a foreign nation to sue for compensation on account of the delay in our judicial system?  If the agreement has such an effect, does it not amount to surrender of our sovereignty?  According to me the entire matter deserves a nationwide debate and those who are responsible for irresponsibly signing such agreements have to be made answerable.  

If those who entered into the treaty had applied their mind they could have very well avoided the arbitration clause which enabled an ‘Investor’ also to raise a dispute. The dispute resolution clause in the agreement between two Governments should have conferred rights in that regard only on the contracting Governments and not anyone else. Similarly, the agreement should have specifically clarified that the protection given to an investor is in accordance with the system prevailing in the country. It is due to total lack of application of mind on the part of the bureaucracy to such aspects, situations like the ones mentioned here arise. 

Paradigm of A Pursuit

(By P. Rajan, Advocate, Thalassery)

Sri. T.P. Kelu Nambiar, Senior Advocate is no more. The loss is irredeemable. Long live the legacy of the lawyer, writer par excellence.

Sri. Nambiar’s professional skill and committment, needs no elaborate preface. His clientele included persons from various walks of life, bodies and corporations of the Government, Banks, Universities and many more. When late E.K. Nayanar was indicted as an accused relating to his public speech allegedly with casteist connotations, despite his political inclinations, Mr. Nayanar sought the assistance of Mr. Kelu Nambiar to get the complaint quashed. A multi-faceted personality, Mr. Nambiar he was always anxious about the problems plagued by the legal profession. His articulations were always reflective of his anguish relating to this.  He always maintained that legal profession is no forum for fortune-seekers and petulent performance he hated and ineffable feeling he derived in fearless and honest performance.

A prolific writer he was; premier law journal of Kerala, Kerala Law Times always published his articles with due prominence and his contribution to the said journal as a member of the Editorial Board also was pivotal. Mr. Nambiar’s articles compiled and published as ‘Nambiar Miscellany’ contains his monumental composition, prowess, thoughts in delectable style. ‘Roses in December’, ‘We the people’, ‘We the Nation’ and ‘Before Memmory Fades’ are books written by Stalwarts in the legal profession, widely circulated. These books contain autobiographical narrations but 'Nambiar Miscellany' (Three volumes) relate to matters concerning the Bench and Bar, mainly. When he decided to stop writing, the statement saddened his readers and admirers alike(2011 (2) KLT Journal Page 1). But that ‘no’ was of a gentleman’s not a diplomat’s.

Though a lawyer with grit and glory he never minced words when the Judges overstepped. When a Judge of the Kerala High Court Judged the Advocate also, made unsavoury remark in the judgment, without any hesitation came Mr. Nambiar’s reaction and said, Judge the case; not the lawyer. Such examples are plethora and he always held his head high not because of the seniority only but because of his total commitment to the profession. He seldom chose any lullaby but pedantry was his hallmark.

As Justice V.R. Krishna Iyer described once -- Advocate Nambiar of Kerala Bar means T.P.K. Nambiar - the void is great due to the passing away of this versatile genius.

There are two ways of spreading light, to be the candle or the mirror that reflects it.                                                                  -- Edith Wanton, U.S. writer.

Good Bye Mr. Kelu Nambiar !

(By M. Karunakaran Nambiar, Advocate, Kannur)

More than half a century ago, I first met Mr. Kelu Nambiar from the corridors of the Madras High Court below the portrait of Mr. Eardley Norton. Scarcely did I then think that he would blaze across the forensic horizon like a meteor and dazzle the legal fraternity. Years later, I crossed swords with him from the Trial Court presided by Mr.Hariharan Nair who later became a High Court Judge. Nambiar’s punch is so deadly that it leaves you reeling and your case is in smithereens. He was like Erskine, the all time great of the English Bar. His advocacy was non pareil, language his forte ! His Literary Masterpieces are enshrined in the Law Journals and books for posterity to emulate. Probably, never again can we witness a counsel of his caliber-Proud, noble and courageous! He was the Lawyer of our Century.