eLegalix - Allahabad High Court Judgment Information System ...

More documents

Recommendations

Info

JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 196 of 19710/21/2011In Indian Industries Association Vs. State of U.P. 2007 (4) AWC 3825, one of us (S.U. Khan, J.) while dealing withthe strife of capital and labour (in respect of wages) observed in Paras-27 & 28 as follows:As far as industries are concerned, owner is primarily concerned with profit, worker with wage while interest of thepublic demands good quantity and quality of commodity/service at affordable cost. It is a sort of strife. The strifebetween capital and labour and the extreme stand which each takes and extreme arguments which each sideadvances are best illustrated by the drama 'strife' by John Galsmorthy written in 1909. Each side may havelegitimate arguments in its favour. However, this is a world of compromises and no argument can be brought to itslogical conclusion. Philosophers and mad dogs are liable to be shot because they want to bring their arguments totheir logical conclusion (Thomas Hardy in 'Far from the mad ding crowd').Balance in nature is necessary for survival of the Universe. Similarly balance in society is also essential for itssurvival. Economic aspect is one of the most important aspects of human society. Economic balance will havetherefore to be given a very high priority. For the sake of economic balance alongwith higher earning of uppersection of the society, becoming higher and higher rapidly, good income/wages will have to be ensured to thelower section of the society.We have tried to maintain the delicate balance through the leading judgment delivered by Hon'ble AshokBhushan, J.Land may be acquired for a public purpose. Public purposes for the sake of land acquisition may be divided intotwo broad categories. One may be termed as core, primary public purpose, e.g. purposes connected with military,construction of government offices, hospitals, government educational institutions, canals, roads and bridges etc.The other category may be termed as secondary public purpose which includes establishment of industries anddevelopment of urban areas which basically means construction of housing units. (In today's ''Times of India',Allahabad Edition there is a news on first page titled as ''Delhi Topples Mumbai as Maximum City'. It is reportedthereunder that close to 2.2 crore people now live in Delhi's extended urban sprawl.) In the judgment of theSupreme Court reported in Bondu Ramaswamy Vs. Bangalore Development Authority, 2010 (7) SCC 129, (inPara-151), three types of public purposes for land acquisition have been mentioned. The purposes at Serial No.(i)may be described as core, primary public purpose and purposes at Serial No.(ii) (establishment of industries) &(iii) (urban area development) may be described as secondary purposes. In respect of core, primary publicpurpose normally no concept of profit making is involved. Accordingly, for such acquisitions greater latitude maybe given and strict compliance of different provisions of Land Acquisition Act may not be insisted. Compensationas determined under the Land Acquisition Act can also be treated to be quite appropriate. As observed in theaforesaid Supreme Court authority, normally there is no resentment against such type of acquisitions.However as far as acquisitions for secondary purposes i.e. for establishing industries and constructing residentialunits are concerned, they stand on slightly different footing. There cannot be any doubt that such acquisitions alsoserve public purpose, however the factor of profit making is quite apparent therein. The purpose of State inproviding land for establishment of industries is that people will get employment and goods will be manufacturedincreasing the wealth of the nation which is squarely a public purpose. However the purpose of the person whoestablishes industry would be only and only to earn profit. There is absolutely nothing wrong in it. Business isalways done for profit. However for establishing industry the three major, capital investments are land, buildingand machinery and the industrialist has to pay good amount for each.Similarly when land is allotted to builders for constructing residential units, their purpose would be to earn profitand the purpose of the State would be to provide properly planned residential units to the public. However if theState itself gets the residential units constructed it would be earning huge profit.Serving of public purpose by the industrialist or the builder is an unintended fall out of his business activity. Noprivate person or non-governmental company does business for the purpose of providing employment or for anyother purpose except earning profit.If on the acquired land profit earning activity is carried out then the person whose land has been acquired has gotfull right to have something like a share in the profit. It is for this reason that during recent past in different parts ofthe country there has been public opposition of various degrees to the land acquisition for the purposes ofconstructing dwelling units or establishing industries by private persons or non-governmental companies. (Asgovernment is rolling back its direct role in industrialization by running industries, hence acquisition forestablishing government industries is now a thing of past).The first paragraph and first sentence of the second paragraph of the book "Law in a Changing Society" written byW. Friedmann are quoted below:"The controversy between those who believe that law should essentially follow, not lead, and that it should do soslowly, in response to clearly formulated social sentiment- and those who believe that the law should be adetermined agent in the creation of new norms, is one of the recurrent themes of the history of legal thought. It istellingly illustrated by the conflicting approaches of Savigny and Bentham.For Savigny, bitter opponent of the rationalizing and law making tendencies spurred by the French Revolution, lawwas ''found', not ''made'."Today, hardly any jurist agrees with Savigny. However, law may not be ''found' but its need can very well be
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 197 of 19710/21/2011''found'. It is apparent that now there is need to make necessary changes in the law of land acquisition in respectof secondary public purposes.The need of law (including change of law) may be sensed either by the legislature or by the court. Justice R.S.Pathak in the Constitution Bench judgment reported in Union of India Vs. Raghubir Singh, AIR 1989 SC 1933(Incidentally that case was also related to land acquisition) quoted the following observations of Lord Reid."There was a time when it was thought almost indecent to suggest that Judges make law - they only declareit ......... but we do not believe in fairy tales anymore. (The Judge as Law Maker, Page-22)."When the need for law is apparent and found and the legislature is slow to respond then the judiciary particularlythe higher judiciary has to play a role akin to that of law maker. Of course, it is done through interpretation andwithin the bounds. In extreme situations, the bounds may be stretched but they are never to be broken.It is said that great events do not leave great people standing by. The Judges also cannot remain oblivious of andunaffected with the resentment shown by public against some law. It is said that the best judge is he whounderstands the society best.In the matter of land acquisition, the Supreme Court realized the importance of the resentment of the people at anearly stage. Without waiting for the flames to rise, fire fighting efforts were initiated immediately after seeing thesmoke during last couple of years. It is always easier to cure an illness at its earlier stage. Either provide a safetyvalve and an outlet or be ready for burst.However, it is heartening to note that Parliament is also responding promptly and it has given clear indicationsthat it intends to modify Land Acquisition Act in near future by providing more to those persons whose lands areacquired (double or four times the market value). Some States have already taken corrective measures.In view of the above, we have directed payment of something more than market value to those persons whoselands have been acquired for secondary public purposes in order to make them sharer in the profit which is to beearned by industrialists and builders.Date:21.10.2011NLYVisit http://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do for more Judgments/Orders deliveredat Allahabad High Court and Its Bench at Lucknow. Disclaimer
Page 1 and 2:
JUDGMENT/ORDER IN - WRIT - C No. 37
Page 3 and 4:
Page 5 and 6:
Page 7 and 8:
Page 9 and 10:
Page 11 and 12:
Page 13 and 14:
Page 15 and 16:
Page 17 and 18:
Page 19 and 20:
Page 21 and 22:
Page 23 and 24:
Page 25 and 26:
Page 27 and 28:
Page 29 and 30:
Page 31 and 32:
Page 33 and 34:
Page 35 and 36:
Page 37 and 38:
Page 39 and 40:
Page 41 and 42:
Page 43 and 44:
Page 46 and 47:
Page 48 and 49:
Page 50 and 51:
Page 52 and 53:
Page 54 and 55:
Page 56 and 57:
Page 58 and 59:
Page 60 and 61:
Page 62 and 63:
Page 64 and 65:
Page 66 and 67:
Page 68 and 69:
Page 70 and 71:
Page 72 and 73:
Page 74 and 75:
Page 76 and 77:
Page 78 and 79:
Page 80 and 81:
Page 82 and 83:
Page 84 and 85:
Page 86 and 87:
Page 88 and 89:
Page 90 and 91:
Page 92 and 93:
Page 94 and 95:
Page 96 and 97:
Page 98 and 99:
Page 100 and 101:
Page 102 and 103:
Page 104 and 105:
Page 106 and 107:
Page 108 and 109:
Page 110 and 111:
Page 112 and 113:
Page 114 and 115:
Page 116 and 117:
Page 118 and 119:
Page 120 and 121:
Page 122 and 123:
Page 124 and 125:
Page 126 and 127:
Page 128 and 129:
Page 130 and 131:
Page 132 and 133:
Page 134 and 135:
Page 136 and 137:
Page 138 and 139:
Page 140 and 141:
Page 142 and 143:
Page 144 and 145:
Page 146 and 147: JUDGMENT/ORDER IN - WRIT - C No. 37
show all

eLegalix - Allahabad High Court Judgment Information System ...

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?