Friday, October 4, 2013

Inscrutable Land Laws And Non-Existent Property Rights

Inscrutable Land Laws And Non-Existent Property Rights

 There was a news report in the paper yesterday about people in Manali (a suburb of North Chennai) waking up to find that the water supplied by the Chennai Corporation's Metrowater department having a dark oily smell and being unfit to drink. On further investigation by intrepid journalists, it was confirmed that the drinking water line was contaminated from a leaking oil pipeline carrying fuel - crude oil- from the madras port to the refinery at Ennore. So in effect what those people that day in Manali had received through their taps was diesel and petrol.

This immediately brought to mind another story i had heard from a friend of mine about an uncle of his who lived in Perambur in the heart of Chennai and who having found that the erratic water supply by Corporation's Metrowater department was insufficient for daily needs had dug a bore well in his backyard to get extra groundwater. But not finding water at shallower levels -(the groundwater levels in Chennai having gone down because of competitive deep well digging from all those apartment complexes being constructed by breaking down individual residences)the poor man had dug deeper and deeper and had at last to his astonishment found his well shaft spouting crude oil, like something from Saudi Arabia.

The uncle being a prudent man had immediately instructed the work men to close up the well secretly and proceeded to dig a new well for the water. The explanation that he gave for closing that well was that if news had leaked out about petrol being found in his land he would be a beggar in two days for the government would turn him out of his house mercilessly and take over his property and break it down for the oil. This might have been a true story or this might be just an apocryphal story, i cant say, but it touches the crux of what I am going to discuss in this post - namely the Right to property for an Indian citizen.

There is a concept in law called Eminent Domain. The law of eminent domain means everything is the property of the state and the people are allowed to use it only under the indulgence of the government. This law has been with us since the time of kings and feudalism when people held lands because the king permitted them to do so in his discretion. If the king or the government required that particular land for their own use - say to construct a new road or a flyover through that land- they have first call on the land. They can take over the property from the owner and the individual cannot refuse to give it up.

When the British came to India and stated writing our laws for us poor ignorant Indians, they not only retained the law of eminent domain but even expanded it to make sure that when the government acquired any private property, the owner of the land had no say in it but to accept the compensation given- often meager amounts and leave silently. This law - the Land Acquisition Act was first passed by the British in the 1890's to make sure that the Indians followed their rules as per British law. As time passed the British Law was changed in Britain itself and the English people acquired rights over their property. But in India the same law was there till independence - in fact that same Land Acquisition Act is even now in existence in India - even after 140 years after it was first enacted.

During our freedom struggle there were lots of struggles for land all over India- even Mahatma Gandhi participated in one of them called Champaran- so when we at last got our freedom, our constitution drafting committee decided to include the Right to Property as a Fundamental Right under the twin Articles 19(1-F)and 31. But the intelligence of the Constitution drafting committee headed by Dr.Ambedkar was often negated by the stupidity of Nehruvian Socialism. The Socialists inside the Congress Government used the Land Acquisition Act/Land Ceiling Act to take over private property for public use by targeting the Zamindars and others who had excess land. This was the origin of the Benami problems as the large land owners often split their property into small bits and gave them to their benamis - like distant relatives- to escape their lands being taken over.

Meanwhile some of the religious trusts and swamijis who owned large temple lands in the name of trusts filed cases in Supreme Court against the government forcibly taking over their lands. The most famous of these cases was Swami Kesavananda Bharati's case where the Supreme Court had to interfere to control the government’s destruction of our original constitution with new amendments- especially in land cases. Because the governments started taking away private lands for more and more reasons there were a lot of cases being filed in the courts by the landowners who were affected. The courts often gave judgment for the landowners because under the constitution- individuals had a right to their own property as a fundamental right.

This irritated the then prime minister Indira Gandhi and in her autocratic way she used the Emergency to remove the Right to property as a fundamental right and included it as a legal right under Art.300-A - the difference being under the old law- right to property was inviolable- no one can take over your land without your consent but under the new law if someone takes over your land you can file a case in the court and ask  for compensation for your lost land and wait till the courts decide if you are eligible for compensation and how much to give you- a process which might take decades in Indian courts.

In addition to removing the constitutional right under Articles 19 and Articles 31 guaranteeing protection to private property the left leaning (commie-loving) Congress government proceeded to do a lot of damage to other Constitution and fundamental rights - some of which were set right by the Supreme Court subsequently after the emergency period was over and Indira Gandhi's Congress party was defeated in the next elections in 1977 and a new government under the Janata Party came to power. But like all politicians they too saw the advantages of having control over other peoples lands and opted to retain the same illogical laws changed during the emergency period.

So what it all comes down to in the end is that as per law of the land, your land belongs not to you but to the government. The government out of its good heart allows you to temporarily own and use the land- the land all its appurtenances - or ground and all its belongings- above the ground or below the ground. So if you happen to dig into your land and find diamonds or petrol don’t start imagining that you can soon become a South African diamond king or a Texas oil millionaire like they show on movies.

For that to happen, you have to live in a real democracy like the United States of America where individual rights are respected. Here in India, some nameless clerk in a office somewhere will make the decision to take over your land for a paltry compensation- say for example if the land in your area goes for around Rs.10,000 a square foot then the government will gave you a standard rate of compensation of rs100 a square foot for your land. If you had just bought a 1000 square feet flat/apartment in a posh area for Rs.One Crore and for your misfortune you happen to be sitting on an oil well, you will been given Rs.Ten Thousand and asked to get out of there. 

That’s what you get for living in a land where individual rights are sacrificed in the name of socialist ideals and community good. But all this idealism is only when you are the land owner, try being on the other side - being a land buyer and you will see that the same land rules will work differently again - as i will explain in my next post. So if you find an oil well on your land- close it. If you dig up diamonds in your land- bury it. If you find old pottery and bits of archaeological stuff- plant a garden over it and forget it all. That’s the only way to retain ownership of your land for yourself till you die.

To conclude, the law of Eminent domain is supreme in our land. If the king wants something- the king gets it. But the tragedy is that the king is no longer a single person- oh no, for we are far more advanced and we have now a democracy. Which means that every Politician and every bureaucrat is now a king in our great democracy and if they want your land - they will take it- legally, lawfully and fully as per rules and there is nothing you or anyone else can do about it. This is the stark reality of life in India under our land laws.

1 comment:

  1. Very informative, keep posting such good articles, it really helps to know about things.