Round II: Singur law void - WHY THE COURT STRUCK DOWN THE ACT THE MAMATA GOVT HAD PURSUED WITH MESSIANIC ZEAL

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By The Telegraph Online
  • Published 23.06.12
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A division bench of Calcutta High Court on Friday declared as “unconstitutional and void” the Singur law, using which the Mamata Banerjee government took over the Tata land and was planning to return a part of it to “unwilling owners”. Several reasons were cited by Justices Pinaki Chandra Ghose and Mrinal Kanti Chaudhuri for striking down the law, known as the Singur Land Rehabilitation and Development Act, 2011.

Absence of presidential assent

Some of the provisions of the state law are in variance with the central land acquisition act of 1894 — a law many want to repeal but is still in effect. Land is a state subject but land acquisition is on the concurrent list (over which both the Centre and the state have powers). Under Article 254(1), if a state law is at variance with a central law, the latter prevails. However, under Article 254(2), the state law can prevail if it secures presidential assent.

The Singur law was sent to the governor but not the President. Since the Singur law did not have presidential assent, it was “hit by Article 254 (1)”, the court said on Friday.

The state view: “The land was acquired under the Land Acquisition Act. The land already belongs to the state government. According to the bill, the land is not being acquired. So, it is a state law and does not require the President’s assent,” Kalyan Banerjee, Trinamul MP and lawyer, had said on the day the Singur bill was passed in the Assembly.

Four holes

The following four sections were specifically struck down by the two-judge high court bench on Friday as they were in “direct conflict” with the central land acquisition act.

Transfer and vesting

Section 3: It seeks to transfer and vest in the state government all right, title or interest related to the land.

What happened: The government took over land measuring more than 900 acres.

Use of force

Section 4 (3): It entitled the district magistrate or officials to “use such force as may be necessary to take possession of the land and to enter upon such land for the aforesaid purpose”.

What happened: Around 6.30pm on June 21, 2011, the state government pasted a notice on the gates of the Singur site, asking Tata Motors to hand over the land. Five minutes earlier, a Tata note seeking five-hour notice “during daylight hours” was pasted on the fence. At 10.10pm, the district administration said it had taken possession of the land. At 1.05am on June 22, the Chandernagore sub-divisional officer put a lock on the Singur factory’s gate.

Compensation

Section 5: It has three sub- sections that deal with determination of compensation for Tata Motors as well as vendors. One clause says the amount of compensation to Tata Motors would be “adjudged and determined” by the Hooghly district judge

What happened: The matter did not reach the Hooghly district judge.

Another section, 5(1), deals with payment to vendors. But the division bench said the section only speaks about refund of the money which was paid by the vendors and such refunds do not tantamount to compensation. Since “no compensation” is illusory, this clause should be struck down, the bench said.

Public purpose

Section 6: It says the “state government shall return equivalent quantum of land to unwilling owners, who have not accepted the compensation from the land… and the rest of the land shall be utilised by the government for socio-economic development, employment generation, industry and for other public purpose of the state.”

What happened: This clause has been the cornerstone of the Singur law, citing which Mamata Banerjee was planning to return the land and fulfil a pre-election promise and implement one of the very first decisions of her cabinet. But the bench on Friday ruled that “the act cannot be treated as for public purpose when the intention is to return the land to the unwilling land owners/farmers.”

Can’t rewrite

The division bench also set aside an earlier order by a single-judge bench that upheld the Singur law. The single-judge bench had invoked a principle called “purposive interpretation” to rectify what it referred to as “defect” of “some vagueness and uncertainty” on compensation provisions. Purposive interpretation holds that courts can interpret legislation in the light of the purpose behind the legislation and not just in the literal sense.

The Singur law does not mention the compensation amount and method of calculating the amount, which were viewed as variations from the central act. But the single-judge bench used purposive interpretation to rectify the defect and then upheld it on the basis of “presumption of constitutionality” (which shifts the burden of proof from the government to the citizen, requiring the person to prove that a statute is unconstitutional).

A day after that ruling on September 28, The Telegraph had quoted several senior lawyers as saying that rectification by “grafting” the principles of one law into another was unprecedented in a writ court.

The division bench said on Friday: “Since we have expressed our opinion that the court has no jurisdiction to insert in the guise of interpretation of statute, or rewrite /recast/reframe the same as held by the Supreme Court, we hold that the honourable single judge, after holding that the intention of the legislature to pay compensation is vague and uncertain, has no power to insert or recast or rewrite the statute by inserting Sections 23 and 24 (deal with compensation eligibility) of the Land Acquisition Act….”

Compiled by Tapas Ghosh and Sambit Saha