Metro vs Traders: legal test coming up

The ongoing process of constructing and implementing Namma Metro has been fraught with conflicts over property. Citizen Matters has been reporting about the litigation filed by Indiranagar’s CMH (Chinmaya Mission Hospital) Road traders against the BMRCL (Bangalore Metro Rail Corporation Limited). Traders are asserting their right to stay on CMH Road and continue their trades.

The media have also recently briefly highlighted court cases being fought over properties at M G Road, Vijaynagar and Yeshwanthpur between private property holders, traders, residents associations and the BMRC.

Pramila Nesargi, legal counsel for the traders association, had earlier suggested that as the Metro starts getting implemented in central city areas such as Chikpet, Balaypet, etc., which are also core trading areas, there are likely to be more litigations against the BMRC.

No Metro Train - Notice board

Poster pasted on the entrance of Pramila Nesargi’s home-office on the Indiranagar 100 foot Ring Road.

In this atmosphere, it is important to understand the process of land acquisition that is being carried out under Namma Metro, the notions of eminent domain and public purpose and the rights of the battling parties. In Is the land acquisition law absolute?, we have outlined the origin of the concept of eminent domain and how it has been applied in India and other parts of the world. The article also explains the grounds on which individual property owners can challenge eminent domain.

Namma Metro and land acquisition

The Eminent Domain law in India, namely the Land Acquisition Act (LAA), clearly specifies that when the government is acquiring land for a private company, then it must be for a public purpose and the compensation must be awarded from public money/treasury. If the private party pays for all the compensation, then the acquisition by the government is illegal and cannot fall in the category of eminent domain.

Under the Namma Metro project, compensations are being awarded by the BMRC. Incidentally, BMRC is established under the companies act of 1963 and according to the Government of India’s note on 11th May 2006, it is a company owned completely by the government of Karnataka. The note also mentions that in future, BMRC will be made a joint venture of GoK and GoI.

However, the BMRC’s public/private status itself is under confusion. In the High Court of Karnataka, its legal representatives have repeatedly argued that BMRC is a private company and therefore, is not legally responsible for adhering to procedures that apply to a state body in the process of land acquisitions.

Private properties for the Metro are being acquired under the KIADA (Karnataka Industrial Areas Development Act) of 1966 by the KIADB (Karnataka Industrial Areas Development Board). Earlier, state governments acquired land using the Land Acquisition Act (LAA).

Lawrence Liang, a researcher at the Alternative Law Forum (ALF) in Bangalore, notes that LAA did not permit governments to acquire lands for companies unless there was a stated public purpose in doing so. "State governments resented this because it did not allow them to earn profits by acquiring lands for companies," he says.

Under the KIADA, non-industrial areas can be converted into industrial areas with an immediate change in the land titles. The Karnataka Industrial Areas Development Board (KIADB), which is a state government body, acquires the land on behalf of the state and gives it to the private parties.

It is advantageous to acquire land under KIADA because there is an immediate change in the land title even before the land passes onto the eventual possessor. This means that when the state and its institutions decide to acquire land using KIADA, as soon as KIADB issues the notice for acquisition, the title of the land changes from agricultural to industrial.

Liang says that this is useful for speculative purposes. "There have been cases where agricultural lands on the peripheries of the city were acquired from farmers and there has been no development on the land for a couple of years. Meanwhile, the land has already been turned into speculation in the property markets and the profits began to accrue to the possessor/developer."

He also adds that LAA is a general-purpose land acquisition act while the KIADA is specifically for industrial purposes but the procedures under KIADA are more elaborate. "The choice to use either one of them is strategic, as was demonstrated in the case of the ITPL."

The case of ITPL

Liang has documented the case of the Information Technology Park Limited (ITPL) where land was acquired using the KIADA. The judiciary challenged the state’s acquisition of the land and asked the government to explain how the construction of the ITPL served a public purpose. The government justified public purpose by stating that it had a 20 per cent stake in the project. "And how did the state acquire the 20 per cent share? It did not invest any money in the project. The government got the share in lieu of the land that it had acquired under the KIADA for the private parties developing ITPL."

The question of public purpose

What kind of public purpose was being served by destroying the economic hub of CMH Road with the construction of the Metro? This was one of the questions that some of the traders at CMH Road had raised while their case was being heard before Justice K L Manjunath. The traders argued that they pay a large volume of sales tax and value added tax (VAT) annually to the governments of Karnataka and India, which needs to be taken note of while making the decision to align the Metro on CMH Road.

Can "public purpose" then destroy one of the most important trading hubs in the city? Public purpose in the case of the Metro has been determined on the grounds that the Metro will serve the growing public transportation needs of the people of Bangalore.

But planners such as Madhav Badami, professor at the McGill School of Environment in Canada, have been questioning whether the Metro actually facilitates the mobility of people belonging to the lower socio-economic groups. Badami, who has been researching on transportation systems across the world, points out that Metro can cause a dent in the pockets of the poor given the ticket prices.

Environment activists such as Leo Saldanha of the Environment Support Group (ESG), challenge the environment feasibility of the Metro and urge for more public consultations before the BMRC goes ahead with the construction throughout the city.

Currently, in another case relating to the Metro, the High Court has judged in favour of a large developer around Yeshwanthpur, thereby preventing the BMRC in acquiring land for building the Metro on that private property. The CMH Road traders’ case, which has been admitted in the PIL (public interest litigation) court and is up for hearing on 4 June 2008, is an important guiding point for traders in other parts of the city whose lands have been and will be notified for acquisitions.

The judgment on this case will enable the traders to decide whether they ought to approach the courts in order to legally preserve their right to stay on their properties. Will the court then uphold the presumed "public purpose" or will it protect private property owners?

About Zainab Bawa 12 Articles
Zainab Bawa is a Ph D student at the Centre for the Study of Culture and Society (CSCS), Bangalore. She studies urban spaces.

3 Comments

  1. this is concerning Govt notices to acquire Land owned by non Gov Individusls.

    URL: http://www.publicnotice.in/show_notice_details.php?id=6012

    How come these Govt agencies employing majority corrupt swindling incompetent so called Govt ‘servants’ of public, DONOT even have to publish why they are acquiring the land?! Besides, how can they force philanthropy in the name of ‘common good’ on the individual land owners, when they DONOT pay real market value as compensation & pay in time, make sure that the ‘servants’ in the middle donot swindle to ‘pass’ the amounts from all powerful “Govt” coffers. The fact that they dont even have to serve individuals notices but a paper notice placed, and all covered in that are automatically expected to be philanthropist for the good aam aadmi & the corrupt Govt staff cheating both with immunity! Shame & curse to be a citizen of this country, where the Govt Scoundrels colluding with filthy politicians loot hundreds of crores of public money, whereas there is no money to pay on time the fair & due compensation. Courts are mere coharts in this fraud against

    public!!

  2. It surely is interesting to see the CMH road case, however a walk on CMH road left me extremely disappointed as most of the trees are already cut, without waiting for the court’s order. With the land lobby isn’t there a tree lobby working too? Unfortunately it is the people who vociferously claim to be keepers of Bangalore doing bad to it.

  3. Good post. Enlightened me on the “darker” side of things. ITPL looks to me like another case of complete vandalism from the GoK. To have a “public interest” because the GoK has a 20% stake in it?! That too by scamming land away. Sounds absurd. But yet. ITPL exists today. I would have loved it if they said it provides employment or some such thing, sigh!

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