Bar & Bench recently reported a case before the Supreme Court. The facts, simply put, are as follows: a private university encroached upon government land in Tamil Nadu, which had been allotted to the State Prison Department for an open prison. The Madras High Court ordered eviction of the private university from the encroached land. The private university has challenged the said order before the Supreme Court.

During the course of the hearing, the Court suggested the State government should avoid demolishing the private university buildings and repossessing the land. Instead, it suggested that the private university should:

(i) identify and provide suitable land

(ii) bear the cost of purchasing land identified by the government or

(iii) should pay the market price (or more than that) to the government for the land that they encroached.

The Supreme Court mentioned that they are concerned because the State repossessing the land will result in the demolition of an education institution. The Court further said that if it were a commercial establishment, there would not have been any such leniency shown.

This piece traverses the various theoretical bases of this suggestion made by the Supreme Court.

Even though the Aristotelian concept of corrective justice in its true essence is impracticable, when modern restorative justice is put together with compensatory equity, the suggestion is a balanced one. The encroacher is made to bear the cost of the illegal possession and the larger public interest evinced by the State is protected. The harshness of demolition is a wasted remedy compared with the exemplary cost imposed on the encroacher.

The suggestion by the Court yields a positive nod from the perspective of sociological jurisprudence of Roscoe Pound too, which believes in balancing of interests with minimum friction. Even though the encroacher is a private entity, education in its true sense is a public interest. So the balance of the said interest with use of the land by the government is basically a balance of two public interests. When the private entity is paying to the government for its enrichment, there is balancing of interests with minimum friction.

Jeremy Bentham’s utilitarianism yields legitimacy by relying on the ideal of greatest happiness for the greatest number. Annihilation of a functional educational institution brings in societal harm of various kinds. When the State’s intended public project requires only a suitable parcel of land, the demand for the exact land on which the educational institution functions only results in social harm. By accepting an equivalent alternative or exemplary compensation, the State’s policy objective is fulfilled while insulating the existing institutional utility from irreversible destruction. In other words, it brings in maximum happiness to the maximum number.

From a pragmatic viewpoint as well, the suggestion is grounded. If a dogmatic, rigid application of the principles of the law is attempted, then there will be real-world harm to society at large. Thus, rather than adopting a dogmatic approach, a pragmatic approach to the issue yields less societal loss, and the pressure is only on the private entity by way of strict compensation.

Coming to Kantian analysis, law operates on categorical imperatives. Law is to be obeyed and is not supposed to be reevaluated through a cost-benefit analysis. Encroaching on public land is an unlawful act and it cannot be rendered right even if the wrongdoer offers compensation or is creating a positive outcome. Such an attempt is the adoption of consequentialist logic. In result, compensation to rectify an illegality is in effect admitting that rule of law is negotiable.

Dicey’s concept of rule of law expects the application of law equally. A person encroaching on government land is summarily evicted. The buyout option extended to an affluent entity is creating a privileged exemption which is violating the formal equality before the law.

Legal positivism expects the disposal of government land through a procedure, or rather a priori. Compelling the State to accept a post facto land swap inverts this. A court compulsion to implement the same is a posteriori, which makes the formal procedures a nullity. Such an attempt, in effect, allows an encroacher to bypass mandatory administrative channels and forces the government into a compensatory settlement through litigation. This effectively replaces the positive law with judicial fiat, rendering statutory means illusory.

As per Nozicik, property rights are bound by legitimate acquisition and transfer, and are basically absolute. Entitlement to property should be through legitimate means. A unilateral expropriation of property and a subsequent judicially facilitated land swap or buyout from the rightful owner is illegitimate. When the government is the landowner and the court is compelling a transfer, it is questioning the superiority of the State and law.

Reading in Richard Posner, bringing in legitimacy to a remedial measure merely by an economic mandate is actually an incentive for future similar behavior. Mere economic analysis of a remedy is a tool for finding loopholes. It can be observed that the remedy suggested by the Supreme Court is ultimately bringing in an economic element for the balancing act which is in effect ignoring other aspects such as the sanctity of law. It incentivises deliberate, strategic encroachment.

The Supreme Court, on multiple occasions, has pronounced judgments on the issue of whether an existing construction has to be removed or not. Such issues come up on two broad grounds - either the land is encroached or the construction is illegal.

Few recent important judgments on the issue are MI Builders Private Limited v. Radhey Shyam Sahu, (1999), Jagpal Singh & Others v. State of Punjab & Others (2011), The Secretary, Kerala State Coastal Management Authority V. DLF Universal Limited (2018), The Kerala State Coastal Zone Management Authority v. The State of Kerala, Maradu Municipality & Others, (2019), Supertech Limited v. Emerald Court Owner Resident Welfare Association (2021), Dr. GN Khajuria & Others v. Delhi Development Authority & Others (1995).

A reading of these decisions shows that there is an absence of consistency in the applied theories. Any serious pursuit of unearthing the rationale behind the decisions does not lead us anywhere. Thus, the analysis of a larger theoretical background may seem to have little practical utility.

On the other hand, a theoretical analysis brings in different perspectives and equips a better evaluation of what is being done. It also brings in some clarity in ensuring the continuation or existence of a common philosophical thread in all decisions. The identification and adherence to the larger principles is the key to judgments that withstand the test of time.

Definitely, there may be matters that require a conclusion sans the support of any existing/ followed/ acceptable philosophical or theoretical doctrines. Even in such a scenario, the variation required and the purpose for which such a variation is attempted needs to be spelt out clearly. It will ensure that judicial departure from strict legal principles remains principled, transparent and justified. Legal theories are not academic vanity but form the conscience of legal order.

The author is a lawyer with Vijayaraghavan and Devi Advocates and practices before the Kerala High Court.

The author acknowledges the use of AI for writing this piece.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.