A friend posed the question. “How would the law treat a situation where land acquired by a former Administration for a specific purpose (construction of an airport) is repurposed by another Administration to settle residents in public housing due to the compulsory acquisition of lands at a different location to undertake the initial project of constructing an airport? A supplementary issue was raised, i.e., the possibility of returning the properties originally acquired to their owners as the acquired lands are no longer used for the original purpose.
A commentator suggested that the former Administration (UWP) may not have “compulsorily acquired” the initial site at Londonderry Estate targeted for airport construction but instead, the land was “purchased” via a normal negotiated contract. He argued that there may be a difference between the terms ‘acquired’ and ‘purchase.’ He submitted that “where the lands have been compulsorily acquired, the government may either adequately compensate or re-locate the owners as opposed to a normal ‘purchase’ with cash as consideration.
By way of a rebuttal, the poser of the initial question suggested that it ought not to matter whatever terminology is used i.e., purchase, acquisition, requisition as it is reasonable to assume that such property in both cases was obtained by a legal apparatus that allows the government to take possession of the property for public good. He explained that in simple layman’s language, the act of purchasing is commonly used to represent related actions. Since in both cases, some, if not all sellers, do not have any intention of selling their property and the transaction must be guided by legislation, which makes it mandatory unlike the case of a private property developer. The healthy debate caught the attention of many, who felt that the issue deserved more in-depth consideration.
The UWP Administration acquired the Londonderry Estate by commercial treaty/Sale Agreement for the specific purpose of constructing an international airport- an established and acceptable public purpose for land acquisition by a government. In transactions related to property/real estate, the verb “to acquire” is broad in meaning and includes various ways by which property is obtained including commercial purchase, compulsory acquisition, gifting, transfer, and/or inheriting. All may be considered methods of acquisition. One notes that the title of the relevant legislation is not the “Compulsory Acquisition of Land Act but simply, “The Land Acquisition Act, Chap. 53.02, Revised Laws of Dominica 1990”, an act to authorize the acquisition of land for a public purpose. Section 3, sub-section (4) of the act provides, “Nothing in this section shall be deemed to prevent the acquisition of lands for public purposes by private treaty (contract/agreement)”
More importantly, whether the said land is compulsorily acquired or acquired via private treaty or sale/purchase contract, the fundamental requirement is that acquisition by the government must be for a specified public purpose. Therefore, the issue that arises for consideration is whether the law obligates that the acquisition by the government must be for a specific purpose or for any purpose as the government may decide-whenever it so decides. Furthermore, what happens when the originally intended purpose for the acquired property is changed by a succeeding administration?
The expression ‘public purpose’ has been an issue of much litigation in many jurisdictions as this provision has been abused by governments with corrupt intentions of acquiring property unlawfully. This has resulted in the amendment of legislation in some jurisdictions to include a schedule of purposes for which government could exercise such powers. Public purpose is defined, in some jurisdictions, to include the nature of the undertakings of government that would qualify for that purpose.
Unlike the Land Acquisition Act of Dominica, Chapter 53.02, many Land Acquisition Acts in other jurisdictions refer to specific purposes such as public infrastructural projects for transportation uses including roads, highways, railways, bridges, and airport; public buildings including schools, libraries, hospitals, factories, religious institutions, and public housing; public utilities for water, sewage, electricity, communication, irrigation and drainage, dams, and reservoirs; public parks, playgrounds, gardens, sports facilities and cemeteries; public educational institutions or schemes such as housing, health facilities, clearance of slums and for projects related to rural planning; and for national security/defence purposes. If a government decides to expropriate land or other property, this decision ought to be motivated by a public purpose through the observation of due process of law in a non-discriminatory manner and guided by transparent rules that define the situations in which expropriations are justified and the process by which compensation is to be determined.
Section 2, sub-section (2) of the Land Acquisition Act of Dominica, Chap. 53.02 states, “For the avoidance of doubt, it is hereby declared that the expression “public purpose” in this act include the purpose of fulfilling any obligation of the Government under any treaty or agreement made by the Government with the Government of any other country, territory or place and any purpose pertaining or ancillary thereto”
Section 3. (1) states, “if the Minister considers that any land should be acquired for [a] public purpose, he may cause a declaration to that effect to be made in the manner provided by this section, and the declaration shall be conclusive evidence that the land to which it relates is required for [the] public purpose.” Sub-section (2) (d) requires that every declaration shall be published in two ordinary issues of the Gazette indicating the public purpose for which the land is required. Therefore, in the case of the former United Workers Party Administration, the official/legal purpose for which the Londonderry Estate was acquired was for the construction of an international airport-not for a private investor under the CBI program to construct houses on behalf of the government for distribution to a few selected citizens.
Per Section (4) of the said Act, once the Government decides that a portion of land is likely to be acquired for any public purpose, the Minister responsible may make preliminary surveys or other investigations of the land including the lawful authorization of government agents, or workmen to take certain actions on the said land, which includes (c) to do all other acts necessary to ascertain whether the land is adapted to such purpose (as indicated) in that case for the construction of an international airport-not for housing purposes. This is a matter that could be taken to the courts for adjudication by a party with locus standi for an injunction challenging the DLP’s government’s change of purpose for the acquired lands. In a country governed by the rule of law, the government ought to be subject to the law. When an expropriation is contested, the final say on the legitimacy of the expropriation, the terms on which compensation is made and the use of the property for any purpose should be handled by a court, when challenged.
Generally, where land is acquired for a public purpose and there is diversification or repurposing, this could be considered as a misuse of public authority or even fraudulent exercise of the power of eminent domain. The use of acquired lands for any project financed by a corrupt scheme, such as the MMC CBI Housing Option should be carefully examined and where possible challenged before the courts. The proposed international airport project in Wesley seems to be a major scam through which the DLP is abusing its power to cheat innocent public in the name of “acquisition” of land for an international airport.
The acquisition of land for developmental purposes has historically been a contentious issue, What aggravates this problem is the involvement of the government as an active ‘taker’ of land as it adopts the responsibility of transferring it for alternative uses. Over the years, this has given rise to long-drawn conflicts, both in the form of legal battles as well as mass movements, fought by dispossessed groups against the land taking authorities. The rationale for compulsory acquisition may be straightforward when land is acquired by the government for use by a public entity, for example for a public school or hospital, a new public road, or an airport. The same applies to the acquisition of and for a public interest held by a private entity but used for a public purpose, for example, where the government would acquire lands for a company like DOMLEC to facilitate the transmission of electricity.
However, research has revealed that although the government enjoys the power of “eminent domain” to compulsorily acquire any land for public purpose, it cannot legitimize any fraudulent act of the authorities. In exercise of its power of eminent domain, the State can acquire land of the private citizens but this proposition cannot be over-stretched to legitimize a patently illegal and fraudulent exercise undertaken for depriving the landowners of their constitutional right to property to the benefit of certain corporate interests, who are part of a government scheme or some private persons- known as ‘investors’ in the corrupt CBI world.
The lax scope in our legislation of what constitutes a ‘public purpose’ and whether a successive Administration can lawfully change the original purpose for acquisition of property by a former administration could be the root of a prolonged legal battle that can effectively stall the advancing trajectory of the DLP. A closer look into several court judgments on land acquisition at various jurisdictions could corroborate that opinion. Aggrieved landowners have repeatedly challenged the government’s action on the ground that the proposed purpose for acquiring land is not justifiable and is clearly meant for the setting up of private enterprises.
In a recent Indian case, the Supreme Court’s observed, “it is primarily for the state government to decide whether there exists public purpose or not, and it is not for the Courts to evaluate the evidence and come to its own conclusion whether or not there is public purpose.” The same reasoning resonated in a number of other court judgments. For instance, in another case, the Court observed that public purpose must include an object in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned. The court noted that the concept of “public purpose” changes with the times and the prevailing conditions in a given area and, therefore, it would not be a practical proposition even to attempt an extensive definition of it.
The Courts in the Commonwealth jurisdiction have also held, “Any attempt by the State to acquire land by promoting a public purpose to benefit a particular group of people or to serve any particular interest at the cost of the interest of a large section of people especially of the common people defeats the very concept of public purpose.”
In a matter considered by the Indian courts, a State Tourism Development Corporation had acquired private lands through the State Government ostensibly for the purpose of a Golf-cum-Hotel Resort. However, instead of constructing the resort, it chose to transfer the land to a private real estate developer like MMC for a group housing project. Aggrieved by the decision, the private landowners approached the high court, which quashed the acquisition proceedings and directed that the land be restored to the original owners. The landowners were also asked to return the compensation received by them at the time of acquisition.
Upholding the high court order, the Supreme Court held that the State Corporation had made a false projection to the State government that the land was needed for execution of tourism-related projects. It, therefore, stated that the Corporation did not have the jurisdiction to transfer the land acquired for a public purpose to the companies and thereby allow them to bypass the provisions of the Land Acquisition Act. This was considered by the Court to be a fraud on the power of eminent domain. The Court ruled that land acquired by the government or its instrumentalities for a specific public purpose cannot be changed and transferred to private individuals or corporate bodies,
In another matter, a petition pursuant to the Constitution of India, “the petitioners raise a short, but enlightening question, whether the erstwhile owners of the lands acquired under the Land Acquisition Act, 1984 are entitled to return or allotment of the lands from the Respondent competent authorities merely upon a change of public purpose for which the lands were acquired.” It was contended that despite the purpose of reservation of public housing by the Housing Board, the Respondent authority, changing the public purpose, granted the lands of the petitioners for the specific purpose of construction of a medical college. Therefore, the lands should be returned to the petitioners as the purpose for which the land was originally acquired was abandoned. The court indicated that the government must first seek permission to change the purpose of acquisition of land use by the competent authority.