The issue of land acquisition has again come to the fore with the new government at the centre proposing to make changes in the Act which were passed in 2013. Find out more in the story about the sorry state of affairs and the debate raging around the land acquisition and the law
When India became independent it adopted the Land Acquisition Act, 1894. The Act being vague remained a controversial piece of legislation. The Act was grossly misused and abused. The state exercised its ‘colourable exercise of power’ and created great deal of mistrust. In many instances, it robbed its citizens of their land and livelihood. According to experts, two key issues with land acquisition in India stood out across most of the cases. First, very little meaningful negotiation was undertaken, very little attempt was made to involve stakeholders in a consultative discussion in order to understand their concerns about land ownership and to decide upon an equitable and mutually acceptable compensation package.
So, the clamour for change in the legislation started early on. In the recent past, the has issue got intensified as the opening of the economy started by the Narasimha Rao government demanded more land for the government and private companies. Protests by the farmers and affected people in West Bengal, Orissa, UP, Madhya Pradesh and else where in India intensified. In the wake great public unrest over the issue, the UPA II brought the bill again in the Parliament and a new Act was finally passed in 2013. Some were happy while the other, specially the corporate, remained disgruntled. The controversy remained where it was and the debate continued. When NDA came to power after sweeping the elections of 2014, they first brought an ordinance changing the Act of 2013. However, when the President of India expressed his unhappiness at the impropriety of changing laws arbitrarily, the government withdrew the ordinance and introduced the Bill 2014 which has so far been passed by Lower House. The Bill goes to the Upper House where the current NDA, not having the numbers in their favour, might find their efforts thwarted.
Midst of all this, the controversy has raged on. From Anna Hazare to Sonia Gandhi to Prime Minister everybody has expressed themselves strongly on the issue. The Finance Minister, Arun Jaitley, went on to say in a debate in the Parliament that industry and development should not be made bad words. The land acquisition issue has become the real battle field for the opposition and the government, each trying their best to cater to their constituencies and scoring points over the other. So, the real issue remains mired in legislative hubris and political apathy.
After the new law which was passed by the Parliament in 2014, the land acquisition is governed by Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013. Land acquisition is administered by Ministry of Rural Development. In fact, the Department of Land Resources within the ministry is the main authority to deal with this matter as well as with matters relating to land reforms, land tenures, land records, etc.
The Land Acquisition Act empowers the government to acquire land on compensation for the purpose of public good. The government can ask an owner of land to submit his/her land to the state on compensation fixed at the market price for the use by the government for the benefit of larger public. Under this law the government is vested with power to acquire land from the owner for the purposes of the Union, the Central Government, the State Government or for any other purposes. Part 1 section 1(2), however, says that the law extends to the whole of India except the state of Jammu and Kashmir. The rationale behind such an act is the primacy of public good over individual good. The law is based on the legal maxim salus propuli est suprema lex which means ‘welfare of the people is paramount in law’. The concept is also known as the Power of Eminent Domain.
While compensation being the heart of the controversy, the other issues that have been debated all over –in the media and courts – are public purpose as seen by the government and the infringement of fundamental right to property. Taking of one’s land on which somebody is dependent for earning his living can be called a great injustice. Then why does the state, a protector of justice, have to do this? How does the state define public purpose? What of the right of property? How does the state vest control over someone’s property? How does state compensate? Though the intention of the government is welfare of the people at large, the larger issues that the government has to confront while administering or enforcing this law are the question of livelihood, the rights of citizens and the welfare of the people.
During the early years of independence, when the architect of modern India, Jawahar Lal Nehru, embarked on the path of social and economic reconstruction and went for the establishment of public sector units, dams and government institutions – which he referred to as ‘temples of modern India’ –Indian government required vast lands for this purpose.
However, the government found it difficult to administer this law as it ran opposite to Right to Property guaranteed by the constitution under Article 30. The government saw this as the major roadblock to the development of projects, industries and infrastructure and therefore decided to introduce amendments to the Constitution.
The Parliament amended the Article 31 of the constitution through successive amendments and by the 44th amendment in 1978-79, it made the property of an individual a legal right rather than a constitutional fundamental right.
The basic premise of acquisition is furtherance of public utility for the enhancement of public welfare. The goal of the public purpose is the general interest of the community and not that of an individual. It results in advantage for the public and promotes public interest. The aim of the government is to provide better facilities and to promote better living to the general public.
However, the debate surrounding the Public Purpose never ceases to die. Public purpose has been the centre of many controversies such as Narmada Valley project, Vedanta’s and Posco’s projects, etc. The questions of whether the acquisition is for the good of the public or not depends upon the nature of the projects and the benefits it is going to accrue on the people.
The Act, 2013 categorically describes the description of public purpose. It says in the Section 3 za of the Act 2013 that “public purpose” means the activities specified under sub-section (1) of section 2.
The Section 2 has identified projects for strategic purpose, infrastructure projects excluding private hospitals, private educational institutions and private hotels, but includes project for Government administered, Government aided educational and research schemes or institutions, any infrastructure facility as may be notified in this regard by the Central Government and after tabling of such notification in Parliament, etc.
But it is the government which has to see whether or not welfare of the public has been the prime concern in the acquisition and has to make sure that the project planned does only good and no harm. The Supreme Court in the past has quashed notification issued by Mulayam government to acquire land under Emergency clause of this Act saying that an acquisition by the state that benefited a particular group of people at the cost of the interest of a large section of people defeated the concept of public purpose
The Act, 2013 introduced the consent clause by which the government of the day has to take the consent of the people before acquiring the land. According to the Act 2013 , the provisions of this Act relating to land acquisition, consent, compensation, rehabilitation and resettlement, shall also apply, when the appropriate Government acquires land for the following purposes, namely:—
The compensation has been the major issue as well as the main source of conflict. In almost all cases the people whose lands have been taken have complained of inadequate compensation resulting in loss, emotional trauma and hardship due to loss of their livelihood. The old Act required making compensation at market value and prohibited intended use of the land while calculating value of the land and made the compensation awarded by the Collector final.
In fact, in 2011 the Supreme Court of India voiced concern over the unreasonable compensation for the land taken over for a public purpose. While terming the grievances of the affected landowners as legitimate, a vacation Bench of Justices G.S. Singhvi and Chandramouli Kumar Prasad during a hearing on petition said, “In a large number of cases, the issue of compensation would not arise if the state paid reasonable compensation.” Giving examples, the top court said the compensation in some cases was between ` 7,000 and ` 8,000 per square yard, whereas the market rate was ` 25,000 to ` 100,000 per square yard. “It is a legitimate grievance of land-owners that you take away their land, but give them inadequate compensation,” Justice Singhvi had said.
The new act now provides for up to two times market value, against one time in the previous act and this figure is then doubled by applying a one hundred percent “solatium”. So, this Act provides a monetary compensation of up to four times the market value in rural areas, and up to two times the market value in urban areas for farmers/landowners. The Act also makes an attempt at providing non-monetary compensation. Land owners whose property is acquired using the urgency provisions shall be given an additional 75 per cent of the market value of the land.
Apart from tightening the provisions on public purpose, the new Act has introduced social impact assessment mechanism. According to this provision, the government shall conduct a Social Impact Assessment (SIA) study, in consultation with the Gram Sabha in rural areas (and with equivalent bodies in case of urban areas). After this, the SIA report shall be evaluated by an expert group. The expert group shall comprise two non-official social scientists, two experts on rehabilitation, and a technical expert on the subject relating to the project. The SIA report will be examined further by a committee to ensure that the proposal for land acquisition meets certain specified conditions.
The Act says that the Social Impact Assessment study referred to in sub-section
(1) shall, amongst other matters, include all the following, namely:—
It also says the government shall require the authority conducting the Social Impact Assessment study to prepare a Social Impact Management Plan, listing the ameliorative measures required to be undertaken for addressing the impact for a specific component referred to here in subsection (3).
Unlike the replaced 1894 Act, the new Act of 2013 addresses the rehabilitation and resettlement of those who depend on land, in addition to land owners. The Act, 2013 requires rehabilitation and resettlements to be undertaken in case of every acquisition. The Administrator, appointed after the notification, will conduct a survey and prepare a Rehabilitation and Resettlement scheme which will be discussed in gram Sabah in rural areas and the equivalent body in the urban area. In case of acquisition of more than 100 acres, a Committee shall be established to monitor the implementation of the scheme at the project level. In addition, a National Monitoring Committee is appointed at the central level to oversee the implementation of the R&R scheme for all projects.
The Rehabilitation and Resettlement Award shall include all of the following, namely:—
The government first introduced the ordinance in December 2014 in which it proposed many drastic changes. But due to criticism of taking the ordinance route, it has brought the bill 2014. The Bill was introduced in the Parliament and has been passed by the Lok Sabha. The key changes made by the Bill are:
The Bill 2014 creates five special categories of land use which are (i) defence, (ii) rural infrastructure, (iii) affordable housing, (iv) industrial corridors, and (v) infrastructure projects including Public Private Partnership (PPP) projects where the government owns the land and has exempted them from certain provisions of 2013 Act such as Consent Clause, Social Impact Assessment study and from any restriction on the acquisition on the basis of multi cropped and agricultural land.
Unlike the 2013 Act which stated that if an offence is committed by any government department, the head of the department would be deemed guilty unless he could show that the offence was committed without his knowledge, or that he had exercised due diligence to prevent the commission of the offence, the Bill says that the court shall not take cognizance of the offence without the prior sanction of the appropriate government.
The Act, 2013 brought in revolutionary changes in the procedures, compensation, rehabilitation, resettlement and institutional mechanisms. In an article published in the media, Pratap Bhanu Mehta says that the NDA’s bill and the proposed amendments destroy the normative framework of the Act 2013. The Act 2013 has tried to address the deficit created by years of exploitation and arbitrary use of public purpose. The amendments some say are contentious. The clause dealing with the doing away with consent of affected family amounts to appropriation of land not acquisition of land. It is important that those whose land is being taken must be taken into account. However, one wonders if the issue is going to end. Will there be any consensus on the issue? The answer once again is difficult to find, because here one seems to be the antithesis of the other. Today, undoubtedly, the land acquisition is the most pressing issue India is confronted with.
www.grandmasters.in | 8 Years & Counting
www.rcls.in | 8 Years & Counting
www.itlegalsummit.com | 8 Years & Counting
www.bfls.in | 8 Years & Counting
www.maels.in | 8 Years & Counting
www.plcs.co.in | 8 Years & Counting
Copyright © 2020 Lex Witness - India's 1st Magazine on Legal & Corporate Affairs Rights of Admission Reserved
