Land and disputes Act, Delhi and its importance and amendment

In India, Land acquisition alludes towards the procedures by means of which the union or a state government in India get private land for industrialization, development of infrastructural services or urbanization of the private land, as well as offers compensation towards the affected landowners and their rehabilitation and resettlement.

Land acquisition in India is administered by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR) and which became effective from 1 January 2014. Till 2013, land acquisition in India was administered by the Land Acquisition Act of 1894. Union Government of India has also made as well as notified the Right towards Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement (Social Impact Assessment and Consent) Rules, 2014 under the Act towards regulating the process. The land acquisition in Jammu and Kashmir is administered by the Jammu and Kashmir Land Acquisition Act 1934.

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013

The UPA government presented the landmark Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (the Act) in 2013, towards easing the restrictions for projects in 5 vital investment areas: defense and defense production, rural infrastructure, industrial corridors, as well as social infrastructure projects for example Private-Public Partnerships (PPPs).

The 2013 Act focused on providing not only compensation towards the landowners, but also extended the rehabilitation and resettlement benefits towards livelihood looser from the land, which would be in addition to the minimum compensation. The minimum compensation being paid to the landowners is dependent on a multiple of market value as well as other factors specified in the Act. The Act prohibits or regulates land acquisition when such acquisition shall contain a multi-crop irrigated area. The Act changed the standards for acquisition of land for use through private corporations or in case of public-private partnerships, which includes compulsory approval of 80% of the landowners. The Act also presented changes in the land acquisition procedure, comprising a compulsory social-impact study, which requires to be conducted before an acquisition is completed. 

Though, since its enactment, the state governments, as well as investors, have reported several procedural problems with the acquisition of land required for important national projects:

The consent clause

There is a need for approval in the consent clause in the Act from 80% of the affected families in the case of acquisition through private firms executing public purpose and 70% from public-private partnerships (PPPs) executing public purpose.

No consent is needed when a public entity is acquiring the land for a public purpose.

Private entities and SC/ST

Every acquisition for private purposes requires corporations to offer rehabilitation and resettlement to the individuals affected through the acquisition.

For scheduled tribe (ST) and scheduled caste (SC) owners, the corporations should provide one-third compensation for the project before the land acquisition, and the rest after the procedure is completed.
The government could only obtain their land under exceptional circumstances and also with the prior consent of a local body or Autonomous District Councils. Furthermore, the development plan for the project should be launched within 5 years to make certain their livelihood is not affected.

Compensation

Compensation for the proprietors of the acquired land would be four times the market value in the case of rural areas in addition to twice in the case of urban areas. The law also needs corporations to give one-time payment towards the affected artisans, and small traders, even if they don’t possess any land.

Social impact assessment

The procedure for land acquisition contains an SIA survey, a preliminary notification mentioning the intent for acquisition, a declaration of acquisition, as well as compensation towards being given by a certain time.

Under the SIA, the government should get the consent of the affected artisans, laborers, sharecroppers, and tenant farmers amongst others, whose (sustainable) livelihood would be affected because of the given project.

The social impact assessment makes the procedure of land acquisition slow, as well as more expensive.

Land left unused after the acquisition

For the acquired land remains unutilized for 5 years after the acquisition, the Act allows states to return the land either towards the proprietor or to the state land bank.

Given the complete procedure and complexity involved, several industry bodies and consultants estimate the entire procedure to take about 56 months to complete.

State land policies

The 2013 Act’s extensive procedure and costs have raised concerns amongst industrialists and businesses.

Owing to a lack of clarity on central land acquisition provisions, several state governments have come about with their own land policies to make it simple for investors to obtain land. In spite of these state-level efforts, the legal concerns in acquiring land remain.

The proposed Amendments towards the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
In India at present Narendra Modi led National Democratic Alliance government presented Land Acquisition Amendment Bill in the Lok Sabha and has seen a tough resistance from major position parties who have named the proposed amendments "anti-farmer" as well as "anti-poor". The recommended amendments remove requirements for approval from farmers towards proceeding with land acquisition under five broad categories of projects.

The main "disputation points are:

I. Context

Land acquisition, unlike the purchase of land, is the compulsory takeover of privately owned land through the government.  The land is acquired for projects which serve a ‘public purpose’.  These contain government projects, public-private partnership projects, and private projects.  Presently, what qualifies as ‘public purpose’ was defined to contain defense projects, infrastructure projects, and projects related to housing for the poor, amongst others. Till 2014, the Land Acquisition Act, 1894 regulated the procedure of land acquisition.  While the 1894 Act provided compensation towards land proprietors, it didn’t provide for rehabilitation and resettlement to displaced families.  These were a few of the reasons provided by the government to validate the requirement for new legislation to regulate the procedure of land acquisition.  Furthermore, the Supreme Court had also stated issues with the determination of fair compensation, and what sets up public purpose, etc., in the 1894 Act.  However, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has been passed through Parliament, in 2013.

II. The current legislative framework for land acquisition

The 2013 Act brought in many changes to the procedure of land acquisition in the nation. Initially, it increased the compensation provided towards landowners, from 1.3 times the value of the land to 2 times the value of land in urban areas, and 2-4 times the price of land in rural areas.  Secondly, unlike the earlier Act which did not provide rehabilitation and resettlement, the 2013 Act provided R&R towards land proprietors as well as those families which didn’t own land but were reliant on the land for their livelihood.  The Act allows states to provide higher compensation and R&R. Also, unlike the previous Act; it authorized that a Social Impact Assessment be carried out for all projects, except those for which land was essential urgently.  An SIA evaluates certain aspects of the acquisition for example whether the project serves a public purpose, whether the minimum area that is requisite is being acquired, and the social impact of the acquisition.  Moreover, it also authorized that the consent of 80% of landowners is acquired for private projects, and the consent of 70% of land proprietors be acquired for public-private partnership projects.  Though, the consent of land proprietors is not a prerequisite for government projects. The 2013 Act also made few other changes towards the procedure of land acquisition, which includes prohibiting the acquisition of irrigated multi-cropped land, except in a few cases where the limit might be stated by the government.

III. Promulgation of an Ordinance to amend the 2013 Act 

Also to the 2013 Act, there are few other laws that govern land acquisition in particular sectors, like the National Highways Act, 1956 and the Railways Act, 1989.  The 2013 Act requisite that the compensation and R&R clauses of 13 such laws be brought in consonance with it, within a year of its enactment, on January 1, 2015, through a notification.  As this was not done through the required date, the government issued an Ordinance to extend the compensation and R&R clauses of the 2013 Act to these 13 laws.  Though, the Ordinance also made additional changes to the 2013 Act. The Ordinance was circulated on December 31, 2014, and would lapse on April 5, 2015, if not passed as a law by Parliament.  Therefore, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement (Amendment) Bill, 2015 were introduced in Parliament to replace the Ordinance.  The Bill was passed by Lok Sabha, with some changes, and is pending in Rajya Sabha.

IV. Changes proposed by the 2015 Bill to the 2013 Act

A few of the major changes recommended by the 2015 Bill relates to clauses such as obtaining the approval of land proprietors; directing an SIA; return of unutilized land; inclusion of private entities; as well as the commission of wrongdoings through the government.

Certain exemptions for five categories of projects: As stated above, the 2013 Act needs that the consent of 80% of land proprietors is acquired when land is acquired for private projects, and the consent of 70% of landowners is acquired when land is obtained for public-private partnership projects.  The Bill exempts five categories of projects from these clauses of the 2013 Act.  These five categories are defense, rural infrastructure, affordable housing, industrial corridors, and infrastructure projects. The Bill also permits the government for exempting these five categories of projects from (i) the requirement of a Social Impact Assessment. 

Return of unutilized land: 

The Bill changes the time period after which unutilized, obtained land should be returned.  The 2013 Act stated that if land attained under it remains unutilised for five years, it should be returned to the original owners or the land bank.  The Bill changes this to mention that the period after which unutilised land would need to be returned will be the later of: (i) 5 years, or (ii) any period stated at the time of setting up the project.

 Acquisition of land for private entities

 Under the 2013 Act, the land could be obtained for the government, a public-private partnership, or a private corporation, if the acquisition serves a public purpose.  Another major change the Bill made is that it changes the term ‘private company’ towards ‘private entity’.  This implies that land might now be attained for a proprietorship, partnership, corporation, non-profit organization, or other organization, as well as a private company if the project serves a public purpose. 

Offenses by the government

Under the 2013 Act, if an offense is committed through a government department, the head of the department would be held guilty unless he could show that he had carried out due diligence to prevent the commission of the wrongdoing.  The Bill removes this section.  It adds conditions to mention that if an offense is carried out by a government employee, he could be prosecuted only with the previous sanction of the government.

 Acquisition of land for private hospitals as well as educational institutions

 While the 2013 Act barred acquisition of land for private hospitals as well as private educational institutions, the Bill required comprising these two within its scope.  However, the Lok Sabha removed this condition of the Bill.  Therefore, in its current form, the Bill doesn’t consist of the acquisition of land for private hospitals as well as private educational institutions.

Additional changes proposed in Lok Sabha

Towards removing social infrastructure from one of the five exempted categories of projects, clarifying the definition of industrial corridors, as well as removing the provision to acquisition for private hospitals as well as private educational institutions, the Lok Sabha made some other changes to the Bill, before passing it.  These contain: (i) employment should be provided to ‘one member of an affected family of farm labor’ as a part of the R&R award, also to the current provision which states that one member of an affected family should be provided employment as a part of R&R; (ii) hearings of the Land Acquisition, Rehabilitation and Resettlement Authority towards addressing complaints related to compensation be held in the district where land is being obtained; and (iii) a survey of wasteland should be carried out and records of these land should be maintained.

Author:

eStartIndia Team