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Published : May 25, 2012 | Author : ranganathvg@legalserviceindia.com
Category : Civil Laws | Total Views : 3924 | Rating :

V.G.Ranganath, working as Faculty of Law, IFHE University, Hyderabad.

 The Outlook of the Land Acquisition, Rehabilitation and Resettlement Bill, 2011

The Land Acquisition, Rehabilitation and Resettlement Bill, 2011 was introduced in Lok Sabha. Two Bills on similar lines were introduced in Lok Sabha in 2007. These Bills lapsed with the dissolution of the 14th Lok Sabha.

Importance of the Bill
1. The Bill provides for land acquisition as well as rehabilitation and resettlement. It replaces the Land Acquisition Act, 1894.

2. The process for land acquisition involves a Social Impact Assessment survey, preliminary notification stating the intent for acquisition, a declaration of acquisition, and compensation to be given by a certain time. All acquisitions require rehabilitation and resettlement to be provided to the people affected by the acquisition.

3. Compensation for the owners of the acquired land shall be four times the market value in case of rural areas and twice in case of urban areas.

4. In case of acquisition of land for use by private companies or public private partnerships, consent of 80 per cent of the displaced people will be required. Purchase of large pieces of land by private companies will require provision of rehabilitation and resettlement.

5. The provisions of this Bill shall not apply to acquisitions under 16 existing legislations including the Special Economic Zones Act, 2005, the Atomic Energy Act, 1962, the Railways Act, 1989, etc.

Land acquisition refers to the process by which government forcibly acquires private property for public purpose. The Land Acquisition Act, 1894 (1894 Act) governs all such acquisitions. Additionally, there are 16 Acts with provisions for acquisition of land in specific sectors such as railways, special economic zones, national highways, etc. The 1894 Act does not provide for rehabilitation and resettlement (R&R) for those affected by land acquisition. Currently, the R&R process is governed by the National Rehabilitation and Resettlement Policy, 2007. In 2007, two Bills were introduced in the Lok Sabha: one to amend the Land Acquisition Act, 1894, and the other to provide statutory status to the R&R policy of 2007. These Bills lapsed with the dissolution of the 14thLok Sabha in 2009.

In May 2011, the National Advisory Council recommended combining the provisions of land acquisition and R&Rwithin a single Bill. In July 2011, the Draft Land Acquisition and Rehabilitation and Resettlement Bill was published by the Ministry of Rural Development for public comments. In September 2011, the government introduced the Land Acquisition and Rehabilitation and Resettlement Bill in the Lok Sabha. This Bill will replace the 1894 Act.

Key Features
The Bill specifies provisions for land acquisition as well as R&R. Some of the major changes from the current provisions are related to (a) the process of land acquisition; (b) rights of the people displaced by the acquisition; (c) method of calculating compensation; and (d) requirement of R&R for all acquisitions.

Public purpose

Land may be acquired only for public purpose. The Bill defines public purpose to include: defence and national security; roads, railways, highways, and ports built by government and public sector enterprises; land for the project affected people; planned development; and improvement of village or urban sites and residential purposes for the poor and landless, government administered schemes or institutions, etc. This is broadly similar to the provisions of the 1894 Act. In certain cases consent of 80 per cent of the project affected people is required to be obtained. These include acquisition of land for (i) use by the government for purposes other than those mentioned above, and (ii) use by public-private partnerships, and (iii) use by private companies.

Process of land acquisition
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. A preliminary notification indicating the intent to acquire land must be issued within 12 months from the date of evaluation of the SIA Report. Subsequently, the government shall conduct a survey to determine the extent of land to be acquired. Any objections to this process shall be heard by the Collector. Following this, if the government is satisfied that a particular piece of land must be acquired for public purpose, a declaration to acquire the land is made. Once this declaration is published, the government shall acquire the land. No transactions shall be permitted for the specified land from the date of the preliminary notification until the process of acquisition is completed.

In case of urgency, the above provisions are not mandatory. The urgency clause may be used only for defence, national security, and in the event of a natural calamity. Before taking possession of land in such cases, 80 per cent of the compensation must be paid.

Compensation to the land owners
The compensation for land acquisition is determined by the Collector and awarded by him to the land owner within two years from the date of publication of the declaration of acquisition. The process of determination of compensation is given below.

The Bill defines “affected family” to include (i) landowners; (ii) agricultural labourers, tenants who have been working in the affected area for three years prior to the acquisition; (iii) tribals and forest dwellers; (iv) families whose livelihood for the previous three years is dependent on the forests or water bodies; and (v) families who have been given land by the state or central government.

The Bill fails to address fundamental causes behind disputes and litigation over compensation. Moreover, like the existing law, it has provisions that can be misused by states to favour companies at the expense of the rights of farmers and forest dwellers.

An excessive use of the emergency clause is not the only abuse of the current law by states. Often, land is acquired, ostensibly for government use, but is eventually transferred to companies. Property owned by powerful people is exempted from acquisition. Indeed, the recent controversies over land acquisitions in the Uttar Pradesh, Haryana and Karnataka are due to such misuse.

The proposed law allows states to continue with these practices. For example, Section 87 allows for midway denotification. Section 96 gives states unbridled power to transfer acquired land to private companies and individuals, if 20% of the resulting profit is shared with the owners. Such transfers are consistent with Section 93 that governs postacquisition changes in land use, as long as the land is used for the same or a 'related' purpose. For instance, land acquired for industrial development can be transferred to a special economic zone (SEZ).

Similarly, land acquired for urban development can be transferred to builders for housing projects, without violating the proposed law. The initial purpose can be defined strategically to justify several other uses as related purposes. It is crucial to prohibit postacquisition transfers of land to private entities. If acquired land remains unutilised, it should be returned to the owners.

As for direct acquisition for companies or large-scale purchases by them, the Bill mandates rehabilitation and resettlement for affected families. At the same time, it dilutes the crucial public-versus-private distinction. The all-inclusive definitions of 'infrastructure' and 'public-purpose' permit state intervention in acquisition and transfer of land to companies for all sorts of commercial activities. State intervention is advocated to protect the interests of small and ill-informed owners, and to overcome hold-up of useful projects by owners. These arguments assume a benevolent state. The history of land acquisition in India shows that the decision-making of the state is highly susceptible to capture by the rich and powerful. The risk of hold-up is overplayed. Compulsory acquisition is justified for projects that are location specific and face land assembly problems like roads, railways and port projects. For real estate, hotel and entertainment projects, there is no justification for forcing people to part with their land.
# The Author is Faculty Member, Faculty of Law, ICFAI Foundation For Higher Education, Hyderabad.
# http://www.prsindia.org/billtrack/the-land-acquisition-rehabilitation-and-resettlement-bill-2011-1978/ (Last Visited on May 26, 2012).
# Ram Singh ‘New Land Law: Riddled with loopholes’ available at http://articles.economictimes.indiatimes.com/2011-09-22/news/30189298_1_land-acquisition-public-purpose-new-land-law (Last Visited on May 26, 2012)

The  author can be reached at: ranganathvg@legalserviceindia.com

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