LAW RESOURCE INDIA

For a sensitive law

Posted in Land Acqusitions by NNLRJ INDIA on June 1, 2011

V. VENKATESAN  in New Delhi  – FRONTLINE

 The 117-year-old Land Acquisition Act cries out for reform, but there is resistance to introducing positive changes.

The Land Acquisition (Amendment) Bill, which seeks to amend the Land Acquisition Act, 1894, has had a long period of gestation. The Union Ministry of Rural Development initiated the process of amendment way back in October 1998. But it took around 10 years for the government to bring the Bill before Parliament.

The 1894 Act was long used for acquisition of land for public purposes and also for companies. However, it was widely felt that the Act required changes in order to strike a balance between the need for land for development and other public purposes and the need to protect the interests of persons whose lands are acquired.

The Land Acquisition (Amendment) Bill, 2007, was thus introduced in the Lok Sabha by the then Rural Development Minister, Raghuvansh Prasad Singh, on December 6, 2007 (Bill No.97 of 2007). It was then referred to the Standing Committee on Rural Development. The committee submitted its report to Parliament on October 21, 2008, and official amendments to the Bill were cleared by the Group of Ministers in December 2008. It was rechristened the Land Acquisition (Amendment) Bill, 2009, and passed by the last Lok Sabha on the penultimate day of its tenure, February 25, 2009 (Bill No.97-C of 2007). The government tabled the Bill in the Rajya Sabha on February 26, 2009, but could not ensure its passage before the House adjourned. The Bill lapsed after the constitution of the current Lok Sabha and the return of the United Progressive Alliance (UPA) to power in May 2009.

It is indeed surprising that the Bill, on which there are intense disagreements between the government and civil society, came close to enactment in 2009. It is equally paradoxical why the UPA-I government hastily secured the Bill’s passage in the Lok Sabha when it knew that it was near-impossible to do so in the Rajya Sabha, where it lacked a clear majority, and that the House was about to adjourn. Records of the Lok Sabha debates of February 25, 2009, reveal that the government sought the Bill’s passage in the absence of a substantial section of the Opposition and amidst protests from the remaining members in the House against some of its provisions.

The Lok Sabha debates of February 25, 2009, may only be of academic interest as the UPA-II government has promised to consider the criticisms against the Bill since then before introducing a revised Bill during the next session of Parliament. Nevertheless, the debates are worth revisiting, if only to understand the flaws in the Bill as originally conceived.

Raghuvansh Prasad Singh had claimed, while seeking members’ support to the Bill, that the Bill was pro-farmer and pro-poor. The government felt that the Bill’s salient features, specifically the abolition of the provision enabling the government to acquire land for companies, would make it acceptable to the MPs. According to the Bill, the government will acquire 30 per cent of the land for a private company only after the company has purchased directly 70 per cent of the land it requires. The Bill also promised to compensate farmers dispossessed of their land on the basis of the market price before their displacement. The Bill also promised to return the land to the owner if it was not used for the purpose for which the acquisition was made.

But these salient features paled into insignificance in the face of mounting criticism against the Bill. The Standing Committee had recommended that the 1894 Act should be repealed and new comprehensive legislation enacted in its place. The reason for this recommendation was that the 2007 Bill sought to make exhaustive amendments to the Principal Act, which might create confusion and legal complications. The committee rejected the government’s contention that the Parent Act with the proposed amendments must continue as a large number of very old cases involving the Act were still pending in various courts. However, this has not found favour with the government.

Public purpose

The Standing Committee felt that the Principal Act defined “public purpose” in a detailed manner and did not provide any discretion to the government. The committee, therefore, opposed Section 5(v)(f)(iii) of the Bill, which includes ‘any other purpose useful’ to the general public for declaring a project as public purpose. The committee feared that such discretion would enable the government to give benefit to a particular person or company. The revised Bill retains this controversial provision without addressing the committee’s concerns.

The committee found that the criteria of government acquiring land for a private company where 70 per cent of the land has been acquired by the company (that is, the body which requires land for setting up public welfare projects) were contradictory. It is because resettlement and rehabilitation (R&R) would be taken care of by the government for 30 per cent of the population (residing on land acquired by the government) and by the company for the 70 per cent.

As the social impact assessment study would be done only for families residing on land acquired by the government, the committee felt that benefits provided to these families would be governed by criteria that would not apply to families whose land had been acquired by the company. This would result in contradictions and frictions among families living in the same area. The committee, therefore, unanimously opposed the 70:30 criteria. The government ignored this concern, too, while revising the Bill in 2009.

The committee felt that the Principal Act, while defining ‘public purpose’, included housing without qualifying it. Such a definition, it said, was too liberal and included the acquisition of land for private companies for the purpose of building high-income group residential premises. Therefore, it recommended that the word ‘housing’ should be replaced by ‘housing for lower and middle-income groups’.

But the Bill, as revised by the government in 2009, includes housing “for such income groups as may be specified from time to time by the appropriate government” as part of its definition of public purpose. It is clear that such a definition defeats the very objective of the committee’s recommendation.

Market value

The determination of the market value of the land being acquired is another contentious issue. The committee had recommended that the highest price of sale deed, as indicated in the sale deeds of the last three years, plus 50 per cent of the highest price should be the criterion for assessing and determining the market value of the land being acquired. The committee felt that in tribal areas, since the land could not be purchased by non-tribal people, tribal people usually do not get adequate compensation when land is acquired and market price fixed.

Therefore, the committee recommended that in tribal areas the criterion for fixing market price should be the highest price of a sale deed of the adjoining non-tribal blocks/village for the last three years plus 50 per cent. The government ignored this recommendation, too, in the revised Bill.

The National Advisory Council (NAC), in its 13th meeting held in New Delhi on May 25, recommended that compensation for those who would lose land should be six times the registered sale deed value, including solatium. The assignees of government land should also be entitled to the same compensation, it suggested. Those who lost land should be offered the option of receiving all or part of their compensation in the form of annuities, it suggested.

The committee further found that sometimes the government acquired land for a public purpose and later used it for a purpose different from the originally intended one, resulting in the price of the land appreciating several times. Whereas the people residing in the surrounding areas benefited greatly by the project set up on the acquired land, the persons who lost their land to the project did not get any portion of the resultant hike owing to the acquisition.

The committee, therefore, felt that some share of the resultant hike owing to land acquisition should also go to the persons on whose land the specific project was set up. It thus recommended that the Bill have provisions to give some extra monetary benefits to the affected person/family in such cases. The revised Bill ignored this recommendation too.

During the Lok Sabha debate in February 2009, some members questioned the government’s claim that most of the recommendations of the Standing Committee had been accepted while preparing the revised Bill. Sandeep Dixit of the Congress reminded the government that there was a consensus that both the Land Acquisition (Amendment) Bill and the R&R Bill would be merged. The merger was considered necessary because drafting differences in the two Bills caused confusion with regard to similar provisions.

The NAC also recommended a single comprehensive law that discouraged forced displacement and minimised adverse impact on people, habitats, the environment, food security and biodiversity. It also recommended that the law should ensure that the process explored all possible options of acquiring more barren and less fertile and waste land before acquiring agricultural land.

It should also define comprehensively project-affected persons/families and provide for a just, timely compensation, resettlement and rehabilitation package through a humane, participatory, informed, consultative and transparent process, allowing for effective and fair implementation.

The NAC also made other significant proposals. Those who lost livelihoods (and not just land), too, should be compensated, it proposed. Another proposal was that agricultural workers, artisans, fisher-folk and forest gatherers, if they lost their livelihoods because of the acquisition of land, should be entitled to a grant amounting to 10 days’ minimum wages a month for 33 years.

Yet another proposal was that if land was acquired for a public purpose and not used within five years, private property that was acquired should be returned to its original owners. But the Bill provides for the reversion of the unutilised land only to the appropriate government (in the case of government-acquired land) and not to private owners. Here, the government apparently shared the Standing Committee’s view that “public purpose” was very vast and the appropriate government would be at liberty to use the acquired land for any purpose coming within the definition of public purpose.

But the government ignored another important but related recommendation of the Standing Committee. The committee had recommended a safeguard against acquisition of excess land at the notification stage so that the question of barring the government from transferring the acquired land for a purpose other than the public purpose did not arise.

The government’s sincerity in revising the 2009 Bill in the light of the recommendations of the Standing Committee, the NAC and civil society groups is now on test.

http://www.hinduonnet.com/fline/stories/20110617281201900.htm

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