LAW RESOURCE INDIA

A Bill that facilitates displacement?

Posted in Land Acqusitions by NNLRJ INDIA on September 14, 2011

R  UMA MAHESHWARI  IN THE HINDU

The foreword — to the Draft National Land Acquisition and Rehabilitation and Resettlement Bill 2011 — that says “urbanisation is inevitable” (I.p.1) signifies danger. The Bill, if enacted in its present form, is likely to worsen, and not stop, displacement of tribal, Dalit and other backward communities. The Bill states: “The issue of who acquires land is less important than the process of land acquisition, compensation for land acquired and R&R process, package and conditions … The objective is to make the process of land acquisition easy, transparent, and fair for both sides in each instance …”(p.1, emphasis added). But who acquires land is intrinsically connected to why it is acquired in the first place.

Land alienation, ownership and contradictions arising from it concern world political economy and external agencies that have been dictating conditions to the Indian government at the Centre and State level on policy matters in land reforms. Some of these terms and conditions reflect in the LARR Bill 2011 if one reads between the lines. A Policy Document of the World Bank, for instance (“India: Land Policies for Growth and Poverty Reduction,” Report No. 38298-IN, July 9, 2007, Agriculture and Rural Development Sector Unit, India Country Management Unit, South Asia Region) made a few recommendations for policy reform, which included, “eliminate restrictions on land markets.” Under this — “It will be desirable to (i) make leasing legal where it is currently prohibited…(ii) allow transferability of land by land reform beneficiaries at least through lease and explore options for making the gains from such reform permanent; (iii) drop restrictions on sale of land to non-agriculturists and subdivision which have little economic justification; and (iv) review legislation on compulsory land acquisition and, subject to the prevention of undesirable externalities, allow farmers or their representatives to negotiate with and if desired transfer land directly to investors rather than having to go through government and often receive only very limited compensation.”

It is a matter of serious concern that this Bill looks at R&R and land acquisition as “two sides of the same coin” and this is partly a result of the pressure built over the years by movements against big dams. This Bill facilitates acquiring land, including commons, presently in the hands of small and marginal farmers from tribal, SC and backward communities under the pretext of an unstated ‘public purpose’ for “infrastructure development” which may well accompany future FDI in food and agriculture, and several related developments linking the global market to India. In urban areas it is very clear that it is connected to real estate development in return for crumbs such as ‘housing for the urban poor’ schemes.

The government is fast-tracking into a future which facilitates transfer of land into the hands of the urban elite. Even if there is a caveat placed on R&R in case of acquisition up to 100 acres, there is no mechanism to stop the rich from taking an easy way out, opting for say 90 acres. Does that not call for R&R?

While one good point in the Bill is that “under no circumstances” multicropped, irrigated land (sic) be acquired, what if a multicropped land or two came within the 100 acres identified for the larger acquisition? The definition of “multi-crop” is unclear. Is it a number of crops grown in a single season or in alternate seasons by rotation?

As for the SIA (Social Impact Assessment), there is mention of “Two non-official social scientists, two experts in the area relating to the project.” Women, senior citizens and children are not part of this exercise. The affected people are not to select this group. What is the guarantee that the group will not favour those who wish to acquire land? Most ‘experts’ come from sections not directly displaced/dispossessed. We are unwilling to have a forum with the poor as their own representatives on decisions affecting them.

The understanding of “minimum” displacement, “minimum disturbance to infrastructure, ecology and minimum adverse impact on individuals affected” is highly subjective and left open-ended without defining the “minimum” displacement (in forests, for instance; or damage to rivers, for instance — how much is ‘minimum”?)

As for the public hearing on the notification issued for acquisition, why not have a pre-notification, prior, on “intent” to acquire land, instead, where a gram sabha, or committees in urban slums, for instance, can take a collective decision for or against acquisition?

What are the implications of this Bill for the Polavaram dam? It has a lot that will actually make the dam (if the Bill becomes an Act) illegal and invalid on most points mentioned therein on land acquisition. But a deeper reading of the Bill makes it clear that much of it will actually not help stall the dam works in any major way. The onus will be on people to enter into litigation to reclaim their land from the government if the Bill is passed. The provision of “One acre of land to each family in the command area if land is acquired for irrigation project” seems foolhardy if it plans to cover entire populations displaced by irrigation projects (in Polavaram alone, the figure is nearly three lakh people). Where is this kind of land available in the proposed command area?

The first point on which the Polavaram-dislocated (who lost land, not necessarily physically displaced) can be one up on the government is within the clause “Safeguards against indiscriminate acquisition.” This says — “Land to be returned to original owner if not used in 5 years for the purpose for which it is acquired.” It was in 2005 that most of the land acquisition for the Polavaram dam started and the only ‘work’ done is the digging of canals. So, will the government of Andhra Pradesh face legal action if this Bill becomes an Act?

So far as tribal communities are concerned, a point in their favour under “Minimum R&R Entitlements Special Provisions for ST’s” makes space for “Preference in relocation and resettlement in area in same compact block.” In the case of the Polavaram dam, no care was taken to do so, in any of the three R&R colonies (of which only two are under construction). And here we are talking of 300 villages to be submerged, and where are those 300 tribal villages to be resettled in ‘compact’ colonies? Where is the land for that space? If tribal land is to be acquired for displaced tribal communities, where will the R&R displaced tribal people be rehabilitated? In the case of Polavaram, the non-tribals illegally owning land in tribal areas were compensated with high amounts (Rs.1,50,000 an acre; minimum Rs.80,000 per acre). There is no provision in the Bill for any system to check such instances. In fact the Bill does not seem to have taken into consideration all these past injustices nor does it have any clause to correct those injustices.

How is land perceived? What are rivers perceived as? For a fisherman the river is his notional ‘land,’ in livelihood and cultural terms. Faced with numerous massive irrigation (multi-purpose) projects on the anvil, ‘acquisition of river’ (and forests) is not considered a case for R&R. Though one does not even remotely suggest a “River acquisition Bill.” Let’s hope that such a day will not come.

How is economic value generated for the communities? How does the Bill compute the ‘economic worth’ of tribal, Dalit or BC communities, women’s work, to be dispossessed of a permanent asset — land/river? “Rs.3000 pm for 12 months; Rs. 2000 pm per family for 20 years.”

The Bill is making cosmetic changes to the 1894 notion of an ‘eminent domain’ treating citizens as beneficiaries of private, or state charity.

(The writer is a postdoctoral Fellow at IIT-Madras and independent journalist. She is completing a book on Polavaram.)

http://www.thehindu.com/opinion/lead/article2447652.ece

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These contested acres

Posted in CONSTITUTION, GOVERNANCE, Land Acqusitions by NNLRJ INDIA on July 25, 2011

Supreme Court of India

Jaitirth Rao  In The Indian Express

The Supreme Court’s judgment in the Noida land acquisition case has raised concerns because some have interpreted it as being against the spirit of economic reform. It is this columnist’s contention that far from being anti-market, this judgment is pro-freedom, pro-market, pro-citizens and against the machinations of an emerging tyrant state in India.

In 1978, the short-lived Janata government was at the forefront in amending our Constitution to remove the right to property as a fundamental right of Indian citizens. B.R. Ambedkar, Benegal Rau, K.M. Munshi, Alladi Krishnaswami Aiyar and Rajendra Prasad had correctly included property as a fundamental right knowing full well that if tyrant kings (the executive branch of government in modern times) are allowed to arbitrarily seize property, then free citizens will inexorably be turned into servile subjects. The prevalent mood in the 1970s was tragically of the socialist persuasion. The judiciary was accused of ruling in favour of rich mahants and zamindars like Golak Nath. It was assumed that the fundamental right to property was a privilege of the rich. Ironically, when this right was removed as a fundamental right, the sufferers have not been rich individuals or corporations. Instead, in state after state, the government has used its sovereign right of eminent domain to acquire land from the poor, re-zone the land and sell/ lease it to rich capitalists and corporations at subsidised prices. Those who had warned in 1978 that the constitutional amendment was dangerous and anti-people have been proved to be prescient. Whenever rights of citizens are abridged by the state claiming to act on behalf of the poor, as night follows day it must follow that this abridgement will sooner or later be used to oppress the poor and the weak.

The state’s sovereign right of eminent domain is supposed to be exercised to acquire land for “public purposes”. Public purposes have always implied the creation of public goods like roads, railway tracks, canals, reservoirs, sewage farms, etc. To argue that factories (that primarily benefit their owners), flats (that benefit builders and new home-buyers), shopping malls (that benefit builders) and so on are “public goods” is an insult to the language and vocabulary of just laws. And yet, this is how the Government of West Bengal argued in Singur and Nandigram and the Government of UP has argued in Noida. In Bengal, the tribunal of the people rejected this. (A cynic would argue that this is in keeping with the hoary Bengali leftist tradition of deciding disputes in the streets and not in courts.) In UP, our courts have come to the rescue of property owners (in this case poor farmers). Our Supreme Court’s judgment is entirely in keeping with the spirit of the dissenting judgments of Justice Sandra Day O’Connor (and two others) and a separate dissenting judgment of Justice Clarence Thomas of the US Supreme Court in the case of Kelo vs City of New London.

Justice Thomas was quite clear that the right of eminent domain can be used only for public goods — not “to take from Peter to give to Paul”, or in Indian terms to take from farmers and give to factory owners or real estate developers. In Kelo vs City of New London, the wealthy “Paul” was the well-known pharmaceutical giant Pfizer Corporation. The poor “Peter” was a humble American citizen named Kelo who owned a plot of land and a home in the city of New London. The political leaders of New London were tempted by Pfizer’s grandiose plans to “develop” a so-called depressed neighbourhood. Pfizer promised to create 3,169 new jobs and increase municipal revenues by $1.2 million per year. The fact of the matter is that while hapless Citizen Kelo’s house has been seized by the politicos of the City of New London, Pfizer has merrily walked away from its commitments. Ergo: no jobs, no tax revenues for the city. The parallel with the seizures of enormous parcels of land from Kelo’s brethren in India to create shining new SEZs which are yet to come into being is obvious.

Criticising the majority judgment in the US case, Justice O’Connor said: “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” Justice Thomas went one step further when he wrote as follows: “Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities.” Even though these learned justices may never have visited India, it is indeed quite uncanny as to how they have anticipated the behaviour of the Indian state. Claiming that factories, apartment blocks and shopping malls are “economically beneficial”, property is being transferred from the poor to the rich. The justices referred to this as the “reverse Robin Hood” phenomenon.

There is no point in hiding behind the usual smokescreen of blaming colonial laws. The issue in India rests with the illegitimate definition of public purpose and the Machiavellian manner in which re-zoning (which drives up land prices) is done after the land has been acquired from powerless citizens at absurdly low rates. The proposed new law with endless arguments about whether forcible acquisition for a factory or a mall is in order after 70 or 80 per cent of the land has been acquired by the powerful corporation/ developer is a deliberate attempt to confuse the issue in order to continue to support crony capitalist behaviour. The only fair solution is to have an extremely narrow definition of public purpose and to re-zone land usage before so-called development activities are started, not afterwards. Better still, restore property as a fundamental right so that citizens can go to courts to fight an executive branch which is hand-in-glove with “citizens with disproportionate influence”.

The writer is an entrepreneur based in Mumbai
jerry.rao@expressindia.com

http://www.indianexpress.com/news/these-contested-acres/821699/0

State biggest land grabber, says Supreme Court

Posted in Land Acqusitions by NNLRJ INDIA on July 6, 2011

NEW DELHI: The Supreme Court on Tuesday slammed the authorities for taking advantage of the “colonial law” on land acquisition to divest farmers of their prime agricultural land benefitting the rich and paying “pittiance” to common men. The apex court said a “sinister campaign” has been launched by various state governments to take adavantage of the law against the poor people for taking away the land and giving it to builders where multiplexes, malls, posh residential complexes are developed which are beyond the reach of common men.

“Do you think judges live in fools’ paradise”? snapped a bench of Justices GS Singhvi and AK Ganguly when senior advocate PP Rao responded to a question that the residential complexes were being developed for the “needy”. “You are building hotels, malls, commercial complexes, townships where common men have no access. Does it come under the perception of public purpose for which the land have been acquired?”

The bench questioned the change by Uttar Pradesh government in land use in Greater Noida and said “this is not the plan for which the land is acquired. How different notifications came out for changing the use of land”. The sharp remarks were made by the bench during the hearing on petitions filed by Greater Noida Industrial Development Authority and real estate developers and builders, including Supertech and Amrapali, challenging the Allahabad high court order which had quashed the notifications for land acquisition in Greater Noida adjoining the national capital.

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

Govt can acquire land sans notice

Posted in Land Acqusitions, UNCATEGORIZED by NNLRJ INDIA on May 27, 2010

27 May 2010  Sanjay K Singh  Economic Times

NEW DELHI: The state can acquire land even if owners have not been issued a notice, the Supreme Court has ruled. The apex court added that land acquisition will not be illegal even if there are discrepancies in the notice served to affected owners under the provisions of the Land Acquisition Act.

“Section 9 of the act (Land Acquisition Act, 1894) provides for an opportunity to the ‘person-interested’ to file a claim petition with documentary evidence for determining the market value of the land and in case a person does not file a claim under Section 9 even after receiving the notice, he still has a right to make an application for making a reference under Section 18 of the act.”

“Therefore, scheme of the act is such that it does not cause any prejudicial consequence in case the notice under Section 9(3) is not served upon the person interested,” said a vacation bench comprising Justice B S Chauhan and Justice Swatanter Kumar.

The court said: “The land vests in the state free from all encumbrances when possession is taken under Section 16 of the act. Once land is vested in the state, it cannot be divested even if there has been some irregularity in the acquisition proceedings. In spite of the fact that Section 9 notice had not been served upon the person interested, he could still claim the compensation and ask for making the reference under Section 18 of the act. There is nothing in the act to show that non-compliance thereof will be fatal or visit any penalty.”

The court rejected the plea which had said that the provisions of Section 9 of the act was mandatory in nature and non-compliance thereof would vitiate the award and all other consequential proceedings.

Zeroing in on Section 9 of the act, the bench said, whether the provision is mandatory or directory, depends upon the intent of legislature and not upon the language for which the intent is clothed.

“The issue is to be examined having regard to the context, subject matter and object of the statutory provisions in question. The court may find out as what would be the consequence which would flow from construing it in one way or the other and as to whether the statute provides for a contingency of the non-compliance of the provisions and as to whether the non-compliance is visited by small penalty or serious consequence would flow therefrom and as to whether a particular interpretation would defeat or frustrate the legislation and if the provision is mandatory, the act done in breach thereof will be invalid,” remarked Justice Chauhan writing the verdict for the bench.

It said, “failure of issuance of notice under Section 9(3) would not adversely affect the subsequent proceedings including the award and title of the government in the acquired land. So far as the person interested is concerned, he is entitled only to receive the compensation and therefore, there may be a large number of disputes regarding the apportionment of the compensation. In such an eventuality, he may approach the district collector to make a reference to the court under Section 30 of the act”.

http://economictimes.indiatimes.com/news/politics/nation/Govt-can-acquire-land-sans-notice/articleshow/5979029.cms

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