Land acquisition has forever been a touchy issue in India with landowners and industrialists forever locking horns over the matter. While most landowners are persistent in clinging to their landed property, which they view their land as their patrimonial privilege, plot developers and industrialists are equally insistent on acquiring their desired territory, even going so far as to use coercion and intimidation.
It would be wrong to discredit both of their claims. Landowners are more often than not framers and their labour is an integral necessity for India’s burgeoning population. At the same time, land is also required to fulfil the populace’s housing needs as well as for jobs – which are usually found in great abundance in and around industrial and construction projects.
Therefore, it would be extremely difficult, besides being unfair, to prioritise one need on top of another. A compromise needs to be arrived at, one that will be provide fair compensation and resettlement to displaced landowners and farmers, and one which will also allow the land development project to grow unimpeded.
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History of Land Acquisition Laws in India
The history of land acquisition laws can be traced to the Land Acquisition Act of 1894, a colonial artefact which was ultimately replaced by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act in 2013, more than a century after its institution.
The government was aware of the flaws in the procedure for the acquisition of private land for public use and had recognised that they were discriminatory and did not accord landowners proper restitution. With the repeal of the Article 31 which gave Indians the fundamental right to own property, landowners were also deprived of their usual legal recourse to unethical dealings. Farmer riots and protests against land acquisition were increasing in frequency and this bill seemed like the perfect measure to appease them.
Aims of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act
- The act promises landowners transparency, close participation in the process and sharing of pertinent information. It seeks to minimise the collateral damage that is usually caused on the farmer’s side.
- The act provides for a more consultative process with the local government and administrative bodies like Gram Sabhas in the respective area.
- The government intends to reimburse the affected individuals in a just and fair manner. Satisfactory rehabilitation and resettlement measures will be thought out keeping in mind the landowners’ difficulties.
- Compulsory acquisition should not lead to the distancing and displacement of affected individuals from their native place. Instead, it should not result in their greater involvement in the project, ultimately elevating their socioeconomic situation.
Scope of the Act
The provisions of the act can be applied when –
- The government acquires private land for public purposes like infrastructure development, building industrial corridors, public sector undertakings, national security and strategic reasons.
- Land is acquired by the government for public-private partnerships and the acquired land is kept in repository for a private company.
- Land is acquired by the government solely for use by a private company.
Important Features of the Act
The act mandates that a Social Impact Assessment be undertaken before going into a project to examine the social cost incurred. Panchayats, gram Sabhas and municipalities will be approached for assistance and advice.
The survey will include investigations into the families and land affected, the pros and cons of the proposed project and its potential benefits, whether extraneous and unnecessary sections of land have been acquired and whether any alternatives have been considered.
The potential impact on livelihoods, infrastructure, public utilities and the overall environment will also have to be included in the report.
This survey should take a maximum of six months from its kick-off and the Social Impact Management Plan should be shared among the denizens of the affected area as well as being uploaded on the government’s website.
The findings will be evaluated by an independent body Expert Group which will consist of scientist, technical experts and administrative officials of the affected area. Two months will be provided to them for their appraisal.
However, the Social Impact Assessment will be eschewed if the government wishes to invoke urgency provisions. This will be done in issues of national security and defence or when a national disaster strikes. Eighty per cent of compensation will need to be tendered to the affected families before the government takes possession of the land.
The government has attempted to ensure that food security will be safeguarded under this act. No fertile land which has been irrigated and is being cropped multiple times a year will be acquisitioned by the government. However, the act allows the government to acquire irrigated and multi-cropped land if there are no other suitable alternatives available.
In such a case, an equal extent of land will have to be developed so that it can sustain agricultural activities or an equivalent amount commensurate with the value of land has to be deposited to the government, to be used to finance agricultural initiatives. Furthermore, this act prevents the government from acquisitioning an amount surpassing the net sown area of a particular region.
However, this injunction does not stand if land is taken away to be used for building railways, roads, canals, power lines and so on.
The consent of majority of the affected families will be required before land is taken away for possession. Whereas for projects carried out solely by the government, no consent will need to obtained; for Public-Private-Partnerships, seventy per cent of the affected families will have to agree to give up their land and for private projects, prior consent of eighty per cent of the affected families will be required. This process of obtaining consent will be undertaken at the same time that the Social Impact Assessment is being prepared.
On the matter of compensation, this act is expected to provide a veritable bounty (at least monetarily and on paper) for landowners in comparison to the earlier acts. According to this act, the compensation which is to be provided to rural landowners will be four times the market value and for urban landowners, it will be two times the market value.
First of all, the market value is to be calculated by the Collector either on the basis of the Indian Stamp Act of 1899, or by taking an average of the sale price of land of similar type in the same region, or as per the amount earlier agreed upon by the affected people and a private company in the case of a public-private partnership or a solely private project. The higher amount of the three will be taken as the market value.
The compensation amount which is to be finally paid will also include the value of structures like buildings or assets like trees. An extra amount commensurate to hundred per cent of the market price will be added as solatium for the compulsory nature of the transaction. Affected individuals will be entitled to another seventy per cent if the government invokes urgency provisions to procure land.
The compensation will have to be distributed among the affected families within twelve months, but this time limit can be extended if the government wishes.
Dispossessed families will be allowed to resettle elsewhere. The government will ensure that the area for resettlement will have adequate infrastructural facilities. Furthermore, a house, a monthly subsistence grant for a year and jobs will be provided to the displaced families. Instead of these, an annuity may also be taken.
The provisions of this act will also be applicable on land acquisitions made five years prior if the compensatory amount has not been given to the displaced families and land is yet to be physically possessed.
If the acquired land remains unutilised for five years, it will be returned to the original owners or to the Land Bank of the State government.
Land may be temporarily possessed by the government for a period of up to three years. In such a case, no compensation will be provided.
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act was amended by the Parliament in 2015. Nine changes were made in total, some of which are –
The provision relating to consent of the affected residents of an area will not apply in public-private partnerships and for land acquired by a private company if land is procured for the purposes listed below:
- National security and defence
- Rural infrastructure projects
- Affordable housing for the poor
- Industrial corridors (restricted to one kilometre on either side of railways and highways)
- Infrastructure-building projects on government-owned land.
The Social Impact Assessment need not be carried out in these cases. The bar on acquiring irrigated and multi-cropped land can also be lifted in such cases.
- One of the amendments gives more protection to government employees in cases of gross inefficiency or other offences. As per the 2013 act, the departmental head would be held accountable. Furthermore, no government sanction was required to bring charges against a departmental employee. However, both of these clauses have been done away.
- The term ‘private company’ has been substituted with ‘private entity’.
- The amendments make it clear that only one member of the affected family will be granted a job by the government.
- The village Panchayat’s assent will be necessary before acquiring tribal territory.
- Grievance redress measures will be strengthened.