Land Acquisition Ordinance, 2015, Must Be Thoroughly Debated And Analysed
We all know by now that land acquisition has become one of the most contentious issues, which has rocked our country in recent years and has not only sharply divided the ruling parties and the opposition but even parties are divided amongst themselves on many contentious clauses. This law directly affects a large segment of Indian society and the farmers, who will be affected immensely by it. Needless to say, this Ordinance necessitates a thorough debate on each and every provision so that farmersâ€™ interests are not taken for a ride by the government of the day.
It must be always borne in the mind that the original law in this regard–â€œLand Acquisition Act, 1894â€–was an oppressive and exploitative colonial law made by the Britishers, who treated Indians like slaves and therefore the government had sweeping powers to take away land at their own sweet will. It is most unfortunate that even after Independence things didnâ€™t change much and after nearly 120 years of its enactment and 67 years after Independence, our independent government at the Centre woke up and decided to amend the law to meet the present circumstances. This resulted in Centre passing â€œThe Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Act, 2013â€ (LARR Act, 2013). It came into force only on January 1, 2014.
To say the obvious, the passage of LARR Act, 2013, was not smooth and lots of questions were raised on many fronts even though it was passed nearly unanimously with the support of the principal opposition party that is the BJP. It became quite ostensible that the new government that would come to power at the Centre would change it considerably especially if it is headed by different parties. That is exactly what we got to see. The BJP-led NDA government brought in the LARR (Amendment) Bill, 2015, which was introduced in the Lok Sabha by the Minister for Rural Development, Birender Singh on February 24, 2015, and passed by Lok Sabha on March 10, 2015. Hardly surprising that now it was the turn of the Congress and other parties, who are now in opposition to oppose it vehemently and hit the streets time and again!
It is worth mentioning here that the NDA government within six months of coming into office decided to amend the LARR Act, 2013. The government advised the President to promulgate an ordinance on the midnight of December 31, 2014. This raised quite a big uproar and not just the opposition parties but even eminent social activists like Anna Hazare hit the streets and this issue since then has been occupying the prime time of all major news channels making it one of the most discussed topic.
To reach a logical conclusion, it is imperative that a thorough and dispassionate analysis is done without taking sides. For this to happen, we need to compare the LARR Act, 2013, and The LARR (Amendment) Bill, 2015, objectively and minutely. First of all, I must mention here that â€˜The Land Acquisition Act, 1894, was riddled with infirmities, which necessitated a new Act that was brought by the name LAAR Act, 2013. By the 1894 Act, land could be acquired by the acquiring authority irrespective of how the person whose land was acquired was going to get affected. There were no safeguards to stop the process of acquisition. Government had the discretion to acquire it whenever it liked and as it liked. The 1894 Act was completely silent on resettlement and rehabilitation of those displaced by the acquisition. It is most unfortunate that for nearly last 120 years, this draconian law governed Indian citizens and no government had the gumption to change it for the benefit of the people and it was allowed to fester for so long!
The 1894 Act had the urgency clause by which owners of the land could be completely dispossessed and the acquiring authority had complete discretion to acquire it by invoking the urgency clause. There were no adequate safeguards against arbitrary acquisition of land. There was very low rate of compensation, which was outdated and not even remotely indicative of the actual rates prevailing in the area. Apart from all this, there were many other pitfalls and all this compelled the Centre to bring in the 2013 Act, which addressed many of these shortcomings, if not all.
The 2013 Act, taking into account the inaccurate nature of circle rates proposes the payment of compensation that is up to four times the market value in rural areas and times times the market value in urban areas. Over five chapters and two entire Schedules have been dedicated to outlining elaborate processes (and entitlements) for resettlement and rehabilitation ( R&R ). The Second Schedule in particular outlines the benefits (such as land for land, housing, employment and annuities) that shall accrue in addition to the one-time cash payments.
The Land Acquisition Act, 1894, will continue to apply in certain cases, when an award has been made under it. To address historical injustice, the 2013 Act applies retrospectively to cases where no land acquisition award has been made. It applies specifically in cases where the land was acquired five years or more prior to the commencement of the LARR Act, 2013, but no compensation has been paid or no physical possession has taken place. In such cases, the land acquisition process will be started afresh in accordance with the provisions of this Act.
In the LARR (Amendment) Bill, 2015, the retrospective application is dealt within Section 24(2). The Bill states that in calculating the time period for retrospective application, any period during which the proceedings were held up: (i) due to a stay order of a court, or (ii) for a period specified in the award of a Tribunal, or (iii) for any period where possession was taken but the compensation is lying deposited in a court or any account, will not be counted. The Bill, as passed by Lok Sabha, changes â€˜accountâ€™ to â€˜designated accountâ€™.
Noteworthy, by the LARR Act, 2013, the consent of 80 per cent owners is required for private projects. The consent of 70 per cent landowners is required for â€˜Public-Private Partnershipâ€™ (PPP) projects. No consent is required for government projects. This has generated a lot of hue and cry and we keep witnessing acrimonious debates time and again in prime time on major news channels as also we see reams and reams being written on it in various newspapers and magazines and journals.
By the LARR (Amendment) Bill, 2015, this consent clause is mentioned in proviso to Section 2(2). The Ordinance exempts five types of projects from this provision mentioned in above paragraph and they are: (i) defence, (ii) rural infrastructure, (iii) affordable housing, (iv) industrial corridors, and (v)infrastructure and social infrastructure including PPP projects, where the government owns the land. The Bill, as passed by Lok Sabha, removes social infrastructure from the five exempted projects. It specifies the definition of industrial corridors as those set up by the government/government undertakings, up to 1 km on either side of the road/railway of the corridor. Arun Jaitley, Finance Minister, succinctly points out, â€œUnder the Land Acquisition Bill we are bringing the industrial corridors, which would be set up in the country, to the backward people, the 300 million landless people would get employment opportunities. The governmentâ€™s priority is to create employment opportunities for all. It will focus on providing employment to tribals and landless workers as well.â€
This has raised a huge furore and opposition parties including the Congress are protesting vehemently against it. They say that the sweeping discretionary power granted to State to take away land up to 1 km on either side of the road/railway of the corridor must be restricted. There must be checks and balances, as millions of poor farmers will lose their land at the whims and fancies of the State and will not be able to do anything except to die in penury or commit suicide. A handsome amount to be decided by experts must be fixed as minimum amount which must be compulsorily paid to the farmers and those whose land is taken away and who have no other means of sustaining themselves. Also, there should be no forcible acquisitions because people donâ€™t favour it and their legitimate interests are paramount.
It is to be noted that under the LAAR Act, 2013, the Social Impact Assessment (SIA) mentioned in Chapter II is mandatory for all projects except: (i) in cases of urgency as outlined in Section 40 or (ii) for irrigation projects where an Environmental Impact Assessment is required. Under the LARR (Amendment) Bill, 2015, the government is permitted to exempt projects falling under the five categories mentioned above from this provision by issuing a notification in this regard. Therefore, an SIA need not be conducted if the government issues a notification stating this on a project-to-project basis. The Bill, as passed by Lok Sabha, adds that before issuing the notification, the government must ensure that the extent of land being acquired is in keeping with the minimum land required. Here too, there must be inserted adequate safeguards and minimum adequate compensation also must be made. The government must mention convincing reasons also of the need to acquire land. Also, social impact assessment must be mandatory and no government must bypass it.
It is imperative to mention here that the LAAR Act, 2013, exempted 13 laws such as the National Highways Act, 1956, and the Railways Act, 1989, from its ambit. These laws also govern the process of acquisition of land for specific sectors. However, this Act required that compensation and R&R provisions of these laws be brought inconsonance with it by January 1, 2015. What the LARR Ordinance, 2015, seeks to do is to bring the compensation and R&R provisions of 13 other laws in consonance with the Act.
By the LAAR Act, 2013, the irrigated multi-cropped land cannot be acquired beyond a limit specified by the government. The acquisition of agricultural land for all projects in a district/state must not exceed the total net sown area of the district/state. The LARR (Amendment) Bill, 2015, allows the government to exempt projects, falling under the five categories mentioned above from this provision, through a notification. Therefore, this limit need not be adhered to if the government issues a notification stating this on a project to project basis. The Bill, as passed by Lok Sabha, adds that before issuing the notification, the government must ensure that the extent of land being acquired is in keeping with the minimum land required.
Those who keep farmers and landowners interests uppermost keep arguing that the unutilised land must be returned to the original owner straightaway. Now here again, there is a lot of animated debate about what should be the period for return of unutilised land. The LARR Act, 2013, states that under Section 101 if land acquired under the Act remains unutilised for five years from taking possession, it must be returned to the original owners or a land bank. The Supreme Court in Municipal Corporation vs Harchand Lal Solanki and seven other cases found Section 101 of the LARR Act, 2013, constitutionally sustainable and used it as the basis of its judgments, which led to thousands of acres of land being returned to original owners and LARR Ordinance, 2015, seeks to guillotine it! The LARR (Amendment) Bill, 2015, changes this to state that the period after which unutilised land will need to be returned to the latter after five years or any period specified at the time of setting up the project.
It merits no reiteration that the land acquired by government in many cases remains unutilised even after 30-40 years of acquisition and this should never be the case. We cannot lose sight of the pertinent fact that over past few decades, over four crore tribals have been displaced without being rehabilitated or compensated, which compels many to turn to wrong paths. This could be a prime cause for left-wing extremism in various parts of our country.
Bharat Bhushan, a Delhi-based journalist, rightly points out, â€œAn estimated 53,000 hectares of land acquired by the government for private industries nearly a decade ago is still lying unutilised. An audit by the Comptroller and Auditor General of land acquired under the SEZ Act of 2005 has confirmed that the land acquired for setting up industry had been diverted to real estate projects, and that such land was mortgaged to get massive bank loans by corporate for other activities. The SEZs neither created export revenue nor new jobs. It is unrealistic to assume that people would believe that the results of land acquisition with reduced safeguards would be better. Why then is Modi persisting with diluting land acquisition laws? Could it be that coming from Gujarat, he sees land as just another asset that people ought to monetise if the price is right? This attitude prevents him from seeing that land alienation can lead to a loss of dignity, livelihood and habitat, besides social destabilisation. The anger against land acquisition is not only amongst land owners. The current policy does not take into account the livelihood of those who do not own land but are still dependent on it â€“ tenants, sharecroppers, labourers and artisans. It also ignores those whose livelihoods depend on common lands, common water bodies and other common natural resources. The palpable anger on the ground suggests that Narendra Modi might be in danger of upsetting rural India in the name of creating industrial jobs. Diluting or doing away with institutional mechanisms of listening to those threatened by land alienation may have a political cost for Modi as well as his party.â€
We all know what happened when the CPI(M) government in West Bengal in 2006 sought to forcibly acquire land from farmers in Singur in the name of creating jobs. Similarly, we know what happened in March 2007 when the CPI(M) government responded to similar farmers protest in Nandigram. Therefore, vesting governments with sweeping powers to acquire land under one garb or the other will undoubtedly benefit few vested politicians, powerful businessmen and corporate house but certainly not the poor class who has nothing but only land to bank upon and whose land is taken away on one pretext or the other rendering him landless.
The LARR Act, 2013, provided the option of employment to one member of an affected family as part of the R&R award. By The LARR (Amendment) Bill, 2015, no change has been made to this which is inserted in Section 31 and Second Schedule. The Bill, as passed by Lok Sabha, adds that employment to â€˜one member of such affected family of farm labourâ€™ must be given, which is laudable and must be appreciated. However, adequate minimum amount must also be given, which should be enough for the affected families to sustain their bread and butter and other necessities of life.
Under the LARR Act, 2013, if an offence is committed by a government department, the head of the department will be deemed guilty unless he can show that he had exercised due diligence to prevent the commission of the offence. The LARR (Amendment) Bill, 2015, deletes this provision, which should not have been done. The head of a government department must be held liable unless he/she is able to prove the exercise of due diligence to prevent an offence from being committed. The Bill adds a provision to state that if an offence is committed by a government employee he cannot be prosecuted without the prior sanction of the government, as provided under Section 197 of the Code of Criminal Procedure, 1973. The Bill, as passed by Lok Sabha, replaces this to state that a government employee can be prosecuted as provided for in Section197 of the CrPC, 1973. The LARR Act, 2013, under Chapter VIII provides for the establishment of a Land Acquisition, Rehabilitation and Resettlement (LARR) Authority, which may be approached in case a person is not satisfied with an award under the Act. No change has been made by the LARR (Amendment) Bill 2015. But the Bill, as passed by Lok Sabha, adds that the LARR Authority must hold its hearing in the district where the land acquisition is taking place, after receiving a reference from the Collector and giving notice of this reference to all parties concerned, which is a step in the right direction.
Under the LARR Act, 2013, the provisions of the Act are also applicable when land is acquired for public purpose for private companies. A company was one included in the Companies Act, 1956, or under the Societies Registration Act, 1860. The LARR Ordinance, 2015, under Section 3(j) changes the term â€˜private companyâ€™ to â€˜private entityâ€™. A â€˜private entityâ€™ is an entity other than a government entity, and includes a proprietorship, partnership, company, corporation, non-profit organisation, or other entity. The Ordinance changes the Company Act, 1956, to the Companies Act, 2013.
Now regarding the survey of wasteland, the LARR Act, 2013, had no provision and the LARR (Amendment) Bill, 2015, made no change. But the Bill, as passed by Lok Sabha, adds a provision that the government must conduct a survey of its wasteland including arid land, and maintain a record with details of this land, as may be prescribed by the government, which is a right step in the right direction.
Notably, the LARR Act, 2013, excluded the acquisition of land for private hospitals and private educational institutions. The LARR (Amendment) Bill, 2015, allowed the acquisition of land for private hospitals and educational institutions, which kicked up a huge furore with many fearing its misuse by the government of the day. The Bill, as passed by Lok Sabha, removes this provision. Thus, it should be noted that the acquisition of land for private hospitals and private educational institutions is excluded.
It would be pertinent to mention here that the Supreme Court on April 13, 2015, sought the Centreâ€™s response in four weeks to a PIL filed by three Delhi-based NGOsâ€”Delhi Grameen Samaj, Gram Sewa Samiti and Chogama Vikas Avam Kalyan Samiti–and Bharatiya Kisan Union, who have challenged the Centreâ€™s decision to re-promulgate the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance on April 3 bypassing Parliament. The petitioners said, â€œContrary to all cannons of constitutional morality, the President on the advice of the Council of Ministers re-promulgated the Land Acquisition Ordinance. The governmentâ€™s decision was driven by the fact that the 2015 Land Acquisition Amendment Bill was sure to fall through in Rajya Sabha. The Ordinance cannot be a substitute for legislative process for enacting laws. The government had not even indicated the extraordinary situation necessitating re-promulgation of the Ordinance.â€ The petitioners added, â€œIn a democratic process, people cannot be governed by laws made by the executive. The continuation and re-promulgation of the same provisions of the Ordinance after prorogation of one of the Houses of Parliament is nothing but a colourable exercise of power on the part of the executive.â€ Needless to say, no one can dispute this. A bench of Supreme Court comprising Justices JS Khehar and Sharad A Bobde issued notice to the Centre after senior advocate Indira Jaisingh argued that re-promulgation of the Ordinance was a serious infraction of the legislative scheme, which stood at the core of democratic governance. The bench hoped the government would revert to legislative process soon.
The LAAR (Amendment) Bill was passed on March 10, 2015. However, 10 days later, the Houses were adjourned on March 20. The Rajya Sabha was thereafter prorogued on March 28, shortly before the Ordinance was promulgated on April 3.To say the obvious, it was a â€œclever device and ruseâ€ adopted by the government which subverts the legislative process of the Rajya Sabha. Lack of political will or consensus or the fear of the executive of getting defeated on the floor of the House is not a ground for exercise of power under Article 123 which confers power on the President to promulgate Ordiance during recess of the Parliament. This is exactly what the petitioners had pointed out.
What is most disingenuous in both the LAAR Act, 2013, and the LAAR (Amendment) Bill, 2015, the decision making of everything pertaining to Social Impact Assessment (SIA) has been left exclusively to the â€œappropriate governmentâ€. Just like SIA needs review by an independent multi-disciplinary expert body, it first and foremost should also be prepared by such an expert body and certainly never by the â€œappropriate governmentâ€, which is seen by experts as most unfortunate. This grievous error must be set right promptly. Also, the government must define specifically as to what is the â€œpublic purposeâ€ for which land is needed and there should not be a free licence in the hands of government to call anything as â€œpublic purposeâ€ because this is exactly what gives rise to crony-capitalism in land dealings. Agricultural scientist MS Swaminathan too feels land should only be acquired for public good and not for private profit. In the UK, there is no standing law that allows government to acquire land for private industry.
The principle of eminent domain envisaging the right of state to acquire any property for a larger public or national cause which government invokes can be justified when it is pertaining to building a public hospital or a highway or a public school. Further, the government must set up an independent and credible â€œpublic purpose validation commissionâ€ both at the centre and state levels with eminent citizens from different walks of life as its members to ascertain all this and monitor all such cases where government acquires land with or without 80 per cent consent and make sure that injustice is not done with those whose land is taken away and who are the ultimate losers in this whole process of land acquisition and at whose expense big corporate houses and businessmen benefit. Vinayak Chatterjee, Chairman of Feedback Infra, points out, â€œIt would certainly be more impactful and relevant than the proposed quasi-judicial authority â€“ the Land Acquisition Rehabilitation and Resettlement Authority, which is supposed to hold hearings in places where acquisition is taking place. The nation wants an ex-ante body for endorsing â€˜public purposeâ€™. Not an ex-post body for cleaning up the mess.â€ No government whether at the Centre or in States should ever ignore that when farmers part with their land, they lose their identity, are rendered landless and receive mostly a very meagre amount. Above all, money alone cannot compensate for this irreparable loss of land, which governments acquire at their own sweet will and in many cases keep it vacant for decades. This is just not done.
Logically speaking, compensation should be made to those whose land is being acquired at the emerging market price and not at old agricultural price and Dr Subramanian Swamy rightly pointed to the provisions of the Land Bill being misused at the lower level, which ultimately harms the poor people the most. Further, the price must be dictated by those who part with their land and not by the states, as most unfortunately we see right now. This Land Bill must be thoroughly debated in both Houses of Parliament and only after this it should be passed by both Houses by a majority so that it comes into existence, and not by resorting to Ordinance, as is most unfortunately being seen by us right now.
Salient Features Of Land Acquisition Act, 1894
Land Acquisition Act (LA ACT)
For legal private property holders, the acquisition of the land would be done under the aegis of the Land Acquisition Act 1894 (amended 1984). The L.A Act is applicable to all parts of India except to the State of Jammu and Kashmir.
The Land Acquisition Act, 1894 defines the following terms as follows:
Section 3A: Preliminary Survey of land and the power of officers to carry out
The survey the purpose of determining whether any land is needed for public purpose, the officer of the State Government in the Public Works Department or any other officer specially authorised by the State Government can:
(i)Â Â Â Â Â Â Â Â Â Â Â Enter upon and conduct survey
(ii)Â Â Â Â Â Â Â Â Â Â Take level of the land. Mark such levels. Cut down and clear away any part of any standing crop, fence or jungle.
(iii)Â Â Â Â Â Â Â Â Â Ascertain whether the land is suitable for the purpose
Section 4: Publication of Preliminary Notification
Whenever it appears to the appropriate Government Authority that land is needed for Public purpose a notification to that effect may be issued in the official Gazette u.s. 4(1) of the Land Acquisition Act 1894, (amended1984). The Notification shall also be issued in two locally circulated newspapers, one of which shall be in the regional language. In addition the collector shall ensure the “public notice of substance of such notification “To be given at a convenient place in the locality. The date of publication of the notification shall be considered as the date of the notification.
It shall be lawful on the behalf of the officer of the State Government in the Public Works Department or any other officer specially authorized by the State Government: a) to enter upon, conduct survey and take levels b) dig or bore into the soil, c) set out the boundaries of the proposed acquisition and d) to take levels, boundaries and lines by placing marks and cutting trenches.
Section 5: Hearing of Objections
Any person interested in the land notified u.s. 4(1) shall within 30 days of the publication of the notice file an objection u.s5 (1).
Every objection shall be made to the Collector in writing. The objector shall be given a opportunity to present his case in person or through an authorised representative .After hearing such objections and making such inquiry as he feels necessary the Collector shall present a report u.s.5(2) to the respective Government Authority along with the records of proceedings held by him. The decision of the appropriate government authority shall however be final.
Section 6: Declaration that land is required for Public Purpose
The appropriate Government after considering the report submitted by the Collector u.s.5(2) if satisfied that the land is required for public purpose shall issue a notification in the Official Gazette u.s.6(1). The Notification shall also be issued in two locally circulated newspaper, one of which shall be in the regional language. In addition the collector shall ensure the “public notice of substance of such notification” be given at a convenient place1 in the locality. The declaration shall be made under the signature of a secretary to such government or some officer duly authorised to certify the orders. Different declarations may be made for different parcels of land covered by the notification u.s. 4(1).
No Notification to the effect of declaration of land required for public purpose shall be issued after the expiry of one year of the publication of the notification u.s. 4(1).
Section 7: Collector to take order for acquisition
Whenever land has been declared for Public Purpose u.s. 6(1) the appropriate Government or any person authorized on behalf of the appropriate Government shall direct the collector to take order for the acquisition of land.
Section 8: Mark and measure the land to be acquired
The Collector shall thereupon cause the land to be measured and marked unless it has already been done u.s. Section 4
Section 9: Notice to Persons Interested
The Collector shall issue a public notice u.s. 9(1) the be displayed at a convenient place on or near the land stating the Governments intention to take possession of the land and that claims for compensations and all other interests may be made to him.
The notice shall state particulars of land needed and require the person to appear personally or represented by his agent before the Collector at the stipulated time and place and state the nature of their respective interest in land and particulars of their claims to compensation. The date of such hearing shall not be earlier than fifteen days from the date of publication of the notice.
The collector shall also serve notice u.s. 9(3) to the same effect to all such person believed to be interested in the property to the person or his authorised agent.
In case the person interested resides elsewhere and has no such agent within the revenue district where such land is situated in such cases the notice shall be sent by registered post (u.s. 28 & 29 of the Indian Postal Act 1898) to his last known residence, address
Section 10: Power to require and enforce the making of statement as names and interest. The collector may direct any person to deliver to him names of all person possessing interest in land, co-proprietorship, mortgagee, tenant and nature of such interest and also the rents and profits receivable from such property.
Section 11: Enquiry and Award by the Collector
The Collector shall enquire into the objections in pursuant to the notice u.s. 9, measurements made u.s. 8 and into the value of land on the date of publication of notification u.s. 4(1) and shall make an award on:
- The true area of land,
- Compensation for the land
- The apportionment of the compensation
The award for the compensation however shall be made only with the previous approval of the appropriate government authority or any officer as the appropriate government may authorise
Section 12: Award by the Collector
The Collector shall make an award u.s. 11 within two years of the date of publication of the declaration. If the award is not made within two years of the date of publication of the notice in such cases the entire proceeding will lapse. However in the calculation of the period during which the action of the proceedings of land acquisition was stayed by an order of the court, shall not be included within the time period.
Section 13: Adjournment of inquiry
The collector, if he thinks fit, adjourn the inquiry till such day to be fixed by him. He may make correction of clerical errors at any time not later than six months of the date of award or where he has to make correction under the orders of the court.
On completing the ‘award’, section 16 empowers LAO to take possession of the land and hand over to the project proponent.
Salient Features Of Land Acquisition Act, 2013
- Â Compensation: Given the inaccurate nature of circle rates, the Bill proposes the payment of compensations that is up to 4 times the market value in rural areas and 2 times the market value in urban areas.
- R&R: This is the very first law that links land acquisition and the accompanying obligations for resettlement and rehabilitation. Over five chapters and two entire Schedules have been dedicated to outlining elaborate processes (and entitlements) for resettlement and rehabilitation. The Second Schedule in particular outlines the benefits (such as land for land, housing, employment and annuities) that shall accrue in addition to the one-time cash payments.
- Retrospective Operation: To address historical injustice the Bill applies retrospectively to cases where no land acquisition award has been made. Also in cases where the land was acquired five years ago but no compensation has been paid or no possession has taken place then the land acquisition process will be started afresh in accordance with the provisions of this act.
- Multiple Checks and Balances: A comprehensive, participative and meaningful process (involving the participation of local Panchayati Raj Institutions) has been put in place prior to the start of any acquisition proceedings. Monitoring Committees at the National and State Level to ensure that R&R obligations are met have also been established.
- Special Safeguards for Tribal Communities and other disadvantaged groups: No law can be acquired in Scheduled Areas without the consent of the Gram Sabhas. The Law also ensures that all rights guaranteed under such legislations as the Panchayat (Extension to Scheduled Areas) Act 1996 and the Forest Rights Act 2006 are taken care of. It has special enhanced benefits (outlined in a dedicated chapter) for those belonging to the Scheduled Castes and Scheduled Tribes.
- Safeguards against displacement: The law provides that no one shall be dispossessed until and unless all payments are made AND alternative sites for the resettlement and rehabilitation have been prepared. The Third Schedule even lists the infrastructural amenities that have to be provided to those that have been displaced.
- Compensation for livelihood losers: In addition to those losing land, the Bill provides compensation to those who are dependent on the land being acquired for their livelihood.
- Consent: In cases where PPP projects are involved or acquisition is taking place for private companies, the Bill requires the consent of no less than 70% and 80% respectively (in both cases) of those whose land is sought to be acquired. This ensures that no forcible acquisition can take place.
- Caps on Acquisition of Multi-Crop and Agricultural Land: To safeguard food security and to prevent arbitrary acquisition, The Bill directs States to impose limits on the area under agricultural cultivation that can be acquired.
- Return of Unutilised Land: In case land remains unutilised after acquisition, the new Bill empowers states to return the land either to the owner or to the State Land Bank.
- Exemption from Income Tax and Stamp Duty: No income tax shall be levied and no stamp duty shall be charged on any amount that accrues to an individual as a result of the provisions of the new law.
- Share in appreciated land value: Where acquired land is sold to a third party for a higher price then 40 per cent of the appreciated land value (or profit) will be shared with the original owners.
What are the Rehabilitation and Resettlement provisions for farmers, landless and livelihood losers?
- Reduced Qualifying Criteria: To qualify for benefits under this Act the time period has been reduced to 3 years of dependence (on the acquired land) instead of 5.
- Affected Family to include tenants: The definition of affected family includes agricultural labourers, tenants including any form of tenancy or holding of usufruct right, share-croppers or artisans who may be working in the affected area for 3 years prior to the acquisition, whose primary source of livelihood stand affected by the acquisition of land
- Houses for all affected families: All affected families are entitled to a house provided they have been residing in an area for 5 years or more and have been displaced. If they chose not to accept the house they are offered a one-time financial grant in lieu of the same.
- Choice of annuity or employment: All affected families are given a choice of annuity or employment;
- i) If employment is not forthcoming they are entitled to a one time grant of 5 lakh rupees per family.
- ii) Alternatively they will provided with an annuity payment of Rupees 2000 per month per family for twenty years (this will be adjusted for inflation).
- Subsistence Allowance: All affected families which are displaced from the land acquired shall be given a monthly subsistence allowance equivalent to rupees 3000 per month for a period of one year from the date of award.
- Training and Skill Development: All affected families are also given training and skill development while being offered employment.
- Miscellaneous Amounts: All affected families are given multiple monetary benefits such as transport allowance of rupees 50,000 and resettlement allowance of rupees 50,000.
- One-Time Financial Assistance: Each affected family of an artisan, small trader or self-employed person shall get one-time financial assistance of such amount as the appropriate Government may, by notification, specify subject to a minimum of twenty-five thousand rupees.
- R&R to be completed in all aspects for irrigation projects: In case of acquisition of land for irrigation or hydel project the rehabilitation and resettlement shall be completed six months prior to submergence of the lands proposed to be so acquired.
- Possession upon fulfilment of conditions under Act: The Collector shall take possession of land only ensuring that full payment of compensation as well as rehabilitation and resettlement entitlements are paid or tendered to the entitled persons within a period of three months for the compensation and a period of six months for the monetary part of rehabilitation and resettlement entitlements commencing from the date of the award. However, families will not be displaced from this land till their alternative R&R sites are ready for occupation.
- Time Limit for provision of R&R entitlements: The components of the Rehabilitation and Resettlement Package in the Second and Third Schedules that relate to infrastructural entitlements shall be provided within a period of eighteen months from the date of the award.
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Highlights Of LARR Ordinance, 2015
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014 was promulgated on December 31, 2014. The Ordinance amends the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act 2013). The LARR Act 2013 outlines the process to be followed when land is acquired for a public purpose. Key changes made by the Ordinance are:
- Provisions of other laws in consonance with the LARR 2013: The LARR Act 2013 exempted 13 laws (such as the National Highways Act, 1956 and the Railways Act, 1989) from its purview. However, the LARR Act 2013 required that the compensation, rehabilitation, and resettlement provisions of these 13 laws be brought in consonance with the LARR Act 2013, within a year of its enactment, through a notification. The Ordinance brings the compensation, rehabilitation, and resettlement provisions of these 13 laws in consonance with the LARR Act 2013.
- Exemption of five categories of land use from certain provisions: The Ordinance creates five special categories of land use: (i) defence, (ii) rural infrastructure, (iii) affordable housing, (iv) industrial corridors, and (v) infrastructure projects including Public Private Partnership (PPP) projects where the central government owns the land.
- The LARR Act 2013 requires that the consent of 80% of land owners is obtained for private projects and that the consent of 70% of land owners be obtained for PPP projects. The Ordinance exempts the five categories mentioned above from this provision of the Act.
- In addition, the Ordinance permits the government to exempt projects in these five categories from the following provisions, through a notification:
- The LARR Act 2013 requires that a Social Impact Assessment be conducted to identify affected families and calculate the social impact when land is acquired.
- The LARR Act 2013 imposes certain restrictions on the acquisition of irrigated multi-cropped land and other agricultural land. For example, irrigated multi-cropped land cannot be acquired beyond a limit specified by the government.
- Return of unutilised land: The LARR Act 2013 required that if land acquired under it remained unutilised for five years, it was returned to the original owners or the land bank. The Ordinance states that the period after which unutilised land will need to be returned will be five years, or any period specified at the time of setting up the project, whichever is later.
- Time period for retrospective application: The LARR Act 2013 states that the Land Acquisition Act, 1894 will continue to apply in certain cases, where an award has been made under the 1894 Act. However, if such as award was made five year or more before the enactment of the
- LARR Act 2013, and the physical possession of land has not been taken or compensation has not been paid, the LARR Act 2013 will apply.
- The Ordinance states that in calculating this time period, any period during which the proceedings of acquisition were held up: (i) due to a stay order of a court, or (ii) a period specified in the award of a Tribunal for taking possession, or (iii) any period where possession has been taken but the compensation is lying deposited in a court or any account, will not be counted.
- Other changes: The LARR Act 2013 excluded the acquisition of land for private hospitals and private educational institutions from its purview. The Ordinance removes this restriction.
- While the LARR Act 2013 was applicable for the acquisition of land for private companies, the Ordinance changes this to acquisition for â€˜private entitiesâ€™. A private entity is an entity other than a government entity, and could include a proprietorship, partnership, company, corporation, non-profit organisation, or other entity under any other law.
- The LARR Act 2013 stated that if an offence is committed by the government, the head of the department would be deemed guilty unless he could show that the offence was committed without his knowledge, or that he had exercised due diligence to prevent the commission of the offence. The Ordinance replaces this provision and states that if an offence is committed by a government official, he cannot be prosecuted without the prior sanction of the government.
By Sanjeev Sirohi