Tuesday 30 June 2015

Land acquisition legislation: RESPONSE

Shri Premdhar Malaviya has sent the following response to the summary of issues given in our last post. Readers are requested to respond with their comments and views. The process of consultation on the Land Acquisition Legislation is still going on. The Joint Parliamentary Standing Committee set up for this purpose is continuing its deliberations. It would be good to keep pressing our views and opinions at this stage. JKB.

After My comments are as under:

Exempted Categories
Land should only be acquired for strictly defined purposes. I agree with your suggestion that the Government should directly amend the clauses that it finds inadequate.
Expansion of Private Interests
I agree that the amendment proposed by the Government should be withdrawn.
Acquisition for Private Hospitals etc
If private hospitals etc meet the needs of the local people, there will be no difficulty for  private parties to buy land for it. I agree with you that acquisitions for private interests are not justified.
Consent Clause
Once the suggestions made above are accepted, there will be no question left of the Government acquiring land for private interests. And, while obtaining people's consent sound very good, in practice it will only lead to bickering and endless delays once political parties which want to slow down the Prime Minister join the fray. I strongly disagree with your position.
Social Impact Assessment
Social Impact Assessment is, in practice, a very imprecise thing which can never satisfy the people and should be done away with. The sovereign rights of the people can be respected by making it mandatory for State Governments to elicit public opinion and to obtain the consent of institutions of local self-governance and gram-sabhas before they frame Rules for land acquisition. One can reasonably expect a democratic govt to be alive to the social impact of any project that they sponsor.It is very difficult to agree to your position.
Provisions to safeguard Food Security
I have suggested earlier that farmers should have the option to ask for equal amount of cultivable land in addition to the market price of the land plus solatium etc or to ask for enhanced compensation. I agree with you that the proposed amendment should be dropped.
Depriving certain acquisitions from the benefits of the Act
Diverting acquired land for purposes other than the original is fraught with dangers. If at all such diversion is thought to be necessary, then public opinion must be elicited and consent of local bodies and gram-sabhas must be taken; else the original acquisition must be voided after, say, ten years.
Expanding Protection to offending Government Servants
I agree with your proposition
Industrial Corridors
If we want industries to come to the interiors, the govts must have leave to "designate" minor roads also. I do not agree with you on this point

P. D. Malaviya

Saturday 20 June 2015

Land acquisition legislation IX:
Summary of Issues and Suggestions

In the course of the last eight posts, we have discussed most of the significant issues associated with the effort to amend the Land Acquisition Act of 2013. In this post we bring together these issues and our suggestions on these:

Exempted Categories
The proposed amendments to the Act of 2013 are presented as exemptions granted for five specified categories of projects defined in Section 10A of the amending Ordinances and the Bills. But, these five categories are so formulated that these exhaust all the possible purposes listed in the Act of 2013, and even add certain purposes that are specifically excluded in the original Act. The amendments thus in effect amount to blanket amendments of the relevant provisions.
For the sake of transparency, this stratagem of creating a specified set of categories for which certain exemptions are being granted may be avoided. It would be proper to directly amend the Clauses that the Government finds objectionable or inadequate. This direct approach shall make the drafting less cumbersome, and it shall also allow a more informed and clear discussion on the proposed amendments.

This issue is discussed in our post of June 10, 2015 (Land Acquisition Legislation V).

Expansion of private interests
The amendments expand the private interests for whom the Government may acquire land to include even proprietorships, partnerships and non-profit organisations, etc. It is not obvious, why the Government would want to acquire land for such entirely private and perhaps unincorporated entities. The Government has not cared to explain the rationale for such expansion of public purposes to completely private interests.  On the face of it the amendment seems unreasonable and needs to be withdrawn. Alternately, the Government may offer a cogent public statement of the reasons for such an amendment.

This issue is discussed in our post of June 5, 2015 (Land Acquisition Legislation III).

Acquisition for private hospitals etc.
The history of the process of amendment indicates that the Government intended to include private hospitals and private educational institutions (and perhaps also private hotels, at one stage) in the list of public purposes for which compulsory acquisition of land may be undertaken. The specific reference to these public purposes has now been removed from the amending legislation, but the specific exclusion of these which is there in the Act of 2013 also seems to have been removed. The Government must clarify whether acquisition for private hospitals, educational institutions, etc., remains part of the statute. Necessary redrafting of the relevant Clause may be done to clarify the issue one way or the other.

Our own opinion is that such acquisitions for private interests are not justified. There is nothing in the law which prevents the promoters of such business interests to buy land in the normal course through the regular market processes.

This issue is discussed in our post of June 5, 2015 (Land Acquisition Legislation III).

Consent Clause
The Act prescribes consent of a certain percentage of affected families in cases of acquisition on behalf of private interests either for projects in the PPP or direct mode. The amendments seem to entirely do away with the requirement of consent, at least for projects that come within the five specified categories; this means all possible projects.

In a democratic polity, it is important to retain some semblance of consent and consultation especially when the acquisition is being made for private interests. We suggest that the Clause may be amended to provide for consent of only “landowners” instead of the much larger group of “affected families”, and the proportion of landowners whose consent is essential before acquisition may be reduced to 51 percent.

This would simplify the process of obtaining consent and yet maintain the democratic decorum of respecting the wishes of the majority.

The issue is discussed in the posts of June 7 and 10, 2015 (Land Acquisition Legislation IV & V).

Social Impact Assessment
The amendments do away with the whole process of social impact assessment (SIA) and determination of public purpose (Chapter II of the Act of 2013). The process is designed to ensure a certain level of participation of the institutions of local self-government and Gram Sabhas, etc., in the process of land acquisition. This is a core part of the Act of 2013.

The bureaucracies of several States objected to this ‘innovation’ of consulting the local people and their institutions in exercising sovereign Government authority. But, expanding the processes of consultation and consent in matters of governance is the essence of democracy and especially of decentralised governance, which forms one of the foundational precepts of the ideology of Pandit Deen Dayal Upadhyaya. The BJP is deeply committed to this ideology.

We therefore suggest that the Government should find a way of retaining the SIA process. The Act of 2013 already provides the possibility of the Government exercising its sovereign right to reject the recommendations emerging from this process. The Government may want to introduce some specific amendments to further strengthen its hands. The Government also has the authority to draw the rules and procedures of SIA in a way that the process is simplified. It would be proper for the Government to let the SIA process stand and try to make it functional, instead of simply amending it away.

This issue is discussed in our post of June 15, 2015 (Land Acquisition Legislation VI).

Provision to Safeguard Food Security
The Act of 2013, through its Special Provision to Safeguard Food Security (Chapter III), requires the appropriate Governments to be careful and cautious while acquiring agricultural land, and especially irrigated multi-crop land. In the case of the latter, it requires the Governments to develop an equivalent area of wasteland for agricultural purposes or to invest an equivalent amount in enhancing food-security. It also requires the Governments to set limits on the proportion of agricultural land that may be alienated towards other purposes. However, the provision leaves the determination of such limits to the discretion of the States.

The provision as drafted is eminently sensible. It requires the Governments to be careful and discriminating in the matter of acquiring agricultural land but does not constrain them in any manner.

Under the circumstances, there is hardly any need to abrogate this whole Chapter, as the amendments propose to do. This is perhaps the most indefensible of the amendments proposed by the Government.

In this context, we also suggest that the Government should think in terms of creating a Land Use Authority, which maintains detailed maps and records of land-use throughout the country, and also regulates the process of changing land use from one purpose to the other. This would allow for a planned and rational allocation of land for different purposes.

This issue is discussed in our post of June 18, 2015 (Land Acquisition Legislation VII).

Bringing exempted Acts under the umbrella
The proposed amendments extend the compensation and R&R provisions of the Act of  2013 to acquisitions made under thirteen Acts, which had been placed in the fourth schedule of that Act and had been temporarily (for one year) exempted.

This is a welcome amendment. But why have such a multiplicity of laws under which the Governments and their agencies may undertake compulsory acquisition of land? The Government should consider merging all these Acts into a single Act, by appropriately amending the Act of 2013. This, however, is a suggestion for the future.

Depriving certain acquisitions from the benefits of the Act
The Act of 2013 makes it applicable to acquisitions which were settled five years or more before the commencement of this Act but have not been yet finalised. The amendments largely remove this retrospective application of the Act.

We suggest that in such cases the Government may not want to go through the whole process of acquisition again, but it should certainly extend the benefits of the enhanced compensation and R&R provisions of the Act to the affected parties. Section 24(2) of the Act of 2013 may be amended along these lines. The amendment proposed by the Government is unnecessarily unfair and miserly.

The Act of 2013 also provides that in case any acquired lands remain unutilised for a period of five years after the date of taking over of possession, then these must be returned to the original owners or to the land bank of the appropriate Government. This is a salutary measure to ensure that the Governments do not indulge in unnecessary and excessive acquisition. There is no reason to dilute it, as the amendments propose to do.

Extending protection to offending Government servants
The Act of 2013 holds the Government servants who contravene provisions of this Act liable to prosecution. The amendments make such prosecution subject to the permission of the appropriate Government.

The process of land acquisition is known to involve arbitrary and excessive exercise of authority by the officers on the ground. The Act needs to have some deterrent provision to help the officers break out of this mould, and try to make the process of acquisition more consultative and humane. This is the stated objective of the Act of 2013. The amendment of this Clause needs to be thought afresh in this perspective.

Industrial Corridors
From current trends, it seems that this is going to be one of the main public purposes for which large amounts of land would be acquired in the near future. Already much land has been acquired in different States for such corridors.

But neither the Act of 2013 nor the amendments define “Industrial Corridor”. In the amending legislation, a provision has been inserted stating that for such corridors land would be acquired up to a kilometre on both sides of the “designated” railway or roads. This provision leaves it unclear whether minor roads within the main corridor can also be “designated”. In that case, there would be just no limit on the land that can be acquired.

The definition of “Industrial Corridor” and of “Designated Road” needs to be clarified and stated in the amending Bill.
The last four 4 issues have been discussed in our post of June 18, 2015 (Land Acquisition Legislation VIII).
— Dr. J. K. Bajaj

Land acquisition legislation: RESPONSE

Shri Gopal Krishna Aggarwal, Member of the National Executive of the BJP and Member of the BJP's Land Acquisition Committee has sent the following note in response to our posts. The note is entitled, Perception versus Realities. We are publishing the Note in full.

After hectic parley on land acquisition issues and aggressive stance of the opposition in Parliament leading thereof to sending the Amendment Bill to the Joint Committee of Parliament, BJP seems to be on the back foot.
BJP has put up a brave foot, facing several accusations regarding itsintention on dilution of farmers’ interest with the Amendment. Though, some amendments are prone to questioning, but most of them are unfounded.BJP is being accused for many things, which it did not do.
Informed debate, therefore, is the need of the time. First and foremost, we all agree that the farmers have myriad problem, which basically stem from dependence of more than 65% of our population on agriculture, contributing only about 14% to Gross Domestic Product (GDP). Other major concerns regarding agriculture sector ishigh dependence on rain fall and vulnerabilities to natural calamities,insufficient irrigation facility, low proportion of irrigated land, minimum support price (MSP) not covering high input cost and dependence on market forces of demand and supply, poor quality of available seeds, poorly targeted fertilizers subsidy, lack ofavailability of cheap credit,lack of national agriculture marketing network and disguised and under employment.
Government has been working on most of the issue, either through committees or its departments. They all have extensively recommended structural reforms. Shri MS Swaminathan committee’s report came out in 2006, giving very exhaustive roadmap ahead for agriculture sector development in areas like irrigation, farm credit, improvement of productivity for small & medium farmers, import duty mechanism, village knowledge centers, agriculture risk fund, affordable health insurance, and land reforms including land distribution to landless farmers. And recently Shri ShantaKumar Committee has given recommendations on reforms in procurement policy and public distribution system, including food security.
There is consensus on many of the solutions like provision of farm Insurance,compensation in case of natural calamities, increasingthe penetration of irrigation facilities, MSP based on input cost, power availability and its cost, no tax on agriculture income, issues of direct transfer and targeted subsidy to the farmers instead of payment to industries, Kisan Credit card on lower interest rate, national agriculture e-marketing setup and generation ofalternative employment in cottageand rural industries. The primary objective is to reduce the dependence of more than 65% of the country's population on agriculture and increase its contribution to GDP.
Another major concern is the existing Special Economic Zones(SEZ), where 40 percent of the area acquiredin the country is still remaining unutilized. Out of 45,782 hectares of land acquired for 365 notified SEZs across India, as much as 18,023 hectares is lying vacant. 
We also need to keep in mind that the Land Acquisition Act’s main objective is land acquisition for the developmental requirement, giving adequate compensation, proper rehabilitation, proper resettlement and alternative employment generationfor the land owners, monitoring system for implementation of regulation and dispensationof compensation and finallygrievances redressal mechanism in case of disputes.
The government has to consider all the various stakeholders’ demand and try to build consensus. Major stakeholders to the bill arefarmers, landowners, project affected families, Government, developmental needs of the nation, industrialist and Infrastructure developers and bureaucracy responsible for implementation.
The most contentious issue with regard to the Bill is the Consent Clause. Currently everyone’s perception is that the BJP has done away with the consent completely, but the fact is that even in 2013 Act the consent was not required for acquisition by the Government for its own projects. Actually the consent was required for acquisitions for public private partnership (PPP) and private projects only, in the case they are for public purpose. BJP has removed it only if the projects come under the five new categories as per Section 10A.  An additional safeguard for PPP projects is that the ownership of land must continue to vest with the Government. Projects under these five categories under section 10A have also been exempted from Social Impact Assessment (SIA). Another wrong perception about the consent is that, the consent is required from the landowners. Actually the 2013 Act talks of the consent from the project-affected families, which is for all practical purpose impossible to even identify.

Clarification on the Consent Clause (2013 Act)
Acquisition by Government in about 12 categories under section 2 (1) of the Act 2013 was exempt from consent, except for PPP and private sector project.
13 Acts under Schedule Four of the Act through which most of the land acquisition takes place were also exempt from consent as well as SIA. The compensation under these acts was also payable according to 1894 old law. 
Now after the Amendment
Compensation for acquisition under schedule 4 will be paid as per the new Act
Consent & SIA has been exempted for acquisition for five categories u/s section 10A
For acquisitions for PPP projects consent and SIA is not required where ownership of land remains with the Government.
Consent of 80% of the affected families and SIA is still required for acquisition for private project which do not come u/s section 10 A (1).
With regard to payment of compensation nothing has been changed.  While removing SIA, the requirement of giving employment to landless laborersfrom the project-affected families has been made part of the main Act. All other compensation and rehabilitation packages remain intact and form part of schedules I, II & III of the new Bill as given below.
Compensation Package to Land Owner and Tenants (Schedule I)
i. Based on market value of Land
a) The market value, if any, specified in the Indian Stamp Act 1899 for the area; or
b) The average sale price for similar type of land situated in the nearest village or nearest vicinity area; or
c) Consented amount of compensation in case of acquisition of lands for private companies or for public private partnership projects,
Whichever is higher:
i. Multiplying factor as given in the Act
ii. Value of assets attached to land or building 
iii. Solatium 100%
Rehabilitation and Resettlement of Project Affected Family Schedule II
a) Provision of housing units in case of displacement 
b) Land for Land in case of irrigation projects
c) Offer for Developed Land
d) Choice of Annuity / Employment / Lump sum payment
e) Subsistence grant for displaced families for a Period of one year
f) Transportation cost for displaced families
g) Cattle shed/petty shops cost
h) One-time grant to artisan, small traders and certain others
i) One-time Resettlement Allowance
Infrastructural Amenities Schedule III
a) Roads within the resettled villages
b) Proper drainage, sanitation and drinking water
c) Grazing land as per proportion acceptable in the State’
d) PanchayatGhars, Post Offices, Fair Price Shops, Schools and Primary Health Centers
e) Irrigation facilities to the agricultural land allocated to the resettled families

With Regards to SIA the Amendment Bill has done away with the requirement citing, lengthy, time consuming and complicated process. But major important requirements under SIA in the present Act have been incorporated in the main Amendment Bill itself. Like the provision for employment to the family of the land laborer in the project affected area, assessment by an independent tribunal with regards to minimal land requirement for a particular project and acquiring only that land. Anotherlandmark change is the setting up of anindependent dispute resolution tribunal at the district level with hearing at the district level itself. The tribunal will compriseof representatives from farmers etc. also.
Though Government’s timing of 1st ordinance can be questioned but the intention is not questionable as can be seen from the sequence of event mentioned here under
As per Section 105 (3) of the LARR Act, the 13 Acts under the Forth Schedule of the Act were to be brought in line with LARR in matters of compensation, rehabilitation and resettlement and infrastructure facilities by 31st December 2014.
All the shortcomings in any Act cannot be visualized initially.  It comes to light only after the Act is implemented and after widespread consultation with the stakeholders and the implementing agency. Therefore Government held wide consultations at Conference of State Revenue Ministers, organized on 27th June 2014 and Consultations with Secretaries and officers of concerned ministries administering the Acts under Schedule 4 was also held on 21st October 2014.
With these consultations and the letters received from several Chief Ministers including even from some Congress ruled states, general opinion and conclusion was that, it isnecessary to bring some changes in the Act, while safeguarding the interest of the farmers and the affected families.SIA has several procedural difficulties and time-consuming processes delaying project implementation and identification and obtaining consent have to be streamlined and mitigated. It was required to bring certain activities under the preview of exemption from consent and SIA.
Even with regard to accountability of the Government officials, the provision of 2013 Act, were not in sync with other Acts. There is a standard procedure u/s 197 of Indian Penal Code (IPC), which lays down standard procedures for proceeding against Government officials. Earlier this clause was missing and has now been suitably modified and included U/S 87 of the Amended Bill.

Section 87: Where an offence under this Act has been committed by any person who is or was employed in the Central Government or the State Government, as the case may be, at the time of commission of such alleged offence, the court shall take cognizance of such offence provided the procedure laid down in section 197 of the Code of Criminal Procedure, 1973 is followed.

With regard to section 24 of the 2013 Act, it still requires further rectification. Therefore I would suggest the Government to do this along with the other suggestions of the Parliamentary Standing Committee if any. First, the Act provides that the payment of compensation to farmers with new rate will be applicable only after five years have elapsed as on 1st January 2014 and the project has still not started.  Further if the possession of the said land has not been taken over by the Government andthe compensation has also not been paid to the farmer then the said land will revert back to the farmer and the process of acquisition will have to be stared afresh.The Amendment Bill has only increased the time period for the calculation of five years,that is the period of stay by any court of law has been removed from calculation of this five years period. But this is a sunset clause; it calculates the period of five years as on 1st January 2014 i.e. it covers any acquisition only before 1st January 2009 and therefore all the acquisition during January 2009 to 2014 have no remedy. Many of the disputed acquisitions are during this period only.
There is another clause U/S 101 which relates to land being reverting back to the owner, if not used within five years, and has now been amended to:
Section 101 ‘When any land acquired under this Act remains unutilized for “a period specified for setting up of any project or for five years, whichever is later”, from the date of talking over the possession, the same shall be returned to the original owner or owners of their legal heirs, as the case may be, or to the Land bank of the appropriate Government by reversion in the manner as may be prescribed by the appropriate Government’

Here the Government has shown its willingness to change as can be seen from the statement of Law Minister Shri Sadananda Gowda. In an exclusive interview recently, he said that the Government was “highly likely“ to accept one of the key clauses of the Act passed by UPA in 2013, which mandated that land acquired would revert to farmers if not used within five years. “We are highly likely to accept this clause, with a few exceptions. In cases like that of an atomic plant, where the gestation period is itself 10 years, we cannot apply this clause, but in other cases, we can,”
In the end we need to understand that the Ordinance and Amendment are more of a battle of perception. There is an immediate need to engage with the farmers and explain the provision and its implications in detail. We also need to make them aware that, only the difficulties and shortcomings of LARR 2013, experienced from ground level implementation,have been sought to be amended and ironed out. 
As a suggested move forward, we have to understand that in effective terms: 
a. The scope of SIA has been narrowed down andsome safeguard has been retained in the main Bill.
b. The consent has been done away with in respect to PPP and Private projects.
c. An Independent Dispute Resolution Tribunal has now made available at the district level for grievance redressal mechanism, which will hold it’s hearing at district itself. 
d. Only through developmental activities and building infrastructure in the villages (for which land is required), the higher value of land is unlocked.
e. Land acquisition is in the Concurrent list, so that the State Governments are free to implement the New Act or not.
f. Forest Rights Act and Tribal Rights Act protect the rights of tribal people and their forest land and therefore these are not affected by the provision of New Act. Their rights are also protected under Schedule V and VI of the Constitution.

Readers comments on this response are welcome. JKB.

Thursday 18 June 2015

Land acquisition legislation VIII:
Other Amendments

The major thrust of the amendments to the Act of 2013 proposed by the Government is to exempt the five specified categories of projects from the provisions of Social Impact Assessment in Chapter II and the provision to safeguard food security in Chapter III. In addition, the amendments expand the list of private entities for whom land may be acquired and considerably dilute the Consent Clause of the Act. All these issues have been discussed in some detail in the earlier posts on this issue.

Besides these major issues, the proposed amendments deal with a number of other relatively less significant issues. Some of these are:

Bringing exempted Acts under the umbrella
The Act of 2013 exempted 13 Acts dealing with acquisition for specific purposes, such as the Atomic Energy Act, the Railways Act, the National Highways Act, etc., from its provisions. However, Section 105 of the Act required the Central Government to make the compensation, rehabilitation and resettlement provisions of the Act applicable to acquisitions under these 13 Acts, listed in the Fourth Schedule, within a year of the commencement of the Act of 2013. The 

The amending Ordinance and Bill extend the compensation, rehabilitation and resettlement provisions to these thirteen Acts listed in Fourth Schedule. As per Section 105 of the Act the Government was bound to do this by January 1, 2015. This could have been done through a notification. The Government has now done it by amending section 105 accordingly.

This amendment is indeed a positive measure offering enhanced compensation, rehabilitation and resettlement benefits to persons and families affected by land acquisition undertaken through those thirteen Acts. A considerable part of land acquisition in fact happens under some of these Acts.

There is indeed a large number of extant Acts under which different Governments and their agencies can acquire land. Now the compensation, rehabilitation and resettlement provisions of all these Acts have been brought in conformity with the Act of 2013. But at some stage the Government should consider merging all these Acts into a single comprehensive Act for land acquisition. The special requirements of different agencies and purposes could all be brought within the ambit of this single Act. But this is for future consideration.

Depriving certain acquisitions from the benefit of the Act
The Act of 2013 in section 24 (2) provides that where in a case of land acquisition under the Act of 1894, an award has been made five years or more prior to the commencement of the Act, but physical possession has not been taken or compensation has not been paid, then the acquisition proceedings shall have to begin afresh under the Act of 2013. The amending Ordinance and Bill dilute this provision by extending the period of 5 years in an indeterminate manner. Similarly, section 101 of the Act provided that when any land acquired under this Act remains unutilised for a period of five year from the date of taking over the possession, the same shall be returned to the original owners or to the land bank of the appropriate Government. In this case also the amending Ordinance and Bill extend the period of five years almost indefinitely.

Several State Government and Union Ministries in their depositions before the Joint Parliamentary Standing Committee on Rural Development stated that the provision of retrospective application in Section 24(2) was likely to delay the larger projects where some part of the required land has already been acquired. They suggested that in such cases, the proceedings under the Act of 1894 should not lapse with the proviso that compensation and rehabilitation and resettlement provisions of the Act of 2013 would apply in all such cases. In view of this, the Committee made the eminently sensible suggestion that: 
“The Committee would like the Government to re-examine the issue and incorporate necessary provisions in the Rules to be framed under the new Act with a view to ensuring that the land owners/farmers/affected families get enhanced compensation and R & R package under the provisions of the LARR Bill, 2011 and at the same time, the pace of implementation of infrastructural projects is not adversely impacted. …”

The Government of the time refused to write this entirely reasonable suggestion into the Act. But the current Government should probably consider amending Section 24 along these lines, so that the affected families get the benefits of the Act of 2013 while acquisition proceedings started for major projects continue unhindered. The proposed amendments that deprive the affected families entirely of the benefits of the new provisions are unjust and unfair.

The proposed amendment to Section 101 is difficult to understand; ordinarily projects that have not been able to take physical possession of acquired land for five years, or that fail to utilise the land for five years after taking possession, could not be of any great urgency. In the rules to be framed under the Act, the appropriately Governments may specify what ‘utilisation’ of land means so as to protect long-gestation period projects; but the blanket amendment to leave the period within which the land must be utilised open-ended is unreasonable.

The two amendments in their present form seem to protect imprudent acquisitions and reward carelessness and procrastination. These also seem to be unnecessarily miserly in not extending the compensation and R&R benefits of the Act of 2013 to cases that are yet to reach finality.

Extending protection to offending Government servants
Section 87 of the Act of 2013 held the Government servants who contravene provisions of the Act liable to prosecution. The Ordinance amends this section to provide for prior sanction of the Government under section 197 of the Criminal Procedure Code. The amending Bill removes the phrase “prior sanction of the appropriate Government”, but retains the requirement of following the procedure under section 197 of CrPC, which mandates prior sanction of the appropriate Government.

If the land acquisition process is indeed to be made less arbitrary and more humane, it is necessary to put some restraint on the acquiring authorities at the field level. This was the intention of Section 87. But the Government probably feels that officers shall not apply themselves to the task of acquisition with sufficient enthusiasm if Section 87 remains in its original form. In that case, the Government should find some way of both reassuring the Government servants and ensuring that they do not act arbitrarily.

Industrial Corridors
An issue that needs clarification in the original Act of 2013 as well as the amending Ordinances and Bills is that of “industrial corridors”. The amendments specifically include “industrial corridors” as one of the exempted categories of projects. But neither the Act of 2013, nor the amending Ordinances and Bills give any definition of “industrial corridors”.

In the amending Bill, a qualification has been inserted to the effect that in the case of industrial corridors “the land shall be acquired up to one kilometre on both sides of designated railway line or roads”. This does seem to limit the freedom of acquisition. But designated road need not mean the main road of the corridor; the amendment in fact mentions “railway line” in the singular, but “roads” in the plural. This probably means that even minor roads within the corridor may be designated. In that case, the limit of one kilometre on both sides becomes meaningless. At least that is how this particular proviso has been read in parts of the economic press. This needs to be clarified.

Incidentally, the Act of 2013 itself includes “industrial corridors” in its list of public purposes without limiting the extent of land that could be acquired under this head. The concept of industrial corridors was in fact initiated by the previous Government. The project reports for industrial corridors, prepared largely during the earlier regime, bring a substantial part of the landmass of India within the range of various corridor projects. Those reports indicate that for the Delhi-Mumbai corridor alone the proposed acquisitions run into several lakhs of hectares and a large part of the land has already been acquired by the various state Governments. In this case the present Government seems to be taking the blame for what has been already done by the previous regime. But, in any case, clearly defining “industrial corridors” and “designated roads” within them remains important.
— Dr. J. K. Bajaj

Land acquisition legislation VII:
Abrogating Provisions concerning Food Security

Provision to Safeguard Food Security in the Act of 2013
Land Acquisition Act of 2013 has a separate, though brief, chapter, Chapter III, entitled “Special Provision to Safeguard Food Security”. The single section, Section 10, of this chapter requires that no irrigated multi-cropped land shall be acquired except “under exceptional circumstances, as a demonstrable last resort”.

And, in such cases of unavoidable acquisition of irrigated multi-cropped land, the provision requires that “an equivalent area of culturable wasteland shall be developed for agricultural purposes” or “an amount equal to the value of the land shall be deposited with the appropriate Government for investment in agriculture for enhancing food security”.

The provision further requires that such unavoidable acquisition of irrigated multi-cropped land for all projects in a district or a State shall in aggregate not exceed such limits as may be notified by the appropriate Government; and further that the acquisition of the agricultural land (of any kind) in aggregate shall in no case exceed such limits of the total net sown area of a district or State as may be notified by the appropriate Government.

Finally, there is a proviso that exempts linear projects such as those relating to railways, highways, major district roads, irrigation canals, power lines and the like from the provisions of this section.

The provision carefully balances food-security with necessary development
The Chapter is obviously drafted with great care to balance the requirements of safeguarding food-security with the necessity of undertaking essential developmental projects. It requires that the Governments may not ordinarily acquire irrigated multi-cropped land; but it immediately gives them the authority to do so as a “demonstrable last resort”. It sagaciously requires that when any acquisition of irrigated multi-cropped land is done then an equivalent amount of wasteland may be developed as agricultural land; but at the same time it also allows that this requirement may be met by merely investing an amount equal to the value of the acquired land in enhancing food security. It requires the Governments to keep the total of such acquisitions of irrigated multi-cropped land in a district or a State within limits, but leaves the determination of such limits to the appropriate Governments, which they may do “considering the relevant State specific factors and circumstances”. It also requires the Governments to ensure that acquisition of all agricultural land in a district or a State does not exceed certain defined proportion of the net sown area, but again leaves the determination of such proportion to the relevant Governments. And it thoughtfully keeps linear projects out of the ambit of the provision concerning safeguarding of food-security.

It takes into account objections of the States raised before the Standing Committee
In the proceedings before the Parliamentary Standing Committee on Rural Development chaired by Shrimati Sumitra Mahajan, some States, especially Bihar, Chhattisgarh and Madhya Pradesh, raised issues about the practicability of this provision. In deference to their concerns, the Act left the determination of all limits to the relevant States. The version of the Bill (of 2011) considered by the Standing Committee had set stringent district-wise limits. It had required that aggregate acquisition of irrigated multi-cropped land would not exceed 5 percent of such land in a district; and, the aggregate acquisition of any kind of agricultural land in a district, where the net sown area was less than 50 percent of the geographical area, would not exceed 10 percent of the net sown area of the district. That version of the Bill also did not include the option of replacing the requirement of developing an equal amount of wasteland for agricultural purposes with the much simpler requirement of making an equivalent investment in enhancing food-security.

Thus the version of the provision, as it finally appears in the Act of 2013, should have met the concerns of the States. The provision effectively leaves the safeguarding of food-security to the discretion and good-sense of the concerned States.

The objection of Madhya Pradesh was however too sweeping
But no changes in this provision could have met the sweeppining objections of a State like Madhya Pradesh, which in its deposition before the Standing Committee said that:
“This entire chapter should be scrapped altogether. The idea of never acquiring irrigated multi crop land is obnoxious and impractical. The chapter is too inflexible to be part of any intelligent legislation. It does not esteem or defer to the exigencies of the times to come. …Enforcing it in the name of food security is something very far-fetched. Food security is less a challenge of production and more a challenge of access. An assured ability to acquire acceptable foods in socially acceptable ways is what the food security in India really means. …”

It is surprising that this sweeping objection came from Madhya Pradesh, which has done more than perhaps any other State of the country during the last decade or so for improving agriculture and irrigation. The State has registered the highest rate of growth in the country in agriculture, in the recent period. Production of food-grains and oilseeds in that State has increased several-fold in the last decade; this increasing production has led to substantial improvement in the food-security of the State and the country. Yet on behalf of the State that has shown the most spectacular increase in production, it has been said before the Standing Committee that “Food security is less a challenge of production and more a challenge of access.” The formulation has probably come from some over-enthusiastic bureaucrat; the political judgement of the State on the issue has been shown to be quite different in actual practice. This is not the place to argue about the validity or otherwise of this formulation, but it is an obvious fact that production and access both contribute to food-security; without an abundance of production, there is no way any State can ensure equitable and sufficient access to food for all.

The Standing Committee recommended strengthening of the provision
The Standing Committee, however, was not impressed by the arguments against the provision to safeguard food security. It wanted the provision to be made more exhaustive. It felt that the food-security of the country did not depend only on irrigated multi-cropped land, which produced mainly wheat and rice, but also on un-irrigated lands, which produced much of the other cereals, pulses and oilseeds. The Committee, therefore, recommended that “in Chapter III, all provisions regarding ‘irrigated multi-cropped land’ be replaced by ‘any land under agriculture cultivation’ so as to ensure safeguard for food security in a full measure.”

States did not oppose the provision in the Revenue Ministers Conference
Perhaps because the final Act has made the provision much milder than the version that was before the Standing Committee, not many States raised objections to this provision in the Conference of the State Revenue Ministers held at Delhi on June 27, 2014. The recommendations of this Conference seem to have formed the basis of the amending Ordinances and Bills. In the context of the food security provision of the Act of 2013, the summary of recommendations of this conference only states that: “The provision to safeguard food security (Section 10) by development of ‘culturable wasteland’ in lieu of acquisition of ‘multi-cropped irrigated land’ needs to be amended as States like Delhi, Goa, Himachal Pradesh and Uttarakhand do not have any wasteland for the purpose.” But as we have seen, the Act of 2013 already provides such States the option of investing an equivalent amount in enhancing food-security in place of developing of equivalent extent of culturable wasteland.

The amendments abrogate the special provision to safeguard food security
The Act thus did not require any amendment in this Chapter, as for as the recommendations of the State Revenue Ministers Conference in this context are concerned. But the proposed amendments give the appropriate Governments the authority to entirely exempt the five specified categories of projects from the provisions of this Chapter. And since these five specified categories of projects exhaust all possible public purposes defined in the Act, Chapter III of the Act concerning Special Provision to Safeguard Food-Security in effect stands abrogated along with Chapter II that provides for Determination of Social Impact and Public Purpose.

The proviso for preparing a register of wasteland
The only provision the amendments make regarding safeguarding of food-security is to require that “The appropriate Government shall undertake a survey of its wasteland including arid land and maintain a record containing details of such land, in such manner as may be prescribed by the appropriate Government.”

This provision was added to the amending Bill as one of the several amendments that were proposed by the Government during its consideration in the Lok Sabha. But this provision is merely recommendatory; it does not alter or affect the process of acquisition in any manner and in no way insures that ordinarily good agricultural land shall not be acquired.

Let this proviso be a precursor to a Land Use Authority Act 
Yet this is a salutary provision, which may prove to be a precursor to the enactment of a comprehensive Land Use Authority at the national and State levels, with the mandate to keep a complete record of Land Use across the country. We today have the technology to prepare a comprehensive and detailed register for this purpose. The availability of such detailed land use records and maps shall make it possible to take decisions regarding changes in land use in any particular instance in a systematic and planned manner. Giving permissions for change of land use in an arbitrary manner is today a major source of corruption in the States and also heartburn among the peasantry. Their agricultural land are bought or acquired at a low price; after a change in the land use, the same lands acquire a much higher value, in which the original peasant owner gets no share. Establishment of a Land Use Authority shall make this process more systematic and equitable.

Our suggestions 
But let us return to the main provision for safeguarding of food security in Chapter III of the Act. To us it seems that of all the amendments proposed in the Act, the abrogation of this Chapter is the least defensible. Growing enough food to feed not only the people but also animals and even insects, and ensuring that the best agricultural lands are not diverted to other purposes, is important for any nation. It is particularly important for India, where production of food-grains per capita at less than 200 kg per year remains among the lowest in the world, and where large numbers depend directly on the produce of the land for their survival. Any diversion of agricultural land in such a country should be done with extreme care and discrimination. As we have seen, this is exactly what Chapter III of the Act requires; while leaving great latitude to the States in the manner in which they go about doing it depending on their specific circumstances and conditions.

The Prime Minister of India, in his radio talk to the farmers in the context of land acquisition and other problems faced by the farmers, has stated the policy regarding acquisition of agricultural land more or less in the very words found in Chapter III of the Act of 2013. Even in the absence of the provision of Chapter III, any reasonable Government would follow the caution and discretion mandated there. What is the harm in leaving this Chapter unchanged?

Therefore our recommendations in this context are:
1. Let us leave Chapter III in place; it is a carefully drafted provision which does not place any restrictions on the States, it only advises caution and restraint;
2. The new provision regarding survey of waste and arid lands may be expanded into a separate Land Use Authority Act, so that the changes in land use and acquisitions of land for different purposes in the future can be carried out in a systematic, planned and rational manner.

Tailpiece: Twenty years ago, we had written a book entitled Annam Bahu Kurvita: Recalling the Indian Discipline of producing and sharing food in plenty. A soft copy of the book is available here on our website cpsindia.org. We had asked several important practitioners and scholars of religion to write forewords for the book. At that time Tridandi Chinna Jeeyar Swami of Seethanagaram (Vijaywada) was a young man. At that age, two decades ago, he in his preface had emphasized, among other things, that to ensure the continued prevalence of the discipline of growing and sharing in plenty, we must stop diverting agricultural lands for other purposes. The provisions of Chapter III seem to derive from such timeless sage advice of the wise and pious personages of India. The issue of food-security in India is extremely important. Later sometime, we hope to run a new thread on this issue on this blog.
— Dr. J. K. Bajaj