Tuesday, 2 June 2015

Land acquisition legislation: the core issues involved

The Land Acquisition Act (Amendment) Bill 2015 has been sent to a Joint Parliamentary Committee; the Committee has already begin its work and is likely to complete it by the end of this month. Meanwhile, the amending ordiance has been repromulgated for a third time.

We can expect the political temperatures on the bill to remain somewhat low during this month while the JPC is engaged in its deliberations. This, therefore, is a good time to have a cool dispassionate look at the original Act of 2013 and the amendments proposed by the current government. We have posted a detailed article on the issues involved on our website. It may be accessed here.

"The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 was passed by the Parliament with wide-ranging political support to replace the colonial "Land Acquisition Act of 1894". The amending ordinance and the bill propose the following changes in the Act of 2013:

1. Allowing acquisition for private entities: The Act of 2013 allowed the Government to acquire land for the use of both the government and private companies. The term private companies in the Act was defined widely to include all legal corporate entities. The amendment proposes to change the term 'private companies' with 'private entities'. After this amendment the government may acquire land on behalf of individually owned partnership and proprietership businesses also.

2. Modifying the Consent Clause: The Act of 2013 prescribed that in cases where the acquisition is made for private companies, the consent of 80 percent of the affected parties shall be obtained before acquisition. In case of projects in the private-public partenership (PPP) mode, the consent requirement was limited to 70 percent of the affected parties. And, in case of acquisition for the use of the government, no consent was required. The amendments propose to remove the consent requirement for acquisitions for private companies operating under the PPP mode. In cases of acquisitions for private entities, the consent requirement remains unchanged.

3. Removing Food Security Requirements: The Act of 2013 had a separate chapter concerning Safeguarding of Food Security. The Chapter provided that no irrigated multi-cropped land shall be acquired except “under exceptional circumstances, as a demonstrable last resort”. The amendments propose to remove this chapter.

4. Removing Social Impact Assessment (SIA) Requirements: The Act of 2013 devoted a separate and long chapter to the assessment of social impact of any proposed acquisition. Such assessment was to be done in consultation with the institutions of local self-government, including Gram Sabhas. This Assessment was to establish that: i) the proposed acquisition indeed served a legitimate public purpose; ii) the land proposed to be acquired was the bare minimum required and there is no alternative, less disruptive place feasible for the project; and iii) there was no previously acquired but unutilised land available with the government in the project area. The Assessment was also meant to estimate the number of affected families and the extent of private and common lands and other properties likely to be covered by the acquisition; to list the public and community assets and infrastructure likely to be affected; and, to estimate the costs and ways of addressing the social impacts of the project. The amending ordinance and the bill remove this whole chapter.

Many of the parameters to be assessed through SIA shall still have to be in any case assessed, because other parts of the Act of 2013, which have not been amended, require the authorities to list and consider these in the process of acquisition. Such assessment shall now persumably be done by the District Collector on his own, through the regular revenue machinery. Incidentally, the SIA process in the Act of 2013 was supposed to take no more than 6 months.

5. Exempting officers violating the Act from penal provisions: The Act of 2013 provided for prosecution of officers of the government as well as private companies in case of contraventions of the provisions of the Act. The amendments make such prosecution of government servants subject to the sanction of the government.

6. Saving land acquired earlier but not utilised so far: The Act of 2013 provided that in cases where an award for acquisition had been made under the Act of 1894 five or more years before the commencement of the new Act, but the possession had not been taken, then the acquisition process must begin afresh under the new Act. The Act also provided that in case any land had been acquired but not utilised for five years from the date of possession, then the land must revert to the original owners. The amending ordinance and bill have extended the specified period of five years in both these cases to an indeterminate period.

7. Extending Compensation and Rehabilitation and Resettlement (RR) provisions to exempted Acts: The Act of 2013 temporarily exempted from its operation acquisitions made under 13 other Acts,  dealing with acquision for specific purposes, such as the Atomic Energy Act, the Railways Act, the National  Highways Act, etc. The Act required that the compensation and RR provisions of these Acts must be brought in compliance with the corresponding provisions of the Act of 2013 within a year of its commencement. The amending ordinace and the bill have now made the Compensation and RR provisions of the Act of 2013 applicable to acquisitions made under these 13 Acts also.

According to the language of the ordinance and the bill, most of the amendments mentioned above are not proposed as outright changes in the Act of 2013 but as exemptions for certain specified categories of public purposes and projects. However, the list of exempted public pusposes and projects is such that it includes nearly all purposes mentioned in the Act of 2013 and perhaps adds a few more purposes to that list. Consequently, what are mentioned as exemptions for specified categories of projects in fact gives the government blanket authority to remove any proposed acquisition from the provisions concerning consent, safeguarding of food security and social impact assessment.

This note is intended only to clearly state the changes proposed through the amending ordinance and bill. We shall take up discussion on the merits and demerits of the various changes in the subsequent posts.