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  On the face of it the amendment seems unreasonable and needs to be withdrawn.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