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