Land acquisition legislation: RESPONSE
Clarification on the Consent Clause (2013 Act)
SIA
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.
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
SIA
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.
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