Wednesday, 10 June 2015

Land acquisition legislation V:
More on the Consent Clause and the Exempted Categories

In my last post, I had mentioned that the amending ordinances and bills exempt infrastructure projects in the public-private partnership (PPP) mode from the requirements of consent, but for acquisitions on behalf of private entities, the requirement of 80 percent consent remains in force. A perceptive and knowledgeable reader pointed out that I was wrong; the amendments exempt all acquisitions, including those made for private entities, from the consent clause. I carefully read the original Act of 2013 and the amending bills again; and also asked some colleagues concerned with the issue. It seems that I was indeed wrong. For the five categories of projects that the amending ordinances and bills create, the consent clause no more operates, irrespective of whether the acquisition is for PPP projects or entirely private projects.

The Exempted Categories

The confusion was caused by the wording of the amendment. The amending ordinances and bills specify five categories of projects which the appropriate government may by notification exempt from the provisions concerning social impact assessment, safeguarding of food security and consent. These five categories are:

1. Projects vital to national security or defence of India and every part thereof, including preparation for defence and defence production;
2. Rural infrastructure including electrification;
3. Affordable housing and housing for the rural poor;
4. Industrial corridors set up by the appropriate Government and its undertakings (in which case the land shall be acquired up to one kilometres on both sides of designated railway line or roads for such industrial corridor); and
5. Infrastructure projects including projects under public-private partnership where the ownership of land continues to vest with the Government.

Since PPP is specifically mentioned only in the last category, I presumed that the remaining four categories of projects are meant to be Government projects. That is how I concluded that the requirement of consent remains unaltered in case of private projects.

But when we read the above five categories in conjunction with the Act of 2013, we find that:

1. The five categories of projects mentioned above are supposedly a subset of the list of public purposes defined in the Act of 2013. In fact, these are a restatement of the definition of public purposes in that Act; the language of many of these is similar to that of the original Act. 
2. The original Act, after giving the list of public purposes for which land may be acquired in section 2(1) further states in section 2(2) that the provisions of the Act would apply also in case when the appropriate Government acquires land for PPP or private projects for public purposes defined in 2(1) subject only to the proviso of consent.

Thus in terms of the original Act, the appropriate Government may acquire land for PPP or private projects related to any of the five categories above and, in terms of the amendment, this can be done without seeking consent of the affected families. The reference to PPP in the fifth category is thus inconsequential.

Having wrongly interpreted the reference to PPP in one of the categories to mean that the remaining categories are meant to cover only Government projects, I am now afraid that there may have been much lawyerly deceit in the formulation of the amending ordinances and bills. I would request the readers knowledgeable in interpretation of such legislation to clarify the issue.

Exempted Categories cover all of the public purposes

Reading the list of exempted categories along with the list of public purposes in the original Act of 2013, one gets the distinct impression that these five categories are so drafted as to cover, in a compact manner, every one of the public purposes defined there. So the amendments in reality do not create an exemption for some limited purposes, but give the appropriate Governments a blanket right to exempt any acquisition whatsoever from the operations of the provisions of consent, social impact assessment and safeguarding of food security.

Exempted categories probably expand the list of public purposes

The five specified categories can even be read in a way so as to expand the list of public purposes defined in the Act of 2013. The most striking example of this is the attempted inclusion of private hospitals and educational institutions, etc., in the list of public purposes. The Act of 2013 specifically excluded private hospitals, private educations institutions and private hotels from the definition of public purposes for which land might be acquired. The ordinance explicitly deleted this specific exclusion in the case of private hospitals and private educational institutions. An early version of the ordinance, as reported in the press, even deleted the exclusion of private hotels; but the final ordinance avoided it, though it could be read into it as part of “social infrastructure” which was mentioned as part of the fifth exempted category in the ordinance. In the bill as passed by the Lok Sabha, the amendment in favour of private hospitals and educational institutions has been withdrawn and specific mention of social infrastructure has also been removed. But the bill retains “infrastructure projects” as one of the exempted categories without defining “infrastructure”. In the Act of 2013, “infrastructure” is defined to include all activities or items listed in a specified notification of the Government of India; that notification covers social infrastructure including educational institutions, hospitals and high-end hotels. This is the reason why the Act specifically excluded these three from its list of public purposes. From the language of the amending bill, it is not clear whether these categories of projects, which the government originally intended to include, have been excluded or not.

I mention all these complicated details to underline that from the changing legalistic language being used, it seems that the Government does intend to expand the scope of public purpose defined in the Act of 2013. And the manner in which the fifth exempted category has been defined perhaps implies that private hospitals, private educational institutions and private hotels have become part of the exempted categories of public purposes as part of “infrastructure”.

Whatever the merits or demerits of the proposed amendments, the Government must redraft these in a transparent manner so that the objectives and the intentions become absolutely clear and no one is unnecessarily put through a lawyerly maze. It would then be much easier to discuss and debate the pros and cons of the proposed amendments.

— Dr. J. K. Bajaj