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TA I The Right of Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

IN THE COURSE OF JURISPRUDENCE

SUBMIITED TO: NIRMA UNIVERSITY INSTITUTE OF LAW

SEMESTER VI

UNDER THE GUIDANCE OF Ms. Rejitha Nair Ass. Professor ILNU

SUBMITTED BY: Dikshal Khatri 11BBL049 B.Com. LL.B. (Hons.)

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Background: The Right of Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 is an act passed by Indian Government in 2013. It was passed for the purpose of fair compensation in case of land acquisition, as well as transparency in rehabilitation and resettlement. This act has replaced the previous land acquisition act of 1894. This act was passed due to certain lacunas and loopholes in old land acquisition act of 1894. Its footing goes back in 2007 when UPA government introduced Amendment bill, 2007 in parliament. After that land acquisition act, 2009 and the rehabilitation and resettlement bill, 2009 was introduced in parliament. Both bill lapsed in parliament. National Advisory Council after digging into depth of circumstances and issues related to land acquisition decided to recommend a single comprehensive legislation, i.e. National Development, Land Acquisition, Resettlement and Rehabilitation Act., rather than the two separate ones, viz. Land Acquisition (Amendment) Bill 2009 (LAA 2009) and Resettlement and Rehabilitation Bill, 2009 (R&R 2009).1 Thus in furtherance of it the LARR bill, 2011was introduced in the parliament, which was passed in 2013 and became an act. Why new Land acquisition act: When we look to the need of new land acquisition act, we can find many important reasons and issues. Some of the main chosen issues and reasons are as followed: Due to development of industries and globalisation, Special Economic Zone etc. the need for urbanisation and land has increased. On the other hand the land owners whose land has to be acquisitioned by state must be provided with fair compensation and, resettlement and rehabilitation arrangements. Thus requirement of land is essential for the economic growth and industrialisation, and on the other hand the affected people must also not suffer due to such acquisition.2 The word public purpose has caused major problem. Supreme Court in cases like Yamuna Express way, Smt. Somavati & ors. case etc. has given wide meaning to the word public purpose. In such cases, court has held that acquiring land and giving it to private company for some projects which does not use it for public purpose in true
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Press Release of National Advisory Council (2009), http://nac.nic.in/press_releases/25_may_2011.pdf THE DRAFT NATIONAL LAND ACQUISITION AND REHABILITATION & RESETTLEMENT BILL, 2011

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manner is valid. Thus such loose interpretation and lack of clear guidelines is also one of the main reasons for new land acquisition.3 The old act had nothing for resettlement and rehabilitation in case of eminent domain acquisition by state or acquisition for private company for the operation related to public purpose. The affected people faces great problem regarding it although compensation is provided to them. Previously the compensation deciding authority was collector. The compensation paid was to be calculated on the basis of local market value. But detail procedure for the calculation of the compensation and any other guidelines were not there. In certain cases the land owner were fooled. 4 Old act didnt contain provision for consent from land owner whose land government plans to seize. Due to lack of such provisions incidents like Nandigram took place, where for the setup of SEZ (Special Economic Zone) government decided to seize the land of the farmers and sudden notice was given to them.5 One major problem in old act was section 17, which talks about urgency clause. This urgency clause has highly been misused by the private companies and the state. There is no better example than Nandigram incident. Objective of the new land acquisition act: The objective of the The Right of Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, can be obtained from the act and the national draft LARR bill 2011. The following objective can be construed from the act and national draft LARR bill 2011:6 First objective of the act is to define and guide such process with the consultation with local self-government and Gram Sabha for the land acquisition, which is transparent, informative and participative & the objective of such land acquisition is for development of essential infrastructure and urbanisation, which is necessary for public purpose.

Mihir Desai (2011) 46, Land Acquisition Law and Proposed Changes, Economic & Political Weekly, 26-27, p.95-100 4 LAND ACQUISITION ACT,1894 5 http://www.livemint.com/Politics/I1CAfbH2Und58UkVckctVP/The-Nandigram-story-till-now.html 6 THE RIGHT OF FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013; THE DRAFT NATIONAL LAND ACQUISITION AND REHABILITATION & RESETTLEMENT BILL, 2011AVAILABLE at http://rural.nic.in/sites/downloads/policies/Final.pdf

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Second objective is to ensure and make such arrangements that the land owners whose land is to be acquired are getting just and fair compensation taking into consideration all the economic and social circumstances. And to ensure proper process and guideline for the same.

When a land is acquired apart from land owners some other families which are directly or indirectly dependent on that land also suffer. Third major objective which was not in old land acquisition act is rehabilitation and resettlement of the affected land owners and families.

The first objective somehow incorporates economic approach of jurisprudence. And other two objectives tend to incorporate sociological school of jurisprudence. The jurisprudence of the act will be discussed in further part of this write up. Some important highlights of New Land Acquisition Act:7 New Land Acquisition Act gives a wider and clearer explanation of the purpose for which land can be acquired as compared to previous act. It also elaborates which industrial projects this act covers. (Section 1 and Section 2(l))

Unlike old act, the new act makes it compulsory to acquire the consent of the affected people and land owners (Section 2(b)). For the purpose of accessing consent the Social Impact Assessment Study has been incorporated in section 4.

It increases the time period of notice to be given in urgency clause from 15 to 30 days. Apart from it, it provides provisions for sharing of profit in case acquired land is transferred and in case of resale of land prior permission of government is must.

One of the important and must require provision incorporated is rehabilitation and resettlement arrangements for the affected people.

THE RIGHT OF FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013;

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Jurisprudence behind the new land acquisition act: First objective of the act focuses on the development of industries and infrastructure of the country by acquiring the lands of general public. This objective of industrialisation and infrastructure leads to economic development of the country, and other objectives are flow from it and are there to reduce the effect of it. Further the objective talks about acquisition of land for the public purpose. Public purpose in wide sense includes public welfare and has a wide ambit. As said by the Apex Court in Dev Sharan v. State of Uttar Pradesh8, the public purpose in case of land acquisition should be viewed in an angle consistent with the concept of welfare state. Welfare state talks about interest of society and general public. Social Engineering concept given by Rosco Pound which focuses on construction of efficient society which satisfies the wants of all present in society fits this act.9He talked about three interests, viz. private, public and social interest. The given act provides compensation to all the affected families, thus protecting their private interests. Rehabilitation and resettlement tends to make change in the social and economic condition of the affected families. As their source of earning and shelter are acquired by the government. Because of this change in social and economic conditions of affected families, the act provides the rehabilitation and resettlement arrangement to them. While defining the objective of the acts in the given write up, it was mentioned that jurisprudence behind this act is related to economic approach and sociological approach. Now after detail and elucidate discussion of the objective, it can be concluded that the act adopts economic and sociological approach. Contravening Provisions and Problematic Issues of the act: The given act primarily is objected at land acquisition for the public purpose. The new has widened the scope of the term public purpose. (Section 2(l)) This widened scope covers a large array of projects. Thus the probability of misusing has increased due to widening in

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2011 4 SCC 769 TH V.D.MAHAJAN, JURISPRUDENCE & LEGAL THEORY,(5 ED.,2012)

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scope of public purpose.10 This probability of misusing will defeat the very purpose of economic development through industrialisation. The major change is related to acquisition by private companies. In the new act certain requirements which are needed in case of acquisition by private company. The new act requires consent of 80% in case of private company and 70% in case of public company of affected families. For this it has given SIA assessment technique. But the given act fails to define at certain pints of SIA assessment for example how SIA would be conducted and by which authority or body. Because of it the private companies can use different inappropriate means for acquiring consent. But the given act does not require consent of affected families, in case the land is acquired by the government in certain cases as given in section 2(l) public purpose clause. Now the given clause is in contravention of the objective which talks about participative, informative and transparency in land acquisition.11 One of the major provisions incorporated in new land acquisition act is Rehabilitation and Resettlement provision. On the one hand the act is providing the rehabilitation and resettlement arrangements to the affected people which not only include land owners but other affected families also. Section 69 says that calculation of the rehabilitation and resettlement cost should be done in accordance with section 26 and 30. Section 26 talks about calculation of market value of land and section 30 talks about Solatium based on that calculate market value under section 26. How can rehabilitation and resettlement cost can be calucalated on the basis of market value and how reasonably it depends on the market value? The answer this question is not there. Also section 40 gives power to Government to seize land in urgency on expiration of 30 days of notice given in section 30, even if such awards are not given by collector. This section contradicts the third objective. Other problematic issue is regarding the compensation provisions from Section 26 to Section 30. The calculation of compensation is on the basis of the market value if any specified in Indian Stamp Act, 1899 regarding the sale of land or average sale price of land in that locality and nearby. Although the method for calculation of the compensation is given, but still it is arbitrary as market value does not take into account future value of the land and price stated
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Supra note 3 at Page 99 Alphonsa Joja, Anviti Chaturvedi, Ayesha Talpade, Modhulika Bose, Stella James ans Saurabh (2011) 3, Of Platitude and Million-Dollar Promises- A Critique of The Land Acquisition, Rehabilitation and Resettlement Bill, 2011, Journal of India Law and Society, p.29 to 66

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in the act may be understated. So the objective of giving just and fair compensation is somehow goes sceptical, although the compensation in rural area is double of market value.12 Further it provides the provisions for compensation and process for calculating it, further it provides incentives for the affective parties to litigate for the compensation given to them. The tendency to litigate for compensation will remain same as the basis for deciding compensation has not undergone significant change, although the amount of award is double in rural areas. The new act although replace the ADJ court with LARR Authority in case of compensation related disputes, but it meres transfer burden from ADJ court to LARR authority which is not an appropriation solution to problem of litigation and the resulting wastage of resources. 13 The act does take account the economic loss but it does not take into account the other. When families are located, apart from economic loss they also suffer from social, psychological and status loss. Because it is not necessary that the compensation and arrangements made for them will give same status and wealth which a land could give.14 Further Section 105 exempts land acquired in certain acts from ambit of this act. The new act although has incorporated certain changes has failed to take care of certain aspects and has loopholes. Conclusion The new Land Acquisition Act primarily was enacted for the purpose of filling the gaps of old act and to cop up with the problems old land acquisition faced. It tends to maintain economic as well as social balance in the country, acquiring land for public purpose and at the same time, by giving proper compensation, rehabilitation and resettlement arrangements. But at certain points this act has failed in maintain consistency with its objective as discussed in above part. Overall analysis of the act show certain loopholes and gaps which can be reason of future problems regarding the new act. It is duty of the Legislature and the Judiciary to cover up these holes, and it must be done in best interest of public.
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Supra note 10 at Page 57. Ram Singh (2012) 47, Inefficiency and Abuse of Compulsory Land Acquisition - An Enquiry into Forward, Economic & Political Weekly, 19, p.10-14 14 Michael M. Cernea, For a New Economics of Resettlement: A Sociological Critique of the Compensation Principle, 173 International Social Science Journal 16, (2003), http://web.mit.edu/cis/www/migration/dec05workshop/presentations/Cernea_New_Economicsof_Resettlement_ISSJ_2003.pdf

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References: Books:

V.D.MAHAJAN, JURISPRUDENCE & LEGAL THEORY,(5TH ED.,2012)

Acts and Bills: The Right of Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 Land Acquisition Act,1894 The Draft National Land Acquisition and Rehabilitation & Resettlement Bill, 2011 available at http://rural.nic.in/sites/downloads/policies/Final.pdf

Articles: Mihir Desai (2011) 46, Land Acquisition Law and Proposed Changes, Eco. & Pol. Weekly, 26-27, p.95-100

Alphonsa Joja, Anviti Chaturvedi, Ayesha Talpade, Modhulika Bose, Stella James and Saurabh (2011) 3, Of Platitude and Million-Dollar Promises- A Critique of The Land Acquisition, Rehabilitation and Resettlement Bill, 2011, Journal of Indian Society, p.26-66, http://jils.ac.in/wp-content/uploads/2012/09/3_alphonso-jojan-c.pdf

Ram Singh (2012) 47, Inefficiency and Abuse of Compulsory Land Acquisition- An Enquiry into Forward, Economic & Political Weekly, 19, p.10-14

Michael M. Cernea (2003) nr 175, For a New Economics of Resettlement: A Sociological Critique of the Compensation Principle, International Social Science Journal,p.16,http://web.mit.edu/cis/www/migration/dec05workshop/presentations/Cer nea_New_Economics-of_Resettlement_ISSJ_2003.pdf

Press Release and Newspaper: Press Release by National Advisory Council (2009), available at http://nac.nic.in/press_releases/25_may_2011.pdf http://www.livemint.com/Politics/I1CAfbH2Und58UkVckctVP/The-Nandigramstory-till-now.html

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