Land Acquisition and Resettlement Bill 2011

Land Acquisition and Resettlement Bill 2011

One started reading the new Draft National Land Acquisition and Resettlement and Rehabilitation Bill 2011 with expectations of a great improvement over the 2007 Bills. There are indeed some very good features in the new Bill but, on the whole, one must regretfully report disappointment. Let us see how the Bill deals with some of the key issues involved.

(i) Acquisition of agricultural land: The Bill rules out the acquisition, not of all irrigated agricultural land, but of multi-cropped irrigated agricultural land. That limited exclusion seems rather half-hearted.

(ii) Avoiding or minimising displacement: A serious concern about the trauma of displacement does not seem to be the driving force behind the Bill. The principles of ‘no forced displacement' and ‘free, informed prior consent' are not mentioned. (Incidentally, the condition of consent by 80 per cent of the land-owners applies only to land-acquisition by the government for companies including PPP cases, and not to governmental acquisition for itself. It appears that there has been no dilution at all of ‘eminent domain'.) There are indeed a number of good provisions relating to displacement (SIA, review of SIA by an Expert Committee, consideration of ‘less displacing alternative', public hearing, etc.), but the final decision is that of the bureaucracy. If a statutory clearance is needed for cutting a tree or for causing an environmental impact, should it not be required for displacing people? If the National Rehabilitation Commission mentioned in the 2007 Bill had been retained, a statutory displacement clearance by it could have been prescribed, but the present Bill envisages no such Commission.

(iii) Inadequacy of compensation: The present Bill increases the compensation amount significantly. This is welcome. Whether the earlier problems of delays and corruption in the payment process will disappear or diminish, remains to be seen.

(iv) The acquisition of land by the state for private companies: A view, held by many for a long time, is that there is no reason why the state should use its sovereign power to acquire land for private companies which are primarily in business for profit and not for conferring benefits on the public.

The 2007 Bills had sought to reduce the extent of land acquisition by the state for a company to 30 per cent , if the company purchases 70 per cent of the land needed by negotiation. The present Bill does away with the 70:30 formula, but provides for ‘partial' acquisition by the state for a company if a company so requests. Presumably ‘partial' acquisition could go up to near-full acquisition by the state. This seems a retrograde step.

(v) Private purchase: As for private negotiation, the Minister himself refers in his Foreword to the “asymmetry of power (and information) between those wanting to acquire the land and those whose lands are being acquired”, but the Bill provides no mechanism to reduce that asymmetry. It doubtless extends the R&R provisions to private negotiated purchases of land but provides no safeguard against unfair negotiation. (Even the extension of the R&R provisions to negotiated purchases — the legality of which may be challenged — applies only where a company buys 100 acres or more, and that threshold can be easily side-stepped in ways that need not be spelt out here.) One wishes that the Minister had strengthened the hands of the weaker party in the negotiation by providing — this is merely an illustration — that the compensation that the land-owners would have got under this Bill if the land had been acquired by the government (to be determined by the collector) would be the floor below which the price negotiated by the company with the land-owners shall not fall.

(vi) Change of land use: That safeguard might ensure a fair price, but there is also the question of transfer of agricultural land to non-agricultural use and the implications for food security. One possibility might be to say that all acquisition of land, including acquisitions for companies, must be only by the state; but that does not seem desirable and, in any case, it is not really an answer to the problem of land-transfer away from agriculture. Another possibility is that private purchases of agricultural land should be subject to state regulation from the point of view of land-use. That might be open to the objection of undue interference with a landowner's right to sell his land. On the whole, the answer to the question of minimising transfers of agricultural land to non-agricultural use might lie in policies supportive of agriculture rather than in control or regulation over land transactions.

(vii) Definition of ‘public purpose': An issue that has persistently figured in the debate during the last decade or two is the need to narrow the definition of ‘public purpose' and limit it to a few strictly governmental purposes (schools, dispensaries, etc). The present Bill moves in exactly the opposite direction. It defines ‘public purpose' very broadly and leaves it to the bureaucracy to decide each case. Is it right to assume that any industry ipso facto serves a public purpose warranting the alienation of agricultural land? For instance, in the Singur episode land acquisition was for ‘industry', i.e., Tatas' small car factory; was that ‘public purpose'? It can be so declared under the present Bill. Again, ‘infrastructure' includes ‘tourism', which would permit the acquisition of land for building hotels. It seems desirable to define ‘public purpose' somewhat more stringently.

(viii) Coverage of ‘project-affected persons': The Bill refers to loss of primary livelihoods but links it to the acquisition of land. The term ‘livelihoods' is illustrated by a reference to the gathering of forest produce, hunting, fishing, etc; there is no reference to sellers of goods and services to the people in the project area, who will lose their livelihoods when the people whom they serve move away to resettlement areas. It is not clear whether they will be regarded as project-affected persons.

(ix) Social Impact Assessment: On Social Impact Assessment the present Bill is an improvement on the 2007 Bill, but the idea of SIA still falls short: it does not cover the disappearance of a whole way of life; the dispersal of close-knit communities; the loss of a centuries-old relationship with nature; the loss of roots; and so on. It is good that the SIA will be reviewed by an independent multi-disciplinary expert body, but it should first be prepared by a similar body. The Bill leaves the SIA to be prepared by the “appropriate government.”

(x) Rehabilitation package: The rehabilitation package is distinctly inferior to the packages already established in certain projects. The principle of ‘land for land' has been abandoned. It figures only in the case of irrigation projects, and there the Bill envisages one acre per family instead of two acres as in the Sardar Sarovar Project. There are two points here. First, it is not clear why the Bill specifies irrigation projects; hydroelectric projects and flood control also have the same impacts as irrigation projects, and in any case many projects are ‘multi-purpose' projects. Secondly, compensation and rehabilitation should have reference not to the nature of the project but to the nature of the impact. Whatever be the project, if an agricultural community is uprooted from its land and homestead, it has to be enabled to practise agriculture elsewhere, and not expected to become carpenters or weavers or traders.

(xi) Other matters: A number of officials and institutions are specified in the Bill, such as the Collector, Administrator of R&R, Commissioner of R&R, etc., but it is only in the R&R Committee that there is a significant non-official presence. The National Monitoring Committee is not ‘participatory'; apart from officials, it includes only a few experts. As indicated earlier, the idea of a National Rehabilitation Commission has been abandoned.

Incidentally, it is not clear why displacement by natural calamities should be brought within the purview of this Bill. There is a vital difference between unavoidable displacement caused by nature and deliberate displacement caused by human decisions.

Summing up, the Bill seems to be essentially driven by a desire to make land acquisition for industrialisation and urbanisation easier. It is clear that the Bill, which does contain many good features, nevertheless requires substantial improvement.

Land Acquisition Policy in India

Land is the most importan natural resource upon which all human activity is based. Acquisition and requisition of property is a subject enlisted in the Concurrent list vide VII Schedule of the Constitution of India. There are a number of local and specific laws which provide for acquisition of land under them but the main law that deals with acquisition is the Land Acquisition Act, 1894. The Ministry of Rural Development is the nodal ministry in the Union Government to administer the central legislation on land acquisition. The Ministry of Urban Development is the nodal ministry which administers the Urban Land (Ceiling & Regulation) Act, 1976 as well as the Urban Land (Ceiling & Regulation) Repeal Act, 1999. In the States, there are several Urban Development Authorities for overall development of urban estates. Also, there are various departments, which deal with matters of land acquisition, housing, infrastructure, town planning, etc., such as Department of Rural Development, Planning Department, Land Department, etc. The Government of India recognizes the need to minimize large-scale displacement to the extent possible and where displacement is inevitable, the need to handle with utmost care and forethought issues relating to resettlement and rehabilitation of project affected families. Accordingly, the Department of Land Resources, Ministry of Rural Development has formulated a National Policy on Resettlement and Rehabilitation for Project Affected Families, 2003 which was replaced by a new National Policy on Rehabilitation and Resettlement 2007. Legislative Framework Acquisition and Requisition of property falls in the concurrent list , hence both the Centre and the State Government can make laws on the matter. There are a number of local and specific laws which provide for acquisition of land under them but the main law that deals with acquisition is the Land Acquisition Act, 1894. This Ministry of Rural Development being the administrative ministry in the union government to administer the central legislation on land acquisition, any proposal relating to amendment of the Act by the centre has to be taken up by the Department of Land Resources under the ministry. Department of Land Resources acts as the nodal agency for land resource management and all land based development programmes have been brought under this department. All State legislative proposals covering any enactment of the subject of acquisition and requisition of property or any other state legislation having a bearing upon the acquisition and requisition of land, has to be examined by the department. Similarly, the matters pertaining to housing and urban development have been assigned by the Constitution of India to the State Governments. The Constitutions (74th Amendment) Act have further delegated many of these functions to the urban local bodies. Ministry of Urban Development is the nodal ministry at the Central level and its constitutional and legal authority is limited only to Delhi and other Union Territories and to the subject which State Legislatures authorize the Union Parliament to legislate. The urban development ministry administers the Urban Land (Ceiling & Regulation) Act, 1976 as well as the Urban Land (Ceiling & Regulation) Repeal Act, 1999 which impose of a ceiling on both ownership and possession of vacant land in urban agglomerations. Land Acquisition Act, 1894 Land Acquisition may be defined as the action of the government whereby it acquires land from its owners in order to pursue certain public purpose or for any company. This acquisition is subject to payment of compensation to the owners or to persons interested in the land. Land acquisitions by the government generally are compulsory in nature, not paying heed to the owner's unwillingness to part with the land. Acquisition and Requisition of property falls in the concurrent list , which means that both the centre and the state government can make laws on the matter. There are a number of local and specific laws which provide for acquisition of land under them but the main law that deals with acquisition is the Land Acquisition Act, 1894. The Act authorizes governments to acquire land for public purposes such as planned development, provisions for town or rural planning, provision for residential purpose to the poor or landless and for carrying out any education, housing or health scheme of the Government. It hinders speedy acquisition of land at reasonable prices, resulting in cost overruns. It was enacted for building an adequate stock of urban land for public interest purposes such as low-income housing, road widening, development of parks and other amenities. Such land is typically acquired by the government through payment of compensation to landowners as per market value. The objective of the Act is to amend the laws relating to land acquisition for public purpose and for companies and also to determine the compensation, which is required to be made in cases of land acquisition. The enactment states that the expression land includes benefits that arise of land and things attached to the earth or permanently attached to the anything fastened to the earth. Moreover if the compensation given is under protest than as per the enactment the awardees are entitled to refer the matter to the court for determination of requisite amount of compensation. The Ministry of Rural Development being the Nodal Union Government to administer the Land Acquisition Act, 1894, processes the proposals for amendment of various provisions of the said Act from time to time. Further the Act also specifies the public officers who are authorized for such acquiring of land on behalf of the State. They include the Collector, Deputy Commissioner and also any officer who is specially appointed by the appropriate government under the authority of law. The collector prepares the declaration and copies are forwarded to the administrative departments and all the concerned parties. This declaration is then required to be published in the same manner as in case of the notification issued. The collector issues the awards, further allows a time of not less than 15 days for any objections to be filed. All State legislative proposals covering any enactment on the subject of Acquisition and Requisition of Property or any other State legislation having a bearing upon the acquisition and requisition of land are examined by the department of land resources for the purpose of seeking Presidential Assent as required under Article 200 (in case of Bills) or under proviso to Article 213 (1) of the Constitution. The division also examines all proposals of State Governments for amendments to Land Acquisition Act, 1894, for the purpose of concurring, as required under Clause (2) of Article 254 of the Constitution. Urban Land (Ceiling & Regulation) Repeal Act, 1999 As the objectives of the ULCRA 1976 were not being met, there were suggestions that the Act be amended. Hence, it was decided to repeal it, in view of promoting housing under the National Housing and Habitat Policy, 1998. With the passing of the Urban Land (Ceiling and Regulation) Repeal Bill, 1999, the ULCRA was repealed in certain States. The Urban Land (Ceiling & Regulation) Repeal Act, 1999 repealed the Urban Land (Ceiling and Regulation ) Act 1976. It applied in the first instance to the whole of the States of Haryana and Punjab and to all the Union territories. It shall apply to such other State which adopts this Act by resolution passed in that behalf under clause (2) of article 252 of the Constitution. The repeal Act is in force in the States of Haryana, Punjab, Uttar Pradesh, Gujarat, Karnataka, Madhya Pradesh, Rajasthan, Orissa and all the Union Territories. The Urban Land (Ceiling & Regulation) Act, 1976 is still in force in the States of Andhra Pradesh Assam, Bihar, Maharashtra and West Bengal. ULCRA,1976 has been repealed by the government to facilitate more availability of land for housing activity. Government has also suggested rationalisation of stamp duty and registration charges. The Repeal Act, however, shall not affect the vesting of the vacant land, which has already been taken possession by the State Government or any person duly authorised by the State Government in this regard under the provisions of ULCRA. The repeal of ULCRA has been a significant step towards reform in the urban land market. The repeal, it is believed, has eliminated the large amount of and released huge chunks of land into the market. However the repeal of the Act has not been carried out in all states Urban Land Ceiling & Regulation Act (ULCRA ),1976 The Urban Land (Ceiling & Regulation) Act, 1976 provides for imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good. The Act provided for imposition of a ceiling on both ownership and possession of vacant land in urban agglomerations; acquisition of the excess vacant land by the state government, with powers to dispose the vacant land for common good; payment of an amount for the acquisition of the excess land; and granting exceptions in respect of certain specific categories of vacant land. This legislation fixed a ceiling on the vacant urban land that a ‘person’ in urban agglomerations can acquire and hold. A person is defined to include an individual, a family, a firm, a company, or an association or body of individuals, whether incorporated or not. This ceiling limit ranges from 500-2,000 square metres (sq. m). Excess vacant land is either to be surrendered to the competent authority appointed under the Act for a small compensation, or to be developed by its holder only for specified purposes. The government acquired any land owned in excess of the prescribed limit by following a specific method of calculation, which was based on the income the acquired land was able to generate. The Act provides for appropriate documents to show that the provisions of this Act are not attracted or should be produced to the registering officer before registering instruments compulsorily registrable under the Registration Act. Initially States of Andhra Pradesh, Haryana, Gujarat, Himachal Pradesh, Karnataka, Maharashtra, Orissa, Punjab, Tripura, Uttar Pradesh and West Bengal adopted the Act. Thereafter, it was adopted by six more States namely Assam, Bihar, Madhya Pradesh, Manipur, Meghalaya and Rajasthan. Organizational Set Up Land is the most important natural resource in the world. Without it, the life on earth is not possible. Thus, it is the ultimate aim of mankind to acquire as much land as possible, rejuvenate the degraded lands and prevent their further degradation. A wide variety of measures and initiatives are being taken by both the Central and State/ Union Territories (UTs) Governments, with a view to promote orderly growth of land resources in the country as well as to accelerate the pace of development of wastelands/degraded lands. At the Central level, there are two main Ministries, namely, 'Ministry of Rural Development' and 'Ministry of Urban Development'. The former Ministry looks after the land matters in rural areas, administration of Land Acquisition Act, 1894 as well as examines all State legislative proposals covering any enactment of the subject of acquisition and requisition of property/ land. The 'Department of Land Resources' is the main authority, within the Ministry, to deal with matters of land reforms, land tenures, land records, acquisition of non-agricultural land or buildings, etc. While, the latter Ministry is mainly responsible for enacting laws like Urban Land (Ceiling & Regulation) Act, 1976 and Urban Land (Ceiling & Regulation) Repeal Act, 1999, that is, concerned with varied aspects of land in urban settings. At the State/UT level, there are various Departments which deals with matters of land acquisition, housing, infrastructure, town planning, etc. These include Department of Rural Development, Planning Department, Public Works department, Land Department and similar departments. They all aim to make maximum contribution to the promotion of urbanization in the country and look after all the matters relating to land in the rural as well as urban areas. Further, there are several Urban Development Authorities in the States for achieving the expeditious development of urban estates. Organizational Set Up Central Level At the Centre, all the matters relating to land acquisition, resettlement and rehabilitation are considered equally important for both rural as well as urban areas. Accordingly, two separate Ministries, namely, Ministry of Rural Development and Ministry of Urban Development, have been set up. They are constantly making all efforts to harness full potential of available land resources and prevent their further degradation. The Ministry of Rural Development is the main authority in India for dealing with various aspects of land acquisition as well as rehabilitation and resettlement policy, with special focus on rural India. It aims to:- (i) bridge the rural-urban divide by ensuring rapid and time bound development as well as budgetary support for implementing the various rural development schemes; (ii) create rural infrastructure for better economic opportunities and growth; (iii) restore lost or depleted productivity of the land for better livelihood opportunities, which is done through integrated watershed development programmes and by initiating effective land reform measures for providing land to the landless rural poor; (iv) administer the central legislation on land acquisition, that is, Land Acquisition Act, 1894; (v) examine all State legislative proposals covering any enactment of the subject of acquisition and requisition of property/ land; etc. The Ministry consists of the three Departments, namely:- The Department of Rural Development deals with all matters relating to generation of self employment and wage employment in rural areas, provision of housing and minor irrigation assets to rural poor, rural connectivity, etc. It provides support services and other quality inputs such as assistance for strengthening of DRDA Administration, Panchayati Raj institutions, training and research, human resource development, development of voluntary action, etc. for the proper implementation of its schemes and programmes. The major programmes of the Department are Pradhan Mantri Gram Sadak Yojana (PMGSY), Rural Housing (Indira Awaas Yojana), Sampoorna Gramin Rozgar Yojana (SGRY) and Swaranjayanti Gram Swarozgar Yojana (SGSY). The Department of Land Resources act as the nodal agency for land resource management in India. It undertakes all land-based development programmes and implements schemes to increase the bio-mass production by developing wastelands in the country. It provides the support services and other quality inputs such as land reforms, betterment of revenue system and land records. It also undertakes development of desert areas and drought prone areas in the country. It mainly administers Land acquisition Act and matters relating to acquisition of land. The major programmes of the Department are Drought Prone Area Programme (DPAP), Desert Development Programme (DDP), Integrated Wasteland Development Programme (IWDP), Land Reforms (LR), National Mission on Bio-fuels, etc. The 'Land Reform Division' in the Department is mainly responsible for monitoring programmes relating to land reforms and examines all Central and State legislations on acquisition and requisition of land/ properties. The Department of Drinking Water Supply deals with the provision of drinking water supply as well as extension of sewage, drainage and sanitation facilities to the rural poor. Its major programmes include the Swajaldhara, the Accelerated Rural Water Supply Programme (ARWSP), the Total Sanitation Campaign (TSC), etc. Besides, the Council for Advancement of People's Action and Rural Technology (CAPART), established in 1986, as an autonomous organization under the Ministry, so as to promote voluntary action towards implementation of projects for the enhancement of rural prosperity and to act as catalyst for development of technologies appropriate for the rural areas. While, the Ministry of Urban Development is another main authority to deal with land matters in urban areas. It administers the Urban Land (Ceiling & Regulation) Act, 1976 as well as the Urban Land (Ceiling & Regulation) Repeal Act, 1999. It has the responsibility of broad policy formulation and monitoring of programmes in the areas of urban development, urban water supply and sanitation. Its attached offices are:- Central Public Works Department (CPWD) - the principal agency of the Government of India for construction as well as maintenance of all Central Government buildings and projects, excluding those belonging to Railways, Defence, Communication, Atomic Energy, Airports and All India Radio. It handles a wide range of projects pertaining to housing and office space and complexes, hospitals, workshops and factories, hostels and hotels, food grain storage structures, roads, national highways, bridges and flyovers, airports, computer centers, environmental and other utility services. Directorate of Printing - executes all printing jobs of various Ministries / Departments of the Government of India. Directorate of Estates - responsible for the administration and management of the office buildings for the various organisations of the Government of India as well as residential accommodation for the Government employees in the metropolitan cities of Delhi, Mumbai, Kolkata, Chennai and five other cities namely Shimla, Chandigarh, Ghaziabad, Faridabad and Nagpur. Land and Development Office - responsible for the administration of landed estates of Government of India including lease, sale, mortgage, substitution, mutation, etc. Its major activities are:- (i) maintenance of records of all properties and lands placed under its charge; (ii) allotment of land to various Government/ Semi-government Department and various political, social, charitable, educational and religious institutions under the direction of the Government; (iii) auction of vacant land and built up properties under its charge; (iv) recovery of lease charges, ground rent, damages, etc. on such property; (v) conversion of lease-hold into free-hold residential properties; etc. Besides, the Town and Country Planning Organisation (TCPO) is the technical arm of Ministry of Urban Development in matters of town planning, regional planning and urban development, including metropolitan planning, human settlement policies, etc. It assists and advises the State Government, local bodies and Development authorities on these matters. Organizational Set Up State Level Although 'Ministry of Rural Development' is the central authority for land development in rural areas, there are various departments or organisations in the States/ Union Territories (UTs) dealing with rural development, panchayats and all matters relating to land. Some of these are:- Panchayats and Rural Development, Government of Assam Rural Development Department, Government of Kerala Commissionerate of Rural Development, Government of Gujarat Department of Panchayat and Rural Development, Administration of UT of Lakshadweep Department of Rural Development, Government of Uttar Pradesh Department of Rural Development, Government of Goa Rural Development Department, Government of Haryana Panchayat and Rural Development Department, Government of Madhya Pradesh Community and Rural Development Department, Government of Meghalaya; etc. Under the Ministry of Urban Development, there is Delhi Development Authority (DDA) which has statutory jurisdiction for overall development and land use in the National Capital Territory of Delhi. Its objectives are to:- (i) formulate a Master Plan for covering the present and future growth of Delhi and to promote and secure the development of Delhi according to the plan covering all the possible activities; (ii) acquire, hold, manage and dispose of land and other property; (iii) carry out building, engineering, mining and other operations; etc. While, Delhi Urban Arts Commission (DUAC) has statutory mandate to preserve and develop aesthetic quality and environment in Delhi. Further, the National Capital Region Planning Board (NCRPB), under the Ministry, is the main authority to evolve harmonised policies for control of land uses and development of infrastructure in the NCR. In India, the matters pertaining to housing and urban development have been assigned by the Constitution of India to the State Governments. The Constitution (74th Amendment) Act have further delegated many of these functions to the urban local bodies. There are several departments and/ or organisations in various States/ UTs which aim to promote large scale acquisition of land, its resettlement and rehabilitation as well as deal with town and country planning. Some of these are:- Department of Land and Building, Government of NCT of Delhi Department of Town and Country Planning, Government of Haryana Planning Department, Government of Arunachal Pradesh Department of Town and Country Planning, Government of Himachal Pradesh Directorate of Town and Country Planning, Government of Madhya Pradesh Development and Planning Department, Government of West Bengal, etc. The Urban Development Authorities in the States/ UTs for overall development of urban estates are:- Haryana Urban Development Authority (HUDA) Uttar Pradesh Urban Development Authority Punjab Urban Development Authority (PUDA) Himachal Pradesh Housing and Urban Development Authority Hyderabad Urban Development Authority, etc. The Public Works Department (PWD) in the States/ UTs are mainly engaged in planning, designing, construction and maintenance of public infrastructure, along with their rehabilitation works. Some of such departments are:- Public Works Department (PWD), Government of NCT of Delhi Public Works Department (PWD), Government of Kerala Public Works Department (PWD), Government of Tamil Nadu Public Works Department (PWD), Government of Uttar Pradesh Public Works Department (PWD), Government of Haryana, etc. Issues and Problems