People's Democracy

LAND ACQUISITION, REHABILITATION & RESETTLEMENT BILL

An Exercise in Deceit

S Ramachandran Pillai

OVER the last 20 years, pursuit of neo-liberal economic reforms has caused an acute and prolonged crisis in rural India and in agriculture, in particular.  More than a quarter million farmers have been driven to suicide and millions of agricultural labourers, poor and middle peasants and rural artisans face a permanent crisis of employment. The crisis has rendered agriculture unviable in many areas and indebted peasants are forced to sell their land.  Ever since the implementation of neo-liberal policies there has also been a systematic reversal of land reforms and many states have diluted the ceiling laws. Taking advantage of this crisis and easing of regulations, predatory real estate interests, so-called private developers and big corporates have been grabbing land on a massive scale across the country. 

We are witnessing today a colossal scale of acquisition of agricultural land and expropriation of the peasantry. What has governed all land acquisitions till now has been the antiquated and draconian Land Acquisition Act of 1894 which was enacted by the British to ensure unbridled expropriation. The Land Acquisition Act, 1894 had been rendered into an instrument for corporate loot of people’s land. There have been widespread demands to replace this Act with a more democratic legislation. The  AIKS has also called for the repeal of the Land Acquisition Act, 1894 and argued for the accompaniment of any land acquisition with adequate compensation as well as comprehensive rehabilitation and resettlement provisions. In the recent past, land acquisition has led to turmoil and large scale protests have also erupted against unjust land acquisition in different parts of India. It is under such a scenario that the Congress-led UPA government has now introduced the Land Acquisition, Rehabilitation and Resettlement Bill, 2011 in the parliament. The All India Kisan Council meeting held on November 13-14, 2011 in New Delhi discussed at length this bill and formulated its views on the provisions of the bill.

The AIKC feels that the present bill fails to take care of the interest of the peasantry and suffers from many infirmities. Though the bill proposes in general terms, the requirement of the consent of 80 per cent of the affected people, social impact assessment, consultation with the gram sabha or equivalent body in urban areas, special measures to safeguard food security and  higher rates of compensation and rehabilitation and  resettlement benefits in the case of land acquisition compared to 1894 Act, but in real terms, the operation of these provisions are held back in the case of a wide range of land acquisitions.  What is given by the right hand is taken back by the left hand.

EXCLUSIONS RENDER

THE BILL MEANINGLESS

The bill resorts to three types of exclusions or exemptions.  One method used is outright exclusion of the application of the provisions of the bill in the case of land acquisitions under sixteen important legislations. 

The legislations include the Atomic Energy Act, Indian Tramways Act, Land Acquisition (Mines) Act, Metro Railways (Construction of Works) Act, National Highways Act, Petroleum and Mineral Pipelines (Acquisition of right of user in Land) Act, Special Economic Zones Act, Coal Bearing Areas Acquisition and Development Act, Electricity Act, Railways Act, Works of Defence Act etc.  The bill also provides powers to the government to add any other enactment which can be kept out of the purview of the provisions of the bill by issuing notifications by the government. The very purpose of the legislation is defeated by these exclusions. 

The second type of exclusion is achieved by providing extraordinary powers to the government to acquire land in the case of certain emergencies and such land acquisitions are exempted from the provisions of the bill.

The bill provides powers to the government to acquire land urgently without going for the lengthy procedures of social impact assessment, examination by expert group etc in the requirements for the defence of India or national security or for any emergencies arising out of natural calamities.   But the bill also proposes that the provision regarding fixation of compensation, rehabilitation and resettlement schemes, time limit for implementation of the rehabilitation and resettlement schemes etc can be denied to the affected persons. 

The third type of exclusion is facilitated by providing arbitrary powers to government to occupy land temporarily. The bill provides powers to the government for temporary occupation and use of any land not only for public purposes, but also for the use of private companies.  The collector is given arbitrary powers to procure the occupation and use of land for a period of three years and can also fix compensation amount to be paid to the land owners and affected families. 

The cumulative effect of all these three types of exclusions makes the bill totally worthless and virtually almost all land acquisitions are kept out of the purview of the bill.  The proposals in the bill for social impact assessment study, special provisions to safeguard food security, enhanced rate of compensation and rehabilitation and resettlement benefits etc are meant to hoodwink the people and to facilitate land grab by corporates and real estate operators. The UPA government’s bill has been reduced merely to an exercise in deceit.

The AIKS demands that whenever any land is acquired, either by the government for government purposes, or, by the government for transfer to private companies, all provisions of the Land Acquisition, Rehabilitation and Resettlement bill should be made applicable.  All provisions that provide for exemptions from the provisions of the bill should be deleted.

PUBLIC PURPOSE,

CONSENT & IDENTIFICATION

OF BENEFICIARIES

The definition of “public purpose” in the bill is very wide and includes almost all human activities.  The definition of “public purpose” should confine only to genuine public purpose like strategic purposes relating to naval, military, air force, armed forces, national security, defence of India, state police, safety of people, land for railways, highways, ports, power, irrigation, land for project affected people, land for residential purpose for landless, or persons residing in areas of natural calamities, displaced persons in any schemes undertaken by the government etc.  Consent of the project affected people for the above mentioned purposes may not be insisted in the case of land acquisition by the government, for the government.  Without the prior informed consent of 80 per cent of the project affected people, no land should be acquired either by the government for government purposes or by the government in order to transfer to private companies for any projects other than those mentioned above. 

The bill stipulates for the consent of only “affected families”. The definition of “affected families” in the bill is a narrow one. Only those tenants, sharecroppers or artisans or agricultural workers who are working in the affected area for three years prior to the acquisition of land and whose primary source of livelihood stand affected by acquisition of land are considered as “affected families”.  In the case of families  dependent on forest or water bodies or gatherers of forest produce, or hunters or fisher folk or boatmen only those whose primary source of livelihood for three years prior to the acquisition has been affected will come under the definition of “affected families”.  Persons interested in an easement affecting the land are also excluded from the category of “affected families”. 

The bill defines another category “person interested” which is entitled to the compensation amount.  The “person interested” is a wider term which includes all persons claiming an interest in compensation amount, tribals and traditional forest dwellers who have lost any of the traditional rights recognised under the Scheduled Tribes and Other Traditional Forest Dwellers  (Recognition of Forest Rights) Act 2006, persons interested in easements  affecting the land  and persons having tenancy rights including share croppers by whatever name they may be called and any other person whose primary source of livelihood is likely to be adversely affected.  But the bill does not seek the consent of these categories of persons who are also affected by land acquisition. Hence, consent of “affected families” alone is not sufficient and consent of at least 80 per cent of the families belonging to both the categories – “affected families” and “person interested” – should be obtained in the  case of land acquisitions. 

STREAMLINE

SOCIAL COST-BENEFIT

ASSESSMENT

The bill mentions about a social impact assessment which will include assessment of the nature of public interest involved, estimation of affected families likely to be displaced, study of the socio-economic impact upon the families residing in the adjoining area of the  land, extent of lands, public and private settlements, houses and other common properties likely to be affected, whether the extent of land proposed for acquisition is an absolute bare minimum extent needed for the project, whether land acquisition at an alternate place has been considered and found not feasible, social impact from the project and the nature and cost  of addressing them and their impact on the overall costs  of the project and benefits vis-à-vis the social and environmental costs etc. 

The social impact assessment report will be examined by an expert group constituted by the government and when land acquired is more than 100 acres or more, the report will be considered by a committee headed by the chief secretary and comprised of other government secretaries. The collector of the district also should present a report to the committee to the effect that he has explored the possibilities of: (i) acquisition of waste, degraded, or barren lands and found that acquiring such waste, degraded or barren land is not feasible; and (ii) acquisition of agricultural land, especially land under assured irrigation, is only as a demonstrable last resort.

The whole exercise of social impact assessment study, examination by an expert group and another committee headed by the chief secretary are nothing but bureaucratic exercises and serve no real purpose.  People’s representatives from panchayat raj institutions, legislative assemblies and parliament should be included in such committees in order to express the views and concerns of the people.  There has to be an appropriate social and environmental impact assessment before every land acquisition whatever may be its extent.  Whenever any extent of land is acquired by the government, or for transfering it to private companies, the collector should explore the above mentioned possibilities.

ADDRESS FOOD

SECURITY CONCERNS

The provision in chapter III of the bill that irrigated multi-crop land not exceeding 5 per cent of the total irrigated multi-crop area in that district shall be acquired only under exceptional circumstances, will amount to too large an area being acquired. The 5 per cent provision must be removed and it should be ensured that the bare minimum can be acquired under exceptional circumstances. In any case this should not exceed 2 per cent of the multi-cropped fertile land and 5 per cent of the net sown area in the district (as existing on the date the Act comes into being). The collector and the state level committee should ensure this is complied with while they approve a new project. The provision that an equivalent area of waste land shall be developed for agricultural purposes etc may remain unimplemented as it is not specified in the bill who will implement those provisions and the manner in which it is to be implemented. Appropriate authorities should be given responsibilities to implement these provisions. 

ENHANCE COMPENSATION

PROVISIONS

The bill proposes the following procedure for fixation of total compensation amount for the land acquired. First, the  market value of the land is calculated on the basis of minimum land value specified in the Indian Stamp Act 1899 or the  average of sale price for similar type of land whichever is higher.  The market value so calculated shall be multiplied by two in rural areas and one in urban areas and that will be the compensation amount. In order to determine the total compensation amount, any value of assets attached to land or building will be added to the compensation amount.  In addition to this total compensation amount, a solatium amount equal to 100 per cent of total compensation amount will be given.  The provision in the bill with regard to compensation amount and solatium is applicable in the case of acquisition of land by government for government purposes or by government for transfer to private companies.  The provisions are not applicable in the case of private purchase of land by private companies.

In many sale deeds, the sale amount is grossly undervalued. In many transactions extra money is paid in addition to the amount shown in the sale deed. Hence, the AIKS is of the opinion that the compensation amount should be enhanced to not less than six times the original market value  (including solatium in rural areas) and to be not less than three times the original market value (including solatium) in urban areas. The enhanced rate of compensation should be made applicable in the case of all land purchases by private companies above ceiling limits of land or 15 acres in rural areas and five acres in urban areas whichever is low. The private companies are getting the benefits of exemption from the ceiling limits and land use policy and plan prevalent in many states.

STRENGTHEN

REHABILITATION &

RESETTLEMENT PROVISIONS

The provisions relating to the rehabilitation and resettlement in the bill will apply in all land acquisitions by government either for the government or for private companies and when a private company purchases land above 100 acres in rural areas and 50 acres in urban areas.  The provisions of rehabilitation and resettlement should apply in the case of all land acquisitions by government either for the government or for private companies and all land purchase by private companies above ceiling limits or 15 acres of land in rural areas and five acres in urban areas whichever is low. 

The rehabilitation and resettlement entitlements should be enhanced. Mandatory provision of jobs to one or more members of each affected family according to the proportion of jobs lost in that particular family with a wage not less than the agricultural minimum wage of two adults per job must be ensured or a minimum annuity of Rs 5,000 per month for a period of 30 years or Rs 15 lakhs as one-time payment for affected families. It should be increased in proportion to the loss of jobs in affected families and the extent of land acquired from each family.  Subsistence grant should be increased to Rs 10,000 per month for all affected families and Scheduled Caste and Scheduled Tribe families should get an additional amount of Rs One lakh. The one time grant to artisan, small trader and others should be increased to Rs One lakh. When lands of SC/STs are acquired, provision of alternative land over and above compensation should be mandatory. In the Second Schedule dealing with land for land, the benefit of availing such a choice should be made available in all cases of land acquisition (not just in irrigation projects) wherever possible for all affected persons. Whenever land for land is provided for, it should be accompanied by a one-time grant for improving the land, ameliorating and replenishing the soil condition and making it fit for cultivation.

At least 2 per cent of the total project cost should be set aside for development of the affected area, provision of civic amenities etc, and on completion of the project, at least One per cent of the total income should be invested in the development of the affected area through the local self government institutions. In the case of power projects, the affected persons must be given free electricity of 100 units per month for the life of the project.

The monetary part of the rehabilitation and resettlement should be paid along with the compensation. It is to be made mandatory that taking possession of land can be possible only after all entitlements of compensation and rehabilitation and resettlement are provided to the affected persons. The state governments should be given the right to increase the compensation amount and rehabilitation and resettlement entitlements considering the specific situation prevalent in the state.

ENSURE COMPLIANCE

TO LAND USE POLICY

Although the bill talks of land use change in Section 42, it does not provide for declaration of a land use policy. The bill should include a provision that each state government should prepare a land use policy and plan considering the requirements of food security, necessity for redistributive purposes like land to landless and housing for homeless, employment generation and protection of environment. Any land acquisition must be compliant with this policy and any application for exemption should be examined and decided by a state level committee comprised of people’s representatives, experts and officials.

Once land is acquired citing a specific purpose there should be restrictions and checks to ensure that there is no change in land use for any other purpose. It should be ensured that the prohibition of land transfer by way of acquisition in the scheduled areas in contravention of the law relating to the land transfer prevailing in such scheduled areas should be fully complied with. In the scheduled areas the ‘market value’ is often quoted very low and the tribal communities could be deprived of actual value of compensation that they should get. There has to be an appropriate mechanism to ensure no such injustice takes place.

REMOVE CONSTRAINTS ON

RIGHT TO JUDICIAL

RECOURSE

The bill bars the jurisdiction of the civil court to entertain any dispute relating to land acquisition.  The government will establish one or more authorities to be known as land acquisition, rehabilitation and resettlement authorities to decide on disputes relating to land acquisition, compensation, rehabilitation and resettlement awards.

The barring of the jurisdiction of civil courts is unconstitutional and will only open the doors for bureaucratic interventions. Indian constitution is based on the separation of powers between the legislature, executive and judiciary. It is patently unfair and undemocratic that a body appointed by the executive will scrutinise its own decisions. Denying access to courts may violate the provisions of the constitution. If courts take more time to decide matters, more courts can be appointed. Disputes may arise on property rights and they should not be decided by an authority created by the executive.  Civil courts should be given jurisdiction to entertain disputes with regard to compensation, apportionment of compensation, rehabilitation and resettlement etc. The land owners and dependents on land cannot be expected to go through a costly litigation process all the way up to the apex court without being given the opportunity to exercise legal recourse at the nearest convenient civil court. This anomaly in the bill has to be rectified.

The intent of the Land Acquisition, Rehabilitation and Resettlement Bill, 2011 is loud and clear. Its direction like in the case of the Land Acquisition Act, 1894 is towards facilitating expropriation of land and will lead to depriving land owners and the dependents of land of their livelihoods. Although the government also claims that the bill will ‘meaningfully’ address the concerns of farmers and those whose livelihoods are dependent on land being acquired, in reality the legislation aims to facilitate easy take-over of land by corporate sector and big players in the real estate business. It will only further intensify the process of expropriation going on across the country by giving it a legal sanction, although under a façade of unimaginable benevolence.

The All India Kisan Sabha is committed to fight resolutely against any unjust land acquisition as well as indiscriminate corporate takeover of agricultural land. The AIKS will resist efforts to push through the Land Acquisition, Rehabilitation and Resettlement Bill 2011 without adequate safeguards to protect agricultural land and interests of the peasantry.