Guest post by: Amita Bhaduri
The drafting of a new legislation on these issues was taken up by a Group of Ministers in May 2007 and this is the second draft bill presented by the UPA Government.
Scrapping the old law altogether
Under our Constitution, land is a State subject, but land acquisition is a Concurrent subject. The legal framework for land acquisition in the country is a relic of the colonial era under which the government continued to acquire land against the owners’ wishes for ‘public purposes’ as a right by the state under its powers of eminent domain.
The history of large-scale land acquisition goes back to the 1950s, when the Indian state embarked on large state owned projects for irrigation, power, steel and heavy industries. In recent years, there has been a spate of protests, some even turning violent, over the acquisition of farmland for housing and industrial projects, calling for democratization of the land acquisition process and a transparent set of rules that balances the need for industrialization with the issue of livelihood. The bill is purportedly being brought up in the wake of this and the absence of a national law to provide for the resettlement, rehabilitation and compensation for loss of livelihoods. Once passed, the bill will replace the 117-year old Land Acquisition Act of 1894, which had become archaic despite the multiple amendments from time to time. The bill will supersede all specialized legislations on land acquisition, including those for special economic zones and railways.
Dongria Kondh tribals opposing the Vedanta project in Orissa
Photo Courtesy: www.rediff.com
The opening statement of the draft states that land markets in India being imperfect, the government intends to enact a transparent and flexible set of rules and regulations and to ensure its enforcement. The draft bill seeks to balance the need for facilitating land acquisition for various public purposes, including infrastructure development, industrialization and urbanization, while at the same time meaningfully addressing the concerns of farmers and those whose livelihoods are dependent on the land being acquired.
Combining resettlement & rehabilitation and land acquisition
The present draft aims to address rehabilitation and resettlement (R&R), providing safeguards for both land owners and livelihood losers, while defining the “public purpose” for which land can be acquired by the government. It makes an attempt to combine R&R and land acquisition within one law and states that R&R must always, in each instance, necessarily follow upon acquisition of land. Not combining the two – R&R and land acquisition – within one law, risks neglect of R&R.
Definition of public purposes
The draft defines “public purpose” as strategic purposes (armed forces, national security), infrastructure and industry (where benefits largely accrue to the general public), R&R purposes, planned development for urban and rural sites (residential purpose for the poor and educational & health schemes), private companies using the land for public purposes and any need due to natural calamities.
Including infrastructure and industry in the ambit of public purpose will allow the government to acquire land for industrialization. However, it prohibits acquisition of multi-crop land and land for private companies for private purposes. The urgency clause can only be invoked in the following cases: (a) National defense and security purposes (b) R&R needs in the event of emergencies or natural calamities and (c) To be exercised in ‘rarest of rare’ cases.
Laying down its scope the draft bill permits land acquisition under three broad categories -
- Government acquires land for its own use, hold and control;
- Government acquires land with the ultimate purpose to transfer it for the use of private companies for stated public purpose (including PPP projects but other than national highway projects); and
- Government acquires land for immediate and declared use by private companies for public purpose.
It says the public purpose once stated cannot be later changed. It also provides for returning the land to the owner if it is not used for the stated purpose within five years. Most importantly, the government has proposed that the latter two kinds of acquisitions can take place only when 80 per cent of the affected families consent. This clause enables the government to acquire the final 20 per cent of land for a project which has already acquired 80 per cent.
Opposition to Tata Nano Project at Singur, West Bengal
Photo Courtesy: www.indiamike.com
Who are the affected families?
The bill defines affected families as - Land Owners: (a) Family whose land/other immovable properties have been acquired; (b) Those who are assigned land by the Governments under various schemes; (c) Right holders under the Forest Rights Act, 2006 and Livelihood Losers: (a)A family whose livelihood is primarily dependent on the land being acquired and (b) May or may not own property.
Comprehensive compensation package
The bill lays out separate compensation packages that take into account three factors - the market value of the land, the value of assets attached to the land and hundred per cent of total compensation - for rural and urban areas. To bring about fair compensation the bill proposes that the final compensation in rural areas would not be less than six times the original market value, while in urban areas it would not be less than twice that of the market value determined.
More specifically, it presents a comprehensive compensation package (Schedule I) based on market value of the land: (a) the minimum land value, if any, specified in the Indian Stamp Act, 1899 for the registration of sale deeds in the area, where the land is situated; or (b) the average of the sale price for similar type of land situated in the village or vicinity, ascertained from fifty per cent of the sale deeds registered during the preceding three years, where higher price has been paid; or whichever is higher, provided that the market value so calculated shall be multiplied by three in rural areas.
The compensation would also include the value of the assets attached to land - building/trees/wells/crop etc., as valued by the relevant government authority. A solatium will be paid over and above this for non-financial disadvantage resulting from the necessity of the person to relocate his or her principal place and would be equivalent to hundred per cent of the total compensation.
The comprehensive Rehabilitation and Resettlement package (Schedule II) suggested for landowners comprises of –
- Subsistence allowance at Rs. 3000 per month per family for 12 months;
- Rs 2000 per month per family as annuity for 20 years, with appropriate index for inflation;
- If house is lost, a constructed house of plinth area of 150 sqmts of house site in rural areas or 50 sqmts plinth area in urban area;
- One acre of land to each family in the command area, if land is acquired for an irrigation project;
- Rs 50,000 for transportation;
- Where land is acquired for urbanization, 20 per cent of the developed land will be reserved and offered to land owners, in proportion to their land acquired;
- Upon every transfer of land within 10 years of the date of acquisition, 20 per cent of the appreciated value shall be shared with the original owner whose land has been acquired;
- Mandatory employment for one member per affected family or 2 lakh rupees if employment is not offered; and
- Offer of shares up to 25 per cent of the compensation amount.
The comprehensive Rehabilitation and Resettlement package (Schedule II) suggested for livelihood losers (including landless) comprises of –
- Subsistence allowance at Rs. 3000 per month per family for 12 months;
- Rs 2000 per month per family as annuity for 20 years, with appropriate index for inflation;
- If home-less, a constructed house (plinth area) on 150 sqmts of house site in rural areas or 50 sqmts in urban area, provided free of cost;
- A one-time ‘Resettlement Allowance’ of Rs 50,000;
- Rs 50,000 for transportation; and
- Mandatory employment for one member per affected family or 2 lakh rupees.
And wherever families are resettled, that area should include schools and playgrounds, health centers, roads and electric connections, assured sources of safe drinking water for each family. The bill provides a separate package for scheduled castes and scheduled tribes.
Role of gram sabha
For the first time, the government has acknowledged the role of the gram sabha in the process of land acquisition, stressing that they would have to be “consulted”. This has been done to comply with other laws, such as the Panchayat (Extension to the Scheduled Areas) Act (PESA), 1996; the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006; and Land Transfer Regulations in Schedule V (Tribal) Areas.
Opposition to Reliance Project in Uttar Pradesh
Photo Courtesy: www.lvcsouthasia.blogspot.com
Monitoring body
Aiming at ensuring better resettlement and rehabilitation, the draft bill proposes to set up a national monitoring body which will be regularly updated by the States. It also proposes to set up authorities both at central and State level for speedy disposal of issues related to land acquisition. The central government shall constitute a National Monitoring Committee for reviewing and monitoring the implementation of rehabilitation and resettlement schemes or plans under the Act. The draft bill also proposes to set up authorities both at national and state level for the purpose of providing speedy disposal of disputes relating to land acquisition, compensation, rehabilitation and resettlement.
The past history of displacement does not inspire confidence
The key sticking point of the draft bill which is opposed by civil society groups and even UPA’s allies like Trinamool Congress is whether the government should acquire land for private developers, or not. The draft states that the government will not get involved in private land buys for private purpose to put to rest conflicts emerging from the governments invoking an emergency clause that snuffs out the ability of farmers to raise objections over inadequate compensation.
Furthermore, the draft bill is silent on whether the provisions would be applicable to those projects for which land has already been acquired. Some State governments like West Bengal are opposed to the assignation of any role for the State governments in matters of land acquisition.
The new bill is being opposed by some who while agreeing that the colonial land acquisition act is outmoded and not in sync with welfare objectives of Indian democratic polity feel that the governments keenness to recast the law was not out of penchant for the farmers but to give the corporate sector a free hand in acquiring whatever land they like, a part of which will be through negotiations but the more difficult part would be through state intervention.
Please send in your comments -
The draft is up for public comments and feedback until August 31, 2011. The Ministry will be able to finalise the bill, get it vetted by the Ministry of Law, have it approved by the Union Cabinet and introduce it in Parliament most probably in its monsoon session. Comments may be addressed to - landacquisition.comments@gmail.com or to Office of the Minister of Rural Development, Room No. 48, Krishi Bhawan, New Delhi.
The draft bill is attached below in English and Hindi.
Do you think that the act will be successful in alleviating land issue in India? Let us know in the comments section below!
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