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Sops for the Poor and a Bonus for Industry

While there are some positive features in the Land Acquisition Bill - the inclusion of both acquisition and rehabilitation in the same legislation, and provision for the displaced to receive a share of the appreciation in value over time - the regressive features dominate and threaten to make acquisition by industry a far more easy process that will leave the current occupants with little more than a large compensation.

LAND ACQUISITION AND RESETTLEMENT BILL

Sops for the Poor and a Bonus for Industry

E A S Sarma

While there are some positive features in the Land Acquisition Bill – the inclusion of both acquisition and rehabilitation in the same legislation, and provision for the displaced to receive a share of the appreciation in value over time – the regressive features dominate and threaten to make acquisition by industry a far more easy process that will leave the current occupants with little more than a large compensation.

E A S Sarma (eassarma@gmail.com) is a former secretary (power) in the Government of India and one of the appellates of the National Environment Appellate Authority in the Kakarapalli case.

M
any countries have enacted laws to invoke the State’s “eminent domain” to acquire private lands for public purposes. As far as India is c oncerned, the Land Acquisition Act was e nacted by the British in the colonial era.

At the time of Independence, the framers of the Constitution included the right to property among Fundamental Rights in Part III (Article 31) which guaranteed the citizen several strong safeguards against unjust land acquisition. As a result of the enormous pressure exerted by public sector units (PSUs) and the executive during the three decades that followed Independence, Parliament took the extreme step of amending the Constitution in 1977 to delete Article 31 and introduce Article 300A to dilute the citizen’s right to property. This opened the floodgates to large-scale acquisition of private lands for the PSUs, not merely to enable them to set up their factories but also to enable them to construct residential townships for their managers. There were instances of PSUs initially requisitioning more land than they required but later surrendering the surplus for use by other agencies, unmindful of the trauma caused in the first instance to the displaced families.

Post-1991, private companies joined the bandwagon of land-grabbing in a big way. The government tried to accommodate their greed by stretching the ambit of “public purpose” defined in the 1894 Act. The apex court has, time and again, cautioned the government not to be indiscriminate in using the existing Act to dispossess the people, especially the poor, of their lands, and not to invoke the “urgency” clause in a wanton manner and not to acquire fertile agricultural lands for industry. During the last decade or so, the pressure on land, as a real estate commodity, has multiplied significantly. The Land Acquisition, Rehabilitation and Resettlement Bill 2011, which was introduced in the monsoon session and is now before a standing

october 8, 2011

committee is an attempt to open the floodgates wider, to enable the private companies to obtain land through forcible acquisition and silence the displaced families by offering them a more generous resettlement and rehabilitation (R&R) package.

One-sided Preamble

The preamble to the Bill betrays the government’s motive in introducing the new law. It reads as:

to ensure a humane, participatory, informed consultative and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanisation with the least disturbance to the owners of the land and other affected families…for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic status...

To a discerning reader, it is clear that the Bill makes no bones about making it easier than ever for industry to take away agricultural lands. The terms, “participatory”, “consultative”, “transparent”, “least disturbance” and “partners” are truly laudable but they are not supported in any way by the necessary supplementary clauses in the main body of the bill. For example, though the preamble describes the process of land acquisition to be “participatory”, the affected families are at no time to be consulted on the choice of the project, or its location, or on its relevance for the good of the public.

Ambit of the Bill

The Bill is apparently meant to address the larger political problem of increasing people’s opposition to displacement. If acquisition of private lands leads directly to people’s displacement, so does acquisition of the public lands that also provide livelihoods to the people indirectly. For example, traditional fishers depend on wetlands. If an industry is allowed to come up in such a wetland, it will deprive those fishers of their source of livelihood. Similarly, sand mining franchises along the coast and franchises for mining other minerals in the hills cause occupational displacement to the fishing communities and the adivasis respectively. Since the Bill addresses only the acquisition of private

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Economic & Political Weekly

LAND ACQUISITION AND RESETTLEMENT BILL

lands, its reach remains limited. It will not therefore fully address the larger political concern about people’s displacement.

There is a multiplicity of laws on land acquisition in India. Apart from this bill, there are at least 18 other laws in operation, administered by different government agencies. The Department of Atomic Energy (DAE) recently initiated a proposal to seek powers under its own Atomic Energy Act to acquire land. While the Ministry of Rural Development (MRD) is hopeful that its latest Bill will serve as an overarching legislation for all such laws, in practice, it will find it difficult to impose its intentions on the other ministries.

When a private developer purchases more than 100 acres or when he approaches the government for partial acquisition for a public purpose, the R&R package becomes mandatory. Prima facie, the area limit of 100 acres is arbitrary and is not based on any rational consideration. A more plausible criterion would be the number of families displaced. This apart, it is possible that a private developer will buy land in more than one stretch of less than 100 acres to make sure that he does not have to provide R&R benefits to the a ffected. Nor does the Bill specify the relative proportions of the private land that the developer buys on his own and the land that he seeks to get under the acquisition law.

Positive Features

The fact that this Bill combines acquisition and R&R under one umbrella is a welcome feature. To some extent, it provides a possible solution to the longstanding problem of unconscionable delays in R&R. This is further reinforced by the order-of- magnitude enhancement that the Bill provides for both compensation and R&R benefits, though they continue to be based on the highly undervalued registration prices in the vicinity of the acquired lands. The “subsistence allowance” initially granted for one year and the annuity provided for 20 years are certainly innovative and welcome. Equally innovative is the provision that, if the acquired land is transferred within 10 years, 20% of the appreciated value would go to the displaced families. The concept of the

Economic & Political Weekly

EPW
october 8, 2011

“potential” value of the land, based on an

economic appraisal of its possible alter

nate uses, rather than the value derived

from the less reliable registration statis

tics, would have benefited the displaced

families more realistically.

Lands needed by private companies for

private purposes and multi-cropped irri

gated lands (up to 5% of such area in a dis

trict) are excluded from acquisition. What

about the other agricultural lands? The

apex court’s orders have not apparently

been considered.

The definition of the “affected” fami

lies in the new Bill is far more liberal than

in the existing Act, though it still leaves

out the village artisan like the carpenter

and the blacksmith who depend indirectly

on the village farming activity for their

livelihoods. Though the definition in the

Bill does embrace the term “artisan”, inter

pretation of the question whether a par

ticular artisan’s livelihood is dependent

on the proposed land acquisition or not, is

subject to interpretation by the authorities.

For the first time, the Bill provides

s pecial benefits to adivasis living in areas

n otified under the Fifth Schedule to the

Constitution, though one can question

the very validity of acquisition of any

land in such areas in the context of the

special rights conferred by the Fifth

Schedule on the tribal. Clause 5 of the

Fifth Schedule requires the government

to review all laws in force in the country

and adapt them to suit the interests of the

tribal before extending them to the noti

fied areas. The Bill seems to ignore this

requirement altogether.

The Bill provides for an elaborate insti

tutional structure to subject projects to

Social Impact Assessment (SIA), deter

mine whether they meet the “public pur

pose” criteria, resolve the disputes if any

and monitor the execution of the project.

The SIA is required to be discussed at the

level of the gram sabha as a part of the

consultation process. This does not inspire

public confidence for two reasons. First,

the committees that form part of this are

packed with government officials, with

practically no representation for the local

communities, the farmers’ bodies, etc.

Second, the experience of the people with

the so-called “public hearing” for projects,

conducted in accordance with the provisions

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of Environment (Protection) Act, has not been one of comfort. A more peopleoriented SIA process would enhance the credibility of the bill.

The “urgency” clause is explicitly restricted to the “rarest of rear” cases, though the definition of this term is left to the vagaries of the officials.

Regressive Features

The way the term, “public purpose”, is defined in the present Bill goes far beyond what the existing Act provides. The definition includes acquisition of land for “infrastructure, industrialisation and urbanisation projects…where the benefits largely accrue to the general public…including land for companies, for which at least 80% of the project-affected people have given their consent through a prior informed process”. In other words, this will enable even profit-earning private companies selling goods to the public to seek acquisition of land for their projects under the new law, provided they are willing to meet the cost of R&R. Strangely, the need for obtaining the consent of 80% of the a ffected families does not seem to apply to the lands acquired by the government for its own use. Democracy seems to stop at the government’s doorstep!

Many private companies are known to be deploying intermediaries to negotiate and buy agricultural lands at distress prices on benami names and transfer those lands to the company’s name later. Even the government agencies have started adopting this invidious practice by asking their own undertakings such as the State industrial infrastructure corporations to initiate the acquisition of private lands for an undefined public purpose and later transfer those lands to private companies. In a way, apart from creating enormous rent seeking opportunities, this will virtually neutralise the requirement of 80% consent from the affected families.

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LAND ACQUISITION AND RESETTLEMENT BILL

Some private companies have adopted yet another way to deceive the landowners. They first buy agricultural land on the pretext of setting up, say, a sugar factory that will benefit the farmers, and later, use that land for a polluting industry that the farmers are unwilling to accept. The Bill has no answers to such situations.

Part III of the 1894 Act enabled any displaced family, not satisfied with the compensation award, to seek a reference to be made by the collector to the district court for adjudicating his/her representation. The new law has conveniently omitted this part altogether, thereby excluding j udicial oversight on the decision-making process at the district level. Is there a neocolonial tinge to the bill?

Need for Audits

In most states, land records are in disarray. The records do not show the names of the persons actually tilling the land either as formal/informal tenants or otherwise. Whenever land is acquired, it is the absentee landlord sitting faraway in a city that gets the compensation. A sample evaluation of the occupancy particulars would reveal the ground reality. Perhaps, as a prelude to this bill, the MRD should have initiated some legislative changes to protect the interest of the actual tiller of the land. Drafting a Bill like this in a vacuum and pushing it through the approval p rocedures on a fast track will surely be c ounterproductive.

To understand the reality of forced land acquisition, the government has not tried to evaluate the pattern of use of the land already acquired and the post-acquisition plight of the displaced families. In many cases, the project developers have kept the lands vacant and raised funds clandestinely from financial institutions. The displaced families on the other hand have e ither not received the compensation amounts or frittered away the cash and have become destitute.

Considering that the Land Acquisition Bill will have wide ramifications, the least that MRD could have done is to generate a nationwide debate at the level of the gram sabhas and municipalities. Such a debate alone would have helped the ministry in coming up with a law that a democratic society like ours can be proud of.

Conclusions

As the preamble suggests, the Bill will soon become a strong driver to divert agricultural lands to industry. This has farreaching implications for the food security of the country. Perhaps, it will be more prudent for the government to adopt a long-term land-use policy at the national level and determine the taluk-level minimum thresholds for agricultural land b efore the damage takes place in an irreversible manner.

If the displaced families are given the status of lessors of the land to the private companies with indexed rentals or they become the companies’ shareholders, the Bill would have set a truly innovative trend.

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