Tuesday, January 28, 2014

Commentary on LARR-2013 

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

[NO.30 OF 2013]

to ensure, in consultation with institutions of local self-government and Gram Sabhas established under the Constitution, a humane, participative, informed 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 and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and 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 and for matters connected therewith or incidental thereto.
BE it enacted by Parliament in the Sixty-fourth Year of the Republic of India as follows:—

SYNOPSIS
1.      Introduction
2.      Reason for New Act
3.      Highlight of New Act
a)      Retrospective effect
b)      Transparency in acquisition process
c)      Fair Compensation
d)      Post effect measures
e)      Safeguard for SCs/STs
f)       Compensation for livelihood
g)     Strengthen the Gram Sabha voice in land acquisition
h)     Consent of people whose land acquire
i)        Return of unutilized land
j)        Safe guard from income tax and stamp duty
k)      Share in appreciated land value

1.         INTORDUCTION

Background of the Act
During the British Raj, in the year 1824, an Act” The Land Acquisition Act, 1894” for land acquisition was enacted by British government. This Act empowered the government to acquire the land from privately held person for public use, at a reasonable price which government considered. Its application was throughout the whole of the Bengal provinces, and there after rest part of India, even after independence of, the Indian government adopted the 1894 Land Acquisition Act. Since then various amendments have been made from time to time but the administrative procedures have remained same.
2.         Why this New Enactment?
There was a unanimous opinion that the current law (”The Land Acquisition Act, 1894”) suffers from various shortcomings, and not able to address the progressive Indian needs. Hon’ble Apex court also observed the current act (”The Land Acquisition Act, 1894”)    has “become a fraud”[1] on only this but many time Hon’ble Supreme court made its observation regarding the procedure and deficiency in the current act.
In consolation below are the points to give birth this new Act:
Þ    obsolete law
Þ    Supreme Court Observations
Þ    To bridge the gab for acquisition to rehabilitation and resettlement
Þ    Provide the balance between land owner whose land being acquired and facilitating the industrialization and urbanization
4.      Anatomy of the Act
The soul of the act lies in three points:
§         Land Acquisition-  For what purpose, Transparency and Consent of Local Self Government ( Panchayat)
§         Consent- prior consent  when the government acquires the land for private companies, the consent of at least 80% of the project affected families shall be obtained through a previous informed process before government uses its power under the Act to acquire the remaining land for public good, and in case of a public-private project at least 70% of the affected families should consent to the acquisition process
§         Compensation- Just and Fair compensation not only for those who displaced by acquisition, but other affected sections by acquisition to level the social and economic crisis
§         R&R – Balancing post acquisition affects

4.         Highlight of New Act
a)      Retrospective effect
The magnificent feature of this act, is an effort to address the historical injustice, the Act applies retrospectively in following cases:-
a)   Where No Award Made: Where no award under Section11 of the 1894 Act has been, made, the new law will apply with regard to compensation:-

b)      Where an award has been made: Where an award has been made but the affected individuals have not accepted compensation or have not yet given up possession, and the proceedings have been pending for 5 years or more, provisions of the new law will apply.
b)     Transparency in acquisition process
This act also project the transparency to the process of acquisition of land, all documents such as summary of SIA[2] notified along with draft Notification are  made available in public domain and on the website for public scrutiny, and Gram Sabha also be consulted before acquire any land.
c)      Just and Fair Compensation
 The act not only recognized the compensation but fair compensation, the compensation is no more the arbitrary wish of the government as was under the old Act (”The Land Acquisition Act, 1894”),  the minimum compensation for land is being decided at the market value as pr The First Schedule of this Act.
d)     Post effect measures
This Act addressed the social legislature, which make the obligatory provisions for R&R[3] for social and economic status of those displaced by acquisition, and livelihood losers who are dependent on the land
e)      Safeguard for SC s/STs
There are specific provisions are being made in this act apart from rehabilitation and resettlement SCs and STs Families will be entitle for Land even in the case of irrigation projects, one time financial assistance with the tune of Rupees. Fifty Thousand per family, an additional 25% R&R benefits if families settled outside the district, 1/3  payment of the compensation amount at very outset etc.
f)       Compensation for livelihood
Provisions for compensation other than whose land acquire, who are dependent of land being acquired for their livelihood
g)     Strengthen the Gram Sabha voice in land acquisition
   The role of Gram Sabha is being enhanced by this act, no land cab acquired in Scheduled Areas without the consent of the Gram Sabhas (Panchayats), provisions of representation of Chairperson of Gram Sabha in Rehabilitation and Resettlement committee is also being made
h)     Consent of people whose land acquire
      The Act makes the provisions of prior consent of not less than 70 % and 80% of people whose land is sought to be in the event of PPP projects or private companies respectively
i)        Return of unutilized land
   In case land remains unutilized after acquisition , the new Act empowers States to return the land either to the owner or to the State Land Bank
j)        Safe guard from income tax and stamp duty
   With the tune of fair compensation all amounts accruing under this act have been exempted from Income tax and from Stamp duty
k)     Share in appreciated land value
         If the land is being sold to the third party at a higher price then 40% of the appreciated land value or profit will be shared with the original owners
l)       Compact Law
          It is being observed that making the provision for land owner not level the social and economic justice, only providing compensation without the provision of Rehabilitation and Resettlement, is against the aim of social state, and as Rehabilitation and Resettlement, is considered to be the two side of one coin, this act is the approached to balance this situation
m)     Balance between Land Acquisition and Development
   This act is an effort to balance the issue of farmers during and after acquisition of land and for industrialization, development of essential infrastructural facilities and urbanization with the least disturbance to the owners of the land and other affected families

CHAPTER I
PRELIMINARY
1. (1) This Act may be called the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2011.

(2) It extends to the whole of India except the State of Jammu and Kashmir

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint:

Provided that the Central Government shall appoint such date within three months from the date on which the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Bill, 2013 receives the assent of the President.

SYNOPSIS
1.      Short Title
2.      Extent
3.      Commencement
Short Title
            This Act may be called the right to fair compensation and transparency in land acquisition, rehabilitation and Resettlement act, 2013
Extent
It extends to the whole of India except the State of Jammu and Kashmir.
The scope of the Act includes all land acquisition whether it is done by the Central Government of India, or any State Government of India, except the state of Jammu & Kashmir.
Commencement
The bill was introduced in Lok Sabha in India on 7 September 2011. The Act was passed on 29 August 2013 in the Lok Sabha and on 4 September 2013 in Rajya Sabha. The bill received the ascent of the President of India, on 27 September 2013. The Act came into force from 1 January 2014.
Retrospective effect
The magnificent feature of this act, is an effort to address the historical injustice, the Act applies retrospectively in following cases:-
a)   Where No Award Made: Where no award under Section11 of the 1894 Act has been, made, the new law will apply with regard to compensation,

c)      Where an award has been made: Where an award has been made but the affected individuals have not accepted compensation or have not yet given up possession, and the proceedings have been pending for 5 years or more, provisions of the new law will apply        
  
Application of Act 

 Provisions of this Act have been segmented in three major categories, when the appropriate government[4]   acquires land i.e.

1.      under sub section (1) of Section 2- Land acquisition, Compensation and R&R
 For the following purposes:
  • its own use, hold and control, including land for Public sector undertakings and Public purpose[5]
  • For PPP[6]
  • When private companies purchases land, equal to or more than such limits in rural areas or urban areas as my be defined by appropriate government

Provisions relating to acquisition, compensation, rehabilitation and resettlement shall apply when its own use, hold and control, including land for Public sector undertakings and Public purpose, apart from this other purpose is also specified in the section, such as

Strategic purposes, which relating to navel, military, air force and armed forces of the Union, and central paramilitary forces or which is require for national security or defense of India or the State Police last but not the lease the safety of the people.

For Infrastructure Project such as all items or activities mentioned in the notification of the GOI[7] in Department of Economic Affairs (Infrastructure Section) number 13/6/2009-INF dated 27.3.2012, but it excluded private hospitals, private educational institutions and private hotels.

Projects involving agro-processing, for the activities like supply of inputs to agriculture, warehousing, cold storage facilities, marketing, infrastructure, for agriculture and allied activities, like dairy, fisheries, and meat processing, set up or owned by appropriate government or by farmers’ cooperative or by an institution under statue

Projects for industrial corridors or mining activities, national investment and manufacturing zones, as drafted in the National Manufacturing Policy

Projects for water harvesting, conservation and sanitation

Projects for educational, research schemes or institutions, administered or aided by government

Projects for sports, health, tourism, transportation or space programme


Projects for
Affected families, plan development or improvement of village sites or any other site in urban area, provisions for land for residential purposes for the weaker sections in rural and urban areas and also for poor or landless or to persons residing in areas affected by natural calamities etc.

2.   Under Sub Section (2) of Section 2 - Land acquisition, Consent Compensation and R&R
When the appropriate government   acquires land for

Public Private Partnership Projects, when the ownership of the land continues to vest with the government. Under this provision the appropriate government can not acquire the land unless the mandatory provisions attached with the section accomplished:
Prior Consent: when the government acquires the land for private companies, the consent of at least 80% of the project affected families shall be obtained through a previous informed process before government uses its power under the Act to acquire the remaining land for public good, and in case of a public-private project at least 70% of the affected families should consent to the acquisition process
SIA study also be carried out during the process of obtaining the consent
If the acquisition is contravene any law prevailing in Scheduled area (including any order or judgment of a court which has become final) no land shall be transfer by way of acquisition in Scheduled Areas

3.         under sub section (3) of Section 2- Rehabilitation and Resettlement
           
      In case Private Company purchases land, equal to or more than the specified limit, by the appropriate government, in rural area or in urban area.

In case of partial acquisition of land by the appropriate government, on request, of private company for public purpose, the rehabilitation entitlement shall be for the entire area.

It indicates that both LA and R&R Provisions will apply when:

Þ    Government acquires land for its own use, hold and control

Þ    Government acquires land with the final purpose to transfer it for the use of private companies for stated public purpose

Þ    Government acquires land for  PPP 

CHAPTER III

SPECTAL PROVRSTON TO SAFEGUARD FOOD SECURTRY

10. (/) Save as otherwise provided in sub-section (2), no irrigated multi-cropped land
Shall be acquired under this Act.

(2) Such land may be acquired subject to the condition that it is being done under
Exceptional circumstances, as a demonstrable last resort, where the acquisition of the land
refened to in sub-section (/) shall, in aggregate for all projects in a district or State. in no case exceed such limits as may be notified by the appropriate Government considering the relevant State specific factors and circumstances.
(3) Whenever multi-crop irrigated land is acquired under sub-section (2), an equivalent
area of cultivable wasteland shall be developed for agricultural purposes or an amount
equivalent to the value of the land acquired shall be deposited with the appropriate Government for investment in agriculture for enhancing food-security.

(4) In a case not falling under sub-section ( /). the acquisition of the agricultural land in
aggregate for all projects in a district or State, shall in no case exceed such limits of the total net sown area of that district or State, as may be notified by the appropriate Government:

Provided that the provisions of this section shall not apply in the case of projects that
are linear in nature such as those relating to railways, highways. major district roads. Irrigation canals. power lines and the like.


Synopsis
1.                  Nature
2.                  Food Security
3.                  Limit on acquisition
4.                  Exception
Nature
The section prohibitory in nature, which establishes the mandatory prohibition using the world “shall”. The Act forbids land acquisition when such acquisition would include multi-crop irrigated area. However such acquisition may be permitted on demonstrable last resort, which will be subjected to an aggregated upper limit for all the projects in a District or State as notified by the State Government. Intend of the section to safe guard the multi-crop irrigated.

Food Security
The section imposes an obligation on the appropriate government, in the event when multi-crop irrigated land is acquired an equivalent area of cultivable wasteland shall be developed for agricultural purposes (or an amount equivalent to the value of the land acquired shall be deposited with the appropriate Government for investment in agriculture for enhancing food-security).
Limit on acquisition
States are also required to set a limit on the area of agricultural land that can be acquired in any given district.
Exception
These limits shall not apply to linear a project which includes projects for railways, highways, major district roads, power lines, and irrigation canals        

 Cont…….
---

NAVEEN KUMAR SHELAR
M.B.A, M.A, R.T.M, LL.B, DIP’- MKET, CIR’ – ENG
, No. 1, Ansari Road, Darya Ganj, New Delhi – 110002 | +91 85.86.97.26.36 | replyshelar@yahoo.com


ADVOCATE ~ SOCIAL ENTREPRENEUR ~ AUTHOR
Founder -The law Office www.thelawoffice.co.in
Member / Partner - Trust Law Connect www.trust.org
Founder & Secretary General - Nayaya A Voice for Justice www.nayay.co.in



[1] Ganpat Singhvi J, Supreme Court of India
[2] The social Impact Assessment
[3] Rehabilitation and Resettlement
[4] Defined u/s 3(e) of  this Act
[5] Defined u/s 3(2a) and 2(1)
[6] Public Private Partnership
[7] Govt. Of India


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