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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
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 SC‟s/ST‟s
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
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
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
ADVOCATE
~ SOCIAL ENTREPRENEUR ~ AUTHOR
Member / Partner - Trust Law Connect www.trust.org
[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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