NAPM commentary on the new Land Acquisition, Rehabilitation and Resettlement Act, 2013

November 25, 2013

NAPM, November, 2013

Land Acquisition Act, 1894 has been replaced by the “Right to Fair Compensation, Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013” (LARR), seven years after two separate legislations, Land Acquisition Act (Amendment) 2007 and Resettlement and Rehabilitation Bill, 2007 was introduced by UPA in Parliament in wake of Nandigram Singur, Kalinganagar and many other militant opposition to land acquisition by farmers in the country. The Act claims to better reflect Government’s Commitment towards securing a legal guarantee for the rights of project affected, and ensuring greater transparency in the land acquisition process. It is also claimed that the Bill will ensure, in concert with local institutions of self-government and Gram Sabhas established under the Constitution, a humane, participative, informed, consultative and transparent process for land acquisition.

As people’s movements struggling for the repeal of the LAA, protecting land rights, and justice for the project affected families, we have been demanding the following :

REPEAL Land Acquisition Act and ENACT a Comprehensive National Legislation on Development Planning inclusive of just and fair, livelihood-based rehabilitation of the minimally affected people and enunciating the principle of least displacement, just rehabilitation and a decentralized development planning based on Article 243 of the Constitution, PESA 1996 and Forest Rights Act, 2006. Incorporate the progressive elements of the Standing Committee on Rural Development (2007-08 / 2012)

ENSURE that the urban poor who are unprotected workers receive their due right to land and shelter, related to livelihood bases, with strict ceiling on urban lands and STOP displacement and rehabilitation through a nexus of builders-politicians-bureaucrats. Promote self-reliant, affordable housing through the State and co-operatives for the needy population. We demand a separate enactement for addressing the problems of evictions, securing land rights and address resettlement and rehabilitation issues of the urban poor.

IMPLEMENT:

PESA Act, 1996, scrupulously following the principle of free, prior and informed consent of the adivasi communities and extend it to all other Gram Sabhas before any development Plan or Project, whether public or private is planned and finalized, involving use and change in use of the resources within the domain of a community.

Forest Rights Act, 2006 in all forest areas of the country and any change in the land use in any forest area and any land acquisition be subject to settlement of claims and entitlements under Forest Rights Act.

ISSUE a White Paper on all the land acquisition, displacement caused and rehabilitation completed since independence. The White Paper must also make public the extent of land utilized, unutilized and land acquired for public purpose but remains occupied by sick and non-functional industries and other infrastructure projects.

ENSURE that minimum and just rehabilitation for all project-affected people in all sectors should be declared as National Policy, leaving scope for finalization by the communities as their right to planning as per the Development Planning Act. Given the fact that nearly 10 crore people have been displaced, it is pertinent to address the concerns of the displaced people since independence and for that a NATIONAL RESETTLEMENT AND REHABILITATION COMMISSION must be established.

In addition, responding to the various versions of the Bill, we said government must follow the specific recommendations of the Parliamentary Standing Committee on Rural Development :

No agricultural land, whether single crop or multiple crops, should be forcibly acquired keeping in view the food security of the country.

In the name of Public Purpose, the State should not be forcibly acquiring any land for the private corporation or their PPP project.

Consent by majority of Gram Sabha members (or equivalent body in urban areas where these have been constituted) should be obtained in all matters pertaining to the Bill.

There is no need to exempt any of the Central Acts used for land acquisition from the purview of the Bill and to bring those at par with the Bill, Government should carry required amendments.

Any unutilsied land shall return to the land owners. ‘Land Bank of un-fertile, waste-lands’ for use by the industry or infrastructure projects should be prepared by the government not with the land remaining unutilised.

THE FINAL ACT IS IN PUBLIC DOMAIN AND PROCESS TO FORMULATE ITS RULES ARE UNDERWAY, WHAT FOLLOWS IS A SHORT COMMENTARY ON THE ACT :

The impetus to repeal the LAA was derived from the nationwide opposition to the land acquisition and deaths of farmers and workers while opposing the land acquisitions. The government and corporations both understood that it will no longer be easy for them to acquire massive amount of land without any consent of the land owners and those dependent on land for their livelihood, given the mass consciousness of their rights. India Infrastructure Report, 2009 stated that nearly 70% of the investments of India inc was stuck due to problems related with the land acquisition and hence it became imperative for them to change the law.

One Comprehensive Act

NAPM made significant contributions towards drafting of a National Resettlement and Rehabilitation Policy in 90s and then proposed National Development Planning Act, a comprehensive legislation inclusive of just and fair, livelihood-based rehabilitation of the minimally affected people and enunciating the principle of least displacement, just rehabilitation and a decentralized development planning based on Article 243 of the Constitution, PESA 1996 and Forest Rights Act, 2006. A modified version of this proposal was accepted by National Advisory Council. The LARR is a comprehensive act rather than the two separate acts dealing with the land acquisition and R&R as in 2007 and 2009.

Applicability of the Law

The standing committee had recommended that all 16 central acts, used for land acquisition, should be brought under the purview of the new act, to make all equal before law (Article 14 of the Constitution). However, Sec 105, Schedule IV excludes crucial 13 Central Acts including Industrial Development Act, Land Acquisition (Mines) Act, National Highways Act and others from the purview of the new act. This means that 90% of the land acquired as on today will continue with injustice and force used, with no change at all. It provides for issuing of notification mandating application of Schedule I and II within a year bringing all the acts, but the process based process of land acquisition will not be applied to them and arbitrariness and forced acquisitions will continue.

LARR also mandates that the provisions of R&R under this Act shall apply to acquisitions for private corporations, partial or full, and to purchase of land by private corporations beyond a certain limit, to be fixed by state governments, Sec 2.3

Definition of Public Purpose and Infrastructure

Section 2 of LARR Act has an expansive definition of public purpose and infrastructure and also a clause which leaves the discretionary power to declare anything as infrastructure and of public purpose. Infrastructure has been equated with public purpose, which is ironic, given that expert committee is to make a decision about the public purpose. We must realise that every land to be acquired is serving public purpose of one kind or the other, single or multi crop land is also serving public purpose, hence a limited definition of public purpose was required, not an all encompassing, including even private profit projects.

Acquisition for Private and PPP Projects

The most regressive step in the LARR Act is the role of government in acquisition for private and PPP projects, which are for profit and not for public purpose, Sec 2.2. In this era of neo-liberal economic reforms, private projects with corporate investment and interests are taking a much larger toll of land and other rich natural resources as also uprooting by killing communities which are generations old. This must come to an end and the same can happen only with stopping the State playing a role of facilitator and land dealer. At the cost of the livelihood of the nature based sections and working class section of society, the state can’t transfer the most valuable livelihood resources such as land, water to the profiteering bodies in the garb of ‘public interest’ and ‘public purpose’.

Provisions of Free Prior Informed Consent and Consultation of Local Self Government Institutions

One of the key features advertised in favour of the LARR Act is the 70% consent of land owners for PPP projects and 80% consent of the land owners for the Private projects, Sec 2.2.b. However, as we said that even with consent, government has no business acquiring land for the private corporations profit, in the name of public purpose. Except for scheduled areas, Section 41.3, LARR Act mandates no consent of the Gram Sabha in government developed public purpose projects. This is completely unacceptable given that post independence maximum acquisitions were done for the public sector companies leading to massive displacement.

Role of Gram Sabhas and other local self government institutions have found mentions at different places, Sec 4, Sec 5 (SIA); Sec 16.5 (preparation of R&R Scheme); Sec 41.3 (Consent of GS in SAs); Sec 45 (GS members in R&R Committee). In addition, provisions for two public hearings have been made, for preparation of SIA report and to prepare R&R Scheme. To its credit, LARR Act mandates publication of all the necessary information in the local language and made available to the Gram Sabha, Panchayat, Municipality and Municipal Corporation and also to project affected families.

Social Impact Assessment and Determination of Public Purpose

One of the demands made by us was for compulsory SIA to evaluate the extent of impact on various sections of society affected by displacement, given massive impoverishment and unnecessary acquisition of extra land and forcible acquisition without any options assessment. This has been incorporated in LARR, with exception of irrigation projects, for every project, Chapter II A, Sec 4. Contrary to EIA the SIA report will be prepared by appropriate government in consultation with the Panchayat, Municipality and Municipal corporation. A Public Hearing is also mandatory in the affected areas to ascertain the views of the affected families and included in the SIA report, Sec 5. The Expert Group for appraisal of Social Impact Assessment Report and to decide upon the nature of the public purpose, after consistent pressure, now has representatives of the democratically elected local self government institutions and non-official social scientists, experts etc Chapter II B, Sec 7.

This is an improvement from the provisions of the earlier act where there was no process or provision for consulting or seeking consent of the people

Food Security and Agricultural Land Acquisition

It is an irony that while food processing and other agriculture related secondary and tertiary sector industries have been brought in the public purpose definition but agriculture itself has not been considered a public purpose, something which would have meant no acquisition of agricultural land. The decision on quantum of agricultural land to be acquired has been left to State governments to decide, Sec 10. However, the provision for development of an equivalent amount of culturable wasteland for agricultural purposes in lieu of land diverted is a welcome move, made possible by plea for ensuring food security, Sec 10.3.

Return of Unutilised Land to farmers and Land Bank

Sec 101 recommends that the land, if not used till 5 years, from the date of taking possession, it should be returned to the original land owners or to their heirs or to the Land Bank. We welcome this but the ownership over the land is of those who till it and if not used and unutilized then it must be returned to the owners or distributed amongst the project affected people. We oppose any such feature which will promote land bank, since it has promoted large scale acquisition in the past and later illegally transferred the same land to corporations for real estate and other purposes.

Retrospective Application of the Law and Repeal of Land Acquisition Act

Sec 24 deals with the retrospective application of the R&R provisions and the LARR Act and ongoing acquisitions under LAA 1894. The Act mandates only application of provisions of compensation, not of R&R scheme, in cases where the award under Section 11 of the LAA 1894, has not been made. In case, the Award under Sec 11 of LAA 1894 has been made but possession not taken or compensation amount not deposited in majority cases then government may start fresh acquisition processes under the new act.

It needs to be noted that nearly 100 million people have been displaced since independence and with a dismal 17-20 percent rate of resettlement and rehabilitation we had suggested that not only the retrospective application of the provisions of the new act but a National Resettlement and Rehabilitation Commission be established to deal with the claims of the projected affected people from various projects. Also the Land Acquisition Act 1894 need to be repealed completely, two acts dealing with the land acquisition will bring in legal challenges and also negate the whole purpose of bringing in a new legislation with focus on process and consent based land acquisition process.

Resettlement and Rehabilitation Benefits

In terms of the resettlement and rehabilitation benefits, Sec 26-30, Schedule II, promote the principle of cash compensation rather than livelihood based R&R. It is a retrogressive step since it negates the land and employment based R&R as mandated in the Narmada Water Dispute Tribunal Award, and various other projects. The proposed provisions of compensating employment with money and high rates for land acquired will only lead to speculative land market and will destroy the fragile economy of the rural hinterland which will lead to further urban migration.

Land for land provision is limited to one acre for general category farmers and two and a half acre for SC and ST families in case of irrigation projects alone. By its own definition, marginal farmers are those who have one hectare of un-irrigated or half hectare of irrigated land, the provision of one acre land in command area is nothing but a cruel joke to farmers.

Compensation for Land

Section 26-30 and Schedule One deals with the various provisions of calculation of compensation for land acquired but the power remains with the Collector. It would have been fair to set up a Land Price Determination Commission which would have had participation of affected communities and also taken in account the various factors.

Much hype has been generated that two times and four times of compensation amount would be paid in urban area and rural area, respectively. However, Schedule one, mentions of a sliding scale, to be fixed by the State governments, which will mean that farmers in rural areas won’t get four times the market price of the land.

Urgency Clause

Section 40 of the Act restricts the use of urgency clause to defence of India or national security or emergency arising out of natural calamities. However, the provisions of SIA, consultations and consent of gram Sabha or PAFs, or public hearings will not be applicable, except for the Scheduled areas, but that too can be waived by the appropriate government.

On one hand restricting the urgency provisions is welcome but expanding it to include any thing related to defence or national security is unacceptable, since peace time operations and requirements doesn’t need urgency, and such projects must follow due process of law. Activities like constructions of cantonments, housing units, golf courses, play grounds, firing ranges etc for defence and security forces during the peace time need not apply urgency provisions of the act.

Urban Eviction

The Act almost totally excludes and have unaddressed the situation in the urban areas, where there is no land acquisition, but eviction, brutal and unjust, for any and every elitist real estate development to infrastructure without guaranteeing right to shelter, right to life and livelihood. The silverline though is, Schedule II.3 provision of making available for purchase 20% of developed land for land owning families in urbanisation projects, and Sec 3.c.vi where definition of project affected families includes, “a family residing on any land in the urban areas for preceding three years or more prior to the acquisition of the land or whose primary source of livelihood for three years prior to the acquisition of the land is affected by the acquisition of such land”.

Conclusion

There are many more detailed points in the Act which need our attention, but overall, the Act doesn’t protect land rights or deals with the historic injustices committed in the name of development and public purpose. It is solely aimed at facilitating land acquisition for coporarates without any stock taking of the land acquired, used or lying vacant and so on. The rapacious use of Land Acquisition Act 1894 by the government to secure land for ‘development’ projects has caused over 100 million people to be displaced from their land, livelihoods and shelters. The country is dotted with communities resisting State sponsored land grab which resonate the demand for a just law to ensure that there is no forced acquisition of land and resources, including minerals and ground water. The government must respond to the voices from movements across places such as Narmada, Koel Karo, Singur, Nandigram, Sonbhadra, Chindwara, Bhavnagarm, Kalinga Nagar, Kashipur, Raigarh, Srikakulam and mining areas in central India with genuine efforts to address the longstanding crisis concerning land Acquisition and resettlement & rehabilitation.

If the political parties are serious about addressing the conflicts over the land and other natural resources then they must listen to the voices of those struggling or else it will only aggravate these conflicts all across the country. The need of growth, infrastructure and urbanisation can’t be fulfilled on the graveyard of millions. A pro-people Development Planning Act with complete participation of the Gram Sabha will go a long way in stopping the massive corporate corruption and lead to decentralization of power having an overall impact on the politics of the country.