Print edition : April 19, 2013

A protest against acquisition of land for the operations of the South Korean giant Posco at Gobindpur village in Odisha's Jagatsinghpur district in February. Photo: PTI

The Land Acquisition Bill runs into a roadblock as political parties fail to reach an agreement on the substantive features of the draft Bill or on the amendments proposed.

THE efforts of the United Progressive Alliance government to broker a consensus on the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Bill, 2012, which has been pending for over a year, have not paid off not because of the opposition to it but because of the government’s own lack of willingness to accept the changes proposed. An all-party meeting was called off at the last minute on March 20, and another one earlier failed to arrive at any agreement on the substantive features of the draft Bill or the amendments proposed. “It was hardly an all-party meeting. Only representatives of six parties had been called for the meeting on March 20,” said a Member of Parliament.

The draft Bill, hailed in some quarters as a landmark piece of legislation, was introduced in the Lok Sabha on September 7, 2011, to replace the Land Acquisition Act, 1894. On December 17, 2012, the government circulated a list of 187 amendments to it. “Many members have not even gone through the Bill, especially the amended portions. Besides, with the amendments, it has become a new Bill,” Basudeb Acharia, Lok Sabha member of the Communist Party of India (Marxist), told Frontline. Justifiably, the opposition parties, including the CPI(M), had asked for more time to study the amendments and assess whether the valid concerns of farmers, the landless and those dependent on land had adequately been addressed. The ambit of the term “public purpose” in the amended Bill is a point of contention. It has apparently been widened, beyond what the Standing Committee constituted to examine the Bill had recommended, thereby raising fears that the tweaked definition is more an exercise to facilitate acquisition of land for private purposes. And at a more fundamental level, there are concerns about whether or not the objective behind the draft legislation as quoted in its preamble has been met. The Bharatiya Janata Party (BJP), which initially did not seem to find much problem with the Bill and was “on board” according to informed sources, has also voiced its reservations regarding the amended clauses. Apart from the leaders of the Left parties, BJP president Rajnath Singh addressed a meeting of farmers in Delhi who were on a protest against some of the clauses in the Bill.

The definition of “public purpose” in the amended Bill includes infrastructure projects relating to agriculture, agro-processing, cold-storage facilities; industrial corridors or mining activities, national investment and manufacturing zones as designated in the National Manufacturing Policy; and any other infrastructural facilities notified by the Central government after tabling the notification in Parliament. This consolidates the view that the definition of public purpose has been widened to further the government’s objectives relating to foreign direct investment (FDI) in multi-brand retail and other policies. Public purpose also includes acquisition of land for use by public-private partnership (PPP) projects where the ownership of the land will continue to be vested in the government. The Left parties have raised the issue of ownership.

Similarly, clauses pertaining to the requirement of consent have been whittled down. For instance, the draft Bill laid down that the consent of 80 per cent of the project-affected people was required in cases of acquisition of land for use by the government for purposes other than those mentioned as “public purpose”; by public-private partnerships; and by private companies. Within the various ministries of the government, too, a debate raged over whether the consent percentage should be kept at 67 or raised to 80. It is learnt that there was considerable pressure on the Ministry of Rural Development (MoRD), which drafted the Bill, to reduce it to 67 per cent from 80 per cent as laid down in the 2011 Bill. Finally, in what seemed to be a compromise, the amendment seeks the consent of 80 per cent of the landowners in cases of use of land by private companies and the consent of 70 per cent of the landowners in case of land acquired for PPPs. It has also been stated that the process of obtaining consent has to be carried out along with a social impact assessment (SIA) study.

The original draft said that resettlement and rehabilitation (R&R) provisions were mandatory for all private purchases if the land purchased was equal or more than 100 acres in rural areas and 50 acres in urban areas (an acre is 0.4 hectare). This would mean that these provisions were not mandatory where the land acquired was less than the acreage stipulated. The amended clause says that the threshold for applying R&R for all private purchases has to be notified by the respective State governments. This in itself is a good step keeping in mind the principles of federalism because land is a State subject. But by not specifying any threshold whatsoever, too much has been left to the discretion of the State government.

The earlier Bill said the SIA had to be evaluated by experts on rehabilitation, a technical expert and two non-official social scientists. The amended Bill seeks to include two representatives of the panchayat, gram sabha or municipality. The expert group was expected to look at whether the project served any public interest at all. But things have now changed with the ambit of the public interest or public purpose widened in the Bill. The amended clause gives the government powers to override the decisions of the expert committee; all it requires is to give its objections in writing. The previous draft laid down explicitly that the expert committee’s recommendations were final.

Long-term consequences

The amendments are fraught with long-term consequences. For instance, Clause 8 of the draft Bill laid down that the government would constitute a committee to examine the proposals for the acquisition of more than 100 acres and that the committee would determine whether there was a legitimate purpose and whether the public purpose was in the larger public interest. The amended version does away with the constitution of such a committee itself.

The previous version also factored in food security concerns and laid down that in any district a maximum of 5 per cent of the total irrigated multi-crop land may be acquired as a last resort and that an equivalent amount of wasteland developed for agricultural purposes. The amended version gives the government the discretion to notify the limit of multi-crop irrigated land for acquisition “taking into consideration the specific factors and circumstances relevant to the State”.

Certain amendments are deemed meaningless. For example, Clause 14 of the Bill stipulated that the SIA would lapse if the expert committee failed to give its views within 12 months; the amended version says the government can extend it beyond 12 months and the reasons have to be recorded. According to the amended version, a public hearing of the draft R&R scheme has to be held in those gram sabhas and municipalities where more than 25 per cent of the land was being acquired; as per the earlier Bill, it was to be held in every gram sabha or municipality where land was to be acquired. The amended version also gives the government the powers to delay the issuance of the declaration for the R&R scheme. The retrospective application of the Act is significant. The initial Bill provided that where a notification had been issued under the Land Acquisition Act of 1894 and no award been made, the process would be deemed to have lapsed and the acquisition would be made in accordance with the new Act.

The amended version says that where no award has been made under the 1894 Act, then all the provisions of the Bill relating to compensation and R&R shall be made applicable to the acquisition, but where an award has been made, then the provisions of the 1894 Act shall be applicable. But if possession has not been taken or compensation not paid for five years or more—a fairly generous threshold —then acquisition proceedings under the 1894 Act shall deem to have been lapsed. Compensation shall be deemed to be unpaid if accepted under protest; it shall be deemed to have been paid where it is credited in the bank account of the individual whose land is sought to be acquired.

There are strong reasons to believe that the government is deliberately delaying the passage of the Bill as under the present clause, acquisitions and awards can be made and given under the old Act. “A spate of land acquisitions is taking place all over the country and it is my apprehension that the delay over the Bill is helping such large-scale acquisitions,” said Basudeb Acharia.

Left pushes for a land use policy

The CPI(M) submitted a comprehensive list of amendments, 23 in all. “I gave the amendments to the Minister for Rural Development on February 26. I got the response on the day of the meeting, March 7. I do not find all the issues we raised being reflected in the responses,” said Acharia. For instance, the CPI(M) suggested an addition to the preamble to “establish a National Land Use Commission and State Level Land Use Commissions to formulate a comprehensive, equitable, decentralised, location-specific and environmentally sustainable land use policy, following which the State and local self-governments should draw up land use plans with the objective of ensuring food and livelihood security of all those whose livelihoods depend on land”. In fact, the title of the Bill itself, it said, should be “Regulation of Land Use and Acquisition, Livelihood Protection, Fair Rehabilitation and Resettlement Guarantee Bill, 2013”.

The Ministry responded that the amendment relating to the establishment of such commissions would be outside its legislative purview as land was a State subject. It is, therefore, curious that a Bill to do with land acquisition does not even have a perspective, parameters or a policy of land use, which will, to the logical eye, appear to be a prerequisite for any process of acquisition.

The fundamental principle underlying the amendments moved by Acharia is that land acquisition should be based on prior informed consent from all affected persons with the least displacement and for a democratically established public purpose. The cumulative outcome is that all affected persons should have an improvement in their post-acquisition socio-economic status. One suggestion by the CPI(M) is to apply the provisions for consent and R&R in all cases of private purchase above the land ceiling/10 acres, whichever is lower, without any exception. Other suggestions are to define public purpose in terms of those activities that are of direct benefit to the largest number of people and do not include the furtherance of private speculation and profit, and to change the definition of infrastructure project to make it restrictive rather than inclusive on the principle of quod est necessarium est licitum, implying that only what is actually necessary is lawful.

Additionally, it said, phrases that gave the bureaucracy room for arbitrary action were to be removed from all parts of the Bill; there should be no bar on the jurisdiction of courts as that would violate the fundamental rights of affected persons; land should be reverted to the original owners if it was not used for the purpose for which it was acquired within two years of acquisition; and in all cases where possession of land had not been taken even though the land acquisition process had been initiated under the 1894 Act, the process of acquisition should start afresh in accordance with the new Act.

According to reliable sources, the MoRD has agreed to incorporate some suggestions made by the CPI(M) regarding the vesting of full ownership of land in the government or in the public sector undertaking (PSU) concerned and the assurance that no land would be acquired in forest and tribal areas without satisfying fully the letter of the law under the Forest Rights Act. But some others have not been agreed to. They are the demand to bring under the law the regulation of private purchase of land over 10 acres in rural and two acres in urban areas or the kind of purchase that was over the prevalent land ceiling in the State concerned (whichever was lower); the imposition of a limit on acquisition of up to 2 per cent of the total cultivable land; a hike in the value of compensation in rural areas from four times the market value to six times; R&R entitlements to all families who have lived in the affected area for over an year as opposed to the current requirement of three years; mandatory employment not to one but two family members; raising of the house area to be given to affected families from 50 square metres to 100 sq m plinth in both urban and rural areas; increased cash compensation to those families who do not opt for a home from Rs.1.5 lakh to Rs.5 lakh; and an increase in all allowances pegged at Rs.50,000 to Rs.1 lakh.

The suggestion that the consent of 70 per cent of all affected families in the case of acquisition for government and PSU purposes and 80 per cent for PPP projects must be made essential has also not been agreed to, the reason given being that the “unanimous opinion was that it was completely non-feasible”. It is important to note here that the original Bill had included all affected families, but was then limited to families losing land. This was itself a departure from the recommendations of the Standing Committee.

There is no doubt that the 1894 Act needs to be replaced urgently. However, it suits the government not only to delay the Bill but also to push it through in a form that will benefit in the pursuance of its policies for which it needs land badly. Very recently, the Maharashtra government acquired 2,500 acres of land for a special economic zone where farmers were given compensation at the rate of Rs.1.5 lakh an acre. The land was sold to a private entity at Rs.2-3 crore an acre and it was further learnt that the company needed another 500 acres spread across 13 villages. “I feel that the Bill is being deliberately delayed to facilitate land acquisition in many States. We want the Bill to be passed, but not in this form. It should have been referred back to the Standing Committee with the amendments,” said Acharia.

According to reports, the Samajwadi Party is averse to the acquisition of multi-cropped agricultural land, and the Trinamool Congress is opposed to the idea of the State having a role at all in land acquisition. As it stands, opinion on the Bill is divided, not only within the government, but within the UPA’s allies too. There is no doubt that it should not be passed in a hurry but it will also be an injustice to pass it without taking into account the legitimate apprehensions voiced in the interests of the majority of the people of the country.