CHAPTER-7
CONCLUSION AND SUGGESTIONS
7.1 Introduction
Devising laws and regulations on land will always be a contentious topic. Given that
we have more people than land, the subject will always give rise to impassioned
debate and inflamed opinions on the form and extent of regulation to be employed the
State.
India's very large population is forced to condense itself into a land mass ill fit to
accommodate the hopes and aspirations of so many. As a result, land has been the
fulcrum for almost every significant political movement in the last seven decades
since India became a free nation.
Some will argue that the State should not interfere with the sale and purchase of land
while others will argue for regulation to such extent that laws should be passed
dividing available land for homes to all. Competing ideas on land use have been
locked in argument since the idea of land ownership was conceived. However, during
the course of our work on this law we found that there exist some deep seated
problems which need to be addressed. The scarcity of land is the single greatest
challenge for a leader or policy maker tasked with crafting legislation on the subject.
It is his or her job to figure out solutions to India's land problems and to provide
sound legal frameworks for doing so. But the catch is that the Constitution of India
classifies 'Land' as a state subject. This means, given India's quasi-federal structure,
that only States are free to make laws on the subject. So in effect, the Union cannot
enforce what it commands.
However since the new legislation has come in existence many changes have been
made in the 2013 Act through ordinance or bills. As we know that Land acquisition is
the process by which land owned by private persons is compulsorily acquired. It is
different from the purchase of land, which is a contract between a willing seller and a
willing buyer on mutually acceptable terms. Acquisition is where the land owner has
no choice over parting with the land, and is forced to relinquish his property.
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Therefore, the process of acquisition overrides the property rights of the private
landowner. This can be justified only if a case can be made for greater public benefit
in taking away someone’s landownership rights. In India, land acquisition is a
concurrent subject, and is governed by central and state laws. The main central Act
governing land acquisition is the “Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act 2013”. It replaced the “Land
Acquisition Act, 1894”. Many states have also enacted laws to regulate land
acquisition.
The 2013 Act differed from the 1894 Act in several ways. It narrowed the definition
of ‘public purpose’ i.e. the types of projects for which land could be acquired. It
required the consent of land owners if the project was for a public private partnership
(PPP) or a private company. Compensation was set at two to four times of prevailing
market rates and minimum norms for rehabilitation and resettlement of affected
persons were prescribed. The Act also required a Social Impact Assessment (SIA) to
be conducted to determine whether the potential benefits of the project would
outweigh the social costs.
In December 2014, an Ordinance was promulgated to amend the 2013 Act. The
Ordinance was repromulgated in a modified form in April 2015, and again in May
2015. The Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement (Second Amendment) Bill, 2015 was introduced in
Lok Sabha on May 11, 2015 to replace the April Ordinance and was referred to a
Joint Parliamentary Committee for detailed examination.
7.2 Critical Appraisal of the Present Land Acquisition Laws
Under the 2013 Act, land can be acquired only for projects that have a “public
purpose”, which has been defined in the Act. Each of these projects will require a
social impact assessment (SIA) to determine whether the potential benefits of the
project outweigh the social costs. If the land being acquired is multi-cropped
agricultural land, then the total area of such land acquired should be below a limit to
be set by the state government. Further, any land acquired for public private projects
(PPPs) and private companies will require consent of 70% and 80% of the land
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owners, respectively. The Bill enables the government to exempt five categories of
projects from the requirements of: (i) SIA, (ii) restrictions on acquisition of multi-
cropped land, and (iii) consent for PPPs and private projects. These five categories of
projects are:
(i) Defense,
(ii) Rural infrastructure,
(iii) Affordable housing,
(iv) Industrial corridors,
(v) Infrastructure including PPPs where the government owns the land.
These five exempted categories may cover many types of projects for which land may
be acquired.
7.2.1 Lack of clarity in defining five types of exempted projects
The Bill exempts the following categories of projects from certain provisions of the
2013 Act: (i) defence, (ii) rural infrastructure, (iii) affordable housing, (iv) industrial
corridors, and (v) infrastructure including PPPs where the government owns the land.
However, terms such as (a) rural infrastructure, (b) affordable housing, (c) poor
people, (d) industrial corridors are not defined in the 2013 Act or the Bill and may be
open to interpretation. Also, one of the categories of projects exempted in the Bill is
“infrastructure projects including projects under PPPs where ownership of land
continues to vest with the government.” The meaning of the word “including” is
ambiguous. That is, it is unclear whether this exemption is for all infrastructure
projects (and the word “includes” is clarificatory), or it is applicable only for PPP
projects in which the government continues to own the land (i.e., the word “includes”
is exhaustive).
7.2.2 The consent provision
The 2013 Act requires consent of 70% land owners in case of PPP projects and 80%
land owners in case of private entities. No consent is required for government
projects. The Bill exempts five types of projects from the requirement of obtaining the
consent of land owners.
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7.2.3 Requiring consent may not be practical
There is a basic issue with the concept of requiring consent from land owners before
acquiring land. Acquisition is different from purchase. A transaction between a
willing buyer and a willing seller results in a purchase on mutually acceptable terms.
Land is acquired when the land owner is unwilling to part with the land. In such a
scenario, it may be impractical to expect him to give consent for the land to be
acquired. However, the requirement for consent when land is acquired may be
justified in cases where a majority of land owners are willing to part with the land, but
the project is held up by a few land owners. An alternative mechanism was suggested
in the Land Acquisition (Amendment) Bill, 2007 which lapsed. It provided that if
70% of the required land was purchased through negotiations, then the remaining part
of the land could be acquired. The compensation for acquired land would be
benchmarked to the prices of the purchased land. This mechanism enables the
compensation for the land acquired to be linked to market prices (determined through
negotiations with land owners who sold their parcels of land).
7.2.4 Rationale for exempting certain projects from the requirement of consent
The Bill exempts five types of projects from the consent requirement and retains the
requirement for a few projects as shown in Table 2 above. The rationale for this
distinction is not clear i.e. why some projects require consent from land owners while
others are exempt from this requirement. Also, the requirement for consent is not
uniform across various Acts regulating land acquisition. The 2013 Act exempted 13
Acts (which also regulate acquisition of land) from its provisions but required that the
compensation and R&R provisions of these Acts be brought in line with the 2013 Act
by January 1, 2015. The 13 exempt Acts include the National Highways Act, 1956,
Railways Act, 1989, Coal Bearing Areas Acquisition and Development Act, 1957,
Atomic Energy Act, 1962 etc. Many of these Acts do not require consent for land
acquisition. Therefore, land required for a particular project, if acquired under the
2013 Act requires consent but if acquired under one of the 13 Acts, will not require
consent.
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7.2.5 Level of consent required varies by ownership of project under the 2013
Act
Under the Act it is unclear why the level of consent required varies by ownership of
project – i.e. government, private or public-private. From a land owner’s point of
view it is irrelevant who implements the project for which land is being acquired. He
will get the same amount of compensation and other benefits, irrespective of who
owns the project. There is no clarity on why the consent requirement should not be
uniform across projects.
7.2.6 Threshold for consent
The 2013 Act has two different thresholds for consent-70% for PPPs and 80% for
private entities. However, the 2013 Act or the 2015 Bill does not provide any
rationale for this threshold for consent. There is also no clarity on what would be a
reasonable threshold for the consent requirement. During the examination of the 2011
Bill which became the 2013 Act, the Ministry of Power suggested the threshold at
50%, the government of Maharashtra suggested 51% while another witness (not
identified in the Committee Report) suggested 100%.
Compares ‘public purpose’ projects for which land may be acquired under the 2013
Act with the types of projects that may be exempted from the three conditions stated
above by the Bill. Under the 2013 Act, land can be acquired only for projects that
have a “public purpose”, which has been defined in the Act. Each of these projects
will require a social impact assessment (SIA) to determine whether the potential
benefits of the project outweigh the social costs. If the land being acquired is multi-
cropped agricultural land, then the total area of such land acquired should be below a
limit to be set by the state government. Further, any land acquired for public private
projects (PPPs) and private companies will require consent of 70% and 80% of the
land owners, respectively. The Bill enables the government to exempt five categories
of projects from the requirements of: (i) SIA, (ii) restrictions on acquisition of multi-
cropped land, and (iii) consent for PPPs and private projects. These five categories of
projects are: (i) defence, (ii) rural infrastructure, (iii) affordable housing, (iv)
industrial corridors, and (v) infrastructure including PPPs where the government owns
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the land. These five exempted categories may cover many types of projects for which
land may be acquired.
7.2.7 Minor Change In The Time Taken For Acquiring Land
An explanatory note on the Bill by the Ministry states that changes in the 2013 Act
are required as several states and ministries have reported difficulties in the
implementation of the Act. 3 The note argues that national security and development
projects need to be expedited and procedural difficulties in acquiring land for such
projects must be addressed.
Under the 2013 Act, the minimum time required to complete the acquisition process is
50 months. The changes proposed in the Bill reduce this time to 42 months.
7.2.8 Accountability of Government Employees
Under the 2013 Act, if an offence is committed by a government department, the head
of the department will be deemed guilty unless he can show that he had exercised due
diligence to prevent the commission of the offence. This is analogous to provisions
for directors of a company and partners of a firm. The Bill deletes this provision.
Therefore, the head of the department will no longer be automatically held
accountable for an offence committed by the department. Further the Bill adds a new
provision that states that if a government employee commits an offence under the
2013 Act, prior sanction of the government will be required before prosecuting him.
Both these changes made by the Bill raise the threshold to hold government
employees accountable for offences committed under the Act. It may be pertinent to
note that this differs from the Lokpal and Lokayuktas Act, 2013 which overrides the
requirement for prior sanction before prosecuting a government employee. The
Lokpal (not the government) is specified as the authority for granting sanction for
prosecution under that Act.
7.2.9 Retrospective Applicability of the Act
The 2013 Act provides that the provisions of the Bill would apply to any acquisition
initiated under the Land Acquisition Act, 1894 if it met two conditions: (a) an award
had been made under Section 11 of the 1894 Act, five years or more prior to the
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commencement of the 2013 Act, and (b) the physical possession has not been taken or
compensation not been paid.
The Bill adds a proviso to state that the computation of the five year period should
exclude any period during which a court has granted a stay or possession has been
taken but compensation has been deposited in a court or a designated account.
In a January 2015 Supreme Court judgment, the Court said that the substantive rights
of a litigant are determined by the law in force on the date of the suit and not by the
law in force on the date when the judgment is delivered. The Court held that any
change made in a law is prospective unless there is an express provision for
retrospective operation of the law. The proviso added by the Bill does not state that it
will apply retrospectively. Therefore the provisions of the Ordinance (which has the
same provisions as the Bill) will not apply to any suit that was instituted prior to the
commencement of the first Ordinance, i.e., January 1, 2015.
7.2.10 Applicability of the Act to the state of Nagaland
Section 1(2) of the 2013 Act states that the Act extends to the whole of India except
the state of Jammu and Kashmir. According to Article 371A of the Constitution, an
Act of Parliament regarding ownership and transfer of land and its resources will not
apply to the State of Nagaland unless the Legislative Assembly of Nagaland decides
to do so by a resolution.
This matter was pointed out by the Standing Committee on Rural Development that
examined the 2011 Bill (which became the 2013 Act), as well as the Land Acquisition
Bill, 2007 (which lapsed). The Department of Land Resources agreed that the State of
Nagaland has full powers to decide on the applicability of the Bill. However the 2013
Act was passed without appropriate amendments in this regard and Section 1 of the
2013 Act does not reflect this Constitutional position. The current Bill also does not
propose to make any amendments to bring the 2013 Act in line with the Constitutional
position
7.2.11 PRIVATE PURCHASE
When land is purchased privately from one consenting party by another, the
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rehabilitation and resettlement provisions will also apply. However, unlike other cases
where rehabilitation and resettlement is mandatory, in this case it is conditional. States
are required to prescribe limits for private purchase. When these limits are crossed by
an act of purchase then the buyer has to ensure the rehabilitation and resettlement of
all the parties affected by such a purchase.
The original draft of the law laid before Parliament prescribed these limits at 50 acres
in urban areas and 100 acres in rural areas. However following intense debate on the
subject (and deliberations by the Standing Committee), it was decided that the limits
would be left to the discretion of the State Governments.
7.2.12 RULES
To avoid over-prescription, a decision was taken to leave other less pressing
operational details to the Rules. The Rules prescribe the details of the operational
procedure to be followed but the law is not dependent upon them for its functioning.
This is consonant with the `design philosophy' followed throughout the drafting
process that the Act should be able to operate without conflict or further prescription
as and when it came into force. The law was thus drafted to be self-contained.
The Indian Parliament made history when it passed a new law on land acquisition. As
the law's authors, we knew that many of the laws more far reaching objectives with
regard to fairer compensation could only be achieved if the above problems were
reconciled.
However for solution of this problem we had to adopt a nuanced approach to the legal
framework Firstly, amendments need to be done in an existing law, passed before the
Constitution came into force, and moved amendments to it: the Indian Registration
Act, 1908 (which prescribes the procedure for the registration of documents by local,
authorities). The purpose of these amendments: mandate the computerization of land
records and make them accessible to all at the lowest level, that is, at the block and
District. The immediate impact will be that a buyer can see the chain of transactions
before he/she purchases the land, leading to more clarity with regard to title. The
buyer can also hold the officer accountable for inaccuracies in reporting.
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Secondly there is a need of improvements in the Land Records Modernization
Programme. Though unenforceable it seeks to provide States with support to update
and modernize their land records to boost transparency. Originally launched in 2008,
it had languished until earlier this year with only four States actually following the
programme guidelines. The idea of a framework of legal incentives (such as linking
land records upgradation to faster release of grants for road construction) could work
well and was also mooted. This is an idea that needs further development and one that
the existing Government should examine more deeply.
Thirdly there is need of enactment of a law making land titles 'conclusive' instead of
'presumptive'. A draft law exists and is actually available on the website of the
Department of Land Resources.' It is suggested that Security and clarity of title have
proven to be the single biggest draw for large scale investors over the last few years
(as evidenced by Gujarat and Maharashtra).
The new law on land acquisition is seen as a hurdle by many to our continued
economic growth. This is a myopic view. Land acquisition was a crud and inhuman
solution to a deeper problem—that of poorly maintained land records and weak land
rights. These still exist. The answer lies in finding unique solutions, enabled by
technology, to give people better protection over the land that they own. Amending
the law on acquisition to assuage the fears of a particular constituency is bad policy
making.
Through this law, an attempt has been made to first protect our citizenry against the
unlawful advances of the State. It is our hope that present Act will add to the legacy of
legal protection rather than seek to abridge its growth. Parliament within days of one
another, both laws were key pillars of the Government's legislative Agenda. As a
result, it was felt that we would be remiss in our duties if we did not address the
concerns of food security (as affected by land acquisition) However the new law
therefore provides that no irrigated multi-cropped land shall be acquired under this
Act except under exceptional circumstances and as a demonstrable last resort.
Furthermore, the acquisition of the multi-crop land should not exceed such limits as
may be notified by the appropriate Government considering the relevant State specific
factors and circumstances.
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To counterbalance any multi-crop arable land which has been diverted for acquisition,
an equivalent area of `culturable wasteland' has to be developed for agricultural
purposes or an amount equivalent to the value of the land acquired is to be deposited
with the appropriate Government for investment in agriculture for enhancing food-
security.
The acquisition of all other types of agriculture land is also bound by similar
strictures. In a district or State acquisition of other agricultural land should not exceed
such limits 'of the total net sown area of that district or State', as may be notified by
the appropriate Government.
The only exception to the above stipulations are projects that are linear in nature
(meaning they must follow the ordained path and cannot be diverted) such as
railways, highways, major district roads, irrigation canals, power lines and the like.
States argued that they should be assumed to be the best judges of their own interests
and they should be allowed the right to manage their land resources as they see fit. As
a result, and on the recommendation of the Standing Committee of Parliament, this
section was amended to leave the ceiling for acquisition to the State Governments
themselves.
7.3 Suggestions
On the basis of analytical work done in this research Following suggestions may be
submitted as follows:
1. The Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 should not be restricted to the
quantitative rural-urban division, but it should take into consideration of
the different organisations of production to formulate a land acquisition
policy which may suit them accordingly.
2. The Act should have special provision for the protection preservation of
culture and heritage of tribal population so the ethnic indigenousness of
tribal community and their worth in plural democracy could be proved.
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3. The Act should restrict land acquisition of fertile land for factories and
production houses as we all know that India is the biggest populace and we
need consistently and shall need always grains and cereals.
4. The Act should restrict acquisition for institutions, mandi, Govt. offices,
and research centers within urban areas as multiple institutions will devour
all fertile land and create unbalanced growth.
5. The Act should promote acquisition of barren land of remote and
backward areas for the development and fulfill the need of particular area
so as to use the unused land to its optimum level.
6. Policies for tribal areas need to be distinctly different from those in non-
tribal areas. While cash for land may work in monetised systems, for tribal
systems providing land for cultivation and not cash is important.
7. Social Impact Assessment is one of the strong point of new Act, it should
not be disregarded through 2015 Amendment Bill.
8. Social Impact Assessment should be done by the appropriate Government
in the Pre-notification stage and should be examined by independent multi-
disciplinary expert group and must include member of judiciary or law
professional having 10 years’ experience.
9. For rehabilitation and resettlement, providing cash once again would be
unsuitable - there must be mechanisms within the Act for actual
resettlement. Concrete Resettlement policy and administrative setup must
be established
10. Since the cohesion and sustainability of a family can be different in
different economic systems, the Act should work with individuals rather
than families when determining compensation for loss of livelihood.
11. All the individuals of the affected families, both male and female, who are
willing and capable to perform productive activities must be treated as
surplus generating people who must be given employment. In the case of
providing rehabilitation and resettlement benefits, women must be
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recognised and accepted as the head of the household to receive various
benefits since they bear all the responsibility for survival of the family.
12. In order to accelerate the process of industrialization, developmental
programmes with an integrated approach should be considered for
violence-ridden tribal areas.
13. Understanding people’s needs correspond to their living natural
environment and the locally available resources, suitable projects are to be
chosen by the people themselves to satisfy their needs and improve upon
them, own these projects, and become part of them and make them
successful.
14. The projects should be such that the present need-based skills, capacity
and expertise of the local people and the future demands of the evolving
modern system should be in tandem with each other to generate
development in a holistic sense. If such programmes are not considered,
especially for tribal areas, the already disturbed tribal economy becomes
further unstable. This, in turn, creates more and more obstacles to the
process of industrialization by generating a “violence-counter violence”
cycle and in the process derails the much publicized notion of growth
through industrialization.
15. The Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 has no provision to require
corporate social responsibility of companies acquiring land. There should
be special provision in The Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement Act, 2013, for CSR.
16. There should be different category for agricultural land and it should be
treated differently.
17. There should be special protection for farmers of either category or cast
i.e. SC, ST, OBC or General.
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18. Land records are poorly and not uniformly maintained, if at all (imagine a
big ledger filled in with ink and scratched over to correct entries, not open
for scrutiny save by officials and immediate buyers).
19. Price reporting is episodic and highly inaccurate especially as one moves
away from urban centers and into rural areas (with the rates in some
districts not having been updated for decades).
20. Titles over land are presumptive and never conclusive. A weakness
exploited by an active (and creative) land mafia and one that opens every
land transaction up to legal challenge.
21. Under the 2013 Act, if an offence is committed by a government
department, the head of the department will be deemed guilty unless he
can show that he had exercised due diligence to prevent the commission of
the offence. However the bill intends to delete these provisions. These
provisions need to be maintained in the Law for better implementation of
rehabilitation and resettlement programs.
22. The 2013 Act provides that the provisions of the Bill would apply to any
acquisition initiated under the Land Acquisition Act, 1894 if it met two
conditions: (a) an award had been made under Section 11 of the 1894 Act,
five years or more prior to the commencement of the 2013 Act, and (b) the
physical possession has not been taken or compensation not been paid.
These provisions need to be quite clear about the calculation of time
period.
23. When land is purchased privately from one consenting party by another,
the rehabilitation and resettlement provisions should also apply on them.
However, unlike other cases where rehabilitation and resettlement is
mandatory, in this case it is only conditional. States are required to
prescribe limits for private purchase. When these limits are crossed by an
act of purchase then the buyer has to ensure the rehabilitation and
resettlement of all the parties affected by such a purchase.
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However to conclude, the Act is a step forward as it finally attempts to address the
different concerns of affected families in the process of initiating new projects in the
country. Accelerating the process of growth through industrialization and facilitating
the affected persons to become parties in this process are articulated as the twin
objectives of the Act. The expectation behind this planned action is that
industrialization centered development leads to displacement and there is a need to
reintegrate the displaced people into development again. However, the Act has
bulldozed all inherent heterogeneity to arrive at an easy solution. It is now
increasingly recognized that while there can be universal overall principles of
inducing growth, in practice these principles need to be packaged in forms suitable for
a particular reality. The package must be devised by the people and for the people.
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