THE RIGHT TO FAIR COMPENSATION & TRANSPARENCY IN LAND

ACQUISITION. REHABILITATION & RESETTLEMENT ACT, 2013

INTRODUCTION

A. Background to the Act - Land is a common factor running between industrialization

(required for creating jobs and fuelling economy) and agriculture (required to maintain
self-sufficiency in food production) and in order to achieve a balance between them, the
present Act, that is, The Right to Fair Compensation and Transparency in Acquisition,
Rehabilitation and Resettlement Act, 2013 (Hereinafter referred to a LARR Act, 2013) had been
passed by replacing the 120 year old Land Acquisition Act, 1894.

B. Applicability - The Act is applicable to whole of India except Jammu & Kashmir.

C. Scope - The Act broadly covers two kinds of acquisitions :-

1.​ Firstly, the government aided acquisition and
2.​ Secondly, acquisition through private negotiation.

D. Salient Features of the New Act :-

1.​ Exhaustive definition of public purpose, infrastructure projects and affected families
has been given;
2.​ Special Provisions made to ensure food security.
3.​ Social impact assessment for all govt. aided land acquisitions.
4.​ Minimum compensation for loss of land fixed.
5.​ When land is to be acquired by private companies, consent of 80% land owners is
required.
6.​ Stringent and comprehensive penalty provisions laid down for companies and govt.

E. Objectives of the 2013 Act :-

1.​ To ensure in consultation with local self govt. and gram Sabhas, a humane,
participative, informed and transparent process for land acquisition with least
disturbance to the owners of the land.
2.​ To provide just and fair compensation to the affected families
3.​ To ensure rehabilitation and resettlement of affected families.
4.​ To ensure that cumulative outcome of acquisition should be that the affected person
become partners in development leading to an improvement in their post-acquisition
social and economic status.
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F. Reasons for Enactment of 2013 Act :- Following defects in the previous act forced the
passing of the present Act.
1.​ Silent on resettlement and rehabilitation of those displaced.
2.​ Forced acquisitions.
3.​ Low rates of compensation.
4.​ Litigations stalling acquisitions.
5.​ Urgency clause - Does not define the same, leaves it on the discretion of authority.
6.​ Recent observation of Supreme Court - Justice Singhvi & Justice HL Dattu observed
that the 1894 Act had become a fraud and was drafted with disregard to the welfare of
the common man.
Therefore, this Act seeks to create a balance between a land owner whose land is being
acquired and facilitating the industrialization and urbanization process.

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 DETERMINATION OF SOCIAL IMPACT AND PUBLIC PURPOSE

I. INTRODUCTION
The origin of the concept of social impact assessment (SIA) lies primarily in the environmental
impact assessment (EIA) model. The legal basis of SIA first emerged in 1969/1970 when the US
National Environment Policy Act had been passed. In the most general sense, SIA is
a methodology to review the social effects of infrastructure projects and other development
interventions, which in the instant case, is the acquisition of land.

II. OBJECT
A SIA of proposals leading to displacement of people through a participatory, informed and
transparent process involving all stake holders, including the affected person is very
imperative before these proposals or projects are acted upon. The main object of carrying out
a SIA is to provide to assess the adequate safeguards required for protecting the rights of the
affected families, people and rights of the vulnerable sections of the displaced persons.
The displacement process often poses problems that make it difficult for the affected persons
to continue their traditional activities after resettlement. Such a situation, demands a careful
assessment of the economic disadvantages and the social impact arising out of displacement.

III. SIA vis-à-vis 2013 Act

A. Preliminary investigation for determination of "social impact" and "public purpose"

S. 4 - Preparation of Social Impact Assessment study -
1.​ SIA in Consultation - This section provides that whenever the appropriate govt.
intends to acquire land for a public purpose, then it shall before acquiring, consult the
concerned Panchayat, Municipality, or Municipal Corporation, as the case may be, in
the affected area and subsequently carry out a SIA study in consultation with them.
2.​ Language of Notification - The intention of carrying out a SIA in consultation with the
concerned party has to be specified in the notification to be issued by the appropriate
govt. Such notification is to be made available to the Panchayat, Municipality or
Municipal Corporation, as the case maybe in the local language.
3.​ Conspicuous presence of Notification - The notification is to be made available in the
offices of District Collector, SDM and the Tehsil. The notification is to be published in
the affected areas and is also required to be uploaded on website of the app. govt.

Proviso - It has to be ensured that adequate representation is given the representations of the
Panchayat, Municipality or Municipal Corporation, as the case may be at the stage of carrying
out SIA. Further, it provides that SIA should be completed within 6 months.
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 4.​ Availability of SIA report - The SIA report made after consultation has to be made
available to the public in the manner prescribed in S. 6.
5.​ Subject matter of SIA - The SIA amongst other matters, is supposed to include the
following :-
●​ The assessment with respect to the fact that whether the proposed acquisition serves
public purpose;
●​ Estimation of the affected families and the number of families among them likely to be
displaced;
●​ The extend of land (public or private or houses or settlements) and other common
properties likely to be affected by the proposed acquisition;
●​ The question as to whether land acquisition at an alternate place has been considered
or not, and if considered whether it is found feasible;
●​ Study of social impact of the project, the nature and cost of addressing the same and
the impact of these costs on the overall costs of the project in relation to the benefits
of the project.

Proviso - It provides that if any study of EIA is to be taken out, it should be done
simultaneously and should not be contingent upon the completion of SIA.
6.​ Consideration of project impact - The app. govt. should while undertaking the SIA
study, also take into account the impact of the project on following things as well :-
●​ Livelihood of effected families,
●​ Public and community properties,
●​ Healthcare facilities,
●​ Anganwadis,
●​ Electric Supply,
●​ Public transport,
●​ Drainage,
●​ Places of worship,
●​ Burial & cremation grounds etc.
7.​ The app. govt is required to prepare post-SIA, a Social Impact Management Plan
providing for the ameliorative measures to be undertaken in order to resolve the
aforementioned problems that may arise during the course of acquisition. The point to
be kept in mind while making the plan is that the measures proposed to be taken shall
not be less than what is provided by a scheme or programme that was in operation in
that area prior to acquisition.

Case Law : K.Madhava Rao vs. State of A.P.

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Held :- The Court observed that it is duty of Court to determine whenever a question is raised
with respect to the fact that whether acquisition is or not for a public purpose. However,
prima facie Government is the best judge as to whether acquisition is for public purpose. But
it is not sole judge.
Note : Though the afore mentioned judgement was given under the provisions of Land
Acquisition Act, 1894 but the instant provision is somewhat similar to the new provision,
therefore, the rule laid down in such judgment will be applicable to this Act as well.

S. 5 - Public hearing for SIA

1.​ This section provides that whenever a SIA is undertaken, it is the duty of the app. govt.
to ensure that :
●​ A public hearing is held at the affected area
●​ Only after giving adequate publicity about the date, time and venue for the public
hearing.
●​ The public hearing should be conducted with the object recording the views of the
affected families and include it in the SIA report.

S. 6 - Publication of SIA study

1.​ Language of report - This section provides that SIA study and Social Impact
Management Plan should be prepared and made available in the local language to the
Panchayat, Municipality or Municipal Corporation.
2.​ Conspicuous presence of report - It should also be made available in the offices of
District Collector, SDM and the Tehsil. The notification is to be published in the affected
areas and is also required to be uploaded on website of the app. govt.
3.​ It further provides that whenever EIA is carried out, a copy of SIA report should be
made available to impact assessment as well, by the Central govt. in order to carry out
the EIA efficiently.

Proviso - It provides that where irrigation projects in respect of which EIA is required, then
the provisions of this Act pertaining to SIA shall not apply.

B. Appraisal of SIA report by an Expert Group

S. 7 - Appraisal of SIA report by an expert group

1.​ The app govt. is to ensure that SIA report is evaluated by an independent
multi-disciplinary expert group which may be constituted.
2.​ The Expert Group should consist of the following :
●​ Two non-official social scientists;
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 ●​ Two representatives of Panchayat, Gram Sabha, Municipality or Municipal Corporation,
as the case maybe;
●​ Two experts on rehabilitation; and
●​ A technical expert in the subject relating to the project.
3.​ From the members of the expert group, one person will be nominated as chairperson
by the app. govt.
4.​ The expert group shall make a recommendation within 2 months from the date of its
constitution, that the project shall be abandoned and no further steps to acquire the
land should be taken, if it is of the opinion that :-
●​ The project does not serve any public purpose or
●​ The social costs and adverse social impacts of the project outwiegh the potential
benefits.

Proviso - The grounds for such recommendation shall be recorded in writing giving the
details and reasons for such decisions. But if the app govt. despite of giving such
recommendations continues with project of acquisition, then is their obligation to record the
reasons for doing so in writing.
5.​ If the expert group is of the opinion that :-
●​ The project will serve public purpose or
●​ That the potential benefits outweigh the social costs and adverse social impacts, then
it shall make a specific recommendation within 2 months from its constitution to the
effect that the land that is proposed to be acquired is the absolute bare minimum
extend needed for the project and that there are no other less displacing options
available.

Proviso - The grounds for such recommendation shall be recorded in writing by the Expert
group giving the details and reasons for such decision.
6.​ The recommendation of Expert group (language + conspicuous clause).

S. 8 - Examination of proposals for land acquisition and SIA report by app. govt.
1.​ The app. govt shall ensure that :
●​ There is a legitimate and bona fide public purpose for the proposed acquisition;
●​ The potential benefits and the public purpose outweighs the social costs and adverse
social impact;
●​ That only the minimum area of land that is required for the project will be acquired;
●​ That there is no unutilized land which has been previously acquired bin that area;
●​ That the land, if any, which had been acquired earlier and remained unutilized is used
for such public purpose;
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 2.​ The app. govt shall examine the report of the collector (if any) and that of the expert
group and after considering the same it should recommend such area for acquisition
which would ensure minimum displacement of people, minimum disturbance to the
infrastructure, ecology and minimum adverse impact on the individuals affected.
3.​ The decision of the app govt. shall be made available (language + conspicuous
clause).

Proviso (Just refer to it once)

S. 9 - Exemption from SIA
If the land that is proposed to be acquired invoking the urgency provisions u/s 40, then the
app. govt. can dispense with the undertaking of SIA study.