The Land Acquisition and Resettlement and Rehabilitation Bill, 2011: A Comparative Note

I. Introduction

A revision of the century-old Land Acquisition Act, 1894 has been on the anvil for quite some time, with the Supreme Court and all stakeholders repeatedly emphasizing the archaic nature of the present statute and the need for reforms that ensured a more consultative and equitable process for land acquisition and rehabilitation of affected persons.

Accordingly, the Land Acquisition, Rehabilitation and Resettlement Bill, 2011 (the “Bill”) has been tabled in the Lok Sabha and subsequently referred to a Standing Committee, which has duly placed its recommendations on record. The Bill introduces several far-reaching changes in the permitted purpose and process of land acquisition, while adding into the scheme of the legislation, sections on rehabilitation and resettlement which were formerly absent.

II. Key changes

Key changes include a change in the definition of ‘public purpose’, to bring the law in consonance with the reality of private corporations driving development, a mandatory social impact assessment (“SIA”) before any notification of acquisition, a comprehensive resettlement and rehabilitation package, a new, expansive definition of the term ‘person interested’ and the significant watering down of the draconian and much-abused urgency clause. A significant change in the approach of the State to land acquisition is characterized by Clause 2(2)(a), which provides that the provisions relating to resettlement and rehabilitation (“R & R”) will apply even if a private party is privately purchasing land from an owner, if such acquisition exceeds certain prescribed thresholds.

The term ‘public purpose’ has been the subject of intense public controversy and debate and the Bill defines it in an inclusive manner, maintaining several clauses of the old definition and adding a few more. Key among these are clauses (vi) and (vii), which allow for land acquisition for public-private partnerships as well as private companies producing public goods/services. An important aspect of these clauses is the subsequent proviso, which states that the prior informed consent of at least 80% of the project affected people is to be procured before any compulsory acquisition takes place. Furthermore, in the event that a party acquires land independently at first and later seeks State assistance for acquisition of the remainder, such party is bound by the terms of compensation and R & R even with regard to the land already acquired independently.

III. A comparison of key provisions of the Act and Bill

Some key differences between the Land Acquisition Act, 1894 and the Bill are:

Statute:

Ground:

 

Land Acquisition Act, 1894 LARR Bill, 2011
Definition of “person interested” Section 3 (b) states that it includes-all persons claiming an interest incompensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land Clause 3 (x) states that it means-(i) all persons claiming an interest in compensation to be made on accountof the acquisition of land under this Act; (ii) tribals and other traditional forest dwellers, who have lost any traditional rights recognised under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006; (iii) a person interested in an easement affecting the land; (iv) persons having tenancy rights under the relevant State laws including

share-croppers by whatever name they may be called; and (v) any person whose primary source of livelihood is likely to be adversely affected

Definition of “public Purpose” Section 3(f) states that it includes—(i) the provision of village-sites, or the extension, planned development or improvement of existing village-sites;(ii) the provision of land for town or rural planning;

(iii) the provision of land for planned development of land from public funds in pursuance of any scheme or policy of Government and subsequent disposal thereof in whole or in part by lease, assignment or outright sale with the object of securing further development as planned;

(iv) the provision of land for a corporation owned or controlled by the State;

(v) the provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by Government, any local authority or a corporation owned or controlled by the State;

(vi) the provision of land for carrying out any educational, housing, health or slum clearance Scheme sponsored by Government or by any authority established by Government for carrying out any such scheme, or with the prior approval of the appropriate Government, by a local authority, or a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a state, or a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State;

(vii) the provision of land for any other scheme of development sponsored by Government or with the prior approval of the appropriate Government, by a local authority;

(viii) the provision of any premises or building for locating a public office, but does not include acquisition of land for companies;

 

Clause 3(za) states that it includes—(i) the provision of land for strategic purposes relating to naval, military, air force, and armed forces of the Union or any work vital to national security or defence of India or State police, safety of the people;(ii) the provision of land for railways, highways, ports, power and irrigation purposes for use by Government and public sector companies or corporations; or(iii) the provision of land for project affected people;

(iv) the provision of land for planned development or the improvement of village sites or any site in the urban area or provision of land for residential purposes for the weaker sections in rural and urban areas or the provision of land for Government administered educational, agricultural, health and research schemes or institutions;

(v) the provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by Government, any local authority or a corporation owned or controlled by the State;

(vi) the provision of land in the public interest for—

(A) use by the appropriate Government for purposes other than those covered under sub-clauses (i), (ii), (iii), (iv) and (v), where the benefits largely accrue to the general public; or

(B) Public Private Partnership projects for the production of public goods or the provision of public services;

(vii) the provision of land in the public interest for private companies for the production of goods for public or provision of public services:

Provided that under sub-clauses (vi) and (vii) above the consent of at least eighty per cent. of the project affected people shall be obtained through a prior informed process to be prescribed by the appropriate Government;

Provided further that where a private company after having purchased part of the land needed for a project, for public purpose, seeks the intervention of the appropriate Government to acquire the balance of the land it shall be bound by rehabilitation and resettlement provisions of this Act for the land already acquired through private negotiations and it shall comply with all provisions of this Act for the remaining area sought to be acquired.

Resettlement & Rehabilitation (“R & R”) NA Chapters V, VI and VII provide a comprehensive mechanism to prepare a scheme for R & R as well as a multi-tier monitoring mechanismAuthorities such as Administrator for R & R and Commissioner for R & R also created.
Social Impact Assessment NA Chapter II mandates an SIA by an independent body for all acquisitions, followed by a review by an Expert Group or a special Committee in certain circumstances. An SIA evaluates the necessity of the acquisition in the context of overall public interest, and will employ a consultative approach.
Authority Civil Court, with an appeal to the High Court Chapter VIII mandates the appropriate Government to create a Land Acquisition, Rehabilitation And Resettlement Authority for the settlement of disputes and from whose order an appeal to the High Court lies
Emergency Clause Section 17: Can take possession 15 days after notification, allowed for ‘public purpose’ generally and not specific uses only Clause 38:Can take possession 30 days after notification, but only for national security or in the case of natural calamity
Compensation Section 11 vests discretion with the Collector, with the possibility of a reference to the Court in the event of dissent. Several factors are listed in Sections 23 and 24, which the Collector is to be guided by in deciding compensation Clause 26 prescribes a method for calculation of compensation based on market value, which is fixed as follows:(a) the minimum land value, if any, specified in the Indian Stamp Act, 1899 for the registration of sale deeds or agreements to sell, as the case may be, in the area, where the land is situated; or (b) the average sale price for similar type of land situated in the nearest village or nearest vicinity area.
Process and Scheme of Acquisition Preliminary Notification – Survey and Analysis – Objections to Collector – Hearing and Report – Declaration of Requirement – Objections to Collector – Acquisition Award – Possession (Sections 4 – 16) Social Impact Assessment – Evaluation of SIA by Expert Group and if needed, by special Committee – Preliminary Notification – Survey and Analysis –  Objections to Collector – Hearing and Report – Preparation of draft  R & R Scheme Approval of scheme from Collector & Commissioner – Declaration of Requirement – Objections to Collector – Acquisition Award – R & R Award – Possession  (Clauses 4 -37 )

IV. Present status of the Bill

The Bill was introduced in the Lok Sabha on 7 September, 2011 and subsequently referred to a Standing Committee, whose recommendations have been given in May, 2012. The Bill was listed for consideration in the winter session of Parliament in 2012, but reports indicate that it will now be considered only in the Budget session of 2013. It appears that certain minor changes to the Bill have been made by the Ministry after the Committee Report, including a reduction of the private acquisition requirement discussed above from 80% to 67%. However, the Bill in its changed form has not been re-introduced and consequently, this revised draft is not publicly available.

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