Land acquisition, rehabilitation, resettlement Act 2013

The majority of the Indian population is depended on lands. Most of them agricultural lands, some are depended on urban properties. In view of ever increasing demand and rising prices of land, a person/family affected in land acquisition will suffer heavily as it will be impossible for him/them to purchase similar extent of land lost in the acquisition. Therefore the Parliamentarians’ enacted The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and replaces the Land Acquisition Act of 1984 which was a pre-Constitutional Act. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 would be operative from a notified date within 3 months from the date it received the assent of the President of India i.e. 26-09-2013. It aims to acquire the land in consultation with institution of local self government and gram sabhas established under the Constitution. Humane, participative, informed and transparent process of Land Acquisition for industrialization, development of essential infrastructure facilities and urbanization with lease disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected family and whose land has been acquired or proposed to be acquired on affected persons by such acquisition. And make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic status.

Acquisition of Land:

As per the Land Acquisition Act, 1984 the acquisition of land is of two kinds, acquisition of land by the government for public purpose, and acquisition of land for companies. The public purpose is defined in section 3(f) of the Land Acquisition Act, 1984. It is an inclusive definition. ‘Public purpose’, as mentioned in the Act, is not capable of precise definition and has to be tested in the light of the purpose for which land is sought to be acquired. From time to time the apex court and various high courts have expanded the scope of public purpose. The concept of public purpose is not static. It changes with the requirements of the society from time to time and in accordance with the conditions of the country. In EMMAR Properties’ case (Sooraram Pratap Reddy Vs. District Collector, Ranga Reddy District) , establishment of integrated project fo providing business-cum-leisure tourism infrastructure centre like villas, golf course, hotels and banquet halls was held to be for public purpose. But as per the Act, 2013 the ‘public purpose’ is clearly defined as the activities specified under sub-section (1) of section 2 of the Act, 2013.

As per the Act, 1984, there are two modes of acquisition, one is ordinary acquisition where possession of land can be taken only after an award is passed, and the second one is acquisition of land by invoking urgency clause where advance possession can be taken by giving notice of 15 days. In case of company acquisition any company (requesting authority) for whose purpose the land is sought to be acquired has to bear the costs of acquisition. It should enter into a prior agreement with the appropriate government for payment of compensation, transfer of land and other terms as may be necessary in connection with such acquisition. Such agreement between the appropriate government and the company has to be published in the official gazette under section 42 of the Act, 1984 which is obviously to ensure transparency in the matter.

Act, 2013 at Glance:

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 is contained totally 114 sections which are incorporated in 13 Chapters, and Four Schedules. Chapter I deals preliminary i.e. short title extent and commencement, application of the Act and definitions part (sections 1 to 3), Chapter II deals the provisions regarding to determination of Social Impact and Public purpose (sections 4 to 9), Chapter III deals the special provisions to safeguard food security (section 10), Chapter IV deals the provisions for notifications and acquisition (section 11 to 30), Chapter V deals VII deals the provisions for National Monitoring Committee for Rehabilitation and Resettlement (section 48 to 50), Chapter VIII deals the provisions for establishment of land acquisition, rehabilitation and resettlement authority (Sections 51 to 74), Chapter IX deals the provisions for apportionment of compensation (sections 75 and 76), Chapter X deals the provisions for payment (sections 77 to 80), Chapter XI deals the provisions for temporary occupation of land (sections 81 to 83), Chapter XII deals the provisions for offences and penalties (section 84 to 90), Chapter XIII deals the miscellaneous provisions (section 91 to 114). First Schedule deals the compensation for land owners, Second Schedule deals the elements of rehabilitation and resettlement entitlements for all the affected families (both land owners and the families whose livelihood is primarily dependent on land acquisition) in addition to those provided in the First Schedule. Third Schedule deals the provisions of infrastructural amenities and Fourth Schedule deals list of enactments regulating land acquisition and rehabilitation and resettlement.

Unique feature of the Act, 2013 is to make adequate provisions for affected persons for rehabilitation and resettlement. The affected person and affected family have been defined. The affected families include not only whose land has been acquired but also families depend on agriculture labour, tenants widely categorized or artisans whose work may be affected in the area for 3 years prior to the acquisition of the land whose primary source of livelihood stand affected by the land acquisition. Schedule Tribe in the notified Act under Schedule Area has also been dealt with. Infrastructure projects have been elaborately mentioned. Acquisition also for strategic purposes relating to naval, military, air force and armed forces of the Union for vital national security for defense of India or state police. The projects include for affected families housing schemes specified by the appropriate government.

Market value of the acquired land means as determined under section 26, persons interested, patta holders have also been brought within the preview of the Act. Determination, social impact an public purpose also has been dealt with Chapter II. Appraisal of social impact assessment report is to be by an expert group is mentioned in section 7. Whereas urgency provisions are invoked under section 9, it has been given power thereto to exclude social impact assessment study before acquisition. Provisions also have been made to safe guard food security.

The collector is to submit draft Rehabilitation and Resettlement scheme with suggestion to the commissioner for its approval. The commissioner shall ensure publication of the approved scheme in the local language in the panchayat etc., published in the prescribed manner. The Act also mandates to upload on the website of government which was lacking in the old Act. The government after considering the report and satisfying itself is required to publish a declaration of the indentified resident area for the purposes of rehabilitation and resettlement of the affected family under the hand and seal of the Secretary to the government or an authorized authority. Different declaration may also be made in respect of different parcels of land covered by the preliminary notification. The collector shall publish not only rehabilitation and resettlement scheme but also the declaration under section 19(1) as is mandatory to make such declaration. The requiring body shall deposit the amount promptly to enable the government to publish the declaration within a period of 12 months at the pain of its invalidation. Section 25 mandates the collector to make the award within 12 months from the date of declaration under section 19, saving period of 3 months for its publication is provided, and otherwise the acquisition of land shall lapse. The collector shall record reasons for such extension and uphold on its website. Temporary occupation of waste or arable land procedure is also laid down in this Act under Chapter XI.

The Land Acquisition Rehabilitation and Resettlement Authority is one established under section 51. The meaning of the Collector is the same as in the old Act. The commissioner for Rehabilitation and Resettlement is appointed under section 44. The cost of acquisition is not only of solatium but also compensation ordered by Land Acquisition Rehabilitation and Resettlement Authority or the court. After determining total compensation including solatium at 100% of the compensation which is anew provision under the Act, he is also required to calculate interest @12% per annum on a market value commencing from the date of publication of social impact assessment study till the date of collectors award or taking possession of the land which ever is earlier.

Most notable change in the Act, 2013:

Notable change is introducing a unique feature of determination of Social Impact Assessment Study for public purpose, which was inserted in Chapter II of the Act, 2013 i.e. sections 4 to 9 deals the provisions for determination of Social Impact and Public Purpose. Social Impact Assessment Study (SIAS) to be done by the authorities before preliminary notification u/s 4 of the Act. 2013, if the government intends to acquire land for public purpose, which means the authorities have to conduct public hearing and give a report about the social impact by consulting with the Panchayats/Municipalities/Municipal Corporations (local authority) as the case may be prior to issuing preliminary notification u/s 11 for acquisition of land. During such study the gross-root level authorities also have a say to give their opinion whether the proposed acquisition serves public purpose, number of family members likely to be affected in the acquisition, whether alienate land can be acquired, the extent of public land/house settlement likely to be affected in the acquisition, as to whether the extent of land proposed to be acquired is bare minimum requirement for the project. Under SIAS the authorities are bound to take into consideration the impact the project is likely to cause on various components such as livelihood of the affected families, properties, assets, sources of drinking water for cattle, community ponds, grazing lands etc. After such study, a report is prepared and it should be made available in local language at Panchayats/Municipalities/Municipal Corporations as the case may be.

The SIAS will be done by group of persons comprising of two unofficial social scientists, representatives of the Panchayat/Grama Sabha/Municipality/Municipal Corporation, two experts on rehabilitation, technical experts etc. Then such report has to be forwarded to the appropriate government and the appropriate government after ensuring that the purpose of acquisition is bonafide and recommended such area for acquisition which would ensure minimum displacement of people disturbance of infrastructure, ecology etc. However, under section 9 of the Act, 2013 the government may exempt the undertaking of SIAS if the acquisition is made under urgency clause, under section 40 of the Act, 2013.

Important and people-friendly features of the Act, 2013:

• As per Section 10 of the Act, 2013, no irrigated multi crop land shall be acquired. If under exceptional circumstances such land is acquired, the government should ensue that equivalent area of cultivable waste land shall be developed for agricultural purposes or the amount equivalent to the value of the land acquired shall be deposited with the appropriate government for investing in agricultural for enhancing food security. This is in consonance with the Food Security Act, 2013. So in case of acquisition of multi crop fertile lands, the object is to see that cultivable lands are not diminished, and thereby to ensure that there is no shortage of food production.
• Rehabilitation and Resettlement: in case of land-owners/landless people whose lands are affected in acquisition, rehabilitation and resettlement scheme has to be prepared under sections 16 and 17of the Act, 2013. A special provisions is made foe the benefit of the people belonging to Schedule Castes and Scheduled Tribes under section 41, and their lands should no be acquired as far as possible, and in case of demonstrable last resort, their lands are acquired under a special development plan for their rehabilitation and resettlement.
• Land acquired for one purpose cannot be used for another purpose under section 99. However if the land is rendered useless for the originally notified purpose, the appropriate government may use it for another purpose. If the land acquired is not utilized within a period of five years from the date of taking possession, it shall be redelivered to the original owner under section 101 of the Act, 2013.
• Section 24 of the Act, 2013, protects certain category of persons whose lands have been notified/acquired under the Act, 1984. The provisions of the Act, 2013 will apply
• (a) where no award has been passed under section 11 of the Act, 1984 for payment of compensation,
• (b) where award has been passed under section 11 of the Act, 1984, more five years or more prior to the commencement of the Act, 2013, but physical possession has been taken or compensation has not been paid,
• Then in the above two circumstances, the proceeds under the Act, 1984 are deemed to have lapsed. Further, where award is passed and compensation of majority land-holdings has not been deposited in the account of beneficiaries, then all the beneficiaries specified in the section 4 notification under the Act, 1984 will be entitled to compensation under the Act, 2013.
• Compensation payable to the land-owners is provided in Schedule-I of the Act, 2013. The land-owner will get market value multiplied by one or two times (for urban and rural lands as the case may be), along with interest which includes 100% solatium. Similarly Schedule-II is also provided detailing out the manner in which the land-owners and landless poor will be rehabilitated and resettled.

Conclusion:

As per the Act, 1984 the agriculturist/landless poor are unduly deprived on their valuable lands. Several people have been displaced from their villages, meager compensation is being paid, and acquisitions being made in colourable exercise of power, all these problems compounded have triggered our Parliamentarians to come up with a new Land Acquisition Act, 2013. As evident from the contents of the Act, 2013, at various stages substantial safeguards have been provided to the land owner so as to ensure that the authorities do not act arbitrarily and in discriminative manner to deprive the land-owner of his land. Ultimately The Act, 2013, will go a long way to protect the interests of farmers and land-owners who are solely depended on the lands and this mechanism takes care of the longstanding grievances of the land-owners/displaced persons by ensuring the acquisition of property will be made only as a last resort and if the purpose is bonafide and genuine.