The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement, 2013 is the culmination of heightened public concern on land acquisition issues under the old (1894) antiquated and badly outdated Act. Although several amendments had been made in the statute enacted in the times of the British, the skeleton of the legislation remained the same even after more than a century and an urgent need was felt to enact a fresh law in this field.
Until now, there was no central Act providing for the rehabilitation and resettlement of persons(mostly farmers) displaced by compulsory acquisition of the land by the Government, or for adequate compensation for the loss of their livelihoods. The new legislation has thus taken the bold steps of addressing the concern of displaced families whose livelihoods are totally dependent on the land being compulsorily acquired – whether for industrialization or for urbanization or for infrastructure.
The 2013 Act has introduced the concept of social impact assessment, thus recognising that acquisition of land and rehabilitation and resettlement are necessarily intertwined concepts.
The Act contains an innovative definition of “Public Purpose” and contains liberal provisions for calculating the compensation to be paid to the displaced families. Under the new legislation, the role of the collector has been significantly restricted. The act also lays downtime limits to be observed for different types of action taken under the Act.
As stated above, the 1894 Act merely dealt with compulsory acquisition of land – without addressing the social angle of the plight of persons displaced from such land. The 2013 Act has introduced the concept of social impact assessment and has recognised that acquisition of land and rehabilitation and resettlement are two sides of the same coin.
Table of Contents
Objects of the Act
-To ensure a humane, participative, informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanisation with the least disturbance to the owners of the land and other affected families.
-To provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition.
-To make adequate provision for such affected persons for their rehabilitation and resettlement.
-To ensure 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 and for matters connected therewith or incidental thereto.
Application of the Act
The Act contains several provisions relating to land acquisition, payment of compensation, consent of the parties, rehabilitation and resettlement etc. Now, all these provisions do not apply to all kinds of acquisition of the land. Three specific cases of the application of such provisions are laid down in Section 2 of the Act as follows :
-The provision of the Act relating to Acquisition of land, compensation and rehabilitation and resettlement – apply when the appropriate Government acquires land for its own use, hold and control, including PSUs (Public Sector Undertaking) and for Public Purpose.
-The Provision of the Act relating to Acquisition of land, consent, compensation and rehabilitation and resettlement – apply when the appropriate Government acquires land for Public-Private partnership projects when the ownership of the land continues to vest with the government for a “Public Purpose” and for Private companies for a ‘Public Purpose”. When the land is acquired for private companies, the prior consent of at least 80% of the affected families is required to be obtained. If the land is acquired for public-private partnership projects, the prior consent of at least 70% of such affected families is necessary.
-Only the provisions relating to rehabilitation and resettlement contained in the Act apply in two cases, namely –
- When a private company purchases land equal to or more than the limits prescribed by the appropriate Government in rural or urban areas.
- When the private company requests the appropriate Government to acquire a part of an area prescribed for a public purpose. In such cases, the rehabilitation and resettlement provisions contained in the second schedule to the Act apply to the entire area of which the land so acquired forms a part.
Social Impact Assessment
Sections 4 to 9 of the Act have introduced a new concept in the land acquisition law prevailing in India, namely Social Impact Assessment (SIA).
Section 4 provides that whenever the appropriate government intends to acquire land for a public purpose, it must carry out an SIA study in the affected area. Such a study is to be made in consultation with the Panchayat, Municipality, or the Municipal Corporation of that area. Such Government must also ensure that the SIA study is completed within a period of six months for the date of commencement.
Section 5 states that a Public hearing must also be held whilst preparing the SIA, so that the views of the affected families may be ascertained, recorded and included in the SIA report.
Section 6 states that copies of the SIA report must be made available in the local language, to the panchayat, municipality or municipal corporation and also to the offices to the district collector, the sub-divisional magistrate and the tehsil. Copies of the report are also to be published in the affected area and uploaded on the website of the appropriate government.
Section 7 states that if the expert group is of the opinion that, the project will serve any public purpose and the potential benefits outweigh the social costs and adverse social impacts, it must make specific recommendations with details and reasons, within a period of two months, whether the extent of the land proposed to be acquired is the absolute bare minimum extent needed for the project and whether any “less displacing options” are available.
Section 8 states that the appropriate Government must also examine the report of the Collector, if any, the report of the expert group on the SIA study and then recommend such area for acquisition, which would ensure the minimum adverse impact on the affected individuals.
Section 9 states that if the land is proposed to be acquired by invoking the urgency provisions under section 40 of the Act, the appropriate Government may not undertake the SIA study.
Special Provision to safeguard Food Security: Acquisition of irrigated multi-cropped land
Section 10 of the Act makes a provision to safeguard food security. It provides that irrigated multi-cropped land cannot be acquired under the Act unless otherwise such land can be acquired in exceptional circumstances as a last resort. Acquisition of such land cannot, in any district or state, exceed the limits notified by the appropriate government. When such land is acquired, an equal area of culturable wasteland should be developed for agricultural purposes.
The above provisions do not, however, apply to projects that are linear in nature, as for instance, those relating to railways, highways, major district roads, irrigation canals, power lines and the like.
Notification and Acquisition of Land
The provisions under Sections 11 to 30 lay down the requirements of the preliminary notification and the subsequent steps to be followed to complete the acquisition proceedings. These may be summarized as under :
-Whenever it appears to the appropriate government that land in any area required, pr likely to be required, for any public purpose, a notification to that effect along with the details of the land to be acquired in rural and urban areas shall be published in the Official Gazette, in two newspapers circulating in such locality, in the local language in the panchayat, municipality or municipal corporation, uploaded in the website of the appropriate government.
-The preliminary notification must contain a statement on the public purpose involved.
-Immediately after the notification is issued, the contents of the notification should be communicated to the concerned gram sabha, municipality etc at a meeting specially called for this purpose.
-As from the date of the notification till such time as the land acquisition proceedings are completed, no person can make any transaction of the land specified in the notification or create any encumbrance on such land.
-The appropriate government authorised officer can enter upon and survey and take levels of any land in such locality.
-The officer referred to above must, at the time of entering the land, pay or tender payment for any damage caused to the land.
-If the preliminary is not issued within a period of twelve months from the date of SIA report then it shall lapse and a fresh SIA report is to be made for the land.
-The next step is hearing any objection by the Collector.
-The Collector must then give the objector an opportunity of being heard.
-When the preliminary notification is published the administrator must conduct a survey to undertake the census of the affected families within a prescribed time.
-Based on the survey and census, the administrator must prepare a Rehabilitation and Resettlement Scheme.
-The draft of Rehabilitation and Resettlement scheme is to be given wide publicity in the affected area.
-The Collector must review the draft scheme along with the Rehabilitation and Resettlement Commission set up under section 45 of the Act.
-After approving the scheme, the said commissioner must make copies of the scheme available in the local language to the concerned persons.
-If the appropriate government is satisfied, after considering the report, that any particular land is needed for a public purpose.
-Every such declaration is conclusive evidence that the land is required for a public purpose.
-The collector must cause the land to be measured and marked out unless it has been marked out.
-The Collector must then issue a public notice on his website and also give notices at convenient places.
-The collector must proceed to inquire into the objections filed by interested persons.
-The Collector must make such an award within a period of twelve months from the date of publication of the declaration.
-The Collector must access and determine the market value of the land.
-The market value of the land is then to be multiplied by a factor – as provided in the First Schedule of the Act.
-After having determined the market value of the land, the collector must calculate the total amount of compensation which is to be paid to the landowner.
-After the collector has determined the total compensation to be paid, to arrive at the final award, he must add thereto a solatium.
-The Collector must also award an amount calculated at 12% p.a on the market value of the land, from the date of publication of the SIA study up to the date of award of the collector or the date of taking possession of the land, whichever earlier.
Rehabilitation and Resettlement Award
Although statutes for compulsory acquisition of the land have prevailed in the country for hundreds of years, the 2013 Act is the first central legislation in India to make detailed provisions for the rehabilitation and resettlement of displaced persons when land is acquired compulsorily. Sections 31 to 42 made elaborate provision in this regard.
Rehabilitation and Resettlement Award must include all the following eleven items namely:
- Rehabilitation and Resettlement amount payable to family.
- Bank account number of the person to which the rehabilitation and resettlement award amount is to be transferred.
- Particulars of the house site and the house to be allotted, in case of displaced families.
- Particulars of land allotted to the displaced families.
- Particulars of one-time subsistence allowance and transportation allowance in case of displaced families.
- Particulars of payment for cattle shed and petty shops.
- Particulars of one-time amount to artisans and small traders.
- Details of mandatory employment to be provided to the members of the affected families.
- Particulars of any fishing rights that may be involved.
- Particulars of annuity and other entitlements to be provided.
- Particulars of special provisions for the Scheduled castes and the Scheduled tribes to be provided.
Acquisition of land in case of Emergency
Section 40 of the Act deals with the acquisition of the land in cases of urgency. It is provided that whenever the appropriate Government so directs, the Collector can take possession of the land to be acquired. This power of the appropriate government is however restricted to the minimum area required for :
- The defence of India, or
- For national security, or
- For any emergencies arising out of natural calamities, or
- For any other emergency with the approval of parliament.
Special provisions for Scheduled Castes and Scheduled Tribes: Acquisition of land in Scheduled area
Under Section 41 of the Act, as far as possible, acquisition of land is not to be made in the scheduled areas. Even if such an acquisition does take place, it should be done only as a demonstrable last resort.
National and State Monitoring Committees For Rehabilitation And Resettlement
Section 48 provides that the Central Government may, whenever necessary for national or interstate projects, set up a National monitoring committee for reviewing and monitoring the implementation of the rehabilitation and resettlement schemes or plans under the Act. Besides including representatives of concerned ministries and departments of the central and state governments, experts from relevant fields may also be associated with the committee.
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Land Acquisition and Rehabilitation and Resettlement Authority
Sections 51 to 74 of the Act deals with the establishment of an authority called the Land Acquisition Rehabilitation and Resettlement Authority to provide speedy disposal of disputes relating to land acquisition, compensation and rehabilitation and resettlement. Such authority is to consist of only one person only, to be appointed by notification by the appropriated government.
To be appointed as a Presiding officer, the person –
- Should be or should have been a district judge or
- Should be a qualified legal practitioner for at least seven years.
The Presiding Officer is to be appointed by the appropriate government in consultation with the Chief Justice of the relevant high court. He holds office for a term of three years or until he attains the age of sixty-five years, whichever is earlier.
Payment of Compensation
Sections 77 to 80 of the Act deals with payment of Compensation. When the award is made under Section 30 of the Act, the Collector must tender payment of the compensation to the interested persons and deposit the amount in their bank accounts. If the person entitled to such compensation does not consent to receive it or if there is no person who is competent to alienate the land or if there is any dispute as to the title of the person to receive the compensation or as to the appointment thereof, the Collector must deposit the amount with the authority.
Temporary Occupation of the Land
Sections 81 to 83 of the Act deals with the temporary occupation of the land. The Collector must give notice in writing to the person interested in such land and inform him about the purpose for which such land is needed. The Collector must pay to the interested person compensation for the occupation and use of the land of such term and materials, if any, to be taken therefrom. When the time for which such land was temporarily occupied expires, the Collector must restore the land to the person interested therein and also make or tender to such persons, compensation for the damage, if any, done to the land if this was not provided for in the agreement.
Offences and Penalties
Sections 84 to 90 of the Act deals with offences under the Act and the penalties prescribed therefor, and may be summarised as under :
- When providing any information under the act, if any person gives false or misleading information, he is liable to be punished with imprisonment up to six months or fine up to one lakh or both.
- If any rehabilitation and resettlement benefits are availed of by making a false claim or through fraudulent means, such benefits can be recovered by the appropriate government in the prescribed manner.
- If a government servant is proved guilty of any mala fide action in respect of any provision contained in the Act, disciplinary proceedings can be initiated against him and such a person is liable to such punishment, including a fine, as the disciplinary authority may decide.
- Any person who contravenes any provision of the act relating to the payment of compensation for rehabilitation and resettlement is liable to be imprisoned for a period of six months (but which may be extended to three years in a fi case), or fine or both.
- When an offence under the act has been committed by a company, every person who, at the time of the offence, was in charge of and was responsible to the company for the conduct of its business, is to be deemed to be guilty of such offence, unless he proves that such offence was committed without his knowledge or that he had exercised due diligence to prevent the commission of such an offence.
- When an offence under the act has been committed by any department of the government, the head of the department is to be proceeded against and punished- unless he proves that such offence was committed without his knowledge or that he had exercised due diligence to prevent the commission of such an offence.
- No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class can try any offence punishable under the Act.
- Cognizance of an offence under the act which is alleged to have been committed by a requiring body can be taken only if there is a complaint in writing made by the Collector or any other officer authorised by him or by a member of the affected family.
- Notwithstanding anything contained in the Criminal Procedure Code, 1973, all offences under the Act are deemed to be non-cognizable.
Miscellaneous Provisions
Sections 91 to 114 contains miscellaneous provisions as those relating to service of notice, power given to the central government to amend the schedules to the Act, power given to state legislatures to enact that are more beneficial to the affected families, power given to the appropriate Government to make rules, etc.
Lastly, the Land Acquisition Act 1984, is repealed by Section 114 of the Act.
Conclusion
The Act has served the dual purpose of providing a transparent land acquisition process by the appropriate government and providing compensation to the concerned parties. The Act introduces a transparent medium of land acquisition. The Act also aims to secure food security and also protect the land of the Scheduled areas. The Act regulates the land acquisition and lays down the procedure and rules for granting compensation, rehabilitation and resettlement to the affected person in India.
REFERENCES
- Land Acquisition Act, 2013.
- Prof. H.D Pithawalla, Land Acquisition Act, 2013 (C. Jamnadas & Co Publication)
BY BHARGAV CHOUDHURY | DR. AMBEDKAR COLLEGE OF LAW, MUMBAI