RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013 ABSTRACT

Transcription

1 RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013 Aditi Vinzanekar & Shashank Venkat** ABSTRACT The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (also Land Acquisition Act, 2013) is an Act of Indian Parliament that regulates land acquisition and lays down the procedure and rules for granting compensation, rehabilitation and resettlement to the affected persons in India. The Act has provisions to provide fair compensation to those whose land is taken away, brings transparency to the process of acquisition of land to set up factories or buildings, infrastructural projects and assures rehabilitation of those affected. The Act establishes regulations for land acquisition as a part of India's massive industrialization drive driven by public-private partnership. The Act replaced the Land Acquisition Act, 1894, a nearly 120-year-old law enacted during British rule. This article analyses the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and also looks into the benefits of the new Act over the Act of Keywords: Acquisition, Compensation, Land, Rehabilitation, Resettlement. INTRODUCTION Land acquisition refers to the process by which the union or the state acquires private land for the purposes of urban development. The question arises as to how acquisition of private land by the state or union leads to a smoother and more efficient administration system. The reasons are countless and are listed as follows: 1. The state can acquire land for the army, navy and air force and parliamentary forces as this is for the protection of citizens and to maintain national security. 2. The state can acquire land for infrastructure projects as mentioned in the Act. * Aditi Vinzanekar, Student, Symbiosis Law School, Pune, Maharashtra. ** Shashank Venkat, Student, Symbiosis Law School, Pune, Maharashtra. 363

2 3. To accommodate families affected by natural calamities like droughts and disasters like tsunamis, cyclones, floods etc. 4. To accommodate certain income groups as mentioned time to time by the ruling government. 5. To improve conditions of planned development in rural and urban areas and to provide housing for economically weaker sections in rural and urban societies. 6. To accommodate families and individuals displaced by the implementation of governmental schemes. The government can acquire land in all the above scenarios to further the interest of the public. Thus, these reasons can be cited by the government as valid reasons for the acquisition of private land for public purpose. The union or the state can also acquire land for private bodies for two reasons: 1. For public-private partnership projects where the ownership rests with the government, for public purpose as defined by the Act. 2. For private companies who seek to further public interest. NATIONAL AND INTERNATIONAL RELEVANCE Land acquisition is prevalent over the world over. The United States has the power of eminent domain. In English law it is known as the law of compulsory purchase. All countries offer some power to the union or the state for the purposes of planned economic development, national security or accommodating sections of society that have been affected; economically or otherwise. The principle that the Land Acquisition Act in India, the power of eminent domain in the United States, the law of compulsory purchase in England and the various other counterparts from around the world are based on, is the principle of utilitarianism. This effectively translates to; needs of the many outweigh the needs of the This Act in its ideal or utopian view was created to foster the needs of affected individuals, economic or otherwise and to bring them back to level footing with the other members of society in status quo. The reason why the Act initially as well as today is not appreciated is simply due to the fact that there is an expropriation of private rights of the individual to either dispose or use his land for his own need as he pleases. This was the problem when we talk about the Land Acquisition Act in its idealistic or utopian sense. In status quo, the main problem revolves 364

3 around the arbitrary nature of land acquisition practiced by the Indian government. We also have to accept that this problem is not prevalent only in India. Democracies from all over the world are all a far cry from an ideal democracy. The problem with the Land Acquisition Act of 1894 in India was that it gave the government too much power and liberty to displace families without adequate compensation or alternate residences. This Act only focused on the needs of the government and completely neglected the individuals affected. The Act was also vague, ambiguous and not lucid and thus this left plenty of room for the government to interpret the Act in the way it benefited the most. This brief would like to elucidate upon all the amendments that were required to be made in the initial Act and how the new Act of 2013 addresses all those issues and a few more in the form of a comparative analysis which seeks to provide clarity about how this Act is a necessary evil in society as planned development and protection of citizens are essential tasks that must be undertaken by every stable and well-functioning government. COMPARISON BETWEEN LAND ACQUISITION LAWS OF 1894 AND 2013 Now, moving on to a comparison between the two laws wherein we talk about the major improvements that have been made by introducing the recent Act. In essence, the Land Acquisition Act of 1894 was meant for the betterment of industry and infrastructure, in the sense, that privately owned land could be compulsorily acquired by the government for the purpose of creating public utilities as well as for industry. The Act included provisions for the landowners from whom land was being acquired, such as the rights to hold an inquiry, and the issuing of public notices. However, these provisions were extremely vague, and were more or less just a formality. Due to their ambiguous nature of these provisions, land could be acquired at any time, with no regard to how the land owner was affected. Let us assume a landowner Mr. A. and let us assume that for the purpose of building a public library, his land is in the process of being acquired by the authorities. Let us analyze how Mr. A would have been affected by this seizure of his land under the provisions of the Act of Firstly, due to the lack of provisions relating to the resettlement and rehabilitation of Mr. A after his displacement from his land, he has nowhere to go. In cases like those of farmers, whose livelihood depends upon their land, they have not only been displaced from their home, but have also suffered a setback in terms of their agricultural production. 365

4 Secondly, under the 1894 laws, the consent of the original landowner was almost completely irrelevant, and if the government authority made a decision to acquire a particular plot of land, it could be done at their request with no concern to how the original owner was affected. Moreover, the compensation provided to the owner was insufficient. The compensation was provided by law, on the basis of the "prevailing circle rates" at the time. These were more often than not, outdated, and thus the owners received compensation in amounts that were drastically lesser than the actual value of the land, and in this manner the owner suffered major economic losses. Hence, Mr. A would not only be displaced from his land and lose his agricultural business. He would not even receive adequate and sufficient compensation for the losses he has incurred. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 sought to protect landowners like Mr. A, from blatant violation and disregard of their rights. 1 The title itself, explains, how the laws prevailing since 1894 only concerned themselves with the acquisition of land, 2 while the Act passed in 2013, aims at allowing the same acquisition through fairer means, by which landowners are adequately compensated and are also relocated to another plot of land where they can be settled. The Land Acquisition Act of 1894 did not aim to safeguard the rights of citizens, and its ambiguity was highly misused and exploited. 3 The Act of 2013 provides safeguarding to the rights of citizens of this country with regard to their estate. 1. Instead of relying on outdated circle rates, to determine the value of compensation, the Act rewards a compensation of four times the market value in rural areas, and twice the market value in urban areas. 2. In addition to this monetary compensation, the Act provides for proper resettlement and rehabilitation of the landowners, not only with regard to the actual land itself, but also with regard to all housing, employment and amenities associated with the original plot of land. In 1 Hissar Improvement Trust v. President, Tribunal Improvement Trust, Hissar and Others, 2006(2) Land L.R. (Pb. & Hry) Sukhbir Singh & Others v. State of Haryana and Others, 2006(2) Land L.R. (Pb. & Hry.) Hindustan Petroleum Corporation. Ltd. v. Darius Shapur Chenai & Others, 2006(1) Land L.R. (Supreme Court)

5 this manner, those people whose livelihood depends upon the acquired land are well compensated. 3. The new Act actively negates the possibility of forcible acquisitions, by requiring a consensus of up to 70% or 80% of those who live on or own that particular piece of land Not only is that, participation of the local government, for example Panchayati Raj Institutions and Gram Panchayats required to sanction any acquisition process. Special committees are also formed, at both national and international levels, which monitor these processes prior to the actual acquisition, and to make sure that all obligations for the purpose of compensation and rehabilitation are carried out. 5. Assuming that the acquiring authority sells the land to a third party for a profit, it is mandatory to give 40% of the profit gained back to the original owners of the property. 6. The third schedule of the Act contains a detailed description of all infrastructural amenities that must be provided to all those affected, and no one can be displaced from their land unless all payments have been adequately paid. 7. In cases where acquired land happens to remain unused and is not required by the government anymore, the new Act makes it obligatory for the authority to return the land to the previous owner. In a situation where the owner has already been relocated to a place far away, and has been adequately compensated, the authority can return the land to the State Land Bank. 8. Finally, the Act also provides relief to those families affected by the loopholes in the previous Act. To address verifiable foul play, the new laws apply retrospectively to situations where no grants have been made and owners have not been compensated or relocated. Additionally, in situations where the land was gained five years back and no proper compensation has been paid, then the land procurement process will be begun again, right from the start as per the arrangements of the new laws. 5 4 Angrup Thakur v. The State of Punjab. 3 DLT Rishi Pal Singh & Others v. Meerut Development Authority & Another, 2006(2) Land L.R. (SC)

6 PROTECTION FOR FARMERS Agrarian land is a great deal more than just a capital resource claimed by agriculturists. Along with being a source of livelihood and a wellspring of monetary security, the land is of great emotional connect and importance to the farmer who has toiled on it for years. In many cases, the land may have been inherited by him after decades of being owned by his ancestors. Hence, any separation of a farmer with his farmland, regardless of whether by volition or by forcible means is difficult for him. That is the reason many contend, regardless of the whether the farmer was remunerated with a place where there is equivalent size and arability, it will never be the same for him again. 6 Quite clearly, the loss of agricultural land is far more of a grievance for a poverty stricken farmer family, than for anyone else. Thus, to protect the interests of the farmers of India, the Act takes extra measures to avoid any kind of arbitrary acquisition of agricultural land. First and foremost, the prior consent of the farmer, and the consent of at least 70% of those depending upon the land, is required for a successful acquisition. If the land is to be acquired for the purpose of a private company, the consent required is 80%. Consent and approval must also be given for the amount of compensation that has been decided to be paid. Second, strict restrictions have been placed on the acquisition processes to ensure that agricultural land is acquired only as a last resort. Even as far as extent of the land to be acquired is concerned, it must be of utmost importance, and the land must be acquired only and only if there is no other house available to the acquiring authority. The collectors and other government officials concerned with the plot of land that is to be acquired must make sure beyond any doubt, that no other land is available before he moves to acquire any land under cultivation. Third, the farmers are guaranteed a fair price, for the seized land by properly calculating accurate market values of the land concerned. In cases where damage has been caused to crops on the land, even during preliminary stages of inspection that is carried out prior to the commencement of the acquisition process, the award and compensation for the damage occurred had to be paid to the farmer. 7 6 Ranvir Singh and Another v. Union of India, 2006(l) Land L.R. (Supreme Court) In Risal Singh v. Union of India, (2010) 321 ITR. 368

7 Fourth, if the land acquired is utilized for any urbanization processes, and is integrated into an urban settlement, the Act provides that 20% of this developed land should be offered to the original owner, at a reasonable price, usually equaling a total of the cost of acquisition and development. Finally, in situations where the family has invested in irrigation projects, they may be allowed fishing rights in the reservoirs to compensate the loss of their investment. CONCLUSION What is an affected family? The definition of an affected family talks about farmers, other types of agricultural labourers, share croppers, or any artisans that may have been toiling in the particular piece of land for three years or more and whose primary source of financial security and wealth is dependent upon that particular land. The improved laws, passed in 2013, entitle all these to houses, compensation and reward for loss of livelihood, so as to ensure a balance between urban development of our country and care for the right to property of the under privileged of our country. The Act ensures that these infrastructural entitlements that are to be given to the affected parties must be provided within 18 months after the completion of acquisition process, thus making sure that justice is provided to landowners swiftly. Each member of such an affected family can also take financial assistance from the government as per the Act, such as one time financial loans, or allowances. In certain cases, the government also offers training and skill development programs for those affected, and thus, the new laws behave as an improvement and a safeguard to the land owning rights of each and every citizen of India. ********** 369