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Rajya Sabha to take up Land Acquisition Bill Tomorrow

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HomeBrud.gifIndian LawBrud.gifIndian Legal NewsBrud.gif2013Brud.gifSeptember 2013Brud.gifRajya Sabha to take up Land Acquisition Bill Tomorrow

September 3, 2013

The Land Acquisition Bill, which has been renamed as “The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Bill, 2012 will come up in the Rajya Sabha for debate and voting on Wednesday. The Bill is in continuation of the UPA Government’s commitment to enacting rights based legislation with the objective of empowering the common man. Seeking to correct the wrongs of its predecessor the Land Acquisition Act 1894, it rests on three main pillars: consent (through a well-defined and a comprehensive process), compensation and rehabilitation/ resettlement. The Bill, was passed by the Lok Sabha last week with 216 votes in favour and 19 against it. Union Rural Development Minister Shri Jairam Ramesh assured the Lower House before the passage of the Bill that the measure allowed enough room for State governments to implement it as per their requirements. The Bill also introduces a number of unprecedented and far reaching safeguards to protect an individual’s right to his or her personal property from arbitrary and indiscriminate acquisition.

The New Bill proposes that farmers and landowners be paid up to four times the market value for land acquired in rural areas, and two times the market value in urban areas. The other significant aspect of the Bill is that the consent of 80 per cent of land owners is needed for acquiring land for private projects and of 70 per cent landowners for public-private projects. Public purpose as per the Bill includes sectors like mining, infrastructure, defence, manufacturing zones, ports, roads, and railways built by the government and public sector enterprises.

Key Features of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Bill 2012

[I] Consent: Process of Acquisition

Under the new system, before any process of acquisition is initiated, before any notice, preliminary or otherwise is issued, there must first be a Social Impact Assessment (SIA, section 4, Chapter II).

This process is an elaborate exercise to determine consent, measure foreseeable impacts on a wide scale of indices. Everything, from the socio-economic impact on an area to the number of families to be affected, presence of viable alternatives and the loss of livelihood that occurs as a result, is considered and recorded. This is accompanied by a mandatory public hearing to gauge public opinions on all matters of concern regarding the purpose for which the SIA is being carried out.

This Assessment is then scrutinised by an ‘Expert Group’ comprised of outside experts (including two non-official social scientists, two experts on rehabilitation and a technical expert in the subject relating to the project). The Expert Group reviews the SIA and submits recommendations as to whether the project is worth pursuing given the social and economic cost of displacement (section 6). In essence, the Expert Group evaluates, on a balance of probabilities, as to whether having the project for which the land is sought will serve the greater public interest. The Expert Group also ascertains and ensures the fact that the area identified for acquisition represents the very bare minimum that will be required and no more.

It is only after the Government submit reports in favour of the acquisition and the consent of 80 per cent of those whose land is about to be acquired (70 per cent in the case of Public Private Partnership projects) has been determined through a prior informed process, that a preliminary notice for acquisition shall be issued. If however, the preliminary notification is not issued within twelve months of the SIA, then the SIA is deemed to have lapsed and a fresh SIA will need to be conducted if the land is to be acquired (Section 14). Further objections may also be entertained (Section 16) if an individual still feels aggrieved by the findings contained in the SIA or the recommendations of the Expert Group.

The only circumstances under which the SIA can be foregone are those relating to situations covered by the Urgency Clause. However these have been severely restricted with the only acceptable situations being the defence of India or national security or for any emergencies arising out of natural calamities (section 38).

[II] Compensation

Compensation has been significantly increased under the new law. An elaborate formula has been devised to ensure that frequent amendments will not be required to make it relevant in terms of changing land and property values (Section 26, First Schedule).

The market value of the land (determined broadly on the basis of average sales prices of similar properties in the area over the last few years to the advantage of the land loser, Sections 26-28) is multiplied by two and is then enhanced by 100 per cent (through the imposition of a ‘Solatium’ amount under Section 29), thereby bringing the compensation amount to four times the market value.

In the case of urban areas the multiple is one and not two, so after the addition of the Solatium amount the compensation amount shall be, at least, twice the original market value.

[III] Rehabilitation and Resettlement

On the subject of Rehabilitation and Resettlement that the Act incorporates entirely new provisions and links them to those related to land acquisition including a new Schedule that lists the various entitlements that accrue (Second Schedule). Some of these benefits include:

Houses for all affected families: All affected families are entitled to a house provided they have been residing in an area for 5 years or more and have been displaced. If they chose not to accept the house they are offered a one-time financial grant in lieu of the same.

Choice of annuity or employment: All affected families are given a choice of annuity or employment; If employment is not forthcoming they are entitled to a one time grant of 5 lakh rupees per family. Alternatively they will provided with an annuity payment of Rupees 2000 per month per family for twenty years (this will be adjusted for inflation).

Subsistence Allowance: All affected families which are displaced from the land acquired shall be given a monthly subsistence allowance equivalent to rupees 3000 per month for a period of one year from the date of award.

Training and Skill Development: All affected families are also given training and skill development while being offered employment.

Miscellaneous Amounts: All affected families are given multiple monetary benefits such as transport allowance of rupees 50,000 and resettlement allowance of rupees 50,000.

One-Time Financial Assistance: Each affected family of an artisan, small trader or self-employed person shall get one-time financial assistance of such amount as the appropriate Government may, by notification, specify subject to a minimum of twenty-five thousand rupees.

R&R to be completed in all aspects for irrigation projects: In case of acquisition of land for irrigation or hydel project the rehabilitation and resettlement shall be completed six months prior to submergence of the lands proposed to be so acquired.

Possession upon fulfilment of conditions under Act: The Collector shall take possession of land only ensuring that full payment of compensation as well as rehabilitation and resettlement entitlements are paid or tendered to the entitled persons within a period of three months for the compensation and a period of six months for the monetary part of rehabilitation and resettlement entitlements commencing from the date of the award. However, families will not be displaced from this land till their alternative R&R sites are ready for occupation.

Time Limit for provision of R&R entitlements: The components of the Rehabilitation and Resettlement Package in the Second and Third Schedules that relate to infrastructural entitlements shall be provided within a period of eighteen months from the date of the award.

Under the new Bill, the newly created office of the Administrator for Rehabilitation and Resettlement shall first prepare an R&R Scheme. The Collector shall review the draft Scheme submitted (Sections 17-18) by the Administrator with the Rehabilitation and Resettlement Committee at the Project level (constituted under Section 41). Note that, given the placement of the sections, this is to take place simultaneously with the land acquisition process and requires a separate public hearing on the subject of rehabilitation and resettlement. Once the R&R Scheme has been approved the Collector passes an ‘R&R’ Award (Section 30)

The acquiring authority must also ensure the provision of various infrastructural amenities (Section 31 and the Third Schedule) in the displacement area i.e. the area in which all the displaced and affected families are being resettled. These facilities include schools, roads, medical centres, post offices etc.

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