What the land or­di­nance lacks

It does not pro­vide ad­e­quate safe­guards or puni­tive pro­vi­sions for mis­use or land grab in the guise of land ac­qui­si­tion

HT Estates - - HTESTATES - Payal Chawla

Th e g ove r n m e n t , h a s re­cently passed an or­di­nance, for amend­ing the Right to Fair Com­pen­sa­tion and Trans­parency in Land Ac­qui­si­tion, Re­ha­bil­i­ta­tion and Re­set­tle­ment Act, 2013 (the 2013 Act), in the hope of bol­ster­ing a slug­gish econ­omy.

A ma­jor change that the or­di­nance seeks is the in­clu­sion of Chap­ter III A and Section 10A. Cer­tain cat­e­gories of projects will now be ex­empt from the ap­pli­ca­tion of Chap­ter II and III of the Act. To put it sim­ply, when­ever land is sought to be ac­quired, a so­cial im­pact as­sess­ment study is to be car­ried out by the ap­pro­pri­ate gov­ern­ment, along with the con­cerned pan­chayat or mu­nic­i­pal body. This is a Chap­ter II re­quire­ment. Chap­ter III lays down spe­cial con­di­tions for safe­guard­ing food se­cu­rity. Ac­cord­ing to this chap­ter, ir­ri­gated multi-crop land can be ac­quired only in ex­cep­tional cir­cum­stances. Now, with the in­clu­sion of Chap­ter IIIA, five new cat­e­gories of projects, ie projects vi­tal to na­tional se­cu­rity; ru­ral in­fra­struc­ture, in­clud­ing elec­tri­fi­ca­tion; af­ford­able hous­ing and hous­ing for the poor; in­dus­trial cor­ri­dors; In­fra­struc­ture and so­cial projects, in­clud­ing projects under PPP where the land will con­tinue to vest with the Gov­ern­ment, the re­stric­tions of Chap­ter II and III will no longer be ap­pli­ca­ble, even by private com­pa­nies (in­clu­sion of new pro­viso to Section 3). Un­doubt­edly, the process of ac­qui­si­tion will be­come more nim­ble, greatly re­duc­ing ac­qui­si­tion time. How­ever, the ex­punc­tion of the so­cial im­pact as­sess­ment, even for the named cat­e­gories, is a po­ten­tial hot­bed for un­rest.

The or­di­nance has also re­moved ‘private hos­pi­tals’ and ‘ private ed­u­ca­tional in­sti­tu­tions’ from the list of ex­clu­sions in Clause 2(b)(ii), which means that land can now also be ac­quired

for private hos­pi­tals and ed­u­ca­tional in­sti­tu­tions, which were thus far ex­cluded in the Act. Only “private ho­tels” re­main in the list of ex­clu­sions.

What makes this amend­ment cru­cial is, that the in­clu­sion of ‘private hos­pi­tals’ and ‘private ed­u­ca­tional in­sti­tu­tions’ comes in Section 2 of the Act, where there is no re­quire­ment of the ap­pli­ca­tion of the ‘con­sent’ pro­vi­sions. The im­pe­tus to health­care and ed­u­ca­tional in­sti­tu­tions seems ob­vi­ous, but we can’t be obliv­i­ous to the po­ten­tial mis­use of this pro­vi­sion by private play­ers. The Or­di­nance does not pro­vide ad­e­quate safe­guards or puni­tive pro­vi­sions for mis­use or land grab in the guise of ac­qui­si­tion of land, leav­ing landown­ers en­tirely at the hands of the gov­ern­ment, to en­sure that the power is prop­erly ex­er­cised.

Under Section 101 of the Act, if the ac­quired land re­mained unutilised for a pe­riod of five years, the same would need to be re­turned back to the orig­i­nal owner. What ap­pears to be an in­nocu­ous in­ser­tion of the word­ing “pe­riod spec­i­fied for

set­ting up of any pro­ject or for five years, which­ever is later”, in re­al­ity, sig­nif­i­cantly di­lutes Section 101. It now per­mits the ac­quirer to hold the land, with­out util­i­sa­tion, un­til the ten­ure of the pro­ject. Surely, five years is suf­fi­cient time to utilise land, ir­re­spec­tive of the ten­ure of the pro­ject.

A wel­come change has come in Section 105. Es­sen­tially, if ac­qui­si­tion is un­der­taken under 13 other leg­is­la­tions such as, the Atomic En­ergy Act, 1962, The Elec­tric­ity Act, 2003 and The Rail­ways Act, 1989, the pro­vi­sions of the Act re­lat­ing to de­ter­mi­na­tion of com­pen­sa­tion; re­ha­bil­i­ta­tion and re­set­tle­ment and in­fra­struc­ture ameni­ties shall be ap­pli­ca­ble to all such ac­qui­si­tions, bring­ing the much-needed uni­for­mity in land ac­qui­si­tion.

The or­di­nance also has brought in some other changes. For in­stance, there will now be a re­quire­ment to seek prior sanc­tion of the gov­ern­ment be­fore a court can take cog­ni­sance of any of­fence. This is not un­usual, as many other leg­is­la­tions have sim­i­lar re­quire­ments. The term “private com­pany” has been re­placed with “private en­tity” through the en­tire or­di­nance.

In a nut­shell, there is a clear im­pe­tus to de­vel­op­ment in the or­di­nance. The fact is, In­dia re­quires in­fra­struc­ture. The fact is, land is re­quired for de­vel­op­ment of in­fra­struc­ture. The fact is, the state has the sov­er­eign power to ac­quire land. But the fact also is that forcible ac­qui­si­tion leads to de­pri­va­tion of the in­di­vid­ual rights of cit­i­zens - may be not con­sti­tu­tional rights, but they are eco­nomic, so­cial and emo­tional rights.

Also, the ob­jec­tives of de­vel­op­ment and in­di­vid­ual rights are not nec­es­sar­ily in con­flict, par­tic­u­larly in cur­rent times. If the landowner, in ad­di­tion, to be­ing com­pen­sated for the price of land, also par­tic­i­pated in the equity of the pro­ject as a whole, there would be a me­dian, par­tic­u­larly, in cases where private par­ties were the ac­quirer. In such in­stances, the gov­ern­ment should ad­di­tion­ally stand guar­an­tor to com­mit­ments made by the private en­ti­ties to landown­ers. What the per­cent­age of equity should be is a mat­ter of de­tail that can be worked out by fi­nan­cial ex­perts, keep­ing the pe­cu­liar fac­tors in mind, in­clud­ing com­pen­sa­tion al­ready paid/payable.

The Gu­jarat model al­ready ex­ists on sim­i­lar lines. A more bal­anced leg­is­la­tion on land ac­qui­si­tion needs to be de­vel­oped, keep­ing the suc­cess and fail­ures of that model in mind.

THINKSTOCK

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