RONHE VILLAGE in Jharkhand’s Khunti district has six main roads. Residents use these to reach the mineral-rich forestlands essential for their livelihood, and the nearby towns to buy their daily essentials. They do not know that soon they may get cut off from all these. The state government has quietly placed large parts of the village, which includes all the six roads, in an industrial land bank. This will boost the Momentum Jharkhand investment campaign which promotes business in the state. The online portal for the campaign shows that 70,819 hectares away common lands from us, what will we do?” says resident Vimal Gudiya.
In neighbouring Odihsa, the Industrial Infrastructure Development Corporation has identified about 40 hectares for industrial use in Dukrigura village of Kalahandi district. This includes the entire 16 hectares of a village graveyard. It also includes the individual land that resident Rusi Majhi received under the Forest Rights Action 2007. He does not know that Khata number 27 in plot number 150 that he received from the government now features in the land bank.
States are on an overdrive to fill land banks as acquisition is difficult under the Right to Fair compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, or RFCTLARR Act, 2013.
Ushering the biggest reform in land governance, RFCTLARR Act replaces the colonial Land Acquisition Act, 1894. It gives people a say in land acquisition and makes the process participative, humane and transparent. The Act promises to put an end to forcible acquisitions, enhances compensation to landowners, resettles and rehabilitates families displaced by land acquisition and gives the gram sabha decision-making powers in land acquisition. It is heralded as a step in the right direction.
But five years after the Act was introduced, the rising number of protests and court cases prove that land acquisition process has not been set right yet. Lands are still being forcefully taken, and farmers still do not get their due for the land they lose.
To understand the reasons for this, in November 2017, Delhi-based non-profit Centre for Science and Environment (CSE) filed Right To Information (RTI) queries with 28 states. The questions were commonplace which could fetch straight answers–under which law was land being acquired; were people’s consent taken; which projects were in the pipeline; and, how much land was acquired under RFCT-LARR Act. State governments took months to send their half-baked replies. Gujarat, Madhya Pradesh, Bihar, Karnataka, West Bengal and Uttar Pradesh did not reply at all. An analysis of the replies shows why states were reluctant to give explicit replies. They are in no mood to implement the robust Act.
THE ACT AND AN ORDINANCE
RECTLARR Act rests on five pillars–social impact assessment (SIA), people’s consent, compensation, resettlement and rehabilitation (R&R) and downsizes eminent domain, the government’s power to take private property for public use.
The Act puts a check on the government from indiscriminately acquiring land for uncertain public purposes. It ensures greater public participation by seeking consent from 70 per cent of the people affected by land acquisition in public-private partnership projects and from 80 per cent people in private projects. As per its compensation formula, landowners get four times the market value of rural land and twice of urban land. It is mandatory to resettle and rehabilitate title holders and livelihood losers.
The 119-year-old law’s urgency clause allowed the government to acquire land for any public purpose. RFCTLARR Act narrows down the scope of the clause. The government can now take land under the urgency clause only for national security, in natural calamity, to in any other emergency approved by Parliament. Acquisitions under these three categories do not require people’s consent or social impact assessment. If such acquisitions take place in the Fifth and Sixth Scheduled Areas, as identified in the Constitution, they require the consent of the gram sabha or an autonomous council. The new Act also forbids acquisition of irrigated multi-cropped land. In special circumstances, the government will have to develop an equivalent area of cultivable wasteland. RFCTLARR Act is applicable in all land acquisitions in the country except in Jammu and Kashmir.
In a way, the Act took away the government’s powers and gave them to landowners. So, the states tried to find convenient ways to circumvent it. Soon after it was enacted on January 1, 2014, the newly-elected NDA government diluted the Act through an Ordinance. It also tried to amend the Act with similar debatable provisions. The excuse was that the new Act was cumbersome, time-consuming and cost-escalating, making its implementation difficult.
The Ordinance makes the process of acquisition simple when the government needs land for defence, rural infrastructure, affordable housing, industrial corridors or industrial projects. It exempts these from provisions such as social impact assessment, consent and restriction on multi-cropped land, which uphold people’s rights over land and are a must in RFCTLARR Act.
When an acquired land remains unused for five years, the Act returns it to the original owner or documents it as part of the land bank. The Ordinance gives five years, or any period specified for setting up the development project.
The most debated provision of RFCTLARR Act is the retrospective clause. It states that a land acquisition proceeding will be deemed lapsed in case of a pending process where the compensation award was declared at least five years before 2013, but physical possession of the land was not taken and compensation not paid. This land will either be given back to the land loser, or fresh proceeding under the new Act will commence. “Cases used to drag in courts as people pleaded for higher compensation,” says Namita Wahi, head of land rights initiative Centre for Policy Research. Soon after the Act came into force, the Supreme Court gave landmark judgements under the clause. Many landowners got their land back many others got compensated, an unheard of proposition.
The Ordinance manipulates this clause and makes it government-friendly by excluding that time period in which the acquisition process was held up due to a court order; when a tribunal had specified a time for the possession; and, when land was acquired but compensation amount was lying in court or a designated bank account. This leaves many cases of land acquisition out of the purview of the Act.
“The Ordinance made the new law quite like the 1894 law,” said Rajya Sabha member Jairam Ramesh. The Amendment Bill was introduced in Parliament on February 24, 2015 and passed in the Lok Sabha. But it could not be passed in the Rajya Sabha and was referred to the Joint Committee of Parliament. In its several sittings, the committee could not reach a consensus. The fate of the Amendment Bill now rests with the Joint Committee of Parliament.
When the Centre failed to make changes in the act, states stepped up to make the alterations. While land is a state subject, requisitions and acquisitions fall in the concurrent list. In such cases, the Central law overrides the state law. But according to the constitution, state governments can amend Central laws with the President’s assent.
One year of CSE investigation reveals that seven states–Tamil Nadu, Telangana, Gujarat, Haryana, Maharashtra, Jharkhand and Andhra Pradesh–have bypassed the law and implemented their own Acts by replicating the ORDINACE (see ‘Status of states’).
The latest to change its law is Andhra Pradesh. The state was complying with the Central Act, conducting social impact assessments and taking people’s consent until July 23, 2013 when Andhra Pradesh received the President’s assent on its amendment Act. Now, the amended Act exempts defence, rural infrastructure, affordable housing, industrial corridors or industrial projects form social impact assessment and consent. The Act lays down provisions for voluntary acquisition or private negotiations, and reduces the gram sabha’s role to giving advice.
Jharkhand passed its own Act about a month before Andhra Pradesh. Jharkhand’s Amendment Bill was presented to the President twice. The Bill brazenly overlooked the five pillars of RFCTLARR Act. Within a year, it was enacted with only slight changes. Now Jharkhand, too, does not need to conduct social impact assessment to acquire land for schools, hospitals, irrigation projects and housing for the economically weaker section; the gram sabha’s only role is to give advice.
Before the amendment was enforced, Jharkhand was acquiring land without taking people’s consent or conducting social impact assessments. It was changing Acts such as the Chotanagpur Tenancy Act and the Santhal Pargana Tenancy Act that were making land acquisitions difficult. The social impact assessment report for a coal-fired thermal power plant in Godda district by Adani reads that landowner gave their consent by a show of hands. RFCTLARR Act mandates a written consent. Landowners complain that they received only two to three days’ notice for public hearings instead of the three weeks mandated in the law.
The Tamil Nadu Amendment Act received the President’s assent, which stated that provisions of the Central Act shall not apply to land acquisitions carried out under the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978, the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997, and the Tamil Nadu Highways Act, 2001. Incidentally, three-fourths of the acquisitions in the state are done under these three Acts. Maharashtra also exempts four of its state’s Acts from the purview of the Central Act.
Land for the much-talked-about Mumbai-Ahmedabad bullet train project, funded by Japan Interactional Cooperation Agency, is being acquired under the Gujarat Amendment Act, 2016. It will affect several farmers of southern Gujarat and northern Maharashtra. “The project will affect 192 villages in Gujarat. Fertile and will-irrigated agricultural land is being diverted for the train project, but no consent has been sought from gram sabhas, nor a social impact assessment done,” says Jayesh Patel, president of Gujarat Khedut Samaj, working for farmers’ rights for more than 45 years. “The acquisition is in violation of not only our fundamental rights but also human rights,” he adds.
While the seven states have more or less adopted the provisions laid down in the Ordinance, 14 states have made minor modifications to RFCTLARR Act (see ‘Laws on land’ on p37). These modifications drastically weaken the effect of the Act. Its poor implementation further deprives people of their rights.
“Over the years, the government has found it increasingly difficult to acquire land for industries. So states tweak legislations to make land acquisition a quick and easy process,” said Sanjay Basu Mallick, farmer rights activist based in Ranchi.
What hurts landowners most is the cut in compensation. “RFCTLARR Act gives so much compensation to rural landowners that it should deter the government from acquiring land. But changes to the compensation formula make acquisitions lucrative for the industry,” says Pranay Kumar of CRADLE, an R&R implementing non-profit Ranchi.
As per the compensation formula, the market value of land is multiplied by two in rural areas and by one in urban areas for compensation. This amount is then doubled to give solace to the land loser, thus ensuring them compensation amount four times the market value in rural areas and twice the value in cities. But Andhra Pradesh, Chhattisgarh, Haryana, Madhya Pradesh, Maharashtra and Tripura have modified this provision and reduced the compensation amount. The result is that landowners get half the compensation amount eligible under the Central Act (see ‘On the ground’ on p38-39).
Rural land for the highly ambitious Greater Noida International Airport is being acquired with this compensation cut. Set to become operational by 2022-23 in Jewar tehsil of Uttar Pradesh’s Gautam Budh Nagar district, acquisition has been initiated under RFCTLARR Act. Farmers are resisting the project because the state government has classified their land as urban. This makes them eligible for compensation only two times the market rate, instead of four times. The government has failed to give people adequate compensation, but it has conducted social impact assessment for the airport.
The success of social impact assessment largely depends upon the body that conducts it. The Haryana government has directed Haryana State Industrial and Infrastructure Development Corporation (HSIIDC) to conduct the assessments for every land acquisition in the state. An HSIIDC official, who did not wish to be named, said the corporation does not have the capacity to conduct so many assessments and public hearings. So it plans to outsource the responsibility to a third party. In such cases, the social impact assessment reports are of poor quality and at times even plagiarized.
Andhra Pradesh, Uttar Pradesh, Jharkhand, Kerala, Odisha, Sikkim, Tamil Nadu and Tripura have reduced the notice period to hold public hearings. This ensures minimum public participation and minimises the chances of the affected families being influenced by land activists.
To reduce the arbitrary powers of the district collector, RFCTLARR Act directs setting up of independent expert groups and social impact assessment units to assess if the project serves a public purpose. But in Uttarakhand, Rajasthan, Andhra Pradesh, Chhattisgarh, Jharkhand and Kerala, government officials, deep-neck in the process, are part of such bodies. For instance, in Uttarakhand, the expert group is chaired by the chief development officer. Commissioner R&R has been given the responsibility of the social impact assessment unit in Karnataka, Rajasthan, Andhra Pradesh, Chhattisgarh, Jharkhand and Kerala, thus creating a conflict of interest.
“Such subversion of the law is against the spirit of democracy,” said N C Saxena, former secretary to the Union Ministry of Rural Development.
Overturning the 1894 land acquisition law, which gave civil courts the power to settle land disputes, RFCTLARR Act directs setting up of a separate judicial court in each district. The court must clear cases related to land acquisition, compensation, and re habilitation and resettlement within six months. CSE probe reveals that only six states–Andhra Pradesh, Bihar, Chhattisgarh, Maharashtra, Tamil Nadu, Uttarakhand–have established separate judicial courts. In Assam, Jharkhand and Karnataka, district courts do the job.
While changing the law and making slight modifications is one way states acquire and, making direct purchase through negotiations with the willing seller is another.
Purvanchal Expressway, Uttar Pradesh’s six-lane highway will connect the historic towns of Ghazipur and Azamgarh with its capital city, Lucknow. “Ninety-three per cent land for Purvanchal Expressway has already been purchased. There was no trouble acquiring it even though only compensation was given. People were not rehabilitated or resettled. The acquiring process for the remaining land is underway,” says Sanjay Chawla, deputy collector, Uttar Pradesh Expressway Industrial Development and Authority.
“The process is faster under direct purchase, so we offer enhanced compensation over and above the amount prescribed under the Act,” says Shivaji Devbhat, sub-divisional magistrate (land acquisition), Maharashtra. The state promises 25 per cent enhanced compensation and Chandigarh 10 per cent if land is obtained through direct negotiation. Landowners also get the benefit of stamp duty and registration fee waiver on further purchase of any land.
Odisha has notified instructions for direct purchase of up to 10 hectares in one village. Delhi, Chandigarh, Goa, Telangana, Jharkhand have passed their policies to facilitate land acquisition by direct negotiations, private purchase or land pooling.
Gao has a policy for direct procurement of land to set up public-private partnership projects on priority basis without taking people’s consent or doing R&R. it has also formulated the Goa Requisition and Acquisition of Property Bill, which lies with the legislative assembly for deliberation.
Arunachal Pradesh, Nagaland and Mizoram have passed their own Acts because under the special status granted to them, Central Acts do not apply to them unless the legislative assembly decides so.
Arunachal Pradesh acquires land as per Jhum Land Regulations, 1947. This does not require any formal acquisition proceeding but landowners get the opportunity to demand showcause against such acquisitions. Nagaland also follows its age-old state Act.
Mizoram has passed its own land acquisition Act, but upholds the Central law. “State Institute of Rural Development (SIRD) and the panchayati raj conduct social impact assessments,” said Khuangthansanga Pakhuangte, core faculty of the institute, “SIRD hires and trains locals to conduct social impact assessment as they understand the problems of the affected people and find solutions effortlessly,” he added.
A good example of RFCTLARR Act implementation is Meghalaya. “We do not fear carrying out the tedious process of social impact assessment and consent even for small tracts of land. People are accommodative as there opinion matters. The process is clear and transparent and no intermediary or third party is involved,” says Aiban Swer, director, Meghalaya Institute of Governance.
LOOPHOLES IN THE LAW
All said and done, RFCTLARR Act is procedure-heavy, and therefore, leads to delays. The entire acquisition process can take four-and-a-half years to complete and involves multiple steps. A series of committees have to be set up to take crucial decisions. An independent body has to be set up to conduct social impact assessment. Its report is appraised by another expert group. An R&R committee, a state-level committee and a national monitoring committee have to be instituted to evaluate reports presented by junior committees.
Second, RFCTLARR Act curtails government’s powers to acquire land under the principle of eminent domain. At the same make binding the recommendations of the expert group, decides if there is a bonafide public purpose. The government can proceed with the acquisition process even if the recommendations suggest otherwise. This gives the government immense powers to silent people’s voice.
This apart, when the Act defines the public purpose, it embraces wide ranging areas. Defence, infrastructure, industry, tourism, sports and health can, in fact, encompass all purposes. For instance, a tourist resort in the dense forests of Karnataka can qualify as serving a public purpose, irrespective of being privately or government owned. The term public purpose still battles to find its true meaning.
Third, the five-year development plan for people belonging to Scheduled Castes and Scheduled Tribes returns the rights due to people who lose their land, but a big drawback is that the Act does not specify that a monitoring body should watch its implementation. “Monitoring compliance is difficult and stakeholders lack the capacity to do so,” said Madhusudan Hanumappa, expert on social impact assessment and R&R.
WHAT THE FUTURE HOLDS
A good land acquisition legislation should strike a balance between direct and indirect costs. Direct cost is what developers pay to land losers as compensation for the land acquired and to resettle and rehabilitate them. Indirect cost is what developers pay to carry out the procedures, manage multi-layered bureaucracy, as well as the revenue foregone due to the time taken to acquire land. RFCTLARR Act has increased both the costs. “Any amendment to the law should substantially increase direct costs and drastically cut down indirect costs. By delaying the process of acquisition, the Act unfortunately does not strike a good balance,” Saxena says.
Developers seem satisfied paying direct costs, but are perturbed by the indirect costs, especially the time taken for land acquisition. The consequence is that states have started promoting direct purchase of land, even if the compensation amount is higher. “Direct purchase has its cons, but we shall steer towards such a way of acquiring land,” Saxena adds.
Other ways of obtaining land is also gaining popularity (see ‘Land lease reduces conflicts’). People queued up to give their land for the development of Amaravati, the planned capital city of Andhra Pradesh. As per this land pooling model, for every acre (0.4 hectare) given for development projects, the landowner will get 1,000 square yards of developed residential plot and 450 square yards of developed commercial plots. Farmers have voluntarily offered 13,354 hectares to the Andhra Pradesh Capital Region Development Authority.
NITI Aayong has lauded land pooling as a model for the nation to emulate. On October 18, this year, the Delhi Development Authority (DDA) notified Land Pooling Regulations which allows DDA to use consolidated land for development projects. The land loser will get a part of the developed land back. So far, it is unclear if landowners are benefitting from such methods of acquisition. “RFCTLARR Act is one legislation which deters the very procedure it is laying out rules for,” says Ramesh. If the objective of the Act was to minimize acquisition and promote purchase, then the Act has made a headway. However, the states’ methods of acquisition are certainly not in favour of landowners. The government will have to seriously look at the original Act and make some amendments.
While the unrealistic timeline of the land acquisition process needs to be rectified, the government also needs to be nuanced about where the law can be applied. The provisions of RFCTLARR Act do not apply to 13 enactments specified within the Act. These include railways, national highways, atomic energy and electricity. Provisions as important as social impact assessment and consent are required in the smallest projects, but are not required for projects under these 13 enactments that acquire huge chunks of land.
The robust RFCTLARR, breathing for over five years now, has not really left anyone happy. Seven states have downright rejected the Act to create their own. The rest are likely to follow soon. It’s time for the authorities to sit and take crucial decisions to take the country forward.