Wednesday, 21 December 2011

Unrest over land acquisition

Nationwide protests over land acquisition have prompted the government to introduce a new Bill that combines land acquisition with rehabilitation of the displaced. Here is an assessment of the problem and how the new Bill proposes to deal with it.

On September 5, 2011, the Land Acquisition and Rehabilitation & Resettlement Bill, 2011 (LARR Bill 2011), which is meant to replace the age-old Land Acquisition Act, 1894, received the approval of the Union Cabinet.
The LARR Bill 2011 has since been introduced in the Lok Sabha and is being considered by departmentally related parliamentary standing committee on rural development. It is the latest version of a legislation that deals with the power of the government to expropriate private land for a “public purpose”.
It also is the first central-level legislative proposal that deals with rehabilitation and resettlement of the people affected by development projects across the country. Hitherto, rehabilitation and resettlement (R&R) has been the responsibility of the state governments.
The Land Acquisition Act, 1894, which is currently in force, does not address the issue of R&R of the people displaced by development projects.
“As land acquisition and rehabilitation and resettlement need to be seen as two sides of the same coin, a single integrated law to deal with the issues of land acquisition and R&R has become necessary,” says Jairam Ramesh, the Union Minister for Rural Development, whose ministry has drafted the LARR Bill 2011, in the ‘statement of objects and reasons’ of the legislation.
It is notable that ‘land’ being in the State List of the Constitution, the implementation of the Land Acquisition Act is in the jurisdiction of the states even though the law was enacted by the central government. The state governments, however, have the power to make certain amendments that are not inconsistent with the provisions of the law.
Thus, while the Land Acquisition Act prescribes the procedure for acquiring property at each stage across the country, there are inter-state variations with regard to matters, such as the authority that will set in motion the acquisition proceedings, the manner in which notices must be publicized, and persons on whom notices must be served.

Acquisition for public purpose
To make things clearer, the term ‘land acquisition’ (as used in the existing Act and the LARR Bill 2011) refers to the action of the government to compulsorily acquire a citizen's private property with monetary compensation, i.e. without the owner's consent.  It is very different from a market transaction in which a buyer and a seller both agree voluntarily to deal in a piece of land.
The provisions of the LARR Bill 2011 relating to land acquisition, rehabilitation and resettlement are applicable in cases when the central or state government acquires land (a) for its own use and control, (b) to transfer it for the use of private companies for public purpose, and (c) on the request of private companies for immediate use for public purpose.
The Bill applies the principle of ‘public purpose’ to any requirement of land that the government and its various agencies may have for national security, infrastructure (roads, railways, ports, airports, etc),  planned development, residential purposes for the poor and landless, or any other project that is supposed to benefit the public.
The term ‘public purpose’ has also been applied to provision of goods and services by private companies or public-private partnerships (PPPs), in which case the private company or companies needing land will have to obtain the consent of 80 per cent of project-affected people.  The affected families include owners of land as well those who don’t own land but whose livelihood may be affected due to the acquisition.

Compensation and R&R
The LARR Bill 2011 deals in both ‘compensation’, which primarily refers to money to be paid to those losing their land or related rights, and ‘rehabilitation and resettlement,’ which refer to the requirement to re-locate project-affected people to alternative places where they can re-establish their homes and livelihoods.
The provision for R&R kicks in if private companies purchase land, through direct negotiations with the owners, equal to or more than 100 acres in rural areas and 50 acres in urban areas.  If such companies request the appropriate government to acquire part of an area for a project, they will be liable for R&R of the affected persons for the entire area – i.e. the part acquired by the government plus the part they purchased themselves.
Also, where private companies are involved in projects for which land is being acquired, the consent of at least eighty per cent of the project affected people will have to be obtained through a process to be prescribed by the government.
A maximum of five per cent of irrigated multi-cropped land – which is highly valued agricultural land -- may be acquired in a district, with certain conditions.
Every acquisition requires a Social Impact Assessment (SIA) by an independent body followed by a preliminary notification and a final award by the District Collector.
Like the existing law, the LARR Bill 2011 has an ‘urgency’ clause which allows the appropriate government to take a short-cut by acquiring the land after 30 days from the date of the issue of the notification without the SIA.  This clause may be used only for defence, national security, and conditions arising out of a national calamity.
The Bill proposes that the compensation in rural areas will not be less than four times the original market value of the land being acquired. In urban areas, the compensation will be twice that of the market value determined.
There are provisions in the Bill to set up Administrator (R&R), Commissioner for R&R, Rehabilitation and Resettlement Committee (for acquisition of 100 acres or more of land), National Monitoring Committee for R&R, and Land Acquisition, Rehabilitation and Resettlement Authority, which will adjudicate all disputes, with appeal to the High Court.
An acquired land, which is transferred to a person for a consideration and is left unutilised for a period of 10 years from the date it was acquired, will have to be returned to the appropriate government.
In cases where an acquired land is sold to any person, without any development made, 20 per cent of the profit made will have to be shared among all the persons from whom the land was acquired.
The provisions of the LARR Bill 2011 do not apply to 16 other existing legislations that also provide for land acquisition for specific purposes, including The Atomic Energy Act, 1962, The National Highways Act, 1956, SEZ Act, 2005, Land Acquisition (Mines) Act, 1885, The Railways Act, 1989.

A stormy background
Through the LARR Bill 2011, the government has candidly acknowledged the troubled history of land acquisition in the country and the suffering it has caused to the displaced people over the years.
“Provision of public facilities or infrastructure often requires the exercise of powers by the State for acquisition of private property leading to displacement of people, depriving them of their land, livelihood and shelter, restricting their access to traditional resource base and uprooting them from their socio-cultural environment. These have traumatic, psychological and socio-cultural consequences on the affected population which call for protecting their rights, particularly in case of the weaker sections of the society including members of the Scheduled Castes, the Scheduled Tribes, marginal farmers and their families,” says the ‘statement of objects and reasons’ of the Bill.
Although no official estimate of the number of people displaced by projects in India is available, some unofficial studies, particularly by Dr. Walter Fernandes, peg the number at around six crore for the period from 1947 to 2004, according to an expert group on ‘Development challenges in extremist-affected areas.’ which submitted its report to the Planning Commission in 2008.
This displacement caused alienation of a total of 250 lakh hectares of land, which includes 70 lakh hectares of forest and 60 lakh hectares of other ‘common property resources’.
“Whereas the tribals constitute 8.08 per cent of country’s population, they are 40 per cent of the total displaced/affected persons by the projects. At least 20 per cent of the displaced /affected are Dalits and another 20 per cent are OBCs. The resettlement record is also very dismal. Only a third of the displaced persons of planned development have been resettled,” adds the expert group.

Popular resistance
As industrial capital – originating within the country and flowing in from abroad -- and urbanization make increasingly pressing demands on land and natural resources, large sections of the population fear that their livelihood and economic security is in grave danger. 
Protests and people’s movements against land acquisition and displacement seem to have been springing up everywhere in India.
West Bengal, which had led other states in redistributing land to the landless, saw violence in March 2007 when about 3000 armed police personnel stormed the Nandigram area in East Midnapore district to crush protests against the state government’s plans to expropriate 10,000 acres of land for a Special Economic Zone (SEZ) to be developed by the Indonesian-based Salim Group. The operation killed at least 14 people and wounded another 70.
There were fresh incidents of violence in Nandigram in November 2007 and May 2008. Anger against the state government saw the Left Front losing to the opposition parties the 2008 Panchayat elections in the places affected by violence.
Since 2007, West Bengal has also been the scene of the prolonged controversy over land acquisition for a car manufacturing facility of the Tata Group. It started with the farmers protesting against the then state government’s move to take over 997 acres of farmland in Singur (Hooghly district) to situate the car factory. After the opposition and other activists like Medha Patkar joined the agitation, the Tatas abandoned the Singur site and moved over to Gujarat.
The controversy fuelled the debate over whether the government acquiring land and passing it on to private industry at nominal prices should be deemed as serving a ‘public purpose’. 
Nandigram and Singur have played their part in bringing to an end 34 years of rule of the Left Front in the state earlier this year.
Resistance against the proposed Posco steel plant in Orissa has stemmed from similar fears of displacement and has an added dimension of the state government’s alleged violation of the forest rights of the tribal groups. Six years after South Korean company Posco and the state government agreed to build it, the project has yet to take off.
In Maharashtra’s Raigad district, a series of protests by the local people greeted a plan by the state government to start the process of acquiring in May 2006 about 10,000 hectares -- an area large enough to build a small city -- for Mumbai Special Economic Zone project promoted by Reliance Industries. 
The resistance to land acquisition led the Maharashtra government to conduct, for the first time, a ‘referendum’ to gauge the extent of public support, or the lack of it, for the project. A majority of people voted against the SEZ in the referendum held in September 2008.
The process of acquiring land (about 2000 hectares of which had been notified for acquisition) lapsed in December 2009 as the Act prescribes a certain timeframe in which it must be completed. Subsequently, the state government de-notified the land, handing a victory to the local population.
The Raigad experience exemplifies a larger phenomenon. Across the country hundreds of SEZ projects, which have received government approvals, are stuck at the stage of land acquisition because of stiff opposition from farmers unwilling to part with their land.
The SEZ concept has been criticized not only because of their potential to cause widespread displacement of communities, but also because such zones create private enclaves whose operators enjoy tax exemptions worth hundreds of crores of rupees.

Recent unrest
Uttar Pradesh has seen farmers’ protests against Yamuna Expressway and Ganga Expressway, both of which required acquisition of large parcels of land for housing and commercial projects in addition to the proposed roads.
This year, protests against land acquisition in UP have been centred in Noida and Greater Noida, most notably the village of Bhatta Parsaul (Greater Noida) that witnessed pitched battles between farmers and the police.
The year 2011 has also brought a string of judicial victories for the protesting farmers of Uttar Pradesh. For instance, in July this year, the Supreme Court upheld an Allahabad High Court judgment cancelling the acquisition of 156 hectares of land in Shahberi village (Greater Noida) for building flats.
“My family lost 60 bighas of our land three years ago. We were being offered around Rs seven lakh per bigha, but we refused to take the money and continued our protests. Later, the same land was given to builders at Rs two crore per bigha,” The Tribune quoted Sajid Hussain, a farmer of Shahberi, as saying after the Supreme Court order.
The apex court berated the state government for invoking the urgency clause in the Land Acquisition Act, which bars farmers from raising objections, and favouring “one section of society only,” saying it would step in to prevent “more Nandigrams”.
On October 21, Allahabad High Court quashed the acquisition of land in three villages of Noida and Greater Noida and directed the state government to pay to the land losers in 60 other villages a higher compensation, including a part of the acquired land after development.
In a judgement delivered on November 23, a bench of the Supreme Court said, “It is difficult, if not impossible, to appreciate as to why the state and its instrumentalities resort to massive acquisition of land and that too without complying with the mandate of the statute (Land Acquisition Act).”
The bench of Justices G.S. Singhvi and S.J. Mukhopadhaya also expressed serious concern over the prospect that “the acquisition of agricultural land in the name of planned development or industrial growth would seriously affect the availability of food in future”.

Political repercussions
As evident as the growing unrest in society is the political fallout of the way governments have been using and abusing their powers to acquire land in the name of ‘public purpose’.
The increasingly violent conflicts over land in UP, with the farmers on one side and the government and builders on the other, compelled the state government to announce a new R&R policy in 2010 and then, in June 2011, a more liberal policy of compensating those whose land will be the subject of land acquisition. The policy favours direct negotiations and agreement between the land owners and buyers, including those in the public sector, for deciding compensation, which includes the former having the option of receiving 16 per cent of their land in developed form, exempt from certain taxes, and with the right to transfer it. That will be in addition to a host of other benefits land losers will receive like payment of an annuity for 33 years of Rs. 23,000 per acre plus an increase of Rs. 800 per acre every year or an upfront payment of Rs 2,76,000 per acre.
By introducing a policy of liberally compensating the land losers, the UP government has underlined the one-upmanship between political parties ahead of the assembly elections next year. The rivalries between parties preparing for the polls seem to have had the spin-off effect of hastening the introduction of reforms in land acquisition. Congress, which is challenging the ruling BSP in Uttar Pradesh, has on its part expedited the drafting and introduction of the LARR Bill 2011, which will replace the old Act, apparently to curry favour with the embattled farmers of Uttar Pradesh.
Given the strong sentiment against the way land acquisition powers have been used by the governments in India, it’s clear, however, that no political party can now afford to escape responsibility for not facilitating reforms in this area, even in the states that are not going to elections.

The new regime
The reform of the land acquisition regime, proposed in the LARR Bill 2011, has received mixed reactions from the public. The representatives of the big industry have predictably panned the proposal that requires the consent of 80 per cent of the project-affected people for land acquisition to proceed in cases where private companies are involved; they have also criticized higher compensation and the requirement for R&R.
The grassroots activists, who have been spearheading protests against forcible displacement, have generally welcomed the move to reform the land acquisition regime, but have also expressed strong disappointment over what they believe is the government’s intention to continue with the framework of the old Act in the proposed LARR Bill 2011.
“The intent of the new Bill is the same as that of the existing law. The government wants to continue to facilitate acquisition of land for private corporations and treat land merely as a commodity rather than as a system that provides life and livelihoods to human communities and non-human species,” says Ulka Mahajan, who works for Sarvhara Jan Andolan, Maharashtra, and is a national convener of National Alliance of People’s Movements (NAPM), which is arguably the largest grouping of organizations and movements against land acquisition in the country.
Mahajan says the LARR Bill 2011 is framed in the belief that agriculture must continue to make way for industry irrespective of whether the rural population is inclined and ready to give up their existing livelihoods and social relations in favour of a different economy and life style.
The new regime will continue to threaten the livelihoods that are dependent on land and natural resources, including those of the landless farm labour and artisans, and also endanger food security, she says.
As the government comes up with projects like SEZ, National Manufacturing Investments Zones, Petroleum, Chemicals and Petrochemical Investments Regions (PCPIRs) and Delhi-Mumbai Industrial Corridor, hunger for farmland has acquired gargantuan proportions.
“PCPIR, for example, will require 250 square kilometres of land which will wipe out wide swathes of rural areas and lakhs of rural communities. Shouldn’t the government draw a line somewhere as to the amount of land needed to be acquired for the industry?”

Great expectations
NAPM has been demanding that the replacement for the Land Acquisition Act, 1894, should be a comprehensive “National Development Planning Act” which would lay down “our development goals (as a reference) for defining public interest” and “the planning process including options, assessments and criteria for choice”.
“There should be an emphasis on the resources belonging to people, not on the principle of ‘eminent domain’ (The right of a government to seize private property for public use, in exchange for payment of market value.)”
NAPM has also called for the unit of planning a project to be the smaller social unit  -- Gram Sabha in rural areas and an Area or Basti Sabha with no more than 1000 families in an urban area -- so that the people have a direct say in decision making.
Mahajan says the provision for obtaining the consent of 80 per cent of the project-affected people should also apply to public-sector projects and the provisions of the LARR Bill 2011 must also apply to all other laws (cited in the 4th schedule of the Bill) that provide for land acquisition, such as the Special Economic Zones Act, 2005, and the Coal Bearing Areas (Acquisition & Development) Act, 1957.
She says the rights of the tribal communities as protected by Forest Rights Act, 2006, such as the right to protect minor forest produce (MFP), should also be protected under the LARR Bill 2011.
NAPM has also suggested that the government should introduce a system of leasing out the land of farmers instead of outright purchase.
“Currently, the government expropriates the land of the farmers and hands it over to say a SEZ developer who then leases parts of that land to several businesses. Why the government cannot directly leases the land from the farmers instead of imposing compulsory land acquisition,” argues Mahajan.
NAPM has, however, welcomed the move to combine R&R with land acquisition and the provision in the LARR Bill 2011 that also compensates the landless people who are dependent on the land being acquired.
It seems the struggle over land acquisition and displacement will continue, but the country might just have begun to move in the right direction.

The current regime of land acquisition
The Land Acquisition Act, 1894, seeks to set out the circumstances and the purposes for which private land can be acquired by the central/state governments. The procedure to be followed in making an acquisition under the Act is briefly as follows.

Stage one
*Publication of a preliminary notification by the Government that !and in a particular locality is needed or may be needed for a public purpose or for a company.
*Entry of authorised officers on such land for the purpose of survey and ascertaining whether it is suitable for the purpose in view
*Filing of objections to the acquisition by persons interested and enquiry by Collector.

Stage two
*Declaration of intended acquisition by Government.
*Publication of declaration as required by the Act.
*Collector to take order from the Government for acquisition and land to be marked out, measured and planned.

Stage three
*Public notice and individual notices to persons interested to file their claims for compensation. S. 9.
*Enquiry into claims by Collector.
*Award of Collector.
*Reference to Court.

Stage four
*Taking of possession of the land by the Collector.
*Payment of Compensation.

(This article was first published in Competition360 magazine.)

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