http://www.rediff.com/news/column/why-the-land-acquisition-bill-is-flawed/20110913.htm

September 13, 2011 14:45 IST
The Land Acquisition Rehabilitation and Resettlement Bill 2011 argues for a perfect land market, unrestrained urbanisation and industrialization, says activist Gopal Krishna.

On September 7, Jairam Ramesh introduced the Land Acquisition Rehabilitation and Resettlement Bill 2011 in the Lok Sabha within six days of the end of the public comment period on the bill that is to replace a 116 year old colonial law. This bill argues for a perfect land market, unrestrained urbanisation and industrialisation.

It sounds strange that rural development ministry is working for urban development as if latter is unquestionably the pre-condition for the well being of rural people and their ecosystem . Will the prime minister reveal the role of urban development ministry if what rural development ministry is doing is indeed its mandate?

Will Ramesh explain as to whether what he said as secretary, economic affairs, Indian National Congress remains relevant or not? Ramesh, a representative “of a generation that was created by public investment” and as a key player in developing India’s 1991 economic reforms said in 2001 that “in 1715 they (India) accounted for 25 percent of world industrial output, so it’s always been an industrial nation in that sense of the term.”

Caught in the time warp and frozen with the contested develop-mentality, corporate fund driven political parties and NGOs are out to decisively put the State and the natural resources on sale unmindful of its cognitive and ecological cost and intergenerational inequity that it promotes almost forever. Both ruling parties and most of the opposition parties are hand in glove in this regard.

These anti-citizen entities are acting as if present and future citizens, gram sabhas, panchayats and zilla parishads do not matter. Their responses to enactment of Special Economic Zone Act, 2005 and its implementation is a case in point.

The Special Economic Zones and land acquisition by companies are about generating financial wealth with naked political patronage at the cost of natural and human wealth. The Land Acquisition Act, 1894 has been useful for it. It is indeed “painfully evident that the basic law has become archaic”. It used to be said that company is an artifact of law, it now appears that law such as this is an artifact of companies. Every act of privatisation of the government through legislations like these is quite painful too.

If that is not the case why should State use its sovereign power to acquire land for companies either partially or fully in the name of industrial and urban development or legislate to facilitate the same? If ‘development’ wasn’t a notorious and negative word why has a benign and positive word ‘sustainable’ pre-fixed to it unmindful of this the bill cites developmental imperatives with the assumption of its innocence.

The argument of Cabinet Committee on Economic Affairs that acquisition of land for industrial and urban development is a necessity — is driven by corporate funding of ruling and opposition parties since 2003 when the ban on company donations was lifted. Clause 59 of the Land Acquisition Rehabilitation and Resettlement Bill, 2011 deals with the provision of ‘penalty for obstructing acquisition of land’ that seems to be about punishing the protesters and dissenters.

It reads: “Whoever willfully obstructs any person in doing any of the acts authorised by section 9 or section 15, or willfully fills up, destroys, damages or displaces any trench or mark made under section 15, shall, on conviction before a magistrate, be liable to imprisonment for any term not exceeding one month, or to fine not exceeding five hundred rupees, or to both.” Ramesh argues that this is required because “Land markets in India are imperfect.”

Is it a coincidence that Ramesh who is also a member of the Cabinet Committee on Unique Identification Authority of India related issues has introduced UID provision in Section 10 and 36 of the Land Titling Bill, 2011?

Will CCEA and CCUIDAI reveal all the proposed legislations that are aimed at creating property based democracy?

Can parliament, all its standing committees, state governments and state’s legislative bodies ever exchange notes to unearth the legislative web being woven at the behest of transnational financial institutions before it is too late?

In the backdrop of such unanswered questions, the 70-page LARR Bill has 74 Sections and 3 schedules in its English version to deal with the grievance accumulated since 1894. Clause 69 of the bill deals with the ‘Return of Unutilised Land’.

It reads: “(1) The land acquired under this Act shall not be transferred to any other purpose except for a public purpose, and after obtaining the prior approval of the appropriate government, and any change in purpose made in violation of this provision shall be void and shall render such land and structures attached to it liable to be reverted to the land owner.

(2) When any land or part thereof, acquired under this act remains unutilised for a period of five years from the date of taking over the possession, the same shall return to the land owner by reversion;

(3) The appropriate government shall return the unutilised land or part thereof, as the case may be, to the original owner of the land from whom it was acquired subject to the refund of one fourth of the amount of compensation paid to him along with the interest on such amount at such rate, as may be specified by the appropriate government, from the date of payment of compensation to him till the refund of such amount; and

(4) The person to whom the land is returned being the owner of the land shall be entitled to all such title and rights in relation to such land from which he has been divested on the acquisition of such land.”

Dr Usha Ramanathan, a noted jurist, asks, “What happens when they (the displaced) are unable to buy it back” when the unutilised land is returned. This section permits the transfer of land for another public purpose. This particular clause is not acceptable and has to be removed from the draft bill. Unmindful of widespread concern in the academia and among citizens, the bill has been approved in a tearing hurry by the Union Cabinet which gives rise to valid questions about player behind the curtain in the backdrop of declaration of assets by billionaire ministers.

Schedule I of the bill deals with “compensation for land owners”, Schedule II deals with the “list of rehabilitation and resettlement entitlements for all the affected families (both land owners and the families whose livelihood is primarily dependent on land acquired) in addition to those provided in Schedule I and Schedule III deal with “provision of infrastructural amenities” for resettlement of populations “to minimise the trauma involved in displacement.”

Referring to schedule II, Ramaswamy R Iyer, former secretary, union water resources aptly concludes that “The principle of ‘land for land’ has been abandoned” because it is applied for irrigation projects alone that too with a provision that is inferior to the ones made for the displaced in the Sardar Sarovar Project. The Cabinet Committee on Economic Affairs appears to be under undue influence from the funders of ruling political parties both at the centre and the states to exclude projects for power, mining, flood management, SEZ, urban development and several other ‘multi-purpose’ projects that cause displacement. So far neither the ministry nor the CCEA has responded to it.

The bill fails to address the question of transfer of agricultural land to non-agricultural use and the implications for food security although it does refer to multi-cropped irrigated land but it is hardly sufficient. It seems to be pursuing the path of regressive Bihar Agriculture Land (Conversion for Non Agriculture Purposes) Act, 2010 which is facing bitter opposition especially in cases where widely acknowledged and awarded fertile lands are being acquired for hazardous asbestos factories amidst paid news journalism and studied silence of opposition parties in the state.

If this is the fate of a state government whose head keeps referring to Ram Manohar Lohia’s four tier governance, it is understandable why most of the socialist experiments become an exercise in sophistry. Instead of ensuring that private purchases of agricultural land be subject of state regulation from the point of view of land-use, water-use, soil health and food security, such legislations are indulging in a myopic exercise of according priority to creation of financial wealth at any non-financial cost and risks.

Section 2 of the LARR Bill deal with the definition of the expression “public purpose” includes- (i) the provision of land for strategic purposes relating to naval, military, air force and armed forces of the Union or any work vital to national security or defence of India or state police, safety of the people; (ii) the provision of land for infrastructure, industrialisation and urbanisation projects of the appropriate government, where the benefits largely accrue to the general public; (iii) the provision of village or urban sites, acquisition of land for the project affected people, planned development or improvement of village sites, provision of land for residential purpose to the poor, government administered educational and health schemes, (iv) the provision of land for any other purpose useful to the general public, including land for companies, for which at least 80 per cent of the project affected people have given their consent through a prior informed process; provided that where a private company after having purchased part of the land needed for a project, for public purpose, seeks the intervention of the appropriate government to acquire the balance of the land it shall be bound by rehabilitation and resettlement provisions of this Act for the land already acquired through private negotiations and it shall be bound by all provisions of this Act for the balance area sought to be acquired. (v) the provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by government, any local authority or a corporation owned or controlled by the State”. This definition of “public purpose” or common good destroys “the distinction between private use and public use”.

In a text “Some notes on the Draft Land Acquisition and Rehabilitation Bill 2011″, Ramanathan states that “The eminent domain power in India is not, and in any event should not be, so wide” wherein an inverted Robin Hood is created which takes from the poor to give to the rich.

The draconian black law of 1894 which is proposed to be replaced in the backdrop of massive bitter opposition to Special Economic Zones and environmentally damaging projects in Jaitapur, Haripur , Ghaziabad, Andhra Pradesh, Tamil Nadu, Karnataka, Bihar and Goa where lessons have not been learnt from the bloodshed and violence in Nandigram and Singur. The proposal to amend the Atomic Energy Act, 1962 in the aftermath of West Bengal’s denunciation of Haripur nuclear power project in the aftermath of Fukushima and abandonment of nuclear power projects in Germany, Japan and other countries is uncalled for. But strangely, the Nuclear Safety Regulatory Authority Bill, 2011 was introduced on September 7 itself without any public comments on the Bill. Both these Bills should be deferred till it provides for moratorium on acquisition of land for nuclear power projects.

Unlike in US, the Supreme Court of India observed, “The Act, which was enacted more than 116 years ago for facilitating the acquisition of land…However, in the recent years, the country has witnessed a new phenomena. Large tracts of land have been acquired in rural parts of the country in the name of development and transferred to private entrepreneurs, who have utilised the same for construction of multi-storied complexes, commercial centers and for setting up industrial units. Similarly, large scale acquisitions have been made on behalf of the companies by invoking the provisions contained in Part VII of the Act. The resultant effect of these acquisitions is that the land owners, who were doing agricultural operations and other ancillary activities in rural areas, have been deprived of the only source of their livelihood. Majority of them do not have any idea about their constitutional and legal rights, which can be enforced by availing the constitutional remedies under Articles 32 and 226 of the Constitution.”

If the bills are not sensitive to these observations in a context of corporate funding to political parties even if passed by the Parliament, they can be struck down by the apex court as contrary to the Preamble of our Constitution.

Admittedly, there is “asymmetry of power (and information) between those wanting to acquire the land and those whose lands are being acquired” but the role of futures markets in land within India and the land being acquired in African countries does not find any mention. Also “asymmetry of power and information” is acknowledged only to be ignored as if it’s a merely an exercise in lip-service. The bill ignores how acquisition of land affects acquisition of water as well. The ministry has failed to provide a white paper on the impact of 1894 Act since its enactment before independence and after independence. A compensation and rehabilitation regime is needed with “reference not to the nature of the project but to the nature of the impact.”

The parliamentary standing committee on rural development must ask for the status of the total land acquired and the total number of internally displaced persons till the introduction of the Bill in Parliament. Without such a paper and data, the ministry’s rush to get the bill passed is an act in haste which generations to come will repent and it will be considered a monumental failure of Ramesh if he does not undertake rigorous outreach before arriving at a research based decision.

Has his ministry bothered to send this bill to all the sarpanchs and mukhiyas of the country in their language to ascertain its implications and provide suggestions? The passage of the bill in its current shape must be deferred till this is done. The minister can check with his ministry, there is a precedent in this regard, a rural development minister had written such letters to sarpanchs.

This author was shown one such letter in a panchayat at a gram sabha meeting of Mendha Lekha, Dhanora tehsil in Gadchiroli district in July-August 2001. It would indeed be a sad commentary on the ministry and the standing committee headed by Sumitra Mahajan of Bhartiya Janata Party if they fail to genuinely reach out to villages before finalising the bill. The bill must factor in the provisions of Article 243 (G) of the Indian Constitution and Panchayat Extension to the Scheduled Areas (PESA) Act, 1996. It must desist from “forced industrialisation” and forced urbanisation.

This is required to deal with an uncertain future being manufactured by real estate, food and water companies to safeguard agricultural land from being grabbed by powerful national and transnational companies that can undermine parliament, state assemblies, gram sabhas, panchayats, zilla parishads and the government for good by depriving us of our food sovereignty. If our legislature can legislate on land use, water use, land acquisition, rehabilitation, resettlement and land titling with the memory of country’s past share in world trade, it will be acting to restore the sovereignty of our Parliament and ensure that companies of all ilk remain subservient to its legislative will.

Ambrose Pinto S J

http://www.deccanherald.com/content/190496/bill-does-not-address-structural.html

There are two schools of thought in the current debate on the Land Acquisition bill 2011 as proposed by the ministry of rural development.

The first one is premised on the markets when the acquisition of land is for the corporate entities. The other is centred on the doctrine of ‘eminent domain,’ where the state acquires land for the public sector or the corporate sector.

As far as land is concerned there are at least two different perspectives depending on what land means to people.

While the industrialists and the corporates will have a market based understanding, those who eke out their living from the lands – the tribals, the members of the indigenous communities and the farmers will have a different understanding.

Markets alone cannot determine the socially optimal price of land since land has also social value. To the tribals, the members of indigenous communities and the poor, land is a source of life and living. In it is their civilisation and culture which cannot be measured in monetary terms. That is why there are specific laws that do not permit the sale of tribal land and land of communities that have centred themselves on land.

In the last two decades ever since the country took to the market economy, large funds have been poured into the real estate leading to a speculative boom. This has led to commercialisation of land. In the period preceding the launching of the economic reforms, when the state acquired land, there was not much resistance to land acquisition from the owners of land since the land acquired was relatively small for public purposes. The beneficiaries of such acquisitions were largely the public sector.

In the present land acquisition bill the public purpose is narrowed. The bill permits the virtual conversion of public purpose into private benefit by not questioning the Public-Private-Partnership mode of implementation of infrastructure projects. One fails to understand why the state should buy land for private enterprise.

Needs of a good policy
The requirement of financial, social and environmental cost and benefit analysis of a project in the bill is a welcome suggestion. But with the market determined priorities of investment, the social and environmental considerations will be heavily at a discount in such an assessment.

The pre-requisites for a successful land policy are the formulation of a comprehensive, people-centric, ecology-friendly, region-specific and scientific land –use policy. Such a policy should take into consideration the provision of food security, preservation of biological diversity and promotion of the well-being and solidarity of all those, whose livelihood depends on land.

The government bill has suggested a formula for a six times higher compensation at the minimum. It has also proposed that the original landowner would be entitled to share 20 per cent of the capital gain at each subsequent sale of the land for a period of ten years.

This is aimed at commercialisation. With the flow of speculative capital into the land market, the resultant land price bubble and the consequent distortion in the socially optimal pattern of land use, the very proposal is viewed as a part of the market policy. What is needed is the bursting of the speculative bubble.

This of course does not mean that that land should not be made available for non-agricultural use. Laws could have exceptions. Those exceptions could include the use of land for housing for a vast majority of poor and middle classes, or for genuine social purposes such as hospitals and schools or for essential infrastructure such as roads and irrigation. However such exceptions should be made only with the consent of the local people.

The bill rightly emphasises the livelihood question and seeks to lay down the condition of provision of a better and decent livelihood for those displaced by land acquisition. But it sidetracks an important issue of the small peasantry’s unwillingness to part with its land.

There is a section of small peasantry that is opposed to be dispossessed. For them, compensation or availability of alternative livelihood is not the issue. Even if farming is not viable, they would struggle to supplement it somehow rather than giving up the only source of security that they have.

The bill should have addressed the structural crisis of the agrarian situation. The small size of the operational holding as far as people are concerned is still relevant. The cooperative pooling of land by small and marginal peasantry to overcome this limitation suggests itself as the obvious solution.

To sum up, the current debate on land acquisition is narrowly focused. It shuts itself out from the basic question of land of which the question of land acquisition is only a small subset. Micro level remedies will not be equal to the macro level questions of policy.

On the one hand, we need to take immediate steps to stem the distortion and, on the other, we must move towards a new paradigm of land use, based on progressive de-commodification of land, based on the premise that land is the basis of existence and civilisation.

By R. Uma Maheshwari
The foreword — to the Draft National Land Acquisition and Rehabilitation and Resettlement Bill 2011 — that says “urbanisation is inevitable” (I.p.1) signifies danger. The Bill, if enacted in its present form, is likely to worsen, and not stop, displacement of tribal, Dalit and other backward communities. The Bill states: “The issue of who acquires land is less important than the process of land acquisition, compensation for land acquired and R&R process, package and conditions … The objective is to make the process of land acquisition easy, transparent, and fair for both sides in each instance …”(p.1, emphasis added). But who acquires land is intrinsically connected to why it is acquired in the first place.

Land alienation, ownership and contradictions arising from it concern world political economy and external agencies that have been dictating conditions to the Indian government at the Centre and State level on policy matters in land reforms. Some of these terms and conditions reflect in the LARR Bill 2011 if one reads between the lines. A Policy Document of the World Bank, for instance (“India: Land Policies for Growth and Poverty Reduction,” Report No. 38298-IN, July 9, 2007, Agriculture and Rural Development Sector Unit, India Country Management Unit, South Asia Region) made a few recommendations for policy reform, which included, “eliminate restrictions on land markets.” Under this — “It will be desirable to (i) make leasing legal where it is currently prohibited…(ii) allow transferability of land by land reform beneficiaries at least through lease and explore options for making the gains from such reform permanent; (iii) drop restrictions on sale of land to non-agriculturists and subdivision which have little economic justification; and (iv) review legislation on compulsory land acquisition and, subject to the prevention of undesirable externalities, allow farmers or their representatives to negotiate with and if desired transfer land directly to investors rather than having to go through government and often receive only very limited compensation.”

It is a matter of serious concern that this Bill looks at R&R and land acquisition as “two sides of the same coin” and this is partly a result of the pressure built over the years by movements against big dams. This Bill facilitates acquiring land, including commons, presently in the hands of small and marginal farmers from tribal, SC and backward communities under the pretext of an unstated ‘public purpose’ for “infrastructure development” which may well accompany future FDI in food and agriculture, and several related developments linking the global market to India. In urban areas it is very clear that it is connected to real estate development in return for crumbs such as ‘housing for the urban poor’ schemes.

The government is fast-tracking into a future which facilitates transfer of land into the hands of the urban elite. Even if there is a caveat placed on R&R in case of acquisition up to 100 acres, there is no mechanism to stop the rich from taking an easy way out, opting for say 90 acres. Does that not call for R&R?

While one good point in the Bill is that “under no circumstances” multicropped, irrigated land (sic) be acquired, what if a multicropped land or two came within the 100 acres identified for the larger acquisition? The definition of “multi-crop” is unclear. Is it a number of crops grown in a single season or in alternate seasons by rotation?

As for the SIA (Social Impact Assessment), there is mention of “Two non-official social scientists, two experts in the area relating to the project.” Women, senior citizens and children are not part of this exercise. The affected people are not to select this group. What is the guarantee that the group will not favour those who wish to acquire land? Most ‘experts’ come from sections not directly displaced/dispossessed. We are unwilling to have a forum with the poor as their own representatives on decisions affecting them.

The understanding of “minimum” displacement, “minimum disturbance to infrastructure, ecology and minimum adverse impact on individuals affected” is highly subjective and left open-ended without defining the “minimum” displacement (in forests, for instance; or damage to rivers, for instance — how much is ‘minimum”?)

As for the public hearing on the notification issued for acquisition, why not have a pre-notification, prior, on “intent” to acquire land, instead, where a gram sabha, or committees in urban slums, for instance, can take a collective decision for or against acquisition?

What are the implications of this Bill for the Polavaram dam? It has a lot that will actually make the dam (if the Bill becomes an Act) illegal and invalid on most points mentioned therein on land acquisition. But a deeper reading of the Bill makes it clear that much of it will actually not help stall the dam works in any major way. The onus will be on people to enter into litigation to reclaim their land from the government if the Bill is passed. The provision of “One acre of land to each family in the command area if land is acquired for irrigation project” seems foolhardy if it plans to cover entire populations displaced by irrigation projects (in Polavaram alone, the figure is nearly three lakh people). Where is this kind of land available in the proposed command area?

The first point on which the Polavaram-dislocated (who lost land, not necessarily physically displaced) can be one up on the government is within the clause “Safeguards against indiscriminate acquisition.” This says — “Land to be returned to original owner if not used in 5 years for the purpose for which it is acquired.” It was in 2005 that most of the land acquisition for the Polavaram dam started and the only ‘work’ done is the digging of canals. So, will the government of Andhra Pradesh face legal action if this Bill becomes an Act?

So far as tribal communities are concerned, a point in their favour under “Minimum R&R Entitlements Special Provisions for ST’s” makes space for “Preference in relocation and resettlement in area in same compact block.” In the case of the Polavaram dam, no care was taken to do so, in any of the three R&R colonies (of which only two are under construction). And here we are talking of 300 villages to be submerged, and where are those 300 tribal villages to be resettled in ‘compact’ colonies? Where is the land for that space? If tribal land is to be acquired for displaced tribal communities, where will the R&R displaced tribal people be rehabilitated? In the case of Polavaram, the non-tribals illegally owning land in tribal areas were compensated with high amounts (Rs.1,50,000 an acre; minimum Rs.80,000 per acre). There is no provision in the Bill for any system to check such instances. In fact the Bill does not seem to have taken into consideration all these past injustices nor does it have any clause to correct those injustices.

How is land perceived? What are rivers perceived as? For a fisherman the river is his notional ‘land,’ in livelihood and cultural terms. Faced with numerous massive irrigation (multi-purpose) projects on the anvil, ‘acquisition of river’ (and forests) is not considered a case for R&R. Though one does not even remotely suggest a “River acquisition Bill.” Let’s hope that such a day will not come.

How is economic value generated for the communities? How does the Bill compute the ‘economic worth’ of tribal, Dalit or BC communities, women’s work, to be dispossessed of a permanent asset — land/river? “Rs.3000 pm for 12 months; Rs. 2000 pm per family for 20 years.”

The Bill is making cosmetic changes to the 1894 notion of an ‘eminent domain’ treating citizens as beneficiaries of private, or state charity.

(The writer is a postdoctoral Fellow at IIT-Madras and independent journalist. She is completing a book on Polavaram.)

NEW DELHI: The government has defended its newland acquisition bill as industry-friendly, refuting criticism that provisions contained in the legislation were retrograde and would push up costs for state-run and private companies.

Industry groups had slammed the new Land Acquisition, Rehabilitation and Resettlement Bill (LARR) 2011, cleared by the cabinet earlier this week and tabled in parliament on Wednesday, saying it was “burdensome” and “anti-development”.

But Rural Development Minister Jairam Ramesh, whose ministry drafted the bill, said: “There were concerns by industry associations and some of my colleagues and these have been reflected in the bill. Some of the provisions in the earlier draft were felt to make land acquisition very costly. It is a difficult law, aims at a difficult balance but I feel now we have struck the right balance.”

However, Geetamber Anand, Managing Director of ATS group and Vice-President, Credai said: “The changes in the rehabilitation will help but we still maintain that where private sector acquires land, they do so at prevailing market prices wherein the land seller’s rehabilitation is taken care of already.”

The minister pointed to the relaxed rehabilitation and resettlement provisions which make the annuity entitlement an alternative to providing employment or offering Rs 5 lakh per family. The provision of annuity of Rs 2,000 per month per family for 20 years was earlier a mandatory clause, along with provision of employment for one person per affected family.

Another key change is that in every transfer of land on which development has not taken place 20% of the appreciated value will have to be shared with the original owner. In the draft this clause applied to developed land as well.

The cabinet had earlier scaled down compensation for acquired rural land to four times of the stamped value, instead of six times, while maintaining the compensation for urban land at two times the stamped value.

The controversial blanket ban on acquisition of multi cropped irrigated land has also been tweaked by the cabinet to allow acquisition of up to 5% such land in a district as a “last resort”, with the rider that an equal area of wasteland within the district will have to be developed.

However, there will be no riders for acquisition of such land for linear infrastructure projects such as railways, highways, district roads, power lines and irrigation canals. The bill does not specify the role of state and the private sector in land acquisition and has given states the freedom to formulate their own land acquisition laws within the framework of the central legislation.

However, the central legislation will set up the minimum limit for compensation. The provisions will be applicable to private purchase of land of over 100 acres in rural areas and 50 acres in urban areas.

The bill, which seeks to replace the law dating back to 1894, seeks to put in place a central legislation for rehabilitation and resettlement for the first time.