'State govts acquire land by subverting rights and bending the law’

The Centre for Science and Environment filed RTI queries to 28 states to understand how states are circumventing the land acquisition law. The replies show their discomfiture

By Ishani Sonak
Published: Wednesday 12 December 2018
CSE investigation reveals that seven states have bypassed the law and implemented their own Acts by replicating the Ordinance. Credit: Tarique Aziz / CSE
CSE investigation reveals that seven states have bypassed the law and implemented their own Acts by replicating the Ordinance. Credit: Tarique Aziz / CSE CSE investigation reveals that seven states have bypassed the law and implemented their own Acts by replicating the Ordinance. Credit: Tarique Aziz / CSE

Considered the biggest reform in land governance, a law that came into force in 2013 was heralded as a step in the right direction. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, or RFCTLARR Act, replaces the colonial Land Acquisition Act, 1894.

The new law gives people a say in land acquisition and makes the process participative, humane and transparent. It 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.

The 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. It 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.

In a way, the Act took away the government’s powers and gave them to landowners. 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 also makes the process of acquisition simple.

“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.

Status of states

Five years after the Act was introduced, 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 social impact assessments conducted; were people’s consent taken; which projects were in the pipeline; and, how much land was acquired under RFCTLARR 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.

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 Ordinance.

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, 2018 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 from 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 landowners 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. Land for the much-talked-about Mumbai-Ahmedabad bullet train project, funded by Japan International 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 well-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.

Small changes

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. 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 in Ranchi.

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.

While changing the law and making slight modifications is one way states acquire land, making direct purchase through negotiations with the willing seller is another. “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.

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 time, it dilutes its effect. The Act does not 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 are also gaining popularity. 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 Aayog 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 minimise 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.

(With inputs from Ishan Kukreti) 

This article was first published in the 16-31st December issue of Down To Earth under the headline 'Legal Deceit’.

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