Land Laws Final.pdf

8/18/2019 Land Laws Final.pdf

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LAND LAWS ASSIGNMENT

THE RIGHT TO FAIR COMPENSATION

AND

TRANSPARENCY IN LAND ACQUISITION,

REHABILITATION AND RESETTLEMENT

ACT, 2013

Submitted by:

Anirudh Arora

IXth

Semester

Roll No. 5


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ACKNOWLEDGEMENT

At the outset, I would like to thank my Land Laws teacher, Dr. Kahkashan Y.

Danyal, for being a guiding force throughout the course of this submission and

being instrumental in the successful completion of this project report without

which my efforts would have been in vain.

I am thankful to the Librarians, Faculty of Law, Jamia Millia Islamia for

helping me in collecting the relevant material for my project report.

I would like to extend my sincere thanks to my batch mates for their constant

review and honest remarks.


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Hypothesis

The earlier legislation dealing with acquisition of land in India was the colonial Land

Acquisition Act, 1894. The jurisprudence that has developed over the years on this subject

has made the citizen, a subject. The colonial mindset that was all pervasive under the Act is

still reflected in practice and even the judiciary in some cases has inadvertently furthered

this notion. Thus, it becomes imperative to scrutinize the law and test it, against the

contemporary democratic values.

The underlying assumption behind land acquisition in India is the public purpose

justification. To acquire land by virtue of the power of eminent domain, the government

must satisfy that, the acquisition is for public purpose and there shall be compensation. The

statutory design is that, if the acquisition is for public purpose the government can acquire

the lands. Therefore the question of public purpose question is an important aspect of it. If

land is to be acquired for industrial development resorting to eminent domain and consider

it as public purpose, then a broader interpretation of the term public purpose is necessary.

If a broader interpretation is given to public purpose one has to be sure about drawing the

line between the public purposes and the non-public purposes. It is of utmost importance

that the executive and the judiciary tread a clear line, otherwise the difference between

public purpose and non-public purpose stands dissolved. In the quest of economic

development a too liberal interpretation of the expression public purpose can devoid the

people of their inherent right to hold their property, therefore it is incumbent on the

government to balance the conflicting claim of the citizens and the society.

Another, concerns related with the compulsory acquisition regime is the issues relating to

adequate compensation, compulsory social impact assessment and resettlement and


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rehabilitation of the displaced persons. The Act of 1894 only provides for monetary

compensation, which can never be an adequate substitute. Further, relief under the Act is

provided only to the owners of the acquired land and it completely ignores peasants and

workers whose lives are also dependent on the land acquired.

The work in the course also investigates the dimension of corporate governance and role of

corporations in land acquisition process. The work also investigates in cursory way the role

of ladies in the land acquisition process. Keeping in view the Land Acquisition Act, 1894

could not meet the expectations of Indian People for fair land acquisition process and

assuming that The Right to Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 shall prove a good replacement the researcher

aims to investigates the dimensions of compensation, corporate governance, rights of

internally displaced people or project affected persons, role of ladies in land acquisition,

rehabilitation and settlement of affected persons due to land acquisition process.


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Literature Review

Nothing is created in vacuum. The researcher is humbly grateful to all the authors of past on

the subject. The primary source for the work is Land Acquisition Act, 1894 which played long

innings in the history of India for the land acquisition. The Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has replaced

the Act of 1894 and made it more meaningful has also been a primary document on the

subject for research.


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Research Methodology

The research adopted basically is doctrinal in nature, and the emphasis is to analyze the

statutory provisions, with the help of the opinions of jurists and policy framers available in

current Law and journals in India and abroad and on internet websites. The judicial

interpretation which is helping in the emergence of a new corporate jurisprudence is a

major area of analysis. For the purpose of primary data scholar would endeavoured to

collect views of legal, social, political luminaries in various professions as academics, and

practitioners of law.

Keeping in view the nature of the problem analytical method has been adopted. In

accordance with this method apart from the material from decided cases attempts have

been made to use facts and information already available and analyze them to make a

critical evaluation of the problem. While analyzing specific controversial issues, which often

arise, conceptual methodology has been adopted which is generally used to develop new

norms or to re-interpret existing ones.


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References:

Books:

V.D.MAHAJAN, JURISPRUDENCE & LEGAL THEORY,(5TH

ED.,2012)

Acts and Bills:

The Right of Fair Compensation and Transparency in Land Acquisition, Rehabilitation

and Resettlement Act, 2013

Land Acquisition Act,1894

The Draft National Land Acquisition and Rehabilitation & Resettlement Bill, 2011

available at http://rural.nic.in/sites/downloads/policies/Final.pdf

Articles:

Mihir Desai (2011) 46, “Land Acquisition Law and Proposed Changes”, Eco. & Pol.

Weekly, 26-27, p.95-100

Alphonsa Joja, Anviti Chaturvedi, Ayesha Talpade, Modhulika Bose, Stella James and

Saurabh (2011) 3, “Of Platitude and Million-Dollar Promises- A Critique of The Land

Acquisition, Rehabilitation and Resettlement Bill, 2011”, Journal of Indian Society,

p.26-66, http://jils.ac.in/wp-content/uploads/2012/09/3_alphonso-jojan-c.pdf

Ram Singh (2012) 47, “Inefficiency and Abuse of Compulsory Land Acquisition - An

Enquiry into Forward”, Economic & Political Weekly, 19, p.10-14


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Michael M. Cernea (2003) nr 175, For a New Economics of Resettlement: A

Sociological Critique of the Compensation Principle, International Social Science

Journal,p.16,http://web.mit.edu/cis/www/migration/dec05workshop/presentations

/Cernea_New_Economics-of_Resettlement_ISSJ_2003.pdf

Press Release and Newspaper:

Press Release by National Advisory Council (2009), available at

http://nac.nic.in/press_releases/25_may_2011.pdf

http://www.livemint.com/Politics/I1CAfbH2Und58UkVckctVP/The-Nandigram-story-

till-now.html


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Table of Content

1. Introduction........................................................................................................10

2.

Background………………………………………………………………………................................17

3. Why new Land acquisition act……………………………………………………......................19

4. Objective of the new land acquisition act…………………………………………................20

5. Some important highlights of New Land Acquisition Act………………………............21

6.

Jurisprudence behind the new land acquisition act……………………………...............22

7. Determination of Compensation.........................................................................38

8. Contravening Provisions and Problematic Issues of the act……………….……..........39

9. Case Study of Land Acquisition at Singur West Bengal........................................42

10.

Comparative Analysis between 1894 and 2013 Act.............................................46

11. Nandigram Land Grab Case..................................................................................47

12. Conclusion…………………………………………………………………………...............................50


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Introduction

On September 6, 2013, the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013 (‘Land Acquisition Act, 2013’),

received Presidential assent, thereby overhauling the existing framework for land

acquisition. This new law has been introduced in response to the historic injustice meted

out to land owners due to forced acquisition; and the opacity and distortion in acquisition

processes under the Land Acquisition Act, 1984. Given its importance to the country’s

industrialization and urbanisation initiatives, as well as the need to address the

requirements of those whose livelihoods are dependent on such land, this note aims to

analyse whether the recently passed law strikes the right balance.

It must be noted that the Land Acquisition Act, 2013 is a work of many years, as the first

draft of this legislation was made way back in 2007, and since then there have been several

debates and revisions to shape the Act in its present form. The Preamble to this law explains

its objective to establish a framework for a participative, informed and transparent

mechanism for land acquisition. The new law is comprehensive in nature as it lays down an

elabo-rate acquisition architecture in place, introducing numerous new procedures such as

the consent requirement; Social Impact Assessment (‘SIA’); exceptions for Scheduled Areas

etc. as well as considerably reconstructing existing provisions such as the urgency clause;

the definition of ‘public purpose’ etc. In this note, we restrict our analysis to four very

crucial aspects of the new law: 1) The land acquisition process, focussing on the consent

mechanism; 2) The framework for compensation; 3) The Rehabilitation and Resettlement

(‘R&R’) entitlements; and 4) Impact of the new law on the industry.


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In its 120 years of existence, the Land Acquisition Act, 1894 helped institutionalize

involuntary acquisition, with little regard to the rights of those who were dispossessed of

their lands, bereft of their livelihood, security and community. The lack of an effective

consultative process under this colonial legislation was reflective of the broader premise

backing the entire law on land acquisition then, which was based on the doctrine of eminent

domain. The tone of the legislation assumed a priority to the requirements of the State for

the public good, which would always override the interests of the landowners, and treated

them as unfortunate ‘victims of development’.1 This could seemingly be deciphered from

the Statement of Objects and Reasons of the Land Acquisition (Amendment) Act, 1984

which referred to the ‘sacrifices’ of the affected population who were ‘unavoidably’ to be

deprived of their property rights for the larger interests of the community.

The Land Acquisition Act, 2013 attempts to redeem this skewed model of development by

attempting to make the land acquisition procedure more facilitative and consultative. It

introduces a mandatory requirement of ‘consent’ whereby all projects require the prior

consent of 80 per cent of land owners in the case of private companies and 70 per cent in

the case of public private partnerships.2 While this could be seen as a radical and welcome

inclusion, one must note that differential treatment is accorded to acquisitions by public

companies. For such acquisitions, there is no requirement of consent of landowners, which

is indicative of the half-hearted attempt of the government to account for the rights of

those who are involuntarily deprived of their land.3

1 Usha Ramanthan, Land Acquisition, Eminent Domain and the 2011 Bill, 47 (44-45) EPW 10 (2011).

2 Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013,

§ 2(2)(b)(i) and (ii).3

K. Sukumaran, The Saga of Land Acquisition, the hiNDU September 6, 2013, available athttp://www.thehindu.com/features/homes-and-gardens/the-saga-of-land-acquisition/arti-cle5100915.ece

(Last visited on January 5, 2014).


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Further, the provision requires consent to be obtained from only ‘land owners’, and

excludes ‘project affected people’ such as agricultural labourers and sharecroppers from the

purview of the consent mandate. It must be noted that the earlier versions of the Act

adopted a more inclusive approach by extending the requirement of consent to project

affected people, including landless labourers and artisans.4 The neglect of the law in this

regard to other stakeholders is regressive and fails to extend protection to other groups

whose livelihood is dependent on land that is proposed to be acquired.

At the level of implementation as well, the provision for mandatory prior consent faces

uncertainties and lapses. Firstly, while the Land Acquisition Act, 2013 lays down the

requirement and threshold for consent, it fails to de-lineate the process by which such

consent can be obtained and is silent on the manner of negotiations. This is particularly

problematic for large infrastructure projects, which require multiple parcels of land, and

hence consent from a large population. Since the law leaves scope for flexibility for states to

formulate their own rules in this regard, the policy at the state level towards land

acquisition is likely to become a key variable in capital investment decisions.5 Secondly, the

percentage set for consent ignores the fact that land titles in our country are not clearly

documented. Owing to inaccuracies of land records, most times a certain percentage of the

population is not traceable; but the high threshold prescribed does not leave enough margin

to accommodate such inaccuracies. This can serve as a major obstacle for large-scale

acquisitions and is posed to considerably deter the industry from such investments.

4

Land Acquisition, Rehabilitation and Resettlement Bill, 2011, § 3 (za).5 ICRA Credit Rating Feature, Impact Analysis: New Land Acquisition Bill, September, 2013, available at

http://icra.in/Files/ticker/new%20land%20acquisition%20bill.pdf


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One of the major pitfalls under the Land Acquisition Act, 1894 was its antiquated approach

to compensation which was extremely meagre, and more importantly very poorly

administered. The lack of adequate compensation was the trigger for most vehement

oppositions to land acquisitions by land owners and users. In this regard, the Land

Acquisition Act, 2013 not only increases the quantum of compensation, but also widens its

ambit by accounting for those whose livelihood is dependent on the land, and also

elaborates upon a sophisticated manner of awarding compensation. Compensation for the

land acquired is based on the market value, which is computed on the basis of reported

transactions during three years preceding the date of proposed acquisition. This value is

determined as the higher among: (a) value specified for stamp duty, and (b) the average sale

price for similar type of land situated in the nearest village or nearest vicinity area; or (c)

consented amount of compensation as agreed upon in case of acquisition of lands for

private companies or for public private partnership projects.6 This amount is further

doubled in case of rural areas. Further, a solatium equivalent to one hundred percent of the

market value is added, to ameliorate the pain of forcible acquisition.7 This is substantial

compared to the Land Acquisition Act, 1894, where the solatium to be awarded was tagged

at thirty percent.8

While the mandate for compensation under the new law seems like a drastic improvement

over its earlier counterpart, many have critiqued this mandate on the grounds that it lacks

sound economic reasoning, however well-intentioned. This criticism stems from the very

rejection of the use of market value of the land as the basis for determining compensation.

6 Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013,

§ 26(1).7

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013,§ 30.8 Land Acquisition Act, 1894, § 23(2).


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It is argued that given the operation of land markets in India, market price is not an

adequate anchor for compensation,9 and the mark-up of doubling the price in rural areas

has been termed as arbitrary and without any justified backing. Most importantly, the

adoption of the market price that would form the basis of a voluntary negotiations and sale

of land to forced acquisition has been critiqued as fundamentally flawed. Land is deemed

not to be a tangible attribute that can be objectively measured; rather it is a subjective

quantity that must be valued according to its owner.10

Hence, the major criticism against valuing land as a commodity is that it does not

encapsulate its value as a source of livelihood.

From the perspective of the industry, the high compensation rate that could go up to four

times the market value of the land in rural areas, and twice in urban areas, has been seen as

a major setback to the extent that investors are re-thinking the viability of their projects.

The only positive attribute for the industry, as noted by India Inc., is that the seemingly

highly and assured compensation package is likely to incentivize consent of the land owners

which is mandatorily required (as elucidated above).

An important consideration with respect to compensation is that transactions on the

proposed land to be acquired are to be frozen from the date of issue of the preliminary

notification under the provisions of the Land Acquisition Act, 2013.11

This is done to prevent

sale of land just before the acquisition which could drive up prices. However, the possibility

of land acquisition would be known from the time of the SIA process, implying that there

9 Maitreesh Ghatak & Parikshit Ghosh, The Land Acquisition Bill: A Critique and a Proposal, 47(41) EPW 65-66

(2011).10

Ibid.11 Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

, § 11(4).


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could be sale of different parcels of land in the vicinity from the time of the SIA till the issue

of the preliminary notification. Transactions on the land during this intervening period could

seriously affect its value, leaving scope for strategic manipulation.12

As the very name of the legislation indicates, one of the most land-mark features of the

Land Acquisition Act, 2013 is that it proposes a unified framework for acquisition of land and

consequent rehabilitation mechanisms, in contrast with the earlier regime where R&R was

governed under the policy framework.13

It emphasizes on monetary benefits in the form of

subsistence grants, a one-time resettlement allowance and transportation grants.14

It also

introduces non-monetary benefits in the form of provision of housing units in case of

displacement and mandatory employment opportunities. The law also puts in place a very

important safeguard by stating that no one shall be dispossessed until all payments are

made and alternative sites for R&R have been prepared.15

This goes a long way in adding

credibility and legitimacy to the framework of R&R under the new law.

Further, the Act establishes a robust legal framework for facilitating the disbursement of

R&R benefits. It creates a Land Acquisition and Rehabilitation and Resettlement Authority at

the centre and the state levels to settle disputes and grievances of the parties. This

Authority is supplemented by Rehabilitation and Resettlement Commissioner, the Collector

and the Administrator, each of whom have clearly defined roles. The distribution of power

among these authorities can make the acquisition process more structured and refined, as

12 Ram Singh, New Land Bill: A Threat to Growth Prospects of the States, the eCoNoMiC tiMeS September 25,

2013, available at http://articles.economictimes.indiatimes.com/2013-09-25/

news/42394603_1_resettlement-bill-acquisition-process-rehabilitation-and-resettlement (Last visited on

January 6, 2014).13

Prior to the enactment of the Right to Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013, rehabilitation for forced acquisitions was governed under the

National Rehabilitation and Resettlement Policy, 2007.14

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,2013, § 31 read with Schedule II.15

Id., § 38.


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opposed to the Land Acquisition Act, 1894 which displayed concentration of power in the

hands of Collector. However, it is also argued that creation of so many levels poses the

threat of bureaucracy creeping in.16

Thus, only the implementation of these provisions will

determine the efficacy of the R&R framework under the new law.

What is also very unique to this law is that the legislation extends the applicability of R&R in

cases where large tracts of land are acquired even through private negotiations.17

While the

industry strongly opposed this provision as an unwanted burden on voluntary sale-purchase

of land, the intention behind such extension is appreciable. For mass development projects

where the purchase of land is voluntary, but the area of land purchased is beyond the pre-

scribed limit, the persons affected are entitled to the protection of R&R entitlements to

ensure a sustained livelihood.

It is anticipated that the Land Acquisition Act, 2013 with its extensive provisions on

compensation and R&R as explained above, is likely to push up the cost of acquiring land by

3.5 times its cost under the earlier regime, making large industrial and infrastructure

projects unviable and raising overall costs in the economy.18

From the perspective of the

industry, India Inc. has termed the new law as ‘a retrograde step’19

that would prove as a

major setback to the country’s development projects. At a time where major projects are

stalled and India’s global competitiveness is eroding, the industry was anticipating a more

16 Niranjan Sahoo, Decoding the Land Acquisition Bill, August 31, 2013, avail-able at

http://orfonline.org/cms/sites/orfonline/modules/analysis/AnalysisDetail.html?cmaid=56375&mmacmaid=56

376 (Last visited on January 5, 2014).17

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,

2013, § 2(3).18

PTI, Land Acquisition Cost May Go up to 3.5 Times: India Inc, the eCoNoMiC tiMeS August 29, 2013, available

at http://articles.economictimes.indiatimes.com/2013-08-29/ news/41582557_1_resettlement-rehabilitation-

land-acquisition-bill-unutilised-land (Last vis-ited on January 5, 2014).19

PTI, Land Bill, A Retrograde Step: Industry, the eCoNoMiC tiMeS August 30, 2013, available athttp://articles.economictimes.indiatimes.com/2013-08-30/news/41619002_1_land-acquisi-tion-bill-acquiring-

land-land-owners (Last visited on January 6, 2014).


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facilitative land acquisition process to restore investor sentiments.20

However, with the

multi-fold increase in project cost, severe lengthening of the project cycle, pro-visions on

retrospective effect etc., the Land Acquisition Act, 2013 has elicited severe angst from India

Inc.

Background:

The Right of Fair Compensation and Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 is an act passed by Indian Government in 2013. It was passed for the

purpose of fair compensation in case of land acquisition, as well as transparency in

rehabilitation and resettlement. This act has replaced the previous land acquisition act of

1894. This act was passed due to certain lacunas and loopholes in old land acquisition act of

1894.

Its footing goes back in 2007 when UPA government introduced Amendment bill, 2007 in

parliament. After that land acquisition act, 2009 and the rehabilitation and resettlement bill,

2009 was introduced in parliament. Both bill lapsed in parliament. National Advisory Council

after digging into depth of circumstances and issues related to land acquisition decided to

recommend a single comprehensive legislation, i.e. “National Development, Land

Acquisition, Resettlement and Rehabilitation Act.”, rather than the two separate ones, viz.

Land Acquisition (Amendment) Bill 2009 (LAA 2009) and Resettlement and Rehabilitation

Bill, 2009 (R&R 2009).21

Thus in furtherance of it the LARR bill, 2011was introduced in the

parliament, which was passed in 2013 and became an act.

20 TNN, Land Bill is a Retrograde Measure, Says India Inc., the tiMeS of iNDia August 31, 2013, available at

http://timesofindia.indiatimes.com/business/india-business/Land-bill-is-a-retrograde-measure-says-India-Inc/articleshow/22177234.cms (Last visited on January 5, 2014).21

Press Release of National Advisory Council (2009), http://nac.nic.in/press_releases/25_may_2011.pdf


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The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 is a legislation that regulates land acquisition and provides laid

down rules for granting compensation, rehabilitation and resettlement to the affected

persons in India. The Act has provisions to provide fair compensation to those whose land is

taken away, brings transparency to the process of acquisition of land to set up factories or

buildings, infrastructural projects and assures rehabilitation of those affected. The Act will

replace the Land Acquisition Act, 1894, a nearly 120yearold law enacted during British rule.

Aims and objectives:

To ensure, in consultation with institutions of local selfgovernment and Gram Sabhas

a humane, participative, informed and transparent process for land acquisition for

industrialization, development of essential infrastructural facilities and urbanization

with the least disturbance to the owners of the land and other affected families

Provide just and fair compensation to the affected families whose land has been

acquired or are affected by such acquisition

Make adequate provisions for such affected persons for their rehabilitation and

resettlement

Purpose and scope:

The Act aims to establish the law on land acquisition, as well as the rehabilitation and

resettlement of those directly affected by the land acquisition in India. The scope of the Act

includes all land acquisition whether it is done by the Central Government of India, or any

State Government of India, except the state of Jammu & Kashmir.


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Why new Land acquisition act:

When we look to the need of new land acquisition act, we can find many important reasons

and issues. Some of the main chosen issues and reasons are as followed:

• Due to development of industries and globalisation, Special Economic Zone etc. the

need for urbanisation and land has increased. On the other hand the land owners whose

land has to be acquisitioned by state must be provided with fair compensation and,

resettlement and rehabilitation arrangements. Thus requirement of land is essential for the

economic growth and industrialisation, and on the other hand the affected people must also

not suffer due to such acquisition.

• The word “public purpose” has caused major problem. Supreme Court in cases like

Yamuna Express way, Smt. Somavati & ors. case etc. has given wide meaning to the word

public purpose. In such cases, court has held that acquiring land and giving it to private

company for some projects which does not use it for public purpose in true manner is valid.

Thus such loose interpretation and lack of clear guidelines is also one of the main reasons

for new land acquisition.

• The old act had nothing for resettlement and rehabilitation in case of eminent

domain acquisition by state or acquisition for private company for the operation related to

public purpose. The affected people faces great problem regarding it although

compensation is provided to them.

• Previously the compensation deciding authority was collector. The compensation

paid was to be calculated on the basis of local market value. But detail procedure for the


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calculation of the compensation and any other guidelines were not there. In certain cases

the land owner were fooled.

• Old act didn’t contain provision for consent from land owner whose land

government plans to seize. Due to lack of such provisions incidents like Nandigram took

place, where for the setup of SEZ (Special Economic Zone) government decided to seize the

land of the farmers and sudden notice was given to them.

• One major problem in old act was section 17, which talks about urgency clause. This

urgency clause has highly been misused by the private companies and the state. There is no

better example than Nandigram incident.

Objective of the new land acquisition act:

The objective of the “The Right of Fair Compensation and Transparency in Land Acquisition ,

Rehabilitation and Resettlement Act, 2013”, can be obtained from the act and the national

draft LARR bill 2011. The following objective can be construed from the act and national

draft LARR bill 2011:

• First objective of the act is to define and guide such process with the consultation

with local self-government and Gram Sabha for the land acquisition, which is transparent,

informative and participative & the objective of such land acquisition is for development of

essential infrastructure and urbanisation, which is necessary for public purpose.

• Second objective is to ensure and make such arrangements that the land owners

whose land is to be acquired are getting just and fair compensation taking into

consideration all the economic and social circumstances. And to ensure proper process and

guideline for the same.


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• When a land is acquired apart from land owners some other families which are

directly or indirectly dependent on that land also suffer. Third major objective which was

not in old land acquisition act is rehabilitation and resettlement of the affected land owners

and families.

The first objective somehow incorporates economic approach of jurisprudence. And other

two objectives tend to incorporate sociological school of jurisprudence. The jurisprudence

of the act will be discussed in further part of this write up.

Some important highlights of New Land Acquisition Act:

• New Land Acquisition Act gives a wider and clearer explanation of the purpose for

which land can be acquired as compared to previous act. It also elaborates which industrial

projects this act covers. (Section 1 and Section 2(l))

• Unlike old act, the new act makes it compulsory to acquire the consent of the

affected people and land owners (Section 2(b)). For the purpose of accessing consent the

Social Impact Assessment Study has been incorporated in section 4.

• It increases the time period of notice to be given in urgency clause from 15 to 30

days. Apart from it, it provides provisions for sharing of profit in case acquired land is

transferred and in case of resale of land prior permission of government is must.

• One of the important and must require provision incorporated is rehabilitation and

resettlement arrangements for the affected people.


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Jurisprudence behind the new land acquisition act:

First objective of the act focuses on the development of industries and infrastructure of the

country by acquiring the lands of general public. This objective of industrialisation and

infrastructure leads to economic development of the country, and other objectives are flow

from it and are there to reduce the effect of it.

Further the objective talks about acquisition of land for the public purpose. Public purpose

in wide sense includes public welfare and has a wide ambit. As said by the Apex Court in Dev

Sharan v. State of Uttar Pradesh22

, the public purpose in case of land acquisition should be

viewed in an angle consistent with the concept of welfare state. Welfare state talks about

interest of society and general public. Social Engineering concept given by Rosco Pound

which focuses on construction of efficient society which satisfies the wants of all present in

society fits this act. He talked about three interests, viz. private, public and social interest.

The given act provides compensation to all the affected families, thus protecting their

private interests.

Rehabilitation and resettlement tends to make change in the social and economic condition

of the affected families. As their source of earning and shelter are acquired by the

government. Because of this change in social and economic conditions of affected families,

the act provides the rehabilitation and resettlement arrangement to them.

While defining the objective of the acts in the given write up, it was mentioned that

jurisprudence behind this act is related to economic approach and sociological approach.

Now after detail and elucidate discussion of the objective, it can be concluded that the act

adopts economic and sociological approach.

22 (2011) 4 SCC 769


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The Act is applicable when:

Government acquires land for its own use, hold and control, including land for Public sector

undertakings.

Government acquires land with the ultimate purpose to transfer it for the use of private

companies for stated public purpose. The purpose of LARR 2013 includes public private

partnership projects, but excludes land acquired for state or national highway projects.

Government acquires land for immediate and declared use by private companies for public

purpose. The provisions of the Act does not apply to acquisitions under 16 existing

legislations including the Special Economic Zones Act, 2005, the Atomic Energy Act, 1962,

the Railways Act, 1989, etc.

Preliminary Notification

The process of acquisition begins with the issuance of preliminary notification, as envisaged

under Section 11 of Right to Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013. Whenever, it appears to the appropriate

Government that land in any area is required or likely to be required for any public purpose,

a preliminary notification under Section 11 in rural or urban areas shall be published.

Publication of Notification:

The Preliminary Notification shall be published in the following manner:

(a) in the Official Gazette;

(b) in two daily newspapers circulating in the locality of required area of which one shall be

in the regional language;


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(c) in the local language in the Panchayat, Municipality or Municipal Corporation, and in the

offices of the District Collector, the Subdivisional Magistrate and the Tehsil;

(d) uploaded on the website of the appropriate Government;

Immediately after issuance of the notification, the concerned Gram Sabha or municipalities

shall be informed of the contents of the notification issued in all cases of land acquisition at

a meeting called especially for this purpose.

The notification to be issued shall contain details of the land to be acquired, a statement on

the nature of the public purpose involved, reasons necessitating the displacement of

affected persons, summary of the Social Impact Assessment Report and particulars of the

Administrator appointed for the purposes of rehabilitation and resettlement.

In Khub Chand vs. State of Rajasthan23

, the Court has held that, the words of Section 4(1) of

the Land Acquisition Act, 1984 clearly suggest that the requirement is a mandatory one.

Publication of the notification in the manner prescribed in Section 4(1) of the Act, it appears

from the subsequent scheme of the Act, is an indispensable condition for a valid acquisition.

In Habib Ahmed v. State of Uttar Pradesh24

, the Court has held that neither the notification

nor the declaration can be quashed on the ground that there was no necessity for acquiring

the land for a public purpose. Whether the land is required for a public purpose or not has

to be decided solely by the State Government.

In K.Madhava Rao v. State of A.P.25

, that Court observed that it is duty of Court to determine

whenever question is raised whether acquisition is or not for public purpose. However,

23

(1967)1 SCR 12024 AIR 1965 All. 344 at p. 345

25 2006 NOC 589 (A.P.)195


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prima facie Government is the best judge as to whether acquisition is for public purpose.

But it is not sole judge.

Although the above cases were dealt under the old law of Land Acquisition Act, 1984, but

the provisions of the new Act and the old law are somewhat similar. Therefore, the rules

laid down in the landmark judgments under the old law will hold well under the new Act

also.

Restriction on Transaction:

No person shall make any transaction or cause any transaction of land specified in the

preliminary notification from the date of publication of such notification till such time as the

proceedings of acquisition are completed.

Provided that the Collector may, on the application made by the owner of the land so

notified, exempt in special circumstances to be recorded in writing, such owner from the

operation of this restriction. But any loss or injury suffered by any person due to his wilful

violation of this provision shall not be made up by the Collector.

Lapse of SIA Report:

Section 14 provides that where a preliminary notification under section 11 is not issued

within 12 months from the date of appraisal of the Social Impact Assessment (SIA) report

submitted by the Expert Group under section 7, then, such report shall be deemed to have

lapsed and a fresh Social Impact Assessment shall be required to be undertaken prior to

acquisition proceedings.


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The appropriate Government shall have the power to extend the period of twelve months, if

in its opinion circumstances exist justifying the same but such decision shall be recorded in

writing and the same shall be notified and be uploaded on the website of the authority

concerned.

Survey Of Land

Section 12 provides for the preliminary survey of land and power of officers to carry out

such survey. For the purposes of enabling the appropriate Government to determine the

extent of land to be acquired, it shall be lawful for any officer, either generally or specially

authorised by such Government in this behalf, and for his servants and workmen, –

(a) to enter upon and survey and take levels of any land in such locality;

(b) to dig or bore into the subsoil;

(c) to do all other acts necessary to ascertain whether the land is adapted for such purpose;

(d) to set out the boundaries of the land proposed to be taken and the intended line of the

work (if any) proposed to be made thereon; and

(e) to mark such levels, boundaries and line by placing marks and cutting trenches and

where otherwise the survey cannot be completed and the levels taken and the boundaries

and line marked, to cut down and clear away any part of any standing crop, fence or jungle.

Restriction:

No act under clauses (a) to (e) in respect of land shall be conducted in the absence of the

owner of the land or in the absence of any person authorised in writing by the owner. Such

survey may be undertaken in the absence of the owner, if the owner has been afforded a

reasonable opportunity to be present during the survey, by giving a notice of at least sixty

days prior to the survey.


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In Satnam Singh v. State of Punjab26

, the Court held that a notice is necessary condition

precedent for the exercise of the power of the entry, and noncompliance with these

conditions make the entry of the officer or his servants unlawful.

Payment for Damages:

Section 13 provides that the officer shall at the time of entry under section 12 pay for any

damage caused. It is payment for the intended damage. Damage means any harm done to

land during the course of surveying it and other acts necessary to ascertain whether it is

capable of being adapted for public purpose.

In case of dispute as to the sufficiency of the amount so paid the officer shall at once refer

the dispute to the decision of the Collector or other chief revenue officer of the district, and

such decision shall be final.

Section 15 is consistent with the basic principle that no man’s property shall be acquired

unless he has been given an opportunity of being heard. The main objective of issuing

preliminary notification is to call for objections, if any, against such acquisitions from the

owners or others who are having certain interest over the property; giving them an

opportunity to raise their claims against the move of the government for acquiring their

lands. Section 15(1) provides that any person interested in any land which has been notified

as being required or likely to be required for a public purpose, may within 60 days from the

date of the publication of the preliminary notification, object to –

(a) the area and suitability of land proposed to be acquired;

(b) justification offered for public purpose;

26 (1969)9 Cur. L. J. 75 at p. 79 (P&H)


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(c) the findings of the Social Impact Assessment report.

Report on the Objections:

Every objection shall be made to the Collector in writing. The Collector shall give the

objector an opportunity of being heard in person or by any person authorised by him or by

an Advocate and shall, make a report to the appropriate Government, containing his

recommendations on the objections, together with the record of the proceedings held by

him along with a separate report giving therein the approximate cost of land acquisition,

particulars as to the number of affected families likely to be resettled, for the decision of

that Government.

If objections are made, the Collector will consider those objections and make his

recommendation thereon in his report to government. If no objections are made, the

Collector has got to make a report. It is thereafter that the Government is empowered to

proceed further. Section 15(3) provides that the decision of the appropriate Government on

the objections shall be final.

Rehabilitation & Resettlement Scheme

Section 16 provides for the preparation of Rehabilitation and Resettlement Scheme by the

Administrator.

Upon the publication of the preliminary notification by the Collector, the Administrator for

Rehabilitation and Resettlement shall conduct a survey and undertake a census of the

affected families, in such manner, which shall include –

(a) particulars of lands and immovable properties being acquired of each affected family;


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(b) livelihoods lost in respect of landless who are primarily dependent on the lands being

acquired;

(c) a list of public utilities Government buildings, amenities and infrastructural facilities

which are affected or likely to be affected, where resettlement of affected families is

involved;

(d) details of any common property resources being acquired.

Drafting the Scheme:

The Administrator shall, based on the survey and census before, prepare a draft

Rehabilitation and Resettlement Scheme, which shall include

i) particulars of the rehabilitation and resettlement entitlements of each land owner and

landless whose livelihoods are primarily dependent on the lands being acquired and where

resettlement of affected families is involved;

(ii) details of Government buildings, public amenities and infrastructural facilities which are

to be provided in the Resettlement Area;

The draft shall include time limit for implementing Rehabilitation and Resettlement Scheme.

It shall be made known locally by public hearing in the affected area and discussed in the

concerned Gram Sabhas or Municipalities.

The Administrator shall, on completion of public hearing submit the draft Scheme for

Rehabilitation and Resettlement along with a specific report on the claims and objections

raised in the public hearing to the Collector.


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Under Section17 the Collector shall review the draft Scheme submitted by the Administrator

with the Rehabilitation and Resettlement Committee at the project level constituted under

section 45.

The Collector shall submit the draft Rehabilitation and Resettlement Scheme with his

suggestions to the Commissioner Rehabilitation and Resettlement for approval of the

Scheme.

If the scheme is approved then the Commissioner shall under Section 18 cause the approved

Rehabilitation and Resettlement Scheme to be made public in the following way:

(i) in the local language to the Panchayat, Municipality or Municipal Corporation, as the case

may be, and the offices of the District Collector, the SubDivisional Magistrate and the Tehsil;

(ii) in the affected areas;

(iii) uploaded on the website of the appropriate Government.

Declaration

After receipt of objections, the concerned authority shall consider those objections, and if

found unsatisfactory, then a final declaration rejecting the claims will be issued. Section 19

of the new Act provides that the final declaration shall be published by the authority within

a period of 12 months from the date of issuance of preliminary notification under section 11

of the Act.

When the appropriate Government is satisfied, that any particular land is needed for a

public purpose, a declaration shall be made to that effect, along with a declaration of an

area identified as the “resettlement area” for the purposes of rehabilitation and


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resettlement of the affected families, under the hand and seal of a Secretary to such

Government or of any other officer duly authorised to certify its orders and different

declarations may be made from time to time in respect of different parcels of any land

covered by the same preliminary notification.

Publication of Declaration:

Every declaration shall be published in the following manner:

(a) in the Official Gazette;

(b) in two daily newspapers being circulated in the locality, of which one shall be in the

regional language;

(c) in the local language in the Panchayat, Municipality or Municipal Corporation, as the case

may be, and in the offices of the District Collector, the SubDivisional Magistrate and the

Tehsil;

(d) uploaded on the website of the appropriate Government.

Summary of Scheme:

The Collector shall publish a summary of the Rehabilitation and Resettlement Scheme along

with declaration. But no declaration under this shall be made unless the summary of the

Rehabilitation and Resettlement Scheme is published along with it.

Also, the ‘Requiring Body’ must deposit an amount, in full or part, as may be prescribed by

the appropriate Government towards the cost of acquisition of the land.


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Requiring Body as defined under Section 3(zb) means a company, a body corporate, an

institution, or any other organisation or person for whom land is to be acquired by the

appropriate Government, and includes the appropriate Government, if the acquisition of

land is for such Government either for its own use or for subsequent transfer of such land is

for public purpose to a company, body corporate, an institution, or any other organisation.

In Habib Ahmed v. State of Uttar Pradesh27

, the Court has held that neither the notification

nor the declaration can be quashed on the ground that there was no necessity for acquiring

the land for a public purpose. Whether the land is required for a public purpose or not has

to be decided solely by the State Government.

Lapse of Notification:

Where no declaration is made within 12 months from the date of preliminary notification,

then such notification shall be deemed to have been rescinded. Provided that in computing

the time of 12 months any period during which the proceedings for the acquisition of the

land were held up on account of any stay or injunction by the order of any Court shall be

excluded. The appropriate Government may decide to extend the period of 12 months, if in

its opinion circumstances exist justifying the same, which shall be recorded in writing and

notified and be uploaded on the website of the authority concerned.

The declaration shall be conclusive evidence that the land is required for a public purpose

and after making such declaration, the appropriate Government may acquire the land in

such manner as specified under this Act.

27 AIR 1965 All. 344 at p. 345


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Notice To Persons Interested

Section 3(x) defines ‘person interested’ as(

i) all persons claiming an interest in compensation to be made on account of the acquisition

of land;

(ii) the Scheduled Tribes and other traditional forest dwellers, who have lost any forest

rights recognised under the Scheduled Tribes and Other Traditional Forest Dwellers

(Recognition of Forest Rights) Act, 2006;

(iii) a person interested in an easement affecting the land;

(iv) persons having tenancy rights under the relevant State laws including sharecroppers;

and

(v) any person whose primary source of livelihood is likely to be adversely affected;

Public Notice:

Under Section 21 the Collector shall publish the public notice on his website and cause

public notice to be given at convenient places on or near the land to be taken, stating that

the Government intends to take possession of the land, and that claims to compensations

and rehabilitation and resettlement for all interests in such land may be made to him.

The public notice shall state the particulars of the land so needed, and require all persons

interested in the land to appear personally or by agent or advocate before the Collector at a

time and place mentioned in the public notice to state their claims to compensation

rehabilitation and resettlement along with their objections which may be in writing.


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The time period should not be less than 30 days and not more than 6 months after the date

of publication of the notice.

In case any person interested resides elsewhere, and has no agent, the Collector shall

ensure that the notice shall be sent to him by post in letter addressed to him at his last

known residence, address of business and also publish the same in at least two national

daily newspapers and also on his website.

In State of Madras v. B.V. Subramania Iyer 28

, the Court held that the word “Dispute”

includes any controversy with regard to the title of a single claimant. It is obvious that when

the government exercises its power of eminent domain and acquires property, public funds

have to be utilized for the payment of compensation to the true owner, and not merely to

any claimant who cares to appear on the scene. The government has a special responsibility

in this regard, and cannot later take refuge behind the pretext that the compensation was

paid to the claimant who actually appeared while others did not appear.

Statement to Collector:

Under Section 22 the Collector may also require any interested person to make or deliver to

him a statement within 30 days containing the name of every other person possessing any

interest in the land or any part thereof as coproprietor, subproprietor, mortgagee, tenant or

otherwise, and of the nature of such interest, and of the rents and profits, if any, received or

receivable on account thereof for three years next preceding the date of the statement.

Every person required to make or deliver a statement to the Collector shall be deemed to be

legally bound to do so within the meaning of Section 175 (Omission to produce document to

28 AIR 1962 Mad. 313


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public servant by person legally bound to produce it) and Section 176 (Omission to give

notice or information to public servant by person legally bound to give it) of the Indian Penal

Code 1860.

Acquisition Award

The new Act stipulates that the minimum compensation is to be a multiple of the total of

the ascertained market value, plus value of the assets attached to the property, plus a

solatium equal to 100% of the market value of the property including value of assets.

Under Section 23 the Collector shall proceed to enquire into the objections which any

person interested has stated pursuant to a notice given under Section 21 and into the

respective interests of the persons claiming the compensation and rehabilitation and

resettlement, shall make an award under his hand of –

(a) the true area of the land;

(b) the compensation as determined under Section 27 along with Rehabilitation and

Resettlement Award as determined under Section 31 and which in his opinion should be

allowed for the land; and

(c) the apportionment of the compensation among all the persons known or believed to be

interested in the land, or of whose claims, he has information, whether or not they have

respectively appeared before him.


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Period for Award:

Under Section 25 the Collector shall make an award within a period of 12 months from the

date of publication of the declaration and if no award is made within that period, the entire

proceedings for the acquisition of the land shall lapse.

Provided that the appropriate Government may take the decision to extend the period of 12

months if in its opinion, circumstances exist justifying the same but such decision shall be

recorded in writing and the same shall be notified and be uploaded on the website of the

authority concerned.

Determining Market Value:

The claimant will be entitled to the compensation which is determined on the basis of the

market value of the land determined as on the date of preliminary notification. The market

value of the proposed land under Section 26 to be acquired shall be set as the higher of:

• the minimum land value, if any, specified in the Indian Stamp Act, 1899 for the registration

of sale deeds in the area, where the land is situated; or

• the average of the sale price for similar type of land b eing acquired, ascertained from the

highest fifty per cent of the sale deeds registered during the preceding three years in the

nearest village or nearest vicinity of the land being acquired.; or

• the consented amount in case the land is acquired for private companies or public-private

partnership projects.


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The market value would be multiplied by a factor of, at least one to two times the market

value for land acquired in rural areas and at least one times the market value for land

acquired in urban areas.

Example:

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 mandates compensation and entitlements without limit to number

of claimants. Thus, for clarity and as an example, if 1000 acres of rural land is to be acquired

for a project, with market price of Rs.2,25,000 per acre, 100 families claim to be land

owners, and 5 families per acre claim their rights as livelihood losers under the new Act, the

total cost to acquire the 1000 acre would be

Land compensation = Rs.90,00,00,000

Land owner entitlements = Rs.6,30,00,000 + 100 replacement homes

Livelihood loser entitlements = Rs.365,00,00,000 + 5000 replacement homes

The average effective cost of land, in the above example will be at least Rs.41,00,000 per

acre plus replacement homes and additional services.

The new Act of 2013 proposes the above benchmarks as minimum. The state governments

of India, or private companies, may choose to set and implement a policy that pays more

than the minimum proposed.

Value of Things Attached:

The Collector in determining the market value of the building and other immovable property

or assets attached to the land or building which are to be acquired, under Section 29 will use


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the acquisition of the land by the Collector, the person interested is compelled to change his

residence or place of business, the reasonable expenses incidental to such change; the

damage bona fide resulting from diminution of the profits of the land between the time of

the publication of the declaration under section 19 and the time of the Collector’s taking

possession of the land: and any other ground which may be in the interest of equity, justice

and beneficial to the affected families.

Award of Solatium:

The Collector after having determined the total compensation to be paid shall, to arrive at

the final award, under Section 30 impose a “Solatium” which is the amount equivalent to

100% of the compensation amount.

This solatium amount shall be in addition to the compensation payable to any person whose

land has been acquired. The Collector shall issue individual awards detailing the particulars

of compensation payable and the details of payment of the compensation as specified in the

First Schedule.

In addition to the market value of the land provided under section 26, the Collector shall,

award an amount calculated at the rate of 12% per annum on such market value for the

period commencing from the date of the publication of the notification of the Social Impact

Assessment study under section 4(2), till the date of the award of the Collector or the date

of taking possession of the land, whichever is earlier.

Contravening Provisions and Problematic Issues of the act:

The given act primarily is objected at land acquisition for the public purpose. The new has

widened the scope of the term “public purpose”. (Section 2(l)) This widened scope covers a


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large array of projects. Thus the probability of misusing has increased due to widening in

scope of “public purpose”.29

This probability of misusing will defeat the very purpose of

economic development through industrialisation.

The major change is related to acquisition by private companies. In the new act certain

requirements which are needed in case of acquisition by private company. The new act

requires consent of 80% in case of private company and 70% in case of public company of

affected families. For this it has given SIA assessment technique. But the given act fails to

define at certain pints of SIA assessment for example how SIA would be conducted and by

which authority or body. Because of it the private companies can use different

inappropriate means for acquiring consent. But the given act does not require consent of

affected families, in case the land is acquired by the government in certain cases as given in

section 2(l) public purpose clause. Now the given clause is in contravention of the objective

which talks about participative, informative and transparency in land acquisition.

30

One of the major provisions incorporated in new land acquisition act is “Rehabilitation and

Resettlement” provision. On the one hand the act is providing the rehabilitation and

resettlement arrangements to the affected people which not only include land owners but

other affected families also. Section 69 says that calculation of the “rehabilitation and

resettlement cost” should be done in accordance with section 26 and 30. Section 26 talks

about calculation of market value of land and section 30 talks about “Solatium” based on

that calculate market value under section 26. How can rehabilitation and resettlement cost

29 Supra note 3 at Page 99

30 Alphonsa Joja, Anviti Chaturvedi, Ayesha Talpade, Modhulika Bose, Stella James ans Saurabh (2011) 3, “Of

Platitude and Million-Dollar Promises- A Critique of The Land Acquisition, Rehabilitation and Resettlement

Bill, 2011”, Journal of India Law and Society, p.29 to 66


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can be calucalated on the basis of market value and how reasonably it depends on the

market value? The answer this question is not there. Also section 40 gives power to

Government to seize land in urgency on expiration of 30 days of notice given in section 30,

even if such awards are not given by collector. This section contradicts the third objective.

Other problematic issue is regarding the compensation provisions from Section 26 to

Section 30. The calculation of compensation is on the basis of the market value if any

specified in Indian Stamp Act, 1899 regarding the sale of land or average sale price of land in

that locality and nearby. Although the method for calculation of the compensation is given,

but still it is arbitrary as market value does not take into account future value of the land

and price stated in the act may be understated. So the objective of giving just and fair

compensation is somehow goes sceptical, although the compensation in rural area is double

of market value.31

Further it provides the provisions for compensation and process for calculating it, further it

provides incentives for the affective parties to litigate for the compensation given to them.

The tendency to litigate for compensation will remain same as the basis for deciding

compensation has not undergone significant change, although the amount of award is

double in rural areas. The new act although replace the ADJ court with LARR Authority in

case of compensation related disputes, but it meres transfer burden from ADJ court to LARR

authority which is not an appropriation solution to problem of litigation and the resulting

wastage of resources.32

31

Supra note 10 at Page 57.32 Ram Singh (2012) 47, “Inefficiency and Abuse of Compulsory Land Acquisition- An Enquiry into Forward”,

Economic & Political Weekly, 19, p.10-14


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or no compensation in the process of land acquisition and hence would be the worst victim

in the course. The farmer‟s at Singur organized themselves as a “Save agricultural land

committee. There were women protestors mainly fighting the Govt. and resisting the

acquisition of their lands.34

The resettlement and rehabilitation became the core issue in India during 20th century

when lot of people were deprived of their own lands and were falsely promised

compensation. As a consequence of this injustice the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 made its way

to the parliament with the aim to minimize and address the plight of the victims of land

acquisition and to provide proper resettlement and rehabilitation. The Land Acquisition bill

2013 has been renamed as the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013. “Land Acquisition” means the

acquisition of land owned by the individual landowners for some public purpose by a

government agency, after paying a government-fixed compensation to the land losers to

cover losses incurred while surrendering their land to the concerned government agency.

This act also connects to the doctrine of eminent domain which is based on the State power

of compulsory acquisition of land. The first recorded description of this doctrine is in the

writings of jurist, Hugo Grotius:

“The property of subjects is under the eminent domain of the State, so that the State may

use and even alienate and destroy such property, not only in the case of extreme necessity

but for ends of public utility, to which ends that who founded civil society must be supposed

to have intended that private ends should give way. But it is to be added that when this is

34 Parthasarathi Banerjee, “Land Acquisition and Peasant Resistance at Singur”, Economic and Political Weekly,

Vol. 41, No. 46 (Nov. 18-24, 2006), pp. 4718-4720, retrieved from: http://www.jstor.org/stable/4418907


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done the State is bound to make good the loss to those who lose their property”. Grotius‟

doctrine places two constraints on the exercise of the power of eminent domain: first, that

the acquisition be for the purpose of “public utility‟ and second, that the owner be

compensated for the loss of his property and also put emphasis on the responsibility of the

State to protect private property, and at the same time, to move society toward higher

social good.35

The new Land Acquisition Act 2013 concerns only such cases where the land will be acquired

by Central or State Authorities for any public purpose and is not against industrialization and

urbanisation, there is no restriction on purchase of private land. The Rehabilitation and

resettlement Act tends to address two critical aspects of land acquisition i.e.

1. Acquisition and

2. Rehabilitation and Resettlement.36

The new Land Acquisition Act, enacted by Parliament in September provides just and fair

compensation to those whose land is taken away for constructing roads, buildings or

factories, replacing 120-year-old legislation. The Act, meant for bringing transparency to the

process of acquisition of land, provides for liberal compensation and rehabilitation of those

affected by the takeover. The new law, Right to Fair Compensation and Transparency in

Land Acquisition, Rehabilitation and Resettlement Act laid down:

1. Mandatory approval of at least 70% of affected people for acquiring land for Public

Private Partnership (PPP) projects and 80% for acquiring land for private companies.

35 Richard Epstein, “Takings: Private Property and the Power of Eminent Domain”, Harvard University Press,

January (1985)36 ICRA,” Impact Analysis, 2013: New Land Acquisition Bill”, retrieved from:

http://www.icra.in/Files/ticker/new%20land%20acquisition%20bill.pdf


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2. State governments will have to set up at least six bodies, including the state-level Land

Acquisition Rehabilitation and Resettlement Authority, to take notice of disputes arising out

of projects where land acquisition has been initiated by the state or its agencies. The state

governments also should take immediate steps to create and establish the State Social

Impact Assessment Unit, the office of the Commissioner Rehabilitation and Resettlement

and the State Level Monitoring Committee.

3. Compensation for the owners of the acquired land will be four times the market value in

rural areas and twice in urban areas. It also stipulates that the land cannot be vacated until

the entire compensation is awarded to the affected parties.

4. Companies can lease the land instead of purchasing it. Besides, the private

companies will have to provide for rehabilitation and resettlement if land acquired through

private negotiations is more than 50 acres and 100 acres in urban and rural areas,

respectively.

5. It prescribes the need for a Social Impact Assessment by the Gram Sabha or an

equivalent body in urban areas as part of the preliminary investigations for the land

acquisition which will assess the legitimacy of public interest involved, apart from the

impact on affected families and the availability of better alternatives.37

The new law

provides with the provisions which are much more humane taking into considerations like

proper compensation to the private individuals for acquiring their land, setting up of state-

level Land Acquisition Rehabilitation and Resettlement Authority, and focusing upon the

Social Impact Assessment program which is a systematic scrutiny in advance of

development or policy changes that will bring social change to a community. Section 4 of

37 ICRA, “Impact Analysis 2013: New Land Acquisition Bill”, retrieved from:

http://www.icra.in/Files/ticker/new%20land%20acquisition%20bill.pdf


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LARR Act 2013 is introduced for preliminary investigation for determination of social impact

and public purpose. Following are the provisions of the new Act of 2013 replacing many

provisions of the colonial Act of 1894:

Land Acquisition Act of 1894

The term “ public purpose” was ambiguous and

open to Government‟s discretion

Land acquisition Act 2013

Clearly defines various types of “public

purpose” projects for which, Government can

acquire private land.

Land could be acquired forcibly.

They were given no voice in decision making.

For private project, 80% affected families

must agree.

For PPP project, 70% affected families

must agree.

Only then land can be acquired.

Under Social impact assessment (SIA) even

need to obtain consent of the affected artisans,

laborers, share-croppers, tenant farmers, fishermen, small traders, etc. whose

(sustainable) livelihood will be affected

because of the given project.

Government was free to decide how much

money to pay while acquiring private land.

Compensation proportion to market rates.

4 times the market rate in rural area.

2 times in urban area.

Affected artisans, small traders, fishermen etc.

will be given one-time payment, even if they

don‟t own any land.


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Nandigram Land Grab Case

The incident took place on 14th March 2007 in Nandigram West Bengal due to the forceful

attempt of acquisition of land of 10,000 acres by the Communist Party of India for setting up

of Special Economic zone (SEZ). The farmers under the Bhoomi Raksha Committee refused

to surrender their land for the proposed SEZ and the violence erupted as a result of which

No such restrictions on fertile land To ensure food security:

1. Fertile, irrigated, multi-cropped farmland

can be acquired only in last resort.

2. If such fertile land is acquired, then

Government will have to develop equal

size of wasteland for agriculture purpose.

No provisions for rehabilitation and

resettlement

If Government acquires the lands for private

company- the said private company will be

responsible for relief and rehabilitation of the

affected people.

Additional rehabilitation package for SC/ST

owners. Example- fishing rights over dam,

25% extra money if settled outside their native

district and so on.

No such safeguards State Governments have to setup dispute

settlement authorities. Chairman must be a No such accountability Head of the department will be made

If project did not start, then acquired land was If project doesn‟t start in 5 years, land has to be


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14 villagers died and 70 more got wounded. The CPI (M) took the local people for granted

on an issue that affected their very livelihoods.38

The experience of land acquisition has been tremendously miserable for farmers. To mete

out the intricacies of land acquisition the LARR Act 2013 inserts the Social Impact

Assessment (SIA) to determine whether the projects are serving the stated public purpose.

A social impact assessment is the identification, analysis and evaluation of a social impact

resulting from a particular event" where a social impact is defined as a "significant

improvement or deterioration in people's well-being or a significant change in an aspect of

community concern.39

The land acquisitions must result in a societal position that brings in

equilibrium, the interests of the displaced and the benefits of the land acquired, to the

public at large. The Social Impact Assessment study and its review by an independent group

of expert is the main social safeguard provided by the bill.40

This expert group will evaluate

the SIA and examine whether the project serves the stated public purpose, whether it is in

the larger public interest and whether the costs and adverse impacts of the project

outweigh the potential benefits. On these grounds, individually, the expert group is required

to express its opinion as to whether the project should be allowed to continue or not.41

The

study draws on consultations with Gram Sabha members to review the nature of public

interest concerned in the project and its potential benefits compared to social and

environmental costs; the number of affected families and the socio-economic impact on

38 “Taking People for Granted, Economic and Political Weekly”, Vol. 42, No. 2 (Jan. 13-19, 2007), p. 80,

retrieved from: http://www.jstor.org/stable/441911839

James C. Cramer, Thomas Dietz and Robert A. Johnston, “Social Impact Assessment of Regional Plans: A

Review of Methods and Issues and a Recommended Process,” Policy Sciences, Vol. 12, No. 1 (Jun., 1980), pp.

61-82, Springer, Retrieved from: http://www.jstor.org/stable/453180040

Lucy Duboche, “Land Acquisition in India: Will the Proposed Bill Protect Displaced People?”, Oxfam India,

New Delhi, October 201241 Nihal Joseph, Shrinidhi Rao , “Land Acquisition Bill,2011: One step forward, two steps back ”, retrieved from:

http://nujslawreview.org/wp-content/uploads/2015/02/nihal-joseph-and-shrinidhi-rao.pdf


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adjoining areas; whether the extent of land proposed for acquisition is the bare-minimum

required, and whether acquisition at an alternate place is not feasible.42

The assessment is

then reviewed by a group of five external experts, who may “make a recommendation that

the project shall be abandoned” if its impacts are deemed unacceptable. Ambiguities in this

sentence undermine the reliability of the social safeguard. The binding nature of the

recommendation needs to be spelt out in a way that leaves no room for future

interpretations.43

The proposed bill takes one major step forward by providing Resettlement

and Rehabilitation (R&R) entitlements to all affected people, in addition to the generous

monetary compensation for landholders.44

However, this will prove carrying great weight

only if R&R measures are strengthened. Land should be compensated by land of comparable

value wherever possible. Public interest would only be served if an acquisition results in

community benefit, after accounting for the social cost from acquiring that specific land.

Therefore, in each case, the costs and benefits of the acquisition to society must be

considered. It would only be equitable if the principle of societal benefit was reaffirmed by

focusing on the specific land obtained in each case.

42 Lucy Duboche, “The proposed Land Acquisition Bill Putting Livelihoods First” , Oxfam India, New Delhi,

October 201243

Lucy Dubochet, “Land Acquisition in India: Will the Proposed Bill Protect Displaced People?", Oxfam India,

October 2012, retrieved from: http://www.indiaenvironmentportal.org.in/files/file/india-land-acquisition.pdf44 Niranjan Sahoo, Samya Chatterjee, “The Land Acquisition Stalemate: Contentions & Solutions”, ORF

Seminars, Vol. 1, Issue 11, April 2013


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Documents

Land Laws Final.pdf