By Persis Ginwalla* and Sagar Rabari**
The Government of Gujarat, on 1st April 2016, passed (in the absence of the Opposition) “Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Gujarat Amendment) Bill, 2016” (Annexure 1) in the Assembly. The Bill, in order to become an Act, will require the sanction of the Governor as well as the President of India. This might not be much of a problem, we surmise. What the LARR Ordinance 2014 had proposed to do but could not, the GoG Bill is doing in Gujarat. With a few changes, the tone and tenor of the Gujarat LARR Bill is almost the same as the LARR Ordinance 2014.
The amendments in the Bill are a clear statement of the intentions of the government about its priorities and its leanings, if any is yet required. The industrialists and the corporate lobby had made it amply clear that it was ‘displeased’ with the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the LARR 2013) and that it needed action, and fast. The GoG has complied. The GoG and the ruling party which, since the December 2015 debacle in the local government elections, has been crying itself hoarse about its rural and farmer centric policies and programmes has clearly shown its true colours. It never did and does not have the interests of the rural and the farming community at heart. All the Krishi melas and the Krishi raths that they can muster together cannot hide this simple fact. The LARR in Gujarat, with these amendments, becomes even more draconian than the LAA of 1894. We will examine our contention in this paper.
Let us examine the immediate context of these amendments. In 2014 the government at the centre tried to amend the LARR 2013 through an Ordinance. This was followed by a series of very vociferous and protracted protests by farmers, their organisations, political parties, civil society groups, NGOs – nearly the entire spectrum of liberal democratic forces in our country. Under the pressure of this overwhelming protest the government at the centre caved in and, in its wisdom, refrained from pressing ahead with the proposed amendments.
It, however, did open a window of opportunity to vested interests; it left it to the discretion of individual states to amend the same, if they so wished. This is what the Gujarat Assembly has done. Despite being well aware of the deep resentment with which the amendments in the Ordinance were viewed and the groundswell of opposition to it in Gujarat as well, the GoG has yet gone ahead and amended the very provisions that were opposed. It is thus amply clear that the GoG has chosen to side with the few ‘entrepreneurs’ and against the majority of its citizens. The amendment of LARR 2013 is against farmers’ interests and popular will of the people; they are thus a negation of a democratic principle.
Further, the amendments were introduced in the Assembly on a day when the opposition had been suspended from the House. There was therefore practically no discussion or debate on the proposed amendments in the Assembly. It is a mockery of democracy that such a crucial Bill is introduced on a day that the opposition is absent in the House, and the legislation passed without debate.
Finally, the amendments in the Bill are extremely regressive and remove nearly all the land in Gujarat from the ambit of consent, SIA, and R&R requirements. In other words, it is no longer even an amendment; it now overturns, as we shall see in the following pages, the new law altogether.
The ‘Statement of Objects and Reasons’ accompanying the Bill, provides a justification for the amendments:
“The Central Government has enacted the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Gujarat is an industrially progressive State and more and more investment is coming to the State. The State Government aims to provide all basic facilities and infrastructure to the entrepreneurs. However, it has been experienced that after coming into force of the said Act which has very stringent provisions for acquiring the land, land acquisition has become a very lengthy and difficult proposition. It is, therefore, considered necessary to make the procedural part of the land acquisition smooth and easy without interfering with the rights of the persons whatsoever whose lands are acquired” (emphasis added).
The primary justification for the amendments, it appears, is to safeguard “investment” and “provide all basic facilities and infrastructure to entrepreneurs”. Farmers and others dependent on land, who were the drivers of the changed law, do not even find a mention in the ‘Statement of Objects and Reasons’. So much for “farmer-friendly” governance and government!!
It also states that the “procedural part” of land acquisition is sought to be smooth(ened) “without interfering with the rights of the persons … whose lands are acquired”. This is a no-brainer. When the list of projects to be exempted from ‘consent’ and ‘Social Impact Assessment’ requirements is expanded, how can it not “interfere with the rights of the persons … whose lands are acquired”? This is merely paying lip-service to “rights of persons …” while actually carrying out actions that will negate that very objective.
Further, the justification for the ‘amendments’ in the RFCTLARR (Gujarat Amendment) Bill, 2016 is that since the LARR 2013 “has very stringent provisions for acquiring the land, land acquisition has become a very lengthy and difficult proposition.” This, despite the fact that studies have shown that over 92 per cent of the in-pipeline projects were held up due to reasons other than land acquisition-related issues. LARR 2013 has never been implemented in Gujarat.
On what basis was the statement that it makes land acquisition “lengthy and difficult” made? Even the work for minor and sub-minor canal network for the Narmada command areas was delayed, intentionally, despite the farmers willing to give land for it till the changes in favour of the corporate interests had been made. Without an honest attempt having been made to implement the Act the conclusion was reached that land acquisition has become “lengthy and difficult”. ‘Pro-farmer’?
Finally, the injustice to farmers and land owners, the absence of protection to others dependent on land and commons was the primary reason for making the law stringent. It was meant to discourage land acquisition at the scale at which it was happening under the old law. To make the excuse that the process has become “lengthy and stringent” is not only stating the obvious but defying and negating the very rationale for the new law.
The Statement of Objects and Reasons does admit that the proposed amendments “exempt certain projects from the application of the provisions of the Chapter II of the Act which relates to determination of social impact and public purpose as also from the provisions of Chapter III of the Act which relates to special provision to safeguard food security”. However, it is silent on the fact that along with these exemptions, projects are also exempt from consent and R&R provisions.
Carrying forward the Ordinance 2014
The following four amendments are the same as in the Ordinance 2014, with a change in one item in Amendment 3.
1. Amendment 2 of the Bill exempts projects listed in section 10 A (Amendments 3, discussed in the following point) from first proviso of section 2 sub-section (2) which pertains to requirements of “Consent of affected families”. In the principal Act, the government had waived the requirement of consent when it acquired land for its own use for a ‘public purpose’. But the consent requirements were mandated for PPPs and acquisitions for private companies. However, this amendment overturns this requirement. Hence if the GoG acquires land for a private company in an industrial corridor such as the DMIC then ‘consent’ requirement no longer applies to it.
2. Amendment 3 of the Bill adds a new section, 10A, to section 10 which dealt, in the principal Act, with “Special Measures to safeguard food security”. 10A is a list of projects which are new and will now be exempt from the provisions of Chapter II (Determination of Social Impact and Public Purpose) and Chapter III (Special Provisions to Safeguard Food security), over and above the exemptions from consent (as discussed above). The new projects thus exempted include:
(a) Such projects vital to national security or defence of India and every part thereof, including preparation for defence; or defence production;
(b) Rural infrastructure including electrification;
(c) Affordable housing and housing for the poor people;
(d) Industrial corridors set up by the State Government and its undertakings (in which case the land shall be acquired up to one kilometre on both sides of designated railway line or roads for such industrial corridor); and
(e) Infrastructure and social infrastructure projects including projects under public private partnership where the ownership of land continues to vest with the Government.
It bears mentioning that the safeguard of not acquiring ‘multi-cropped irrigated land’ (unless under exceptional circumstances) lies defeated since that safeguard does not apply to projects deemed to be ‘public purpose’. The issue of food security and provisioning for the vast and expanded public distribution system apart from the ever increasing domestic requirements assumes an even graver dimension.
These five additions are important to examine for us in Gujarat.
- Firstly, under the guise of ‘national security’ it brings in ‘defence production’ to be exempted from consent, SIA, compensation and R&R. We all know now that the GoI has permitted private players to enter the arena of defence production and many big corporates have already announced their plans and projects in this regard such as Reliance, ADAG, … This will only help the corporates and not the common person.
- Secondly, the terms here e.g. ‘projects vital to national security or defence of India’ or ‘rural infrastructure’ or ‘affordable housing’ are fluid and lend themselves to flexible interpretations to suit then current convenience. An Army golf course can also fall within the ambit of ‘defence of India’ (e.g. an Army cantonment). Food shortages can also endanger national security. Ports are also vital for the defence of India. Which can be included and which can be exempt? How to determine and who will determine what is “affordable housing”? Which economic class or social group will be kept in mind while adjudicating on “affordable housing”? This will perforce have to be decided by the judiciary. Which will take years, not to mention the socio-economic biases inherent in the judiciary. In effect, a zero-sum game for big industry with deep pockets.
- Finally, and most importantly for us in Gujarat, the exemption for “Industrial corridors set up by the State Government and its undertakings (in which case the land shall be acquired up to one kilometre on both sides of designated railway line or roads for such industrial corridor” is most important to understand. Admittedly, ‘industrial corridors’ are included under the definition of ‘public purpose’ in the principal Act. However, the amendment in the Gujarat version makes its application much broader and encompassing. Thus Dedicated Freight Corridor was already included under ‘public purpose’ but DSIR was not ‘public purpose’ as per the principal Act but does become so now since it is an “industrial corridor set up by the state government’. Not only that, the Ahmedabad-Bhavnagar expressway or the road linking Mundra SEZs to the main corridor junction will also now be included under ‘public purpose’ and 1 km on either side of these can be acquired without consent or SIA. All people in the DMIC route falling in Gujarat, covering 18 districts and 60% of its land, will be adversely affected by these amendments.
It appears that the amendments have made ‘land acquisition’ into a right rather than ‘fair compensation’ and ‘Rehabilitation and Resettlement’. The question that we are now left with, after such exemptions, is: what is NOT exempt from the ‘right to acquire land’?
3. Amendment 5: Section 24 (2) stipulated that in cases where land had been acquired under the provisions of LAA 1894 but physical possession had not been taken or compensation had not been paid, then the proceedings were to be deemed to have lapsed and the matter would have to be started afresh under the provisions of this Act. The GoG’s Bill, as in the Ordinance, amends this provision by adding a proviso which essentially means that any delay on account of litigation (court mandated stay or injunction), or where the compensation amount lies unclaimed in the court, then such period will not be factored into the computation of the period of limitation. This very section is the focus of a litigation in the High Court of Gujarat where the farmers of Jamnagar villages, whose land had been acquired for the Jamnagar Refinery on behalf of Reliance Industries Ltd., have demanded the return of their land since the Reliance Industries Ltd. has not utilised since more than 5 years and the farmers have not accepted the compensation for the same.
4. Amendment 9: Section 87 stipulated when and under what conditions a government officer could be held guilty and proceeded against in a court of law. It removed the earlier constraint, viz. “the previous sanction of the appropriate Government” and would therefore act as a deterrent to bureaucrat-businessman nexus which was always detrimental to farmers’ interests. This section has been amended, as in the Ordinance, and restores the previous limitation of government sanction for prosecution of a government employee.
Additions to the LARR 2013
The following four amendments have been introduced by the GoG and did not figure in the Ordinance 2014.
5. Amendment 4: Section 23A has been inserted after Section 23, which essentially gives the district collector the power to decide on the matter of land acquisition and compensation amount without enquiry, with mutual consent of the parties. Section 23 was about the power of the Collector to make an award, after a detailed procedure, pertaining to the land to be acquired. The amended section 23A sub-plants the neatly laid down procedure. It says that
“…if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the State Government, he may, without making further enquiry, make an award according to the terms of such agreement.”
This opens up the possibility for intimidation and coercion, which is exactly what section 23 had intended to check. In case of a dispute, the person claiming an interest in the land may be threatened or enticed to give his/her agreement in writing to the terms of agreement upon which the Collector can make the award. Women, especially sisters, can be intimidated to sign away their claims to the land. There will be no check on such coercive actions, and as such, sets up an institutional mechanism to legitimise unjust practices, defeating the purpose of the new legislation.
Sub-section (2) of this section stipulates that:
“The determination of compensation for any land under sub-section (1) shall not in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act.”
This implies that if a person wielding influence manages to wriggle a more than hefty compensation for the acquired land the same parameters will not be applicable uniformly in the area. This gives ample scope for such wriggling and arbitrariness in compensation amounts, the very evil that the LARR 2013 sought to fight.
Further, sub-section (3) of this section removes the need for agreements thus made in the presence of the Collector to be duly registered before a Registrar of Properties. The registration process makes it mandatory for the Registrar of Properties to check with the person signing away the property whether he/she is doing it of his/her own free will and without any duress and whether the money has been paid in full. Not registering the property before the Registrar of Properties means that the lien of the original owner remains alive and can be restored if he/she approaches the court. The amendment, over and above granting the Collector the power to approve such agreements, also makes such agreements valid in a court of law. This opens up the possibility for misuse of this provision and reintroduces avenues for bureaucrat-businessman-real estate nexus to resurface. Much of the illegal land deals in Gujarat would be awaiting clearance and legalisation through this amendment.
6. Amendment 6: This section adds a new section viz. 31A to section 31 of the principal Act, which pertains to the R&R Award for the affected families by the Collector. The amendment essentially says that in cases where the government acquires less than 100 acres of land for its own use, or it acquires land for projects of a linear nature, it will pay 50% of the compensation amount as a lump sum to the affected families.
However, there is ambiguity in the framing of this amendment. Let us read the text of the amendment. It states:
“Notwithstanding anything contained in this Act, it shall be competent for the State Government to pay, whenever the land is to be acquired for its own use amounting to less than one hundred acres or whenever the land is to be acquired in case of projects which are linear in nature as referred to in proviso to sub-section (4) of section 10, as Rehabilitation and Resettlement cost, such lump sum amount equal to fifty per cent of the amount of compensation as determined under section 27 to the affected families”.
Ostensibly, it would be a ‘generous’ offer from the government since less than 100 acres of acquisition for its own use would not (presumably) invite the R&R clause in the principal Act. But the amendment says that it will pay it to the ‘affected families’ as determined under section 27. Section 27, however, pertains to the determination of “the amount of compensation to be paid to the land owner (whose land has been acquired). Effectively, it means that the detailed steps listed in section 31 for R&R for the affected families (including alternate sites and land, mandatory employment, other rights, annuity etc.) get converted into a one-time monetary payment calculated on the basis of ‘land ownership’. Generous? Or Short-changed?
7. Amendment 7: This amendment deals with section 40 of the principle Act. Section 40 of the principle Act deals with ‘Special powers in case of urgency to acquire land in certain cases’. It empowers the Collector to take possession of any land for a public purpose in cases of urgency. Sub-section of this section states that:
“The powers of the appropriate Government under sub-section (1) shall be restricted to the minimum area required for the defence of India or national security or for any emergencies arising out of natural calamities or any other emergency with the approval of Parliament …”.
In other words, the urgency requirement and ad hoc determination of ‘emergency’ had to be put for ratification before the Parliament. The amendment skirts this requirement of having to go to the Parliament by adding the proviso “or to comply with the directions given by the Central Government to the State Government”. This is again ambiguous. The GoG may acquire land citing urgency; will it then have to be approved by the Assembly within a stipulated time? Can the Central Government direct the State Government to acquire land for its defence or national security reason? In which case will it be incumbent upon the Central Government to bring it before the Parliament for its approval? These would only become clear if and when the Rules are framed. Or not!!!
8. Amendment 8: This is an amendment to a sub-section, (6), of section 46 of the principal Act. Sub-section (6) 0f section 46 of the principal Act states:
“If any land has been purchased through private negotiations by a person on or after the 5th day of September 2011, which is more than such limits referred to in sub-section (1) and, if the same land is acquired within three years from the date of commencement of this Act, then forty per cent of the compensation paid for such land acquired shall be shared with the original land owners.”
However, “appropriate government, government company, and, association of persons or trust or society as registered under the Societies Registration Act, 1860, wholly or partially aided by the appropriate Government or controlled by the appropriate Government” were exempt from the provision of sharing 40% of the compensation amount with the original land owners. The amendment removes “appropriate Government” from this provision, implying that the Government will adhere to this requirement of sharing 40% of the compensation amount with the ‘original owners’. But since the last decade or so the GoG has not undertaken any acquisition on its own; all of it is done by its companies or SPVs. And they are in any case exempt. And GoG directly, in any case, does not resort to acquisition; by and large it takes away land under the name of ‘land pooling’.
These amendments make a mockery of the new law. This effectively nullifies almost the entire effort of bringing in the new legislation. It is against the spirit of the central legislation. Whether a state, in framing a law on a subject which is in the State List, can go against the spirit of the central legislation needs to be ascertained.
The amendments in the LARR 2013 have to be seen in the context of a slew of other related legislations which have been amended like The Gujarat Tenancy and Agricultural Lands Act, 1948, The Saurashtra Gharkhed, Tenancy Settlement and Agricultural Lands Ordinance, 1949; The Gujarat Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958; and, The Gujarat Agricultural Lands Ceiling Act, 1960. The thrust of all amendments in these 4 legislations is to make transfer of land to industry and industrialists as easy as possible and at minimum cost to the purchasing industry/industrialist by legalizing any and all (past) illegalities on their part. These, coupled with the draconian Gujarat Irrigation and Drainage Act, 2013, the SIR Act 2009 and the decommanding of the Narmada command area makes it clear that the government of the day, at least in Gujarat, is no longer working for the people of Gujarat or for the larger benefit of the people but at the behest and the beckoning of a few.
A silver lining, if at all one can call it that. The recently amended labour laws, the Gujarat State Higher Education Council Bill, 2016 and the slew of land legislations brings up the possibility of these massive socio-economic groups to come together to debate their common future that these amendments are so swiftly crystallising.
*Development sector professional and an activist with Jameen Adhikar Andolan Gujarat (JAAG), Ahmedabad. **Associated with land rights struggles in Gujarat and India, General Secretary, Khedut Samaj – Gujarat, Ahmedabad. Excerpts; for full paper click HERE