By Kanchi Kohli and Debayan Gupta*
For the last two years, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (RFCLARR) Act, 2013 has been in the eye of debate and discussed for the controversial changes the National Democratic Alliance (NDA) government had sought to bring about through ordinances. Even though fate of the amendments rests currently with the Joint Parliamentary Committee report, several states have already brought about changes through Rules under Section 109 of the Act. An examination of these state specific Rules reveals they are headed towards:
- Adopting the changes proposed in the ordinances amending the central law
- Diluting the applicability of the progressive clauses like consent or SIA
- Clarifying procedures for implementation at the state level
Comparison between Central and State Rules’ provisions
The basic requirements under the Central Rules for initiating the process of obtaining consent are quite similar to those in the rules of the various states, except for Andhra Pradesh, Telangana and Tripura. These states have no provisions for obtaining consent in their rules. Gujarat has incorporated all the amendments proposed in the 2014 ordinance into its Rules.
Provisions exempting the requirement for consent
Dilution in the consent clauses in certain states like Tamil Nadu, Gujarat, Maharashtra, Telangana and Rajasthan have been done by way of amendments. In the month of January 2015, the Tamil Nadu Legislative Assembly passed the RFCTLARR (Tamil Nadu Amendment) Act, 2014. It introduced a new section to the Central Act, 105-A, whereby land acquisition carried out under the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978, the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 and the Tamil Nadu Highways Act, 2001 is exempt from provisions of the RFCTLARR Act.
Fourfifths of the acquisition carried out in the state of Tamil Nadu is through these three Acts, and requirements for consent are absent in all three Acts. The RFCTLARR here is rendered obsolete in the cases where land is acquired under these Acts. However, the Madras High Court has directed the State Government to explain how it was able to pass an amendment after the expiry of the statutorily permitted time period of one year, which had expired, on 01.01.2015. Though the State Amendment received Presidential assent on 01.01.2015, it was published in the Government Gazette on 05.01.2015, which is four days after the expiry of the statutory time period.
The Madras HC division bench has directed the State Government to maintain status quo and not go ahead with the acquisition of land for the Uppur Thermal Power Plant in a writ petition which had been filed by 12 land owners from the Ramanathapuram district, challenging the provisions of the RFCTLARR (Tamil Nadu Amendment) Act, 2015.
Gujarat has gone a step further than the Tamil Nadu government by incorporating all of the amendments, which the NDA has been trying to pass for the last two years, in the form of the RFCTLARR (Gujarat Amendment) Act, 2016.80 According to the Statement of Object and Reasons, this amendment aims to dilute the stringent provisions and make the “lengthy” and “difficult” process of land acquisition “smooth and easy” since Gujarat is an “industrially progressive” state.
The Amendment exempts projects that are vital to the national security or defense of India, rural infrastructural projects, affordable housing for poor people, industrial corridors and other infrastructural projects, including projects under public private partnerships from the purview of the RFCTLARR Act, 2013 and thus the provisions related to SIA and consent do not apply to such projects.
The Department of Land Resources (DoLR), the Union Ministry of Rural Development and the Union Ministry of Home Affairs have recently noted that the amendments in the Gujarat Bill are very similar to the ones which the NDA government has been trying to pass, and therefore referred the Bill to the JPC on the land bill. Pursuant to that, the DoLR, the Union Ministry of Rural Development and the Union Home Ministry refused to send the Bill to the President for his assent.This however was overlooked as the Bill did eventually find its way to the President of India. As of 08.08.2016 it has become a law in Gujarat.
Rules of the Maharashtra Government and the Draft Rajasthan Land Acquisition Bill also dilute the consent requirement of the Central Act. Both these Rules mention that consent will be taken for private projects only and not for PPPs. The Rajasthan Government has further diluted the concept of consent by passing two Bills which relate to land acquisition. The Special Investment Region Bill allows the Government to enter into any land, which has been declared as a Special Investment Region, and acquire the same. Its counterpart, the Rajasthan Land Pooling Scheme Bill, allows for the consolidation of small landholdings. Though there has been no direct amendment to the RFCTLARR Act, 2013 the two Bills passed by the Rajasthan Government allow it to bypass provisions of the Act.
On 30.07.2015, the Government of Telangana passed an order. To expeditiously procure land for public projects, the Government came out with a framework, which allows land owners to participate in the development process by willingly selling their land for consideration, on the basis of an agreement between the land owners and the Procuring Agency. The Procuring Agency as approved by the District Level Land Procurement Committee (DLLPC) is to be headed by the District Collector.
The order of the Telangana Government, as opposed to the Central Act, provides for compensation only to the people with land and there is no provision for the landless poor and labourers who also stand to lose a lot upon acquisition of land in their area. The order was thus challenged in the Hyderabad High Court by the landless labourers. The single judge bench of Justice Suresh Kait dismissed the order on the grounds that it did not provide for any Rehabilitation or Resettlement of the landless labourers and artisans, and also failed to provide enhanced compensation to the affected people.
The State Government appealed the quashing of the order and the matter was sent to a division bench of the Hyderabad High Court. The division bench first asked the Government to frame a policy to rehabilitate and resettle the affected families (agricultural labourers, artisans and others) of land acquisition. Thereafter, on 11.08.2016, the Hyderabad High Court selectively stayed the order of the single judge which quashed the G.O. MS No 123. The Court made it very clear that the stay applied only for the land which was being acquired for the National Investment and Manufacturing Zone (NIMZ) which was being set up in the Medak district.
Provisions related to Fifth Schedule Areas
In Jharkhand and Bihar’s Rules there are special provisions with respect to certain areas, which are present in the Fifth Schedule. The Rules require that consent from the Gram Sabha be taken when land is under the Fifth Schedule. Further, in cases where a linear acquisition of land is being done, a Gram Sabha must either be set up at the Gram Panchayat level when more than one village is involved, or at the Panchayat Samiti level when more than one Gram Panchayat is involved, or at the District Board Level where more than one block in a district is involved.
Provisions related to the procedure for taking consent from the Gram Sabhas
With respect to the quorum of the Gram Sabha, the Himachal Pradesh Rules vary from the Central and other State Rules. As per the Himachal Pradesh Rules, the quorum is to be fixed according to provisions of either the Himachal Pradesh Panchayati Raj Act, 1994 (one-third of the total members) or the Himachal Pradesh Municipal Corporation Act, 1994 (half of the total members) or the Himachal Pradesh Municipal Act, 1994 (half of the total members97).98 It does not, however, specify which Act is to be applied in which cases, and the exact quorum requirement. Further, the requirement of having at least one-third women members has been neglected in these Rules.
The Jharkhand Rules also specify a requirement of having one-third of the total members to be present as quorum. With respect to the display of terms and conditions of acquisition, the Sikkim Rules reduce the three week requirement to 15 days, which reduces the amount of time the public has to view the terms and conditions and give consent.
Provisions related to the consent of land owners
Something exclusive to the Assam Rules with respect to consent of affected land owners is the provision which allows consent to be taken on the basis of their land holding. People with combined interest in the same area of land may give combined consent. Be it the consent of the Gram Sabha or of the affected land owners, the Bihar and Jharkhand Rules peculiarly state that in cases where consent has been obtained under the manner prescribed in the Rules, the same cannot be withdrawn for any reason whatsoever.
Provisions related to roles and responsibilities of the appropriate Government/Requiring Body
Apart from the Centre and Bihar, Himachal Pradesh, Jharkhand, Karnataka and Sikkim, none of the other states have any provisions which clearly enlist the roles and responsibilities while obtaining consent of the appropriate Government or the Requiring Body.
*With Centre for Policy Research-Namati Environmental Justice Programme. Excerpts from the working paper “Mapping Dilutions in a Central Law: A Comparative Analysis of State Level Rules made under The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (RFCTLARR) Act, 2013”. Click HERE for the full working paper