States have no power to have their land acquisition law under Section 107 of Centre’s 2013 Act

land-acquisitionAppeal to the President of India to refuse assent to the Telangana Land Acquisition Amendment Bill, 2016, passed in violation of Land Acquisition and Rehabilitation Act, 2013, passed by the Parliament of India

We the undersigned people’s movements, women’s groups, civil society organizations and concerned citizens from Telangana and across India seek your immediate intervention in ensuring the right to land, livelihood, food and ecological security of lakhs of small and marginal farmers, landless families and displaced persons, most of who are dalits, adivasis, women and whose constitutional and human rights would be seriously prejudiced, with your assent to the Telangana Land Acquisition Amendment Act 2016.

We earnestly call upon you not to assent to the Telangana Land Acquisition Amendment Act 2016, passed by the Legislature of Telangana (hereinafter referred to as the Telangana Bill) which is in clear violation of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 (hereinafter referred to as the LA-R&R Act, 2013) passed by the Parliament of India. We would also like to inform you at the very outside that the aforesaid Bill was passed, despite severe opposition from numerous farmers groups, project-affected groups, civil society organizations, political fronts and parties.

Before providing our detailed comments on some key provisions of the Bill, we herewith highlight the principal reasons, as to why the Telangana Bill is a clear attempt to scuttle implementation of the 2013 Central Act and must therefore not be enacted into law.

Summary of Objections to the Telangana Bill, 2016:

The Land Acquisition and R & R Act, 2013 includes progressive provisions like consultation with Gram Sabhas, social impact assessment, options assessment and minimizing acquisition/destruction of farm land, acquisition of minimum multi-crop land only as the last option, ensuing food security, recognition of the livelihood rights of landless, fair compensation, land based R&R etc, return of land unutilized even after 5 years etc. The Telangana Bill violates some of these key provisions of the 2013 Act as enlisted below:

  1. Dispensation of key clauses of social impact assessment (SIA) on arbitrary grounds that this would ‘delay’ the land acquisition – while in reality the 2013 Act itself states that SIA must be completed within 90 days of the initial notification.
  2. While Sec 107 only permits the State to amend the Act to provide better R&R and compensation, Govt. of Telangana (GoT) has used this clause to bring in provisions which in the grab of ‘facilitating land purchase from willing farmers’ would take away a lot of statutory safe guards. Besides, land acquisition has cumulative impacts on the entire community and the 2013 Act mandates that entire affected population must be consulted, compensated, options to avert/ minimize displacement must be explored. The Amendment does away with all of this.
  3. By exempting defence, national security projects, rural infrastructure including electrification, affordable housing and housing for the poor people, industrial corridors, infrastructure and social infrastructure projects including PPP projects, the Govt. has effectively insulated most projects from the pre-requisites of SIA, determination of public purpose and mandate to attend to food security concerns.
  4. In complete violation of procedural safeguards, the Collectors have been empowered to pass ‘final awards’ on the basis of their ‘due satisfaction’ dispensing with the right of people to file objections and have them heard.
  5. The Amendment strikes a deathblow to the concept of Welfare state that must protect the marginalized communities and instead gives legislative sanction to state-sponsored real estate, through private agreements with land-owners and mere payment of meager cash to all other landless / livelihood losers.
  6. While 2013 Act permits ‘Emergency acquisition’ only after approval by Parliament in rare situations, the proposed amendments stipulates that ‘emergency acquisition’ (implying waiver of most procedural aspects like SIA, hearings etc.) can be made by an executive order of any central govt. official, opening the floodgates of abuse of law.

Detailed Objections to the Telangana Bill, 2016:

The Context:

Land Acquisition in India has had a long history of subjugation, displacement, dispossession, violence, revolt, loss of life. The Land Acquisition Act, 1894 did not provide adequately for rehabilitation and resettlement (R&R), and R&R was seldom a criterion in most projects, except meagre cash compensation. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LA-R&R Act 2013) passed by the Parliament of Indiawas a significant step in protecting the rights of the oustees and others dependent on land. The scrapping of 1894 Act and enactment of the 2013 Act itself was effectuated by the large number of struggles waged by the farmers, landless, dalits, adivasis, forest dwellers, women and project-affected people and their organizations from across the country, over decades.

Thus drawing from more than a century of acquisition and displacement, leading to impoverishment and unrest amongst millions of toiling masses, the LA-R&R Act, 2013 incorporates strong and detailed provisions to safeguard the interests of project oustees along with some measures for rehabilitation and compensation to restart their life/livelihood.

The LA-R&R Act, 2013 specifically deals with 3 aspects i) the process of land acquisition ii) compensation  iii) rehabilitation and resettlement of the affected families. Persons across India affected by any project, either losing land or livelihoods due to land acquisition are now secured and protected by the provisions under this Act.In the Concurrent list of the Constitution, the Central legislation ‘covers the field’ in this respect and doesnot allow for any other contrary enactment by a State government.

The LA-R&R Act, 2013 was passed after more than two decades of protracted people’s struggles, deliberation by parliamentarians, detailed reviews by Parliamentary Standing Committees keeping in mind the tremendous sacrifices that the millions of  land-owning farmers and livelihood losing people had made till that time for the sake of the ‘development of the country. Under the LA-R&R Act, 2013, the state governments may formulate either an Act or a policy vis-à-vis two aspects in accordance with Section 107 and 108 of the LA Act 2013:i) better compensation ii) better rehabilitation and resettlement, than the ones already provided under the I, II and III Schedules of the Act of 2013.

Therefore, since the field of land acquisition is already covered by the Act of Parliament i.e., LA-R&R Act 2013, which clearly allows the state governments to only make an Act or a policy in relation to better rehabilitation and resettlement and better compensation, the State of Telangana ought to limit  and restrict its proposed Telangana Land Acquisition (Amendment) Bill 2016 to only these two avenues for better compensation and better rehabilitation and resettlement which the state has to provide to affected families as clearly better and above than that provided by the LA-R&R Act, 2013.

In fact, for more than a year and a half, the Govt. of Telangana has been undertaking legally questionable acquisitions under a Govt. Order called GO 123 (passed on 30/7/2015) and by-passing compliance with the 2013 Act. Massive protests and legal action by farmers and displaced persons, especially the women and men affected by the Mallanna Sagar and NIMZ Projects, led to a recent order of the dt. 5/1/2017 by the Chief-Justice led Division Bench of the High Court of Telangana and Andhra Pradesh, upholding the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 and directing an interim stay on GO No. 123 and 214 (land purchase policy) issued by the Govt. of Telangana (GoT), which numerous groups of farmers-oustees have argued is “illegal, arbitrary, unconstitutional, against the concept of welfare state” and violates the rights of both landed and landless project oustees guaranteed by the 2013 Act. Having failed to impose the GO No. 123, Govt. of Telangana now seeks to legislate the same GO, violating the 2013 Act.

Clause-wise Comment confirming violation of 2013 Act by the Telangana Bill:

The State of Telangana must strictly follow the Land Acquisition process as provided in the LA-R&R Act, 2013 including Social Impact Assessment, Notifications, Revision of Registration values, determination of land values, before coming up with better awards of compensation and rehabilitation and resettlement. The state cannot mix compulsory land acquisition procedures with ‘Consent awards,’ similar to G.O.Ms.No.123 Revenue (JA & LA) Department, Government of Telangana, dated 30.07.2015, and must follow all land acquisition procedures under LA-R&R Act, 2013, before initiating state specific process for better compensation, rehabilitation and resettlement.

The Act that the Telangana legislature passed introduced several changes to the LA-R&R Act, 2013which are violative of the rights of the people and also the provisions of the Central Act. Some of the provisions that violate the basic provisions of the LA-R&R Act, 2013 are as follows:

  • Chapter III A: The inclusion of Chapter IIIA Sec 10A – ‘Power of the government to exempt certain projects’ – is really the state government seeking to completely do away with Chapter II and III, that ensure Social Impact Assessment (SIA). Along with the exempted requirements for national and related security projects, the state seeks to expand the exemption from Social impact Assessment to irrigation, infrastructure, housing, PPP (public private partnerships, and other projects that would necessarily include mining, electricity, rural infrastructure etc.
  • This is extremely dangerous to the life, livelihood and liberty of the project affected families who would immediately become ‘project oustees’ vulnerable to any drastic actions, whims and fancies of the state government! This is a complete violation of Article 21 –Right to Life,  Liberty and Livelihood.
  • Social Impact Assessment has been included in the LA-R&R Act, 2013 after several national and international tragedies relating to rampant land acquisition were studied, as a method to overcome the same. An impact assessment on land, livelihoods, human life, family life, society, environment, natural resources, water bodies, environs where people live, education, health, economic status and consequences of uprooting them from their natural habitat is studied in detail to restrict and limit any damage such an uprooting of habitat may cause to them. This is an important safeguard especially for the landless, women, adivasis, dalits and other marginalized groups.
  • However, the Telangana state is seeking to completely do away with Social impact Assessment guaranteed by the central LA Act 2013, in the name of ‘urgency’ and development’ that absolutely should not be allowed as this is likely to endanger the lives of lakhs of citizens who would be victims of land acquisitions and displacement.
  • Section 23A: This new amended section states that a ‘voluntary’ sale agreement between a land owner and the government could be sold/compensated according to the ‘agreement.’ However, in subsection (2) it goes on to state that the same would not affect other sale transactions! This is only an escape route for the government to get this section included and passed. This amendment in essence is a rehash of GO MS 123 of Government of Telangana, which the High Court has quashed in August 2016.
  • Another dangerous amendment to section 26 of the LA Act 2013 that the state Act proposes is to substitute the words ‘revise and update’ with ‘ascertain,’ the market values.This is a diabolical scam as the state government would be under absolutely no obligation to revise and update market values leaving a lot of discretion with the state government to act against the interests of the vulnerable land owners.
  • The state Act also proposes to exempt the agreements from Registration Act 1908, which makes the agreement bereft of any protection. This allows the state government to avoid updating market values under the AP Revision of Market Values Guidelines, 1998, which is a part of the Registration Act 1908.
  • Amendment to Section 24: By adding the proviso to clause (b) the state government is seeking to exempt itself from giving appropriate compensation in case of affected land owners approaching courts and if the compensation is forcibly deposited into the court. This should not be allowed!
  • The Amending Act also tries to dilute Section 101 by making it difficult for the land oustees to seek the return of their lands if the proposed project for which land has been acquired is shelved or does not take off. It is a dangerous move to completely usurp the land owners of their rights to lands and to keep it under the ‘eminent domain’ of state control, no matter what! The amendment to ‘period specified for the project or five years whichever is later,’ is an abomination of basic right to land and a violation of Article 300-A.
  • Insertion of Sec 31-A: Again, an attempt to scuttle state’s obligations under Schedule II and III.The state government only plans to pay a meagre lumpsum amount to land owners pursuant to an agreement without any Schedule II and III benefits like rehabilitation and resettlement to people who depend on the lands, i.e. landless workers. artisans, tenants, coolies, and assignees. And plans to provide rehabilitation and resettlement only to people who depend on the land as per watered-down agreement made possible under the now proposed state Act. That compensation too seems uncertain.
  • Section 40 Emergency Provision: The state government has added in the Act, ‘by direction of Central government to the State government’ after ‘approval of the Parliament.’ This is only an attempt to dilute and takeaway the powers of the Parliament against the arbitrary, indiscriminate use of Section 40 by state governments! Thus, while 2013 Act permits ‘Emergency acquisition’ only after approval by Parliament in rare situations, the proposed amendments stipulates that ‘emergency acquisition’ (implying waiver of most procedural aspects like SIA, hearings etc.) can be made by an executive order of any central govt. official, opening the floodgates of abuse of law.

Problems with the Statement of Objects and Reasons:

States have absolutely no power to execute a ‘state’ Act vis-à-vis ‘land acquisition,’ under Section 107 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The field is already occupied by the central LA Act (2013), and the state necessarily has to comply with all the procedural requirements including, Social Impact Assessment, notification, declaration and award of compensation and decisions relating to rehabilitation and resettlement.

The state only has a ‘limited’ right vis-à-vis declaration of ‘better’ compensation and ‘better’ rehabilitation and resettlement than the LA Act 2013, which it has to provide to the affected persons. This too, only after satisfactorily complying with all procedures relating to land acquisition under the 2013 Act. Therefore, the statement of Objects and Reasons make no real sense at all.

In summary, this proposed Bill of the Telangana Govt. is a rehash of the draconian GO MS No. 123 that was quashed by the High Court, which violates several fundamental rights, including Article 14, 19, 21 (life and livelihood). If this Bill becomes law in the state of Telangana the very premise of enacting the comprehensive LA & R&R Act, 2013 would become redundant.

The state of Telangana ought to restrict itself vis-à-vis land acquisition procedures, so that the same do not violate the centre-state comity as guaranteed by the Constitution as Land Acquisition is provided in List III, Concurrent list, of the Constitution, where if the field is already occupied by a Central Act, then a state Act cannot violate the same. We enclose herewith a detailed note/critique of the Telangana Bill, 2016 vis-à-vis the LA-R&R Act for your kind perusal.

We humbly wish to remind you that even as this Bill is being placed before you under Article 254 (2) of the Constitution, you reserve every right and responsibility to ensure a complete application of mind and objective examination of the overall facts and circumstances, which clearly point out that the Bill is a pernicious exercise in constitutional abuse and must not be permitted. The Hon’ble Supreme Court in a landmark Constitution Bench decision in Kaiser-I-Hind Pvt. Ltd. v. National Textile Corporation (2002) held, in relation to Article 254(2), that the words “reserved for consideration” would “definitely indicate that there should be active application of mind by the President to the repugnancy… and the necessity of having such a law, in facts and circumstances of the matter…”.

In view of the aforementioned submissions, we seek your intervention by way of refusing to assent to the said Bill, amending the 2013 Act on Land Acquisition and Rehabilitation, passed by the Telangana Assembly when it comes for your consideration and ensuring that the constitutional and human rights of the farming and working communities in Telangana state are not violated.

As progressive people’s organizations representing the interests of the marginalized communities, we sincerely and unequivocally urge you not to assent to the Land Acquisition (Telangana) Amendment Bill, 2016 as it completely nullifies the progressive provisions of the 2013 Act and would result in immense harm to lakhs of small and marginal farmers, landless families and displaced persons, most of who are dalits, adivasis, women in the State of Telangana.

Medha Patkar, Narmada Bachao Andolan (NBA) and National Alliance of People’s Movements (NAPM)
Aruna Roy, Nikhil Dey and Shankar Singh – Mazdoor Kisan Shakti Sangathan (MKSS) and National Campaign for People’s Right to Information and NAPM
Sujatha Surepally and Padmaja Shaw, Women Against Sexual Violence and State Repression, Telangana
Usha Seethalakshmi, K. Sajaya, Ashalatha, Mahila Kisaan Manch (MAKAAM), Telangana
Vissa Kiran Kumar and PS Ajay, Rythu Swarajya Vedika, Telangana-AP
Jeevan Kumar and Syed Bilal, Human Rights Forum, Telangana-AP
Venkataiah and Venkateshwaramma, Telangana Vyavasaya Vruthidarula Union
Lakshmi, Caring Citizens Collective,
Hayathuddin and Sujatha, Mallanna Sagar Project-affected People’s Organization
P.Chennaiah, Andhra Pradesh Vyavasaya Vruthidarula Union-APVVU and National Centre For Labour and NAPM-AP
Ramakrishnam Raju, United Forum for RTI and NAPM, AP
Ashwaq, Campaign for Housing and Tenurial Rights (CHATRI)
Varghese Theckanath SG, Hyderabad City Slum People’s Federation  (HCSPF),
And Montfort Social Institute
Meera Sanghamitra, NAPM Telangana-AP, 
Vyjayanthi Mogli and Rachana Mudraboyina, Telangana Hijra Intersex Transgender Samiti (THITS), Telangana,
Shankar, Dalit Bahujana Front, Telanagna
Adv. MA Shakeel, Centre for Study of Constitution and Society, Hyderabad Telangana.
S.Q. Masood, Centre for Peace Studies, Hyderabad Telangana.
Malini Subramaniam, Independent Journalist, Hyderabad.
Vimala Morthala, Independent Writer, Activist, Hyderabad
Thomas Pallithanam – People’s Action For Rural Awakening, Ravulapalem, East Godavari, AP
Prof Arif Waqif,  PhD Univ of California-Berkeley, Founder Dean (Rtd), School of Management, University of Hyderabad, Chairman Economics, Administrative Staff College of India, Hyderabad
Adv. Rachana Reddy, Advocate, High Court of Telangana
Adv. Ravi, High Court of Telangana
Rahul Maganti, Independent Journalist, Vijayawada
Gutta Rohit, Human Rights Activist, HRF.
Pradeep Esteves, Director, Development activist, Context India
Prof. Anupama Potluri, Faculty, Hyderabad Central University
Aravinda Potluri, Software Professional, Hyderabad
Prafulla Samantara, – Lok Shakti Abhiyan & NAPM, Odisha; 
Lingraj Azad – Samajwadi Jan Parishad – Niyamgiri Suraksha Samiti, NAPM, Odisha; 
Binayak Sen and Kavita Srivastava, People’s Union for Civil Liberties (PUCL)
Sandeep Pandey, Socialist Party and NAPM, Uttar Pradesh
Maj Gen S.G.Vombatkere (Retd), Mysuru, NAPM, Karnataka
Gabriele Dietrich, Penn Urimay Iyakkam, Madurai and NAPM, TN; 
Geetha Ramakrishnan, Unorganised Sector Workers Federation, NAPM, TN; 
Uma Chakravarti, Feminist Historian, WSS, New Delhi.
Shoma Sen, Prof. of English Literature, Nagpur and WSS
Seema Azad, Independent Journalist, Activist, Uttar Pradesh
Nisha Biswas, Scientist and Activist, WSS, West Bengal
Kalpana Mehta, Feminist Activist, Saheli and WSS, Indore
Kiran Shaheen, Independent Activist and All India People’s Forum, WSS-Delhi.
Arul Doss, NAPM Tamil Nadu
Arundhati Dhuru, Nandlal Master, Manesh Gupta – NAPM, UP; 
Richa Singh, Sangatin Kisan Mazdoor Sangathan, NAPM-UP
Vilayodi Venugopal, CR Neelakandan and Prof. Kusumam NAPM, Kerala
Vimal Bhai – Matu Jan Sangathan, NAPM-Uttarakhand & Jabar Singh, NAPM, Uttarakhand; 
Sister Celia – Domestic Workers Union & NAPM, Karnataka; 
Rukmini V P, Garment Labour Union, NAPM, Karnataka; 
Anand Mazgaonkar, Krishnakant – Paryavaran Suraksh Samiti, NAPM Gujarat; 
Kamayani Swami, Ashish Ranjan – Jan Jagran Shakti Sangathan & NAPM Bihar; 
Mahendra Yadav – Kosi Navnirman Manch, NAPM Bihar; 
Sister Dorothy, NAPM Bihar
Dayamani Barla, Aadivasi-Moolnivasi Astivtva Raksha Samiti, NAPM Jharkhand
Madhuri, Jagrit Adivasi Dalit Sangathan, Badwani, Madhya Pradesh
Dr. Sunilam and Adv. Aradhna Bhargava – Kisan Sangharsh Samiti  NAPM Madhya Pradesh
Bhupender Singh Rawat – Jan Sangharsh Vahini, NAPM, Delhi
Rajendra Ravi, Nanu Prasad, Madhuresh Kumar, Amit Kumar, Himnshi Singh, Uma Kapari, Zaved Mazumder, NAPM, Delhi
Faisal Khan, Khudai Khidmatgar, NAPM Haryana
J S Walia, NAPM Haryana; 
Kailash Meena, NAPM Rajasthan; 
Amitava Mitra & Avik Saha, NAPM West Bengal; 
Suniti SR, Suhas Kolhekar, Prasad Bagwe – NAPM, Maharashtra; 
Gautam Bandopadhyay, NAPM, Chhatisgarh
Anjali Bharadwaj, National Campaign for People’s Right to Information and NAPM
Kaladas Dahariya, RELAA, Chhatisgarh
Bilal Khan, Ghar Bachao Ghar Banao Andolan, Mumbai, 
Diksha Dhar, PhD Scholar EFL University of  Hyderabad
Pushpa Achanta, Journalist & Trainer, Bangalore.
Shivani, Housing and Land Rights Network, New Delhi
Astrid Lobo Gajiwala, Scientist, Feminist Theologian, Mumbai.
Shobha R, Human rights activist, Bangalore
Dyuti, Legal Researcher, Delhi.
Adv Kamayani Bali Mahabal, Lawyer and activist, Mumbai
Anuradha Banerji, WSS
Svati Shah, Asst. Prof, Gender and Sexuality Studies, University of Massachusetts
Dr. Karen Gabriel, Director, Centre for Gender, Culture and Social Processes, St Stephen’s College, Delhi University
Prof. Dr. Shalini Mulackal, Vidyajyoti College of Theology, New Delhi
Uma Chandru, Activist, WSS, Bangalore
Nishok G U, Kalpavriksh, Pune &, Salem, Tamil Nadu

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