LAND ACQUISITION IN INDIA Article Contents Introduction to the issue Estimates of land acquisition in India and evictees due

due to this Land Acquisition Act 1894 Procedure for land acquisition

Introduction to the issue As a society changes from an agrarian to an industrial one, land use patterns change accordingly industrial plants are built on farmland and wide open spaces of sparsely-populated villages give way to apartment blocks housing people by the hundreds. As India witnesses an economic metamorphosis and attendant demographic changes, land use patterns here are also changing. However, the process is generating considerable friction in the country. Very high density of population, total dependence on land for livelihood and perhaps most importantly, land acquisition policies that have remained broadly the same as those in the colonial era make for a dangerous cocktail that frequently catches fire, singes the ruling dispensation of the day and makes headlines for a few days before dying down till the next cycle erupts. Violent eruptions in this long saga of unrest over land acquisition have recent in recent past occurred in places like Singur (West Bengal), Nandigram (West Bengal), Niyamgirhi (Odisha), Bhatta Parsaul (Uttar Pradesh) and many others. A new law to replace the archaic Land Acquisition Act 1894, though widely debated for more than one year, still awaits enactment due to lack of political consensus on the issue. In the meanwhile, land acquisition continues to remain a deeply contentious issue. Estimates of land acquisition in India and evictees due to this India is a rapidly industrializing economy and society with intense demands for better infrastructure from its people. The last 20 years have seen a great acceleration in this process, with India becoming one of the worlds fastest growing economies. Independent estimates place the number of people displaced following development projects in India since independence at 60 million. This is the highest number of people uprooted for development projects in the world. Only a third of these people were resettled in a planned manner. Most of them were the asset-less rural poor, marginal farmers, poor fisherfolk and quarry workers. Around 60 per cent of the displaced belonged to the Adivasi and Dalit communities. Given that 90 per cent of our coal, more than 50 per cent of minerals and most prospective dam sites are in Adivasi regions, there is likely to be continuing contention over issues of land acquisition in these areas. Land Acquisition Act 1894 The Land Acquisition Act 1894 continues to provide the legal framework for acquisition of privately held property by the government. This law facilitates acquisition of land by government for public purposes. Acquisition is different from purchase, as in the case of acquisition, the owners consent is not necessary. Acquisition can be done against the wishes of property owners and compensation is paid for the property being acquired. Quite importantly, this compensation is determined by the government and need not be

linked to market prices. A purchase on the other hand, is predicated on the consent of the owner to sell and payment of a mutually-agreed price, which invariably would be market-determined. The logic underlying compulsory acquisition of property flows from the philosophy of Utilitarianism which subsumes individual rights to community good. The state, in this instance, exercises the Power of Eminent Domain, forcing a property owner to surrender his/her ownership to the state or an authorized agency for use by the state or its agencies. Procedure for land acquisition The procedure for land acquisition as given in the Land Acquisition Act 1894 is outlined below. The government (central/state) determines that it needs land for a public purpose and identifies the piece of land to be acquired for this purpose; A notification to this effect is published in the official Gazette. A summary of this notice is published by the collector(s) of the district(s) where the land to be acquired is located. The government notification must also be published in at least two newspapers, one of which is in the regional language of the place where land acquisition is to take place; Within 30 days of such notification, objections to acquisition have to be given to the Collectors office in writing; At the expiry of the period of 30 days, the collector forwards all objections with comments to the government, whose decision on the matter shall be final; After disposing of the issues raised in the collectors report, the government has to publish a Declaration of Intention to acquire land. This declaration must follow the same guidelines as the earlier notification; The collector issues a notice to all persons interested to appear in an enquiry to be held before him. This enquiry deals with key aspects such as the area of land, compensation etc; After the enquiry, and with approval of the government, the collector makes an award that details the following:

1. The true area of the land; 2. The compensation, which in his opinion should be allowed for the land; and 3. The apportionment of the said compensation among the persons interested. The government can take over possession of the land once compensation is paid. After this, the government has absolutely unencumbered rights over the land and can put the land to any use it deems fit; Under Section 17 of the Act, the government can take over possession of land even without paying compensation, in cases of urgency. Compensation will have to be paid eventually; The actual amount of compensation is determined in accordance with the market value of the st land as it exists on the date of the 1 notification; Process of land acquisition has to be completed within 2 years from the date of the first notification, failing which the whole procedure will have to be started from scratch; The process can be cancelled any time before completion, but cannot be reversed once it is finished and possession acquired by the government.

Constitutional Provisions regarding land acquisition The Constitution, as originally enacted, had provisions under Articles 19 (1)(f) and Article 31 which constituted the Fundamental Right to Property. Article 19(1)(f) stated that all citizens shall have the right to acquire, hold and dispose of property. Further, Article 31(1) stated, No person shall be deprived of his property save by authority of law. The government faced legal obstacles to its land reforms programme due to these rights. In order to st surmount this difficulty, 1 Amendment to the Constitution, (in part), inserted Articles 31A and 31B, besides the Ninth Schedule to the Constitution. Article 31A states (in part) Notwithstanding anything contained in Art 13, no law providing for the acquisition by the state of any estate or any rights therein, Shall be void on the ground that it is inconsistent with or takes away or abridges any fundamental rights

The Ninth Schedule effectively places the laws put in it beyond the scope of judicial review. After a recent th Supreme Court ruling, judicial review for laws placed in the 9 Schedule after the Kesavanand Bharati judgement has been restored. Following a series of amendments that progressively diluted the Right to Property, the 42 Amendment of 1976 repealed Article 19(1)(f). Article 31 was repealed and replaced by Article 300A No person shall be deprived of his property save by authority of law. This amendment relegated a fundamental right to the status of an ordinary legal right. This is an important distinction here. In case of violation of a persons fundamental right(s), he/she can directly approach the Supreme Court for grant of relief through any of the six appropriate writs Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo Warranto. Perhaps more importantly, the Court cannot refuse to issue a writ, even on the pretext that the litigant has prayed for the wrong writ. In this case, the Court would direct the litigant to file a petition asking for the proper writ. However, for redress in violation of a legal right, a citizen has to go through the grind of the entire judicial system, and his/her appeal can be thrown out at any stage. Thus, the fundamental right to property has been wiped out in India. Acquisition and Requisition of property falls in the Concurrent List, implying both the central and state governments have jurisdiction on the matter. Consequently, a number of state-specific legislations providing for land acquisition exist side-by-side with the Land Acquisition Act 1894. Public Purpose As per Article 31(2), the state can acquire land only for public purpose. However, the Constitution does not define the term. As per Section 3(f) of the Land Acquisition Act, public purpose as includes (but is not limited to) the following: Settlement of new villages or development, extension or improvement of village sites; Provision of land for urban or rural planning; Provision of land for planned development from public funds as per provisions of a Government policy and disposal of the developed land (in whole or parts) by outright sale, lease or by any other mechanism, with the object of securing further development as planned; Provision of land for a public company; Provision of land for developing housing for poor, landless, people affected by calamities or people displaced due to a state scheme/policy; Provision of land for an educational, housing, health or slum clearance scheme sponsored by the state or a body designated for the purpose by the state; Provision of land for any other development scheme of the state; Provision of a premises or building for establishment of a public office, but not office of a company.
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In an important ruling, the Supreme Court recently held that ruled that the acquisition of land by a state government for development of a project to serve the larger public good would be legal and valid, even when such project would be executed by a private entity. The Court said that in case of integrated and indivisible project, the project has to be taken as a whole and must be judged whether it is in the larger public interest. A holistic approach has to be adopted in such matters. This ruling legitimizes the role of state in facilitating land acquisition. Acquisition of land for industries has been a contentious issue for quite some while now, with several Special Economic Zones and other industrial projects facing hurdles. So far, a narrow interpretation of public purpose entitled the state to acquire large tracts of land only if every component of the project to be set up on the acquired land passed the test of public benefit. The

fallout of this judgment is significant as the court upheld development of infrastructure as legal and legitimate public purpose. Weaknesses in the Current Land Acquisition Mechanism The current legal framework for land acquisition has come in for criticism in the light of a number of instances of protests by people whose land is acquired, particularly since the policy of Special Economic Zones (SEZs) was adopted. Major criticisms of the land acquisition framework are: The question over what constitutes public purpose is not satisfactorily settled yet; Marginalised communities, tribals and backward classes have been the major victims of land acquisition. The present policy has a number of weaknesses with respect to these communities: Most of the tribal communities have a system of communal ownership of assets and cannot produce ownership documents. As such, they are treated as encroachers and paid hardly any compensation, if at all; These communities are heavily dependent on land for sustenance and livelihood. Forced displacement, even with compensation, often causes irreparable damage to their livelihood security; Sharecroppers, tenants and similar occupants of land are not fairly treated by the present laws, as they get a very minor share of the total compensation, even as they suffer the maximum damage to their livelihood Price of land being acquired does not reflect the economic value of the land. Following development, the same land is sold at much higher prices while the original owners do not receive their fair share of the economic value of land; The acquisition policy focuses on immediate payment of monetary compensation, without due regard to educating the people about utilizing the money judiciously, and also not paying much attention to their future livelihood. This creates severe disruptions in the lives of the displaced population.

In numerous judgements, the Supreme Court has held that factors such as market value of land, location of the land, the loss of income suffered by the land owner and availability of basic amenities such as water and electricity must be considered while arriving at a fair compensation for acquisition of land. In a judgement, the Court has said that the fixation of compensation under the Land Acquisition Act involves an element of rational guess work. It is thus clear that the present mechanism of land acquisition in in serious need of an overhaul so that interests of the evictees are better protected than at present. A bill to amend the Land Acquisition Act the Land Acquisition (Amendment) Bill is pending since 2007. In addition, there are numerous suggestions from other sources regarding changes needed in the mechanism.