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Mainstream, Vol XLVII, No 35, August 15, 2009 (Independence Day Special)

Why We Must Oppose the Land Acquisition (Amendment) Bill of 2009

Wednesday 19 August 2009, by D. Bandyopadhyay

A law is amended generally to bring in improvement or to be in conformity with some important judicial decisions. The Land Acquisition (LA) Act of 1894 does require revision to conform to the current-day situation. So far, there could not be any objection.

But the way the amendments have been made looks as if we are going back on time. There are certain undesirable features which require to be highlighted. Under the theory of Eminent Domain, private property could be taken over only for public purpose. The LA Act defines ‘Public Purpose’ in Section 3(l) and it includes eight points. Among these points are: improvement of village sites; planned development of town and rural areas; provision of land for the landless or people staying in natural calamity affected areas and for persons affected by development projects. The impact of the Nehruvian philosophy is clearly discernible. In the amendments suggested, all these beneficial, pro-poor and pro-rural areas points have been omitted. ‘Public Purpose’ now consists of basically two items: (i) strategy related issues; and (ii) infrasructure. There cannot be any quarrel about these two points. But the third point is sinister and dangerous. It relates to any project of general public use (not public purpose) undertaken by ‘a person’ for which he has purchased or negotiated to purchase 70 per cent of the land and the remaining 30 per cent would be acquired by the state. The definition of a ‘person’ makes one’s flesh crib. It says, a ‘person’ means a company, association of persons, a body of persons whether incorporated or not. It means basically the corporate sector has been given a free hand in acquiring whatever land they like, a part of which will be through negotiations but the more difficult part would be through state intervention.

There are several points involved in it. First, will this law supersede and/or over-ride State land reform laws relating to land ceiling? While a company as a legal entity can purchase land up to the ceiling limit it has no right to cross the limit. But the amendment as drafted seems to give them that right. This is not acceptable. Secondly, if the government has to acquire 30 per cent of the land, the government should have a right to know whether the project for which the land is to be acquired is a necessary project for the planned development of the country. Without a preliminary scrutiny of the project how could a private company stampede the government to procure for it the remaining 30 per cent through a coercive law? It means that the government is moving away from the concept of public purpose for acquisition of private land to the concept of private purpose for making profit by corporate bodies. Public purpose and private purpose are logically contradictory terms. By this process, the government is handing over the entire development projects, including social welfare projects, to the private sector. And the private sector either would not come for social development projects or if they came they would do so at a price which would exclude the most vulnerable sections of the Indian population. This goes against the whole spirit of the Directive Principles of State Policy contained in Part IV of the Constitution of India. Another point to be mentioned here is that while the government is omitting ‘Company’ in the Preamble to the amending Act, they are handing over the whole process to the corporate sector through the back door. This is nothing short of a fraud.

Another major defect of the amending Bill is that it has not elaborated on the concept of compensation. Land is being treated, as before, as an item of property. But in an agriculture-based economy like India, land is a productive asset which gives livelihood to many persons other than the owner. In fact, there is a rule of thumb ratio of 1:4 in the matter of employment and livelihood in respect of land. After all the civil unrest and movement regarding compulsory acquisition, the government should have thought about loss of livelihood also as an element to be compensated for. This is not there in this Bill.

The third major lacuna in the bill is that it has not provided for any protection for the Scheduled Tribes. There are many protective laws for the Scheduled Tribes, including the Fifth Schedule of the Constitution which gives enormous powers to the Governor to negate any harmful effect of any law on the Scheduled Tribes. The Extension of Panchayats to the Scheduled Area Act (PESA) gives a lot of power to the Gram Sabha keeping in mind the tribal tradition. The Samtha judgement of the Supreme Court in 1997 recognises the right of the tribals over the minerals and other natural resources. The Scheduled Tribe and Other Traditional Forest Dwellers (Recognition of Rights) Act 2006 gives them right of cultivation and continued possession of forest lands. This amending Bill without mentioning any one of these beneficial laws seems to bulldoze all of them to the detriment of the interests of the Scheduled Tribes. It would only create more bad blood between the Scheduled Tribes and others because of the overriding provisions relating to their benefits. This amendment Bill should incorporate the important beneficial aspects of all these laws mentioned above and provide protection to tribals. Incidentally, the current Naxalite movement of the Central Indian hills almost corresponds with the area with major tribal population of the country. The displaced tribals numbering two crores constitute the base of the extremist movement in these areas. So, to contain the violence, in addition to the police action, definite ameliorating measures have to be taken. The law is totally silent on it.

THE principal issue in the current Land Acquisition Act is that it does not provide for any exit. Land might have been acquired for a project. What would happen if the project gets dropped or is abandoned? This is precisely what happened in Singur. Nine hundred and ninetyseven acres were acquired forcefully for setting up a small car factory by Messrs Tata Motors. Messrs Tata Motors abandoned the project in October 2008. What happens to the land? The law is silent. In the early 1950s, the West Bengal Government gave 750 acres of prime land between the GT Road and the main Eastern Railway line in the district of Hooghly for setting up an automobile factory by the Birlas. In 50 years, the company could not use more than 300 acres leaving 450 acres fallow. Is it not a national waste that a prime land amounting to 450 acres could neither be used for agriculture nor for any industrial purpose for half-a-century? Thus, there are various ways in which acquired lands are wasted. The new law should provide for a simple exit policy for return of the acquired land to the original owners if the project is abandoned, or the scope of the project is changed, reducing the requirement of land or for excess land acquired through overestimation of requirement.

The Rehabilitation and Resettlement (R&R) Policy of 2007 clearly mentions the principle of three ‘minima’. These are: (i) minimise displace-ment; (ii) minimise acquisition of land, and (iii) minimise agricultural land for non-agricultural use. The proposed amendment does not contain these principles. It only leaves to the Scrutiny Committee to take a view which is entirely discretionary. These principles of three minima should be incorporated as a part of the law to prevent misuse of this law for acquisition of more land than whatever the project requires.

If the country could wait from 1894 to 2009 for a major overhaul of the LA Act, it can wait another couple of years to cure the infirmities mentioned above. The Bill has to be redrafted and placed before the public for an open debate before it is placed before Parliament for enactment.

The author is a former Secretary, Rural Development, Government of India, and the architect of ‘Operation Barga’ that changed the face of the West Bengal countryside.

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