THE LAND ACQUISITION AND REHABILITATION OF PROJECT AFFECTED PERSONS ACT, 2007
Sections PART I PRELIMINARY
1. Short title, extent, commencement and application 2. Definitions 3. Repeal and saving 4. Provisions of Act for involuntary acquisition done by State 5. Functions of State Rehabilitation Commission 6. Meeting and agreement of members of Gram Sabhas and Ward Sabhas PART II APPEALS 7. Appeal to Court PART III PROCESS OF LAND ACQUISITION AND REHABILITATION 8. Notification and publication of clearance of Detailed Project Report 9. Process of land acquisition PART IV THE NATIONAL REHABILITATION COMMISSION 10.Constitution of National Rehabilitation Commission 11. Term of office and condition of service 12.Removal of Chief Rehabilitation Commissioner or Rehabilitation Commissioner 7 7 6 1 1 5 5 5 6
9 10 11
PART V THE STATE REHABILITATION COMMISSION
13.Constitution of State Rehabilitation Commission 14.Terms of office and conditions of service 15. Removal of State Chief Rehabilitation Commissioner and State Rehabilitation Commissioner THE FIRST SCHEDULE THE SECOND SCHEDULE THE THIRD SCHEDULE THE FOURTH SCHEDULE 12 15 16 17 18 19 31
THE LAND ACQUISITION AND REHABILITATION OF PROJECT AFFECTED PERSONS ACT, 2007
An Act to consolidate and amend law relating to Land Acquisition and Rehabilitation of Project Affected Persons in India and for matters connected therewith or incidental thereto.
PART I PRELIMINARY
1. Short title, extent, commencement and application – (1) This Act may be called The Land Acquisition and Rehabilitation of Project Affected Persons Act, 2007. (2) It extends to the whole of India. (3) It shall come into force on ……day of………., 2007. 2. Definitions - In this Act unless the context otherwise requires – (1) “detailed project report” means a comprehensive document prepared by the Project Implementer setting out all the technical parameters of the project and a detailed enumeration of all its technical, environmental and social costs and benefits and the plan and cost of participatory resettlement and rehabilitation along with the internal rate of return calculated from these arrived at after the participatory consultation process with the Project Affected Persons has been completed to the satisfaction of all parties; (2) “environmental impact assessment” means a detailed participatory assessment of the various environmental impacts of the project on the basis of which the environmental costs of the project can be estimated for the purposes of arriving at a correct internal rate of return; (3) “Gram Panchayat” means the lowest institution of self-government constituted in a rural area; (4) “Gram Sabha” means a body consisting of all the persons registered in the electoral rolls relating to a village comprised within the area of the Gram Panchayat at the village level; (5) “land” means benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth; 3
(6) “Municipality” means the institution of self government in an urban or semiurban area; (7) “National Rehabilitation Commission” means a quasi-judicial commission set up under this Act to consider appeals against the decisions and actions of the State Rehabilitation Commission; (8) “People's Rehabilitation Implementation and Monitoring Committee” means a committee elected by the Gram/Ward Sabha to oversee the implementation of the Rehabilitation and Resettlement Plan; (9) “persons entitled to act” means any person appointed by Project Affected Persons to act on his/her behalf in the safeguard of his/her rights and entitlements; (10) “preliminary project report” means a preliminary document prepared by the Project Implementer detailing the technical parameters and expected costs and benefits of the project based on rough estimates of the environmental and social impacts and a preliminary rehabilitation and resettlement plan; (11) “private parties” means those parties either individually or as an institution registered under the Companies Act, Societies Registration Act or Registration of Cooperative Societies Act, who would like to acquire land by non-coercive means for setting up projects; (12) “project” means any development project or any other initiative or activity that entails the acquisition of land leading to displacement of people; (13) “Project Affected Persons” means those people all of whose rights and entitlements in a particular area will be affected partially or fully by the implementation of a project and not just those whose land is proposed to be acquired. Thus this expression will include separately persons of all ages, castes, skills, physical and mental abilities, property classes and gender. Consequently in addition to those in whose names land is actually recorded with the government Project Affected Persons will include the wives, unmarried son(s) and daughter(s) above eighteen years of age, married son(s) and his/ their wife(s), married daughter(s) if they are residing and practicing livelihood in the village, disabled, widows, divorcees, of the land owners, landless people, tenants, sub-tenants, labourers, encroachers on government land. It would also include women abandoned by their families and minor children who have no family support;
(14) “Project Implementer” means the entity that is proposing to set up a development project that will necessitate land acquisition and rehabilitation whether involuntary or non-coercive in nature; (15) “public good” means maximum welfare of the public at large;
(16) “public interest” means the maximum welfare of maximum number of people; (17) “public purpose” means one, which serves the people and will be used by the public at large; (18) “public utility” means a project or service that will be used by the public at large; (19) “rehabilitation and resettlement plan” means the detailed participatory plan for the rehabilitation and resettlement of the Project Affected Persons along with the estimated costs, which will be used to arrive at a correct internal rate of return; (20) “social impact assessment” means a detailed participatory assessment of the various social impacts of the project involving the potential Project Affected Persons on the basis of which the social costs of the project can be estimated for the purposes of arriving at a correct internal rate of return; (21) “State Rehabilitation Authority” means a statutory and independent authority constituted by the government of each state of the Indian Union for the purpose of overseeing the process of land acquisition and rehabilitation and also for keeping a detailed record of this including for those projects that have already been completed or are under construction at the time of enactment of this law thus ensuring a comprehensive audit of displacement and rehabilitation in this country; (22) “State Rehabilitation Commission” means a quasi-judicial commission set up by the government of each state of the Indian Union under this Act to assess and either sanction or reject on merit the preliminary project reports initially submitted to it by project implementers for its consideration. The State Rehabilitation Commission is also the first appellate authority against the actions and decisions of the State Rehabilitation Authority, the Project Implementer, the Gram Sabha / Ward Sabha and the People's Rehabilitation Implementation and Monitoring Committee; (23) “Ward” means the area from which a member is elected to a municipality in an urban or semi urban area;
(24) “Ward Sabha” means a general body consisting of all the persons registered in the electoral rolls relating to the area comprised within the Ward; 3. Repeal and saving. - This law shall prescribe the minimum legal entitlements of Project Affected Persons and would override all laws, policies and administrative instructions that give lesser entitlements than those prescribed under this law. 4. Provisions of Act for involuntary acquisition done by State. - The provisions in this law for involuntary acquisition shall apply only to that done by the State for setting up projects with state funds for public purpose and in the public interest. No involuntary acquisition can be done by the state for private parties. However the processes for ensuring the entitlements of the Project Affected Persons created under this law would be binding on all private parties that acquire land through non-coercive means and the duty to enforce these provisions will vest with the State through the National Rehabilitation Commission and the State Rehabilitation Commission. 5. Functions of State Rehabilitation Commission.- (1) A private party acquiring land above the ceiling limit prescribed for the area has to take permission from the State Rehabilitation Commission to do so and it will be the duty of the State Rehabilitation Commission to see that adequate provisions for rehabilitation are made for Project Affected Persons other than the direct owners of the land. (2) A Project Implementer wishing to set up a project must first submit an application to the State Rehabilitation Commission along with the Preliminary Project Report. The State Rehabilitation Commission will consider whether the project prima facie fulfils the conditions of being in the public interest and for a public purpose and in accordance with the principles set out in Schedule I, whether its Social Impact Assessment is valid and in accordance with the principles set out in Schedule II and whether the Rehabilitation and Resettlement Plan is just and implementable and in accordance with the principles set out in Schedule III. In general the State Rehabilitation Commission will operate in accordance with the guidelines prescribed in Schedule IV. The State Rehabilitation Commission will reject the Preliminary Project Report if it is prima facie found to be wanting in the above respects. Notwithstanding anything contained in the above subsection Project Implementer can appeal against a negative decision of the State Rehabilitation Commission to the National Rehabilitation Commission and thereafter to the Supreme Court. However, if the project is found to be deficient in accordance with the provisions of Schedules I to IV even after this due process of law then it will not be pursued with. 6
(3) If the State Rehabilitation Commission finds the Preliminary Project Report to be prima facie valid or if on appeal it is found to be valid by the National Rehabilitation Commission or the Supreme Court, the State Rehabilitation Commission will then direct the State Rehabilitation Authority to initiate a process of public consultation regarding the various aspects of the preliminary project report involving the Gram Sabhas or Ward Sabhas in the area in which the project is to be implemented. For this purpose the preliminary project report will be translated into the local language so that its contents can be understood by the Project Affected Persons. 6. Meeting and agreement of members of Gram Sabhas and Ward Sabhas.Any number of meetings of the Gram Sabhas or Ward Sabhas may be held till eighty percent of their members are reasonably agreed upon the public interest and public purpose of the project, its Social Impact Assessment and the Rehabilitation and Resettlement Plan necessary to mitigate the negative impacts and a Detailed Project Report on the basis of this agreement is formulated by the Project Implementer to the satisfaction of all parties.
PART II APPEALS
7. Appeal to Court.- Any party aggrieved with the Detailed Project Report and the Rehabilitation and Resettlement Plan prepared may approach the State Rehabilitation Commission first. Appeal against the order of State Rehabilitation Commission shall lie before the National Rehabilitation Commission. Appeal against the order of National Commission shall lie beforethe Supreme Court .
PART III. PROCESS OF LAND ACQUISITION AND REHABILITATION
8. Notification and publication of clearance of Detailed Project Report. - Once the Detailed Project Report and the Rehabilitation and Resettlement Plan has got the clearance of the Gram Sabhas/Ward Sabhas and the regulatory bodies a notification shall be published in the Official Gazette regarding the land to be acquired for the project.
9. Process of land acquisition. – (1) The State Rehabilitation Authority in tandem with the local revenue authorities will then initiate the process of land acquisition and rehabilitation and resettlement of the Project Affected Persons. (2) Individual notices must then be served on each of the Project Affected Persons as identified in the Rehabilitation and Resettlement Plan. (3) Identity cards will have to be issued to all bona fide Project Affected Persons within three months of their identification to prevent the subsequent entry of unauthorized persons to claim the benefits of the rehabilitation and resettlement plan. (4) The State Rehabilitation Authority will be the implementation agency of the rehabilitation and resettlement plan with funds provided by the Project Implementer for the purpose. State Rehabilitation Authority will deploy specially qualified staff to carry out the implementation process efficiently. (5) The Project Implementer cannot go ahead with the project unless the funds for a particular phase of the rehabilitation and resettlement plan have been deposited with the State Rehabilitation Authority prior to the beginning of that phase. (6) While determining compensation the State Rehabilitation Authority will use the prevailing market rates that actually operate at the time of purchase scaled up by a multiplier to account for the escalation in property prices due to the conversion of agricultural land into non-agricultural land in rural areas and due to the proposed project implementation in urban areas to fairly account for the value of the land. Similarly immovable assets will have to be compensated at replacement value and not at depreciated value. (7) In case a Project Affected Persons desires cash compensation then the State Rehabilitation Authority will take appropriate steps to see that this cash compensation is used for productive purposes and not frittered away in consumption. (8) All entitlements to replacement assets provided under the rehabilitation and resettlement plan will be jointly held by the man and the woman in case of a married family. Special care should be taken to ensure gender justice in all cases. (9) Each affected Gram Sabha/Ward Sabha will elect a body to be called the People's Rehabilitation Implementation and Monitoring Committee. At least half the total number of People's Rehabilitation Implementation and Monitoring
Committee members must be from the marginalised sections like women, adivasis, dalits, landless workers, disabled etc in proportion to their population. (10) The People's Rehabilitation Implementation and Monitoring Committee will monitor the implementation of the rehabilitation and resettlement plan by the State Rehabilitation Authority beginning with the joint measurement of land and ending with complete resettlement in the new site or provision of complete compensation in case cash compensation is preferred by the Project Affected Persons. The People's Rehabilitation Implementation and Monitoring Committee will have the power to summon documents and information for the purpose of carrying out its task. (11) The Village/Ward People's Rehabilitation Implementation and Monitoring Committee will elect from among themselves one member to the Project level People's Rehabilitation Implementation and Monitoring Committee, which will provide phase-wise and final certification of the implementation of the rehabilitation and resettlement plan based on the reports from the village/ward People's Rehabilitation Implementation and Monitoring Committee submitted to the State Rehabilitation Commission. (12) If the People's Rehabilitation Implementation and Monitoring Committee after monitoring and evaluation is dissatisfied with the implementation of the rehabilitation and resettlement plan and does not certify it then work on the project will be stopped by the State Rehabilitation Commission and penal action taken against the erring officials either of the State Rehabilitation Authority or of the Project Implementer or both who have been responsible for this lapse. (13) The State Rehabilitation Commission will appoint evaluators to conduct an independent public evaluation of the Rehabilitation and Resettlement Plan five years after the implementation is complete. The evaluation will determine whether the goals of positive rehabilitation and resettlement have been achieved and if found wanting then the operation of the project in question will be stopped until these are achieved. (14) If under this Act land has been acquired for a public purpose, but has not been used for it, it should be first returned to the original owner or if that is not possible then the land should be used for another pubic purpose and should not under any circumstances be left for speculative development by the Project Implementer.
PART IV THE NATIONAL REHABILITATION COMMISSION
10. Constitution of National Rehabilitation Commission.- (1) The Central Government shall, by notification in the Official gazette, constitute a body to be known as the National Rehabilitation Commission to exercise the powers conferred on, and to perform the functions assigned to it under this Act, (2) the National Rehabilitation Commission shall consist of – (a) the Chief Rehabilitation Commissioner, and (b) such number of Rehabilitation Commissioners, not exceeding ten as many be deemed necessary (3) The Chief Rehabilitation Commissioner and Rehabilitation Commissioners shall be appointed by the President on the recommendation of a committee consisting of – i. the Prime Minister, who shall be the Chairperson of the committee ii. the leader of the Opposition in the Lok Sabha and iii. A Union Cabinet Minister to be nominated by the Prime Minister (4) The general superintendence, direction and management of the affairs of the National Rehabilitation Commission shall vest in the Chief Rehabilitation Commissioner who shall be assisted by the Rehabilitation Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the National Rehabilitation Commission autonomously without being subjected to directions by any other authority under this Act. (5) The Chief Rehabilitation Commissioner shall be a retired Supreme Court Judge and he shall be assisted by Rehabilitation Commissioners who shall be persons of eminence in public life with wide knowledge and experience in law, science, technology, social service, management, journalism, mass media or administration and governance with special expertise in various aspects of rehabilitation and resettlement of project affected persons. (6) The Chief Rehabilitation Commissioner or a Rehabilitation Commissioner shall not be a member of Parliament or Member of the Legislature of any state or Union Territory as the case may be, or hold any other office of profit or be connected with any political party or carrying on any business or pursuing any profession.
(7) The headquarters of the National Rehabilitation Commission shall be at Delhi and the National Rehabilitation Commission may with the previous approval of the Central Government establish offices at other places in India. 11. Term of office and condition of service. -(1) The National Rehabilitation Commissioner shall hold office for a term of five years from the date on which he enters upon his office and shall be eligible for reappointment, Provided that no Chief National Rehabilitation Commissioner shall hold office as such after he has attained the age of seventy years. (2) Every Rehabilitation Commissioner shall hold office for a term of five years from the date on which he enters upon his office or till he attains the age of sixty five years, whichever is earlier and shall not be eligible for reappointment as such provided that every Rehabilitation Commissioner shall on vacating his office under this sub section be eligible for appointment as the Chief Rehabilitation Commissioner in the manner specified. Provided that where the Rehabilitation Commissioner is appointed as the Chief Rehabilitation Commissioner, his term shall not be more than five years in aggregate as the Rehabilitation Commissioner and the Chief Rehabilitation Commissioner. (3) The Chief Rehabilitation Officer or a rehabilitation Commissioner may at any time by writing under his hand addressed to the President resign from his office. Provided that the Chief Rehabilitation Commissioner or a Rehabilitation Commissioner may be removed in the manner specified. (4) The salaries and allowances payable to and other terms and conditions of service of the Chief Rehabilitation Commissioner shall be the same as that of the Supreme Court Judge and the Rehabilitation Commissioners shall be the same as that of Principal Secretary, Government of India. Provided that if the Chief Rehabilitation Commissioner or a Rehabilitation Commissioner, at the time of his appointment is, in receipt of a pension, other than a disability or wound pension, in respect of any previous service under the Government of India or under the Government of a State, his salary in respect of the service as the Chief Rehabilitation Commissioner or an Rehabilitation Commissioner shall be reduced by the amount of that pension including any portion of pension which was commuted and pension equivalent of other forms of retirement benefits excluding pension equivalent of retirement gratuity:
Provided further that if the Chief Rehabilitation Commissioner or a Rehabilitation Commissioner if, at the time of his appointment is, in receipt of retirement benefits in respect of any previous service rendered in a Corporation established by or under any Central Act or State Act or a Government company owned or controlled by the Central Government or the State Government, his salary in respect of the service as the Chief Rehabilitation Commissioner or a Rehabilitation Commissioner shall be reduced by the amount of pension equivalent to the retirement benefits: Provided also that the salaries, allowances and other conditions of service of the Chief Rehabilitation Commissioner and the Rehabilitation Commissioners shall not be varied to their disadvantage after their appointment. (5) The central government shall provide the Chief Rehabilitation Commissioner and the Rehabilitation Commissioners with such officers and employees as may be necessary for the efficient performance of their functions under this Act, and the salaries and allowances payable to and the terms and conditions of service of the officers and other employees appointed for the purpose of this Act shall be such as may be prescribed. 12. Removal of Chief Rehabilitation Commissioner or Rehabilitation Commissioner. - (1) Subject tot the provisions of the Act, the Chief Rehabilitation Commissioner or any Rehabilitation Commissioner shall be removed from his or her office only by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the President has, on inquiry, reported that the Chief Rehabilitation Commissioner or any Rehabilitation Commissioner as the case may be ought on such ground be removed. (2) The President may suspend from office, and if deemed necessary prohibit also from attending the office during inquiry, the Chief Rehabilitation Commissioner or Rehabilitation Commissioner in respect of whom a reference has been made to the Supreme Court under the provisions of this Act until the President has passed orders on receipt of the report of the Supreme Court on such reference (3) Notwithstanding anything contained in sub-section (1) the President may by order remove from office the Chief Rehabilitation Commissioner, any Rehabilitation Commissioner if the Chief Rehabilitation Commissioner or a Rehabilitation Commissioner, as the case may be, (a) is adjudged insolvent, or 12
(b) has been convicted of an offence which, in the opinion of the President, involves moral turpitude, or (c) engages during his term of office in any paid employment outside the duties of his office; or (d) is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body, or (e) has acquired such financial or other interest as is likely to affect prejudicially his functions as the Chief Rehabilitation Commissioner or a Rehabilitation Commissioner. (4) If the Chief Rehabilitation Commissioner or a Rehabilitation Commissioner is in any way concerned or interested in any contract or agreement made by or on behalf of the Government of India or participates in any way in the profit thereof or in any benefit or emolument arising there from otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of sub section (1) be deemed to be guilty of misbehaviour.
PART V THE STATE REHABILITATION COMMISSION
13. Constitution of State Rehabilitation Commission.- (1) Every State Government shall, by notification in the Official Gazette, constitute a body to be known as the ......... (name of the State) Rehabilitation Commission to exercise the powers conferred on, and to perform the functions assigned to, it under this Act. (2) The State Rehabilitation Commission shall consist of— (a) The State Chief Rehabilitation Commissioner, and (b) Such number of State Rehabilitation Commissioners, not exceeding ten, as may be deemed necessary. (3) The State Chief Rehabilitation Commissioner and the State Rehabilitation Commissioners shall be appointed by the Governor on the recommendation of a committee consisting of— (i) The Chief Minister, who shall be the Chairperson of the committee; (ii) The Leader of Opposition in the Legislative Assembly; and (iii) A Cabinet Minister to be nominated by the Chief Minister. Explanation.—For the purposes of removal of doubts, it is hereby declared that where the Leader of Opposition in the Legislative Assembly has not been
recognised as such, the Leader of the single largest group in opposition of the Government in the Legislative Assembly shall be deemed to be the Leader of Opposition. (4) The general superintendence, direction and management of the affairs of the State Rehabilitation Commission shall vest in the State Chief Rehabilitation Commissioner who shall be assisted by the State Rehabilitation Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the State Rehabilitation Commission autonomously without being subjected to directions by any other authority under this Act. (5) The State Chief Rehabilitation Commissioner shall be a retired High Court Judge and shall be assisted by the State Rehabilitation Commissioners who shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance with special expertise in various aspects of rehabilitation and resettlement of project affected persons. (6) The State Chief Rehabilitation Commissioner or a State Rehabilitation Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or Union territory, as the case may be, or hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession. (7) The headquarters of the State Rehabilitation Commission shall be at such place in the State as the State Government may, by notification in the Official Gazette, specify and the State Rehabilitation Commission may, with the previous approval of the State Government, establish offices at other places in the State. 14. Terms of office and conditions of service.- (1) The State Chief Rehabilitation Commissioner shall hold office for a term of five years from the date on which he enters upon his office and shall not be eligible for reappointment: Provided that no Chief State Chief Rehabilitation Commissioner shall hold office as such after he has attained the age of sixty- eight years. (2) Every State Rehabilitation Commissioner shall hold office for a term of five years from the date on which he enters upon his office or till he attains the age of sixty-five years, whichever is earlier, and shall not be eligible for reappointment as such State Rehabilitation Commissioner:
Provided that every State Rehabilitation Commissioner shall, on vacating his office under this sub-section, be eligible for appointment as the State Chief Rehabilitation Commissioner in the manner specified in sub-section (3) of section 13: Provided further that where the State Rehabilitation Commissioner is appointed as the State Chief Rehabilitation Commissioner, his term of office shall not be more than five years in aggregate as the State Rehabilitation Commissioner and the State Chief Rehabilitation Commissioner. (3) The State Chief Rehabilitation Commissioner or a State Rehabilitation Commissioner, shall before he enters upon his office make and subscribe before the Governor or some other person appointed by him in that behalf, an oath or affirmation according to the form set out for the purpose in the First Schedule. (4) The State Chief Rehabilitation Commissioner or a State Rehabilitation Commissioner may, at any time, by writing under his hand addressed to the Governor, resign from his office: Provided that the State Chief Rehabilitation Commissioner or a State Rehabilitation Commissioner may be removed in the manner specified under section 15. (5) The salaries and allowances payable to and other terms and conditions of service of— (a) the State Chief Rehabilitation Commissioner shall be the same as that of a High Court Judge; (b) the State Rehabilitation Commissioner shall be the same as that of the Chief Secretary to the State Government: Provided that if the State Chief Rehabilitation Commissioner or a State Rehabilitation Commissioner, at the time of his appointment is, in receipt of a pension, other than a disability or wound pension, in respect of any previous service under the Government of India or under the Government of a State, his salary in respect of the service as the State Chief Rehabilitation Commissioner or a State Rehabilitation Commissioner shall be reduced by the amount of that pension including any portion of pension which was commuted and pension equivalent of other forms of retirement benefits excluding pension equivalent of retirement gratuity:
Provided further that where the State Chief Rehabilitation Commissioner or a State Rehabilitation Commissioner if, at the time of his appointment is, in receipt of retirement benefits in respect of any previous service rendered in a Corporation established by or under any Central Act or State Act or a Government company owned or controlled by the Central Government or the State Government, his salary in respect of the service as the State Chief Rehabilitation Commissioner or the State Rehabilitation Commissioner shall be reduced by the amount of pension equivalent to the retirement benefits: Provided also that the salaries, allowances and other conditions of service of the State Chief Rehabilitation Commissioner and the State Rehabilitation Commissioners shall not be varied to their disadvantage after their appointment. (6) The State Government shall provide the State Chief Rehabilitation Commissioner and the State Rehabilitation Commissioners with such officers and employees as may be necessary for the efficient performance of their functions under this Act, and the salaries and allowances payable to and the terms and conditions of service of the officers and other employees appointed for the purpose of this Act shall be such as may be prescribed. 15. Removal of State Chief Rehabilitation Commissioner and State Rehabilitation Commissioner.- (1) Subject to the provisions of sub-section (3), the State Chief Rehabilitation Commissioner or a State Rehabilitation Commissioner shall be removed from his office only by order of the Governor on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the Governor, has on inquiry, reported that the State Chief Rehabilitation Commissioner or a State Rehabilitation Commissioner, as the case may be, ought on such ground be removed. (2) The Governor may suspend from office, and if deem necessary prohibit also from attending the office during inquiry, the State Chief Rehabilitation Commissioner or a State Rehabilitation Commissioner in respect of whom a reference has been made to the Supreme Court under sub-section (1) until the Governor has passed orders on receipt of the report of the Supreme Court on such reference. (3) Notwithstanding anything contained in sub-section (1), the Governor may by order remove from office the State Chief Rehabilitation Commissioner or a State Rehabilitation Commissioner if a State Chief Rehabilitation Commissioner or a State Rehabilitation Commissioner, as the case may be,— (a) is adjudged an insolvent; or
(b) has been convicted of an offence which, in the opinion of the Governor, involves moral turpitude; or (c) engages during his term of office in any paid employment outside the duties of his office; or (d) is, in the opinion of the Governor, unfit to continue in office by reason of infirmity of mind or body; or (e) has acquired such financial or other interest as is likely to affect prejudicially his functions as the State Chief Rehabilitation Commissioner or a State Rehabilitation Commissioner. (4) If the State Chief Rehabilitation Commissioner or a State Rehabilitation Commissioner in any way, concerned or interested in any contract or agreement made by or on behalf of the Government of the State or participates in any way in the profit thereof or in any benefit or emoluments arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of sub-section (1), be deemed to be guilty of misbehaviour.
THE FIRST SCHEDULE [See Section 2(16)(17)] PUBLIC INTEREST AND PUBLIC PURPOSE
1. A project fulfils a public purpose and is in public interest when i. the project benefits the community as a body ii. the project is directly related to the functions of the government iii. the project does not have as its primary objective the benefit of a private party iv. the benefits of the project option outweigh the costs of loss of land, livelihood, shelter, culture, habitat, environment and other capital and operating costs incurred and v. the public interest to be created outweighs any public interest value accruing from the existing use of the land and everything attached to it.
THE SECOND SCHEDULE [See Section 2(20)] SOCIAL IMPACT ASSESSMENT
1. The Social Impact Assessment should take into account the following i. Deprivation of property including land and everything attached to it (with water sources, wells and trees) and houses either owned, occupied with tenancy rights or in de facto possession. 17
iii. iv. v. vi. vii. viii. ix. x. xi. xii. xiii. xiv.
Deprivation of economic, social and cultural opportunities, including but not restircted to means of livelihood, due to stagnation of developmental activity after project is proposed, loss of access clientele, loss of jobs due to physical relocation, loss of gainful employment and loss of access to income generating common property resources. Adverse impacts on both physical and mental health Loss of security especially for women, children and the aged Loss due to suspension of developmental activity in affected areas after project is proposed Loss due to decrease in property prices due to lack of saleability of immovable property Loss of cultural heritage sites and monuments Loss of familiar social and geographical surroundings Loss of markets Loss of social and political leadership Loss of communication and transport facilities Loss of access to government schemes and facilities Impacts of alienation from kin and traditional communities and possible conflicts with host communities. Adverse impacts on quality of life due to pollution from project construction.
THE THIRD SCHEDULE [See Section 2(19)] REHABILITATION AND RESETTLEMENT PLAN
The Rehabilitation and Resettlement Plan for the Project Affected Persons must include the following detailed provisions for their benefit -
1. Infrastructural Facilities
1. For en-masse resettlement of populations, the following infrastructural facilities and basic minimum amenities are to be provided at the cost of requisitioning authority to ensure that the resettled population in the new village or colony can secure for themselves a reasonable standard of community life and can attempt to minimise the trauma involved in displacement. The new resettlement site must be reasonably habitable or be made reasonably habitable, and the villages or colonies established in new sites should be well planned in all aspects. A reasonably habitable and planned settlement would have, as a minimum, the following facilities and resources, as appropriate;
2. Roads within the resettled villages and an all weather road link to the nearest well constructed road, passages and easement rights for all the resettled families be adequately arranged 3. Proper drainage as well as sanitation plans executed before physical resettlement; 4. One or more assured sources of safe drinking water for each 25 families settled in a pocket has to be ensured, capable of yielding enough water to meet the demand of at least six litres per capita per day of safe drinking water and 40 litres per capital per day of water for other purposes. 5. Drinking water for cattle through a pond/borewell/well with a trough; 6. Grazing land as per proportion acceptable in the state 7. Freehold rights for habitation plots and recognition as a revenue village or a habitation with a panchayat/local self-government committee 8. Necessary plantation of inhabited areas must be taken up under social forestry or agro-forestry schemes financed by various Ministries of the Government and environmental aspects of the new rehabilitation site duly taken care of; 9. A reasonable number of Fair Price shops must be set up; 10. Panchayat Ghars, as appropriate, must be established in each newly settled village/basti; 11. Efforts must be taken to set up one Primary Agricultural Co-operative Credit Society with facility for selling essential consumer articles in every resettled village; 12. Village level Post Offices, as appropriate, with facilities for opening saving accounts must be set up; 13. Appropriate seed-cum-fertilizer storages must be set up; 14. Efforts must be made to provide basic irrigation facilities to the agricultural land allocated to the resettled families if not from the irrigation project, then by developing a cooperative or under some government scheme or special assistance; 15. Institutional arrangements for training under theTraining for Rural Youth in Self Employment scheme, easy access to financial institutions for availing of financial assistance under the Integrated Rural Development Programme or any other government or bankable schemes; 16. Panchayati Raj Institutions must be immediately brought under operation in the newly settled villages/colonies above (Institutions such as schools, supplemental nutrition and health centers and community centers must be controlled and managed through some local organization which either already exists or is newly formed, like the gram sabha or gram panchayat, or a mahila mandal);
17. All resettlement families living below poverty line receiving land in the resettled area for agricultural purpose shall also get free supply of seeds and irrigation from any public source for cultivation of suitable crops free o cost for the first year, and on loan basis for subsequent two years; 18. All new villages established for resettlement of the Project Affected Persons shall be provided with suitable transport facility which must include public transport facilities through local bus services with the nearby growth centers; urban localities; 19. Burial and/or cremation ground, depending on the caste-communities at the site and their practices; 20. Facilities for sanitation, including individual toiled points; 21. Individual single electric connections (or connection through nonconventional sources of energy like solar energy), for each household and for public lighting; 22. Child and mother supplemental nutritional services; 23. Pre school and primary school; 24. Sub health center within two kilometre range; 25. Primary Health Centre for each group of 20,000 populations. 26. Playground for children; 27. One community center for every 500 families; 28. Places of worship and chowpal/tree platform for every 50 families for community assembly, of numbers and dismensions consonant with the affected area; 29. Separate land must be earmarked for traditional tribal institutions; 30. Grazing ground and nistaar land for food and fodder, especially in the case of biomass dependent communities; 31. The forest dweller families must be provided, where possible, with their traditional rights on non-timber forest produce and common property resources, if available close to the new place of settlement and, in case and such family can continue their access or entry to such forest or common property in the area close to the place of eviction, they must continue to enjoy their earlier rights to the aforesaid sources of livelihood; 32. The beneficiaries of resettled area, irrespective of caste, creed, religion or economic status, must be allowed to construct for themselves all other facilities essential for community life by taking up suitable projects for which finances are available from governmental scheme. In addition, members of a resettled family may be encouraged to undertake suitable self employment schemes for which finances are available under government and/or any bankable scheme;
33. Appropriate security arrangements must be provided for the settlement, if needed.
2. Agricultural Land
1. Any displaced person/family engaged primarily in agricultural work, either as worker, tenant or owner with or without legal little, subject to those declared ineligible under the policy, must be allotted agricultural land of two standard hectares, if he or she exercises such an option. The title rights will be non-alienable. Explanation 1: One standard hectare shall mean one hectare of agricultural land irrigated out of any public irrigation scheme, 1.25 hectare of agricultural land irrigated/irrigable from any private source/private or personal irrigation project, 1.5 hectare of agricultural land if the land is non-irrigated and non-irrigable but duly rainfed, 2 hectares if the land allotted is cultivable but non-irrigable plain land and 3 hectares if the land offered is wasteland, hilly land, forest land, dry land in arid zone which require land development works for initiation of cultivation, but is capable of being made cultivable. Explanation – 2: Every major male adult member, dependent upon the landholding, jointly or separately, and adult female member when unmarried, widowed or divorced, would be considered as a separate family unit for all purposes of land allotment. 2. Allotment of irrigated land: - Whether landless or landholding Project Affected Persons will have the first right to the land in the command. To make such land available, the requiring authority would acquire up to 50 percent of land in excess of 2 standard hectares of each land holder benefiting from the new command. Consolidation of holdings would have to be undertaken, in such a way as to ensure that Project Affected Persons from a village are allotted land in close proximity. In case the Project Affected Persons agriculturist chooses to be allotted land outside the command area, this option must be respected subject to availability, and the cost of land development and irrigation of irrigable land allotted under the scheme would be borne by the requiring authority. Explanation: It may be stressed that irrigated or at least irrigable land must be the rule, and other categories only the exception where irrigated or irrigable land is impossible, the requiring agency or authority shall bear the cost of organizing irrigation in the allotted land. A specific contract must be signed by requiring agencies or authorities with each individual family or group to provide the same within the prescribed period. The allottee of land in the resettled area shall be provided with proper rights and title on land, free from all encumbrances, following the land demarcation and allotment procedure as per the Land Revenue Code.
3. Agricultural land for rehabilitation must be allotted in the joint name of husband and wife except in the case of single parent households, or unmarried adult individuals. 4. Obligation of other requiring agencies and authorities to bear the cost of development of cultivable waste land: - If land allotted is wasteland, undulated, hilly, rocky, degraded, cost for improvement, development, reclamation of the land including construction of contour bunds or other watershed development schemes shall be borne by the project, and implemented within a period not exceeding two years from the date of allotment of such land, again based on a specific contract. 5. Allotment of land to displaced allottees of government land: - The recipients of the government agricultural land or Gram Sabha agricultural land, if displaced, shall be entitled to the same rights as a land-owner, even if such allottee did not have physical possession, appropriate record or document to prove such possession. 6. Requiring agency to bear stamp duty and other fees: - The cost of registration, stamp duty and other fees, if any, for providing legal documents on land to the allottees shall be borne by the requiring agency. 7. Payment of cost for initial cultivation of allotted land: - The requiring agency shall provide cost of ploughing, seeds, and fertilizers in the first year of cultivation of the allotted land, In the second and third year, cost of cultivation must be paid to such allottee of land on the basis of loan from the requiring agency recoverable within next five years on the basis of single installment per annum and free from any interest on the outstanding loan. Provided that the land which requires development in order to become cultivable, the assistance grant must continue until the development work is in progress. In all of these, cash payment must be kept to the minimum. Service centers/guilds must be established, wherever possible. 8. Non-titled cultivators on forest lands: - Forest dwellers, cultivating forest lands since any date prior to 13th December 2005 (or as per the provisions of Scheduled Tribes and other traditional forest dwellers (Recognition of Forest Rights) Act, 2006. shall be considered as owners of such land for purposes of compensation for such land and allotment of land in lieu of land. 9. Other encroachers: - All encroachers of Government land for a period of five years or more before the date of acquisition of land, who are otherwise landless or marginal farmers, primarily dependent on cultivation for their livelihoods, shall be treated as owners of the land for the purpose of resettlement and rehabilitation. They shall also be entitled to allotment of land in lieu of the encroached land surrendered by them.
3. Employment Opportunities
1. At least one person from every project affected family will be given employment by the project. Explanation 1 -In the first place, all unskilled and semi-skilled direct employment in the project must always go to a Project Affected Persons with a mandatory preference, as long as any such positions are available for employment. Those with appropriate qualifications must also be given first priority for skilled positions. A priority list of eligible Project Affected Persons must be prepared and published along with criterion and procedure for selection, and objections heard before these are finalized by the State Rehabilitation Authority. The priority list must begin with those who are most vulnerable - landless labourers and artisans who have lost their livelihood. After that, landholders will be listed on a descending scale, with a lower priority for those with larger holdings, In recruitment to regular jobs in the project preference shall be given to those losing their source of livelihood, residents of the zone, of the district and of the state in that order. Many projects, including public sector units in the past, have attempted to evade this responsibility by giving even many such on-going unskilled or semiskilled tasks (eg. Horticulture) to contractors, which could adequately be implemented by Project Affected Persons. This must not be permitted as long as there are any eligible Project Affected Persons. Explanation 2 - A second problem frequently encountered is that Project Affected Persons are rejected because they are said to lack the skills required. Since all such projects have long gestation periods, therefore the State Rehabilitation Authority with the assistance for local District Rural Development Agencies and the District Urban Development Agencies and the state government must systematically ensure full literacy as well as the creation of necessary skills to render the Project Affected Persons eligible for employment for semi-skilled positions, and for those with sufficient educational qualifications for skilled positions. Even those private enterprises, which benefit from the project would be charged in the same manner with responsibility for providing skills and jobs to such people. This systematic skill development is primarily the responsibility of the project, with assistance where available from state agencies. 2. For the above provision to be operationalised, from the conceptualization of the project plan itself, the State Rehabilitation Authority must plan multi-dimensional literacy, educational and training programmes and institutions for the people likely to be affected. The training must focus also on developing such traditional occupations/skills, which can be carried to, and useful in, the areas of resettlement. New skills for new occupations in the resettlement area must be the core of the effort. The entire objective would be to enable the project-affected people to have preferential access to the employment opportunities likely to be generated by the project. The entire programme must be planned with high professionalism well in
advance, and must be based upon prior studies of the existing skills, experience, training, competence and aptitudes of the people likely to be affected so that they can easily switch over or be absorbed in new employment. Even after displacement and resettlement, there must be major efforts to run training programmes to provide modern skills to the resettled people to ready them for their new employment. This training programme is not meant merely for preparing for jobs or services, but also for self-employment. 3. Provision of casual and manual wage employment shall not be considered as an alternate source of livelihood or employment in the case of affected persons. Moreover, all such employment shall be co-operatised so as to instill a sense of dignity amongst the participants. Accordingly, all possible tasks in the project will be assigned to cooperatives or groups (even unregistered) of workers, which at present are being generally executed through contractors and middlemen. 4. In all mining projects, preference in grant of lease . would be given to corporate bodies comprising (i) the gram sabhas of the likely zone of influence; (ii) persons owning mineral bearing lands; (iii) workers; and (iv) entrepreneurs providing capital and technical know how. The share of concerned gram sabhas in each shall not be less than fifty percent. 5. The Project Implementing Agency in consultation with t State Rehabilitation Authority will also prepare a broad outline of a perspective plan for reclamation of the mining areas, and for land use and development after the mining operations are over. All such lands after development will belong to the community comprising the concerned gram sabhas. The same must be assigned to the erstwhile land-owners or landless labourers, subject to the condition that the economic activity thereon will be exclusively through personal labour of the assignee and his family and that the land shall not be transferable except through inheritance. A detailed scheme on the above lines will be prepared by the requiring agencies in consultation with the gram sabhas at least two years in advance of the closure of a mine area or any part thereof.
4. Allotment of Shares
1. Allotment of shares from the project will be made according to the recommendations laid down by the Dilip Singh Bhuria headed Parliamentary Committee Report which states that 50% of the shares of the mining and other industries should go to the community and 10% to the people who are directly affected and 10% to the workers.
5. One Time Grant
1. A one-time rehabilitation grant for loss of livelihood will be provided to every adult member of the eligible displaced family, equivalent to 750 days of minimum wages admissible for unskilled workers. This is provided to cover a gestation period 24
of around three years to enable the family to establish a new livelihood. This amount will be placed in a bank account in fixed deposit in the joint name of male and female heads of household. The interest may be freely used for consumption purposes, but the capital can only used for purchase of productive assets or in other ways connected with the establishment of secure livelihoods. This will be ensured by the Collector, or any officer nominated for the purpose by the Collector, who would be a joint signatory (along with male and female heads of families) of the account.
1. All displaced families from the rural as well urban communities shall be provided with the following benefits of resettlement and rehabilitation packages; 2. The rehabilitation package will include allotment of homestead land of the quantum specified, as well as constructed dwelling of such standard and with such number of rooms as has been specified separately for rural and urban households, as per stipulations provided below. In addition, allotment of funds for construction of cattle-sheds, transportation cost for shifting of building materials, persons, and their belongings including cattle is to be provided by the Project Implementing Agency, by such number of trips as must be mutually decided by the State Rehabilitation Authority in consultation with individual families. Those Project Affected Persons who are given the land for land option, but voluntarily do not opt for land, will be eligible to opt for assistance available to displaced persons from urban areas; 3. Allotment of homestead land in rural area: - All displaced families from the rural area, shall be settled in areas selected by the Project Affected Persons from among a range of real choices (at least three), including sites as close as possible to the place of displacement, as well as sites as close as possible to new livelihoods such as the command area or new factory and the new township. If such families are settled in the rural areas, they shall be allotted a homestead land, which must not be less than the homestead land acquired, submerged or otherwise lost on account of the project, subject to a minimum of 150 square meters; 4. Allotment of constructed houses and standard/floor area thereof: - In addition to allotment of homestead land each family settled in a rural area shall be provided with a constructed house of the standard prescribed under Indira Aawas Yojana with one living room for the nucleus family of husband, wife and two minor children; but for every two additional adult members living in such family one additional dwelling room of at least 10’x10’ floor area is to be added to such constructed house, subject to a maximum number of three additional rooms per family. If the displaced families are willing to and capable of getting their houses constructed, they are to be given financial assistance equivalent to the rate prescribed in Indira Aawas Yojana. Based on the replacement value at the market rates for the house acquired. Such families may, however, on their own, construct additional
rooms or make necessary extension of the constructed houses out of the funds received as compensation as well as by using building materials allowed to be transported at the cost provided by the requiring agencies; 5. Allotment of funds for construction of cattle-sheds: - The requiring agencies shall provide necessary financial assistance as may be required for construction of cattle-sheds or poultry farms in the place of their resettlement of the same size and standard as was owned by any displaced family. The exact quantum of amount shall be decided for each individual family separately on the basis of number of cattle or birds owned and transported to the new place of settlement; 6. Allotment of homestead land in urban area: - For allotment of homestead in urban centre a family must be allotted homestead land to the extent acquired and up to a minimum of 50 square meters and a maximum of 150 square meters. However, the number of rooms to be constructed for a single family or a joint family shall be determined on the basis of total number of adult members in the family. At least one living room for the nucleus family of husband, wife and two minor children; but for every two additional adult members living in such family one additional dwelling room of at least 10’x10’ floor area must be added to such constructed house, subject to a maximum number of two additional rooms per family; 7. In case of no allotment of constructed houses in the rural areas: - If the displaced family is willing to construct their house, financial assistance given them should be equivalent to the rate prescribed in the Indira Awaas Yojana or equivalent to the replacement value whichever is higher; 8. Independent plot for every adult of the family and preferably readymade constructed houses should be avoided; 9. Allotment of homestead land to homeless families: - No. displaced family shall be left shelter less in the area of their resettlement. A displaced family, which had a dwelling house on unauthorized land, or a temporary house on authorized land, or did not have either authorized homestead land (i.e. 50 square meters) in the urban area of 150 square meters in the rural areas) and constructed dwelling house of such standard and with such number of rooms as separately prescribed for resettlement of various sizes of displaced families to be resettled in the rural as well as urban habitations; 10. Construction cost of new houses to be borne by Project Implementing Agencies through the State Rehabilitation Authority: - The construction cost is to be borne by the PIA, in the form of a construction grant, and it shall not be less than the amount specified from time to time for construction of Indira Aawas Yojana 26
houses, if such houses are constructed in the rural areas. As far as possible, cash payment must be avoided, and substituted by provision of materials/supplies through contracted sellers. For construction of houses in the urban areas, the amount to be paid as construction grant shall be 50 per cent more than what is allocable for construction of houses in the rural areas in the same tehsil. An option is to provide the replacement value of the house acquired; 11. Limitation to adjustment of the cost of construction of dwelling housing against compensation awarded: - The cost of construction of the dwelling houses shall not be adjusted from the compensation payable to a Below Poverty Line family;
7. Self-employed Persons
1. For all self- employed persons in the project-affected areas who can transfer their self- employment to the new area, all the incentive schemes, subsidies, material and financial assistance on the basis of priority, would be made available so as to enable them to resettle in the new area. It is recognized here that some small agriculturists or landless workers are also self-employed, therefore for purposes of this section, only those persons will be regarded as self-employed who derive more than 66 per cent of their family income from this source. Also in order to exclude large traders who would not require special consideration and assistance, the assistance mentioned in this section would not be available to self-employed persons with an capitalized value of trade and business which is 25 lack rupees or more at 1998 prices. In the cases o self-employed persons who cannot or do not wish to transfer their self-employment to the new area, they would be provided with opportunities for similar or alternative self-employment in the area, and with similar facilities in the form of incentives, subsidies, material and financial assistance. District Panchayats and other state agencies must be given additional grants for various relevant schemes, so that they do not have to eat into the rightful quota of the host communities and conflict is avoided. If it is not possible to do so, they must be paid compensation on the basis of the capitalized value of their trade or business. This will be calculated by the State Rehabilitation Authority on the basis of a speaking order which would be appealable. They must also be provided with jobs, as indicated below, subject to the willingness of the Project Affected Persons.
8. Allotment of constructed shops or working sheds: 1. All displaced families, including artisans, shop-keepers, small traders, etc. shall be provided with addition to what is admissible to all the displaced families under this policy, all non- agricultural necessary assistance to resume the traditional/family trade, occupation, vocation and productive activities in their new place of settlement. The allotment would be of a constructed shop or working shed along with the land required for such construction to resume trade. The allotment would also be given transport cost for shifting the goods, materials, and movable properties to the place of resettlement. An artisan, like a potter, blacksmith, carpenter, metal-worker, weaver, shoe-maker, etc. would also be given constructed sheds along with necessary land for resuming his or her productive activities. In case a shop owner has rented out his or 27
her shop or run it through paid employees, an equitable Resettlement and Rehabilitation Policy which centers around restoring livelihoods would give separate allotments of shops in the new township to the former shop owner and tenant/employee. This will also be applicable to urban areas.
9. Interim financial assistance
1. In case of displacement preceding the allotment of constructed sheds and land, all resident adult members of the family of displaced artisans shop keepers, smalltraders etc. shall be given a monthly subsistence allowance of not less than 25 days minimum wages, for each adult member of the family and for a period of six months after the constructed shed and transportation allowance are availed to by such a displaced family of artisans. The State Rehabilitation Authority is also responsible for providing active assistance with regard to improvements in technology, markets, access to credit and raw materials etc. Displacement of self-employed persons is permitted only where an alternative sustainable source of livelihood is established at least one year prior to the displacement.
1. It has been empirically established that tribals bear a highly disproportionate burden of displacement. Because of their especial vulnerability when uprooted from their traditional habitats. Therefore, to the maximum extent possible large scale projects in tribal areas must be reconsidered carefully as to whether they can be located elsewhere so as to avoid or at least minimize tribal displacement. The first policy option should be an option that would save adivasis from displacement and alienate them from their lands and livelihood. The next preference should be a technology and project with minimum displacement, which should be accepted even if the costs are greater and the benefits are less than the greater displacement option. 2. It is a common experience that displaced tribal communities are not able to settle and strike roots in regions that are very different socio-culturally, and with different resource base and social institutions from their original habitant. Hence, whenever a project displaces such communities, they must preferably be resettled in a zone adjacent to the affected area, consonant with the socio-cultural, ecological, linguistic and economic characteristics of the community. All adivasi communities must be rehabilitated strictly in compliance with International Labour Organization 107 convention, and in strict compliance with the policy of ‘prior informed consent’. 3. Efforts must be made to ensure that all tribal families of the ousted villages are resettled together in a particular area, to the extent possible. The minimum unit for relocation must be a hamlet or a clan. In no case must such tribal families be so segregated in providing settlement with house-sites, that they lose the contact within 28
their linguistic group and ethnic group, unless any of such family had expressed its willingness/no objection in writing, to such segregated rehabilitation. For settlement of tribal families in a new locality, common property land for religious and community gathering must be allotted free of cost. 4. Prior to the acquisition of land for any project in any tribal area, all land rights due but not settled will be settled through a special drive ending before land acquisition commences. An inquiry must be made by the competent revenue authorities in collaboration with reputed voluntary organizations to determine whether any tribal lands have been transferred in violation of the law on the subject. Urgent measures must be taken to cancel such transfers and restore the right and title of the tribals on their alienated land, before acquisition proceedings are started, so that the tribal families are not deprived of their legal rights and benefits of allotment of fresh land. 5. Measures must also be taken to record the rights of tribals in land allotted to them. All forest-land under occupation of the tribal families before 13th December 2005 shall be deemed for purposes of compensation and rehabilitation and resettlement to have been allotted or owned by the concerned tribal families, and while dispossessing from such land such families shall be treated as per with landowners with legal title (with joint ownership of husband and wife.) This will ensure that the compensation and rehabilitation package is made available also to such tribals who occupied forest-land in the past, but were unable to secure legal rights. 6. The displaced tribal families shall also be compensated for loss of their customary rights/usage on forest produce, fish in case the new site does not provide for such gathering of such forest produces. Such compensation must be calculated at 10 times the minimum wages which a tribal would have earned at the rates fixed by the respective State Government during one single working season of 45 days, i.e. equivalent to 450 days minimum agricultural wages, in addition to normal packages like one-time rehabilitation grant for loss of livelihood. This must however be treated only as an interim measure. Project and state government authorities must ensure within 5 years of the displacement, the development of alternate fuel, fodder and Non Timber Forest resources on non forest-land sufficient to meet the needs of the relocated tribal community.
11. Persons Not Adequately Rehabilitated in Earlier Projects
1. In the majority of projects executed since Independence, resettlement and rehabilitation were not done systematically to enable displaced and affected people to regain their livelihoods and rebuild their lives. This has dispersed the displaced and affected people to a wider geographical area, and empirical studies have established that the trauma of their destitution has left them living in enhanced poverty and in
several cases in stark destitution. These disempowered people, pauperized by the development process itself, must be provided even belatedly with rehabilitation benefits to enable them to regain and if possible improve upon their existing livelihoods. This must be in the nature of a national commitment. 2. The State Rehabilitation Authority will be responsible for tracing and enumeration of the people displaced and affected by all projects since Independence within a particular state which have been executed or are under execution prior to the coming into force of this Act. The State Rehabilitation Authority with the assistance of reputed academic institutions and Non Government Organizations will undertake this exercise, especially an assessment of their shelter and livelihood needs. It is recognized that especially for older projects, the tracing of displaced persons can be a highly daunting task, but it must be pursued with commitment and will to the extent feasible. The central government, on the basis of such studies, would assist the state governments through the State Rehabilitation Authority s to enable the older Project Affected Persons to satisfy their needs, mainly through special allotments under existing governmental programmes: for provision of houseplots and title deeds, construction or repair of house through Indira Awas Yogna and a National Slum Development Programme, acquiring employable skills and initiation of selfemployment activities through Training of Rural Youth in Self Employment, Integrated Rural Development Programme, Pradhan Mantri Swarozgar Yojana, Swarn Jayanti Shahri Rozgar Yojana, and other schemes. The displaced/affected women could be facilitated to enhance their income earning potential through resources from programmes like Development of Women and Children in Rural Areas and financial institutions. Such assistance must be based on special additional allocations, and should not be at the expense of the share of the host community. 3. In those cases where, in the absence of a satisfactory alternative acceptable to the people or the person concerned, they may have changed their habitation and established a new one on their own; or a person after losing her or his resource base may have occupied a piece of land and may be subsisting on the same through family labour, and not hired labourers, no coercive process shall be instituted against the people under any law whatsoever. The new habitation shall be deemed to have acquired the status of a regular habitation after lapse of five years irrespective of the status of the land - private, common, community, or revenue, on which it is situated. In case of private lands so encroached on the affected persons shall be eligible for compensation as per the provisions of this Act. In the case of forestlands, special cases would be made for exemption under the Forest Conservation Act 1980.
THE FOURTH SCHEDULE [See Section 5(2)] OPERATIONAL GUIDELINES FOR THE NATIONAL AND STATE REHABILITATION COMMISSIONS
1. Verify the necessity of displacement and the extent of displacement that is likely to occur; 2. Assess each project that involves displacement to ensure it adopts the least displacing alternative; 3. Ascertain that the rehabilitation plan is capable of being implemented, for e.g., by verification that, where the principle of allocation of land for land as rehabilitation is recommended, land for such rehabilitation is available. 4. The Rehabilitation Commissions shall on the basis of the above criteria and the principles set out in Schedules I to III above 1. give clearance 2. give conditonal clearance, or 3. refuse clearance to the project for reasons given in writing. 5. The Rehabilitation Commissions shall periodically review the implementation of the detailed rehabilitation and resettlement plan drawn up in consultation with the Project Affected Persons. The Rehabilitation Commissions may revoke the clearance, or conditional clearance, if the Project Implementing Agency fails to fulfill the terms of the detailed rehabilitation plan. 6. The Rehabilitation Commissions may act suo motu or on the complaint of any person displaced by the project, people's movements or collectives of persons working with the displaced, or Non Government Organizations. 7. The Rehabilitation Commissions shall conduct investigations before giving clearance or conditional clearance. The Rehabilitation Commissions may solicit and consider reports of persons and organizations before deciding to give clearance or conditional clearance, or reject or revoke clearance.
8. The Rehabilitation Commissions shall monitor that those falling within the zone of displacement are given information at all stages of the project, are consulted, and their concurrence taken in the formulation of the detailed rehabilitation plan in accordance with the provisions of this Act. 9. The Rehabilitation Commissions may, inter alia, direct restoration of land, habitation and livelihood where rehabilitation is not done as required by the provisions of this Act. The Rehabilitation Commissions may also direct restoration of land in the event of more displacement than the minimum required for the purposes of the project. 10. A clearance, or conditional clearance, will be valid for a period of one year, or a shorter period where the Rehabilitation Commissions so order and the Rehabilitation Commissions shall review the clearance or conditional clearance on the basis of the reports submitted by the People's Rehabilitation and Implementation Monitoring Committees before deciding about the continuance of the clearance. The process of renewal of clearance is thus contingent on the reports regarding the implementation of the rehabilitation package submitted by the People's Rehabilitation and Implementation Monitoring Committees. 11. Where the Project Implementing Agency or the State Rehabilitation Authority or both default in the implementation of the Rehabilitation Plan and displacement occurs without resettlement and rehabilitation, the Rehabilitation Commissions may take penal action against the offenders.