LAND ACQUISITION LAW IN INDIA - AN ODYSSEY INTO THE UNKNOWN

BY

PROF. (DR.) K. R. REGHUNATHAN

Introduction

Land is always considered as the symbol of the social status of an individual. 1 In the
feudal system of land tenure,2 feudal lords owned the lion’s share of the land in their
locality. Tenants and labourers, who paid rents and levy to them, were degraded as
slaves. This system of tenancy existed in almost all the countries of the world.3 However,
consequent to the development of democratic principles and the socialist pattern of
society, this system has disintegrated. During the period of industrialization, the
sovereign power of the State, which was traditionally vested in the king, was delegated
to public bodies and corporations, which form part and parcel of the complex
organization of the State machinery. The evolution of the idea of progressive
industrialization of the country facilitated the need for irrigation projects, town planning
and improvement schemes and various other public utilitarian schemes. Consequently,
the subject of land acquisition assumed significance and has taken centre stage.

The ‘First Occupant’ as the Owner- The Ancient Norm

In India, the concept of ‘proprietary right’ in land emerged on the basis of Manu’s
Occupation Theory, which maintains that things which are not already the subject of
property become the property of the first occupant. 4 This theory is the Indian counter
part of the Roman doctrine of “occupation” which holds that “wild beasts, birds, fishes
and all animals which live in the sea, the air, or on the earth, as soon as they are taken by
anyone immediately become, by the law of nations, the property of the captor, that which
had no previous owner.”5 In Manu’s view, “a field is his who clears it of jungle; game is his
who has first pierced it.”6 Similarly, Muslim scholars like Abu Mohammed and Abu Yusuf
observed that “waste lands are a sort of common goods and become the property of the
cultivator by virtue of his being the first possessor, in the same manner as in the case of
seizing game or gathering firewood;” 7 and that the permission of the State is not a pre-
requisite.

According to the Hindu law which recognises ownership in movables and immovable,
property can be classified into four categories viz., personal, real, ancestral and self-

1 Henry Maine, Ancient Law, (J.M Dent and Sons Ltd. London, 1972), p.153
2 The land used to be held in feudal tenure was a system of land holding in return for service. This holding was known
as ‘seisin’, which originally meant no more than possession and denoted the state of affairs that made enjoyment
possible. See, Holdsworth, History of English Law, VII, Ss. 2, 30, 62, and 79
3http://library.thinkquest.org/10949/fief/lofeudal.html (visited on January 05, 2012): Feudalism was the basis by

which the upper nobility class maintained control over the lower classes. This rigid structure of government consisted
of kings, lords, and the peasants. The structure first came about, and remained for so long, because of the great size of
the land the kings had under their control.
4 See generally, N. C Sen Gupta, Evolution of Ancient Indian Law (Tagore Law Lectures, 1950, University of

Calcutta) (Eastern Law House, 1953).

5 Sandar’s Justinian,(2nd edn.), p.172. For a discussion on the classification, modes of acquisition of property etc.

during Roman period, See, M. Krishnan Nair, A Manual of Roman Law, (Viswanath Pub., Cochin, 1960), pp. 71 – 103.
6 Manusmriti, X, 44; http://www.jstor.org/stable/2141603 (visited on 6th January, 2012).
7 Grady (ed.), Hamilton’s Hedaya, (Book XLV, Para 3), p. 610

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acquired.8 Mitakshara School distinguishes movables and immovable in this manner:
“The father is the master of gems, pearls, corals and of all other movable property but
neither the father nor the grandfather is the master of the whole immovable estate.” 9

Hindu sages and jurists were of the view that the sovereign was not the owner of the soil.
A share of the benefits of the land occupied by the subject has to be given to the sovereign
as a price for the protection afforded to the life, property and liberty of the subject.
Narada specified this share as one sixth of the produce. 10

Apropos the right of the King to alienate the property, the position was that “the King
cannot make gift of his kingdom as it was not his.” 11 Moreover, his sovereignty lies only
in punishing the wicked and protecting the good; and even in the case of conquest, the
property of the conquered does not pass on to the conqueror save the taxes due from
such property.12

During the Hindu period, waste land was considered to be the common land of the village.
The right of the first person who makes beneficial use of the soil received judicial
recognition too.13 During this period, cultivation of the land was made compulsory and a
penalty was imposed for not cultivating the land.

In his Mitakshara, Vijnaneswara expounded the idea that ancestral land occupied by the
members of a joint family should not be alienated. However, Jimutavahana, in his
Dayabhaga discarded this theory of non-alienability and held that every owner of land, if
it is a male had the full right to alienate the same either by way of gift or sale.

Thus, from time immemorial, the right to property was looked upon as an essential right
of the citizens. Man who acquired any res through his toil was regarded as the owner of
that property.14 Several texts of considerable antiquity like the ‘Vedas’ 15 and
‘Arthasasthra’ foreground property and the rights of different persons upon it. 16 In these
texts, ‘property’ is described in terms of many epithets: the word ‘adhikara’ which means
‘right’ applies equally to a right to do something, such as the right to perform worship,
offer sacrifice and the like; and to a right to receive something, to manipulate something,
or to supervise something. The word ‘agama’ means ‘title’; ‘dravyagama’ means ‘title in
an asset’; ‘dhanadhikara’ means right over an asset (proprietary right); 17words like

8 Macnaughten, Principles of Hindu Law, p.1

9 Mayne, Hindu Law, (11th edn.), p.318
10 Naradasmriti, XVIII, p.48, Sacred Book of the East, Vol. XXXII, p.22.
11 The King cannot even keep for himself what he has recovered from thieves and which does not belong to him. See,

Colivelle P, Manu’s Code of Law: A Critical Edition and Translation of the Manava Dharmasastra (Oxford University Press,
New Delhi, 2005), p.169.
12 See, Sections 20 and 21, the Arthashastra, quoted in L.N Rangarajan, Kautilya: The Arthashastra, (Penguin Books,

1990), pp. 396 -397.

13 See for instance, Thakurani v. Bisweswar Mukherji, (1865) 3 W.R 29 B.L.R. Sup. Vol.202; Secretary of State v. Vira

Rajan, (1886) I.L.R. 9 Mad. 175; Secretary of State v. Ashtamurthi, (1890) I.L.R. 13 Mad. 89.
14 G.W Paton and David P. Derham (ed.), George Whiter and Cross Paton, A Text Book of Jurisprudence, (4th edn., The

English Language Book Society and Oxford University Press), p. 539. For a critical review of the origin and history of
property, See, Morgan O. Evens, Theories and Criticism of Sir Henry Maine, (Stevens & Haynes, London, 1896), pp.32 –
42.
15 The concept of ‘Svata’ which approximately translates as “ownership” is roughly equivalent to the right of property,

the basis of which is traced back to the Vedas. See, J.M.D Derett, “The Development of the Concept of Property in India:
A.D 800 – 1800”, in Essays in Classical and Modern Hindu Law (Brill, Leiden, 1977), p. 93.
16 G.W Paton et al, Supra n. 14 at p.24.
17 J. Duncan M. Derrett, Essays in Classical and Modern Hindu Law, (Vol.2, Universal Book Traders, New Delhi), p. 21

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‘bandha’ or ‘bandhaka’ signify a charge18 and the word ‘dhana’ is often used to cover all
types of property, including income and incorporeal rights.

Emperor Chandra Gupta Maurya effectively maintained the security of life and property,
which was regarded as essential for prosperity.19 Kautilya’s ‘Arthasastra’ discusses the
use of house as security to the life and liberty of a person. Section 19 reads: “And he
should cause that part above the verandah which requires protection to be covered by
matting, or a wall touching (the roof) for fear of damage by rain.” 20

Moreover, ‘Arthasasthra’ prescribe punishments to persons who cause obstruction of any

kind to others or to public paths.21 In the case of transgression or obstruction by doors or
windows contrary to natural arrangements, except on royal high ways and roads, the
lowest fine for violence shall be imposed. The same fine is to be imposed in the case of
obstruction outside the houses by parts of ditch, staircase, water channel, ladder or dung
hill, and in the case of prevention of the use of their rights by others. 22

‘Hierarchy of Persons with Different Interests’ – The Medieval Norm

Land came to be regarded as the yardstick of an individual’s dignity: Those who had more
land gained wider reputation and acceptance in society. Land and cultivation had much
importance from the Neolithic Age or New Stone Age.23 In India, especially in Kerala, most
of the land was under the control of Brahmins. Whenever people from other castes ran
into difficulties and when they were seriously ill, they gave their land as offering to God
in order to tide over their difficulties and also to get well. During that period, temple
administrators were Brahmins, and they were not interested in agriculture. Hence, for
the purpose of cultivation, they transferred the entire land to intermediate persons, who
in turn, transferred the land to actual cultivators called “tenants”. The tenants cultivated
the land either by themselves or with the help of persons belonging to the ‘Sudra’
community. Thus the land system in India comprised a hierarchy of different persons
with different interests: owners, intermediate persons, tenants and actual labourers.24

According to the Islamic concept, the sovereign is the original proprietor of the land so
long as he receives a share of the produce. As soon as his share gets converted into fixed
money, he ceases to be the proprietor. It is in the case of land revenue that the main
difference between the Hindu and Muslim systems of land tenure is discernible. In the
former, the King’s share was 1/6 th of the produce, whereas in the latter, it was 1/3 rd.
Aurangazeb increased this share “Khiraj” to 1/2 of the gross produce.25

The decline of the Mughal Empire paved the way for the growth of semi-feudal interests.
The villages came to be controlled by the more powerful officials and chieftains as the
authority of the State weakened during this period. When India came under English sway,

18 Ibid. at p.19
19Supra n. 12
20 R.P. Kangle, The Kautiliya Arthasastra (Part II ), (Motilal Banarsidas Publishers Pvt. Ltd., Delhi, 1965), p. 218
21 L.N Rangarajan (ed.), Kautilya: The Arthashastra, (Penguin Books, 1990), pp. 396-397
22 Ibid.
23 B.N Luniya, Evolution of Indian Culture (From the Earliest Times to the Present Day), (Lekshmi Narain Agarwal, Agra),

p. 20
24 Dr. B.S. Sinha, Law and Social Change in India, (Deep and Deep Publications, New Delhi, 1999), p. 234
25 Ibid.

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these headmen, chiefs, talukdars etc. were given protection. Thus they became the virtual
owners of their villages even though the proprietary rights were vested in Collectors. 26

A notable development in the period of British rule was the creation of the institution of
intermediary (i.e., zamindars) between the State and peasants.27 The zamindars became
the proprietors of the soil and were truly ‘rent grabbers’ who extorted rent from the
tenants. The system was modelled more or less on the English pattern but with two major
differences: the English landlord was concerned with the total production of the land and
therefore forced his tenants to produce as much as he could, while in India, the landlord
was not virtually interested in the produce.28 His interest was primarily in the collection
of rent. Secondly, the English landlord was the absolute owner of the soil, while in India;
the landlord’s rights were, to a certain extent, restricted. But the Ryotwari system in India
was on the lines of the French peasant’s proprietorship.29 It was introduced because
Zamindari system was less profitable to the government: the entire agriculture surplus
under the Ryotwari system was appropriated by the government; on the other hand,
under the Zamindari system, the Zamindar paid only a fixed amount of income as land
revenue.30

The Manusmrithi recommends land grants in order to give remuneration to the officials
who are placed in charge of one, ten, twenty, a hundred or a thousand villages to collect
royal dues raja-pradeyani and maintain law and order.31 The same rule was included in
Brhaspati’s right to property also ; 32 and it continued in the Gupta period, as well .33

Under feudalism, the feudal lord was at the top and he owned the entire land. At the
bottom were the actual tenants who paid rent. In between these two classes, there existed
a hierarchy of intermediary lords. This kind of landlord-tenant relationship existed in
almost all the countries. However, as a result of the industrial revolution, this system
began to disintegrate.

During the British regime, the situation changed: English education and the inception of
a new Civil Service system ushered in the new salaried group mainly the ‘Sarkar’
employees. Many of them belonged to the high castes and they invested their savings on
land. This practice of land investment created non-Brahimin ‘jenmis’ too in the 19th
century. The ‘jenmis’ began to exploit their tenants and gradually they became very
wealthy. At the same time their tenants were reduced to the status of penurious peasants.

By the 18th century, conditions became increasingly favourable for the proliferation of
small land holders who asserted individual interest in land. When land revenue was
instituted, officers known as ‘Adikaris’ (village headmen) were appointed to collect the
revenue from the owners of the land. The British policy served to strengthen the ‘jenmi’

26 For a discussion on the legal and political system in ancient and medieval India, See generally, H.S Bhatia (ed.), Origin
and Development of Legal and Political System in India, Vol. I, (Deep & Deep Pub., New Delhi, 1999)
27 Supra n. 24
28 Ibid.
29 Ibid.
30 Dr. N. Maheshwara Swamy, Land Laws, (Asia Law House, 2006), p. 284
31 Justice M. Rama Jois, Ancient Indian Law: Eternal Values in Manusmriti, (Universal Law Publishing Co., New Delhi,

2010), pp. 31-32, 96

32 http://books.google.co.in/books (visited on June 12, 2012).
33 R.C Majumdar (ed.), The History and Culture of the Indian People: The Age of Imperial Unity, (6th edn., Bharatiya Vidya

Bhavan, Bombay, 1990), p.69.

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system. A proclamation issued by the Maharaja of Travancore in 1005 K.E (1830 A.D)
recognised the right of ‘jenmis’ to increase rents at the time of the 12 year renewal of
tenure. The British government was in favour of granting all powers to ‘jenmis’. The art
and literary movements, which are Kerala’s special contribution to the main stream of
national culture gained strength from the ‘jenmi system.’ 34

‘State Interference through Eminent Domain’ - The British Norm

State’s sovereign power to appropriate private land for public purpose rests upon the
maxims: salus populi est suprema lex (the welfare of the people is supreme)35 and
necessitas publica major est quam private (public necessity is greater than private). The
law imposes a duty on every subject to give preference to the urgent service of his
government and country to the safety of his life.36 Thus, property may be acquired for
projects of public interest, convenience and welfare .37

This sovereign power to acquire private property for public purpose is referred to as
eminent domain in the United States of America. In U.S; the Fifth Amendment to the
Constitution empowers the State to acquire private property for public use upon making
just compensation. Under the common law also, as in the jurisprudence of all civilized
countries, the concept of eminent domain is recognized.

In 1894, during the British regime in India, the English Parliament enacted the Land
Acquisition Act to give effect to the power of eminent domain of the State. The main
object was to amend and codify laws relating to land acquisition for public purpose and
for companies and also to determine the compensation, which was required in cases of
land acquisition.38 Anything that would promote the welfare of the people would
constitute a public purpose.39 The power can be exercised not only for traditional
governmental activities such as roads, post offices, police stations and for public utilities
such as electricity, water supply and transport undertakings., but also for charitable
objects such as schools, hospitals and libraries and for industries. Acquisition of land for
a factory manufacturing air conditioners,40 housing facility to the members of a co-
operative society,41 and large tracts of land suitable for industrial development 42 were
held to be ‘acquisitions for a public purpose.’ The Act also authorized the government to
acquire land for planned developments, provisions for town or rural planning, provision
for residential purpose to the poor or landless and for carrying out any education,
housing or health scheme of the Government.43

‘Individual’s Right to Property’- The Constitutional Norm

The framers of Indian Constitution were very much aware of the land system in India.

34 In Kerala, there were two kinds of property holdings: (1) Jenmom and (2) Pandaravaka. See, The Travancore Land
Revenue Manual, Vol. III, Part I, (Corrected up to 1935), p. 23.
35 Om Prakash Aggarwala, Commentary on the Land Acquisition Act, (8th edn.), p.28
36 Bima Office Premises v. Kalamboli Village Panchayat, http://indian/ kanoon.org
37 V.N Shukla, The Constitution of India, (1969), p.144.
38 See generally, P.K Sarkar, Law of Acquisition of Land in India, (3rd edn. Eastern Law House, Kolkata, 2012).
39 State of Bihar v. Maharajadhiraj Sir Kameshwar Singh, (1952) SCR 889; See generally, George Johnson & Dominic
Johson (ed.), Laws on Land in Kerala, (Em Tee En Pub., Kochi, 2013).
40 Somawati v. State of Punjab (1963) 2 SCR 774
41 Thambiran v. State of Madras, AIR (1952) Mad. 982
42 Arnold Rodricks v. State of Maharashtra, (1966) 3 SCR 885
43 Section 3 (f) of the Land Acquisition Act, 1894; See also, Girnar Traders v. State of Maharastra,
2011 (3) SCC I (SC)

5
Massive acquisition of private property by the British government for accumulation of
wealth was detrimental to Indians. Consequently, the architects of the Constitution
incorporated the right to property as one of the fundamental rights. During the pre-
Constitutional period, the right to property was protected under the provisions of the
Government of India Act, 1935.44

The Constituent Assembly discussed and debated at length on the recognition of property
rights of the people of India.45 The aim of the makers of the Constitution was to safeguard
the individual right to property from the excessive acquisition of property by the
Government. So they recognized the right to property as a fundamental right guaranteed
under the Constitution.46

In State of West Bengal v. Subodh Gopal ,47 the apex Court held that the said fundamental
right dealt only with the natural rights inherent in a citizen to acquire, hold, and dispose
of property and had no relation to concrete property rights like interest in a particular
piece of property or business. However, in Commissioner, Hindu Religious Endowments v.
Lakshmindra,48 Supreme Court enquired why the word ‘property’ as used in Article19 (1)
(f) should not be extended to those well recognized types of interests which have the
characteristics of proprietary rights; and further held that Article19 (1) (f) applies equally
to concrete as well as abstract rights of property; and that the administration of property
by a religious denomination is a fundamental right which no legislature can take away. In
M.M.Pathak v. Union of India,49Supreme Court held that, property within the meaning of
Article 19 (1) (f) comprised every form of property tangible or intangible, including debts
and chose in action.

Balancing Public and Private Interests- The Post- Constitutional Norm

The recognition of the right to property as a fundamental right led to serious problems
regarding use of land by Government for various purposes. Every case involving the
infringement of property rights led to litigation leading to issue of writs by the High
Courts and the Supreme Court. Consequently, though the Constitution and judicial
interpretations upheld the individual right to hold property as fundamental right, the
Parliament changed the entire situation by amending the Constitutional provisions.

The Forty Fourth Constitutional (Amendment) Act, 1978

The right to property has remained as a fundamental right guaranteed by the Constitution
of India for 28 years since 1950. In 1978, the Constitution Forty Fourth Amendment Act
made a sweeping change regarding property rights by omitting Articles 19(1) (f) and Art.

44 The Government of India Act, 1935 provided that, no person shall be deprived of his property save by authority of
law. Section 299 (1): No person shall be deprived of his property in British India save by authority of law. The genesis
of such a provision can be traced back the Government of India Act, 1919. Section 299 (2): Neither the Federal nor a
Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes
of any land, or any commercial or industrial undertaking, or any interest in, or in any company owning, any commercial
or industrial undertaking, unless the law provides for the payment of compensation for the property acquired and
either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, it is to be
determined.
45 http://indiankanoon.org/doc
46 Article 19 (1) (f), prior to 44th Amendment to Constitution of India
47 AIR (1954) SC 92
48 (1954) SCR (1) 1005
49 AIR (1978) SC 803

6
31 from the chapter of fundamental rights; and inserting article 300 – A, making the right
to property an ordinary civil right under the Constitution. Art. 300 - A was inserted in
Part XII, Chapter IV of the Constitution under the heading of ‘Right to Property’. The effect
of these changes is that (a) the right to hold property has ceased to be a fundamental right
and (b) it has been left to the legislature to deprive a person by the authority of law. The
validity of such laws cannot be challenged before the Supreme Court as unconstitutional
because no compensation has been sanctioned by such laws. If, however, one's property
is taken away by the action of the State without the authority of law, one would be entitled
to legal relief on the ground that such State action is in contravention of Article 300A; but
as the provision in the present Article has been brought outside the purview of Part III of
the Constitution, the aggrieved individual would not be competent to move the Supreme
Court under Article 32 for any violation of Article 300A. His remedy would be under
Article 226 or by a regular suit.

Article 300-A provides: “No person shall be deprived of his property save by authority of
law.”It ensures that a person cannot be deprived of his property merely by an executive
fiat. The right to property can be curtailed, abridged or modified by the state only by
exercising its legislative power; since it is an essential legislative function that cannot be
delegated. Deprivation of property can only be done according to law and an executive
order depriving a person50 of his property, without being backed by law is
unconstitutional.

Though the amendment was intended to implement Janata Party Manifesto, it has been
partly implemented by the Forty Fourth Amendment ignoring:

(1) The close relation of property to other fundamental rights – which the Janata Party
was pledged to restore;
(2) The effect of the change on the legislative power to acquire and requisition property;
and
(3) The correlation of fundamental rights to directive principles.

Another reason for the deletion of Article 19 (1) (f) and Article 31; and the insertion of
Article 300A was to reduce the right to property from the status of fundamental right to
that of a legal right i.e., the right will be available against the executive interference. 51

At the time of the said amendment, the then Law Minister, Mr. Shanti Bhushan stated 52
that property, while ceasing to be a fundamental right, would, however, be given express
recognition as a legal right. Further, the removal of property from the list of fundamental
right would not affect the right of the minorities to establish and administer educational
institutions of their choice and the rights of persons holding land for personal cultivation
and within the ceiling limit. Their right to receive compensation at the market value
would not be affected.

50 ‘Person’ under Article 300A means, a ‘person who has been deprived of his property right’. It is to be noted that the
word used in the Article is ‘person’; and not ‘citizen’. Hence, all natural as well as legal persons have legal protection
under the said provision. However, the term does not include ‘State.’ So the provision can be invoked by ‘person’ only;
provided he could successfully establish his right to property. State of Chhattisgarh v. M/s. Raipur Metal Products Pvt.
Ltd., A.I.R (2011) Chh.13; Paika Padhano v. Pindiko Patro, AIR (1958) Ori. 15
51 Mahendra P. Singh (ed.), V.N. Shukla’s Constitution of India, (Eastern Book Co., Lucknow), p.595
52 See Paras 3,4 & 5 of the Statement of Objects and Reasons of the 44th Amendment Act, 1978.

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In Maneka Gandhi,53 the Supreme Court held that ‘equality is antithetic to arbitrariness’.
Where an Act is arbitrary, it is implicit that it is unequal. The validity of a law, passed
under the new Article 300A to deprive a person of his private property, can be challenged
on the ground that it does not provide for payment of compensation; and that the
acquisition is not for ‘public purpose’. Moreover, the law enacted and the procedure
prescribed for the deprivation of right must be just, fair and reasonable.

In Kesavananda Bharati v. State of Kerala,54 the apex Court upheld the power of the
government to acquire land for implementing the directive principles of Constitution. In
Gwalior Rayons Silk Mfg. v. Government of Kerala,55 it was held that acquisition shall be
made only in accordance with the principles laid down in Article 31-A of the Constitution.
Proviso to the said article prescribes that the consent of President of India is a pre-
requisite for the validity of any law which provides for acquisition of land.

Amendments to the Land Acquisition Act, 1894

As said earlier, the Land Acquisition Act, 1894 was the kingpin legislation in India, to
acquire ‘private land for public purpose’. However, it does not define the terms
“acquisition” and “compensation.” Moreover, though the Act attempted a detailed
definition of the expression “public purpose”; it exempted the application of the same
meaning to the acquisitions for companies.

The Act was silent about how proposals for land acquisition are to be initiated. The
provisions did not contain details regarding the land to be acquired and the notice to be
served on the owner of the land. 56 The owner of the land had no proper representation
in this stage. After notification, the Collector has to proceed with the claim and has to
mark out the site, measure and prepare a plan of the same. In other words, the initiation
of acquisition proceedings was not at all transparent; the acquisition officer has no
obligation to disclose the actual purpose of acquisition, the total extent of property to be
acquired, the terms and conditions of the agreement executed between the Government
and the company, if the acquisition is made for the company etc. This was a major
drawback of the Act.

An umpteen number of amendments made to the Land Acquisition Act has not make any
cardinal change in protecting the interest of the displaced persons. Land acquisition law
must ensure speedy, efficient and cheap procedures; in addition to fairness and equity,
land owners must be given adequate facility to make objections; and anomalies must be
rectified efficaciously. But the Land Acquisition Act, 1894 contained no such provisions.
Complaints and grievances were frequent with respect to the following:
• Absence of proper or adequate survey and planning before embarking
upon acquisition.
• Indiscriminate use of emergency provisions.
• Notification of areas far larger than what is actually required for
acquisition, and then making arbitrary deletions and withdrawals from
the acquisitions.

53 Maneka Gandhi v. Union of India, AIR (1978) SC 597

54 AIR (1973) SC 1461
55 AIR (1979) Ker.56
56 See Section 4, Land Acquisition Act, 1894

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 • Offer of very low amount as compensation by the land acquisition
Collectors, necessitating references to court in almost all cases.
• Inordinate delay in the payment of compensation; and
• Absence of rehabilitative measures.

Another unnoticed area of violation of private right under the Land Acquisition
Compensation award by the authority is the imposition of Tax on compensation received
under the Act. What is received as compensation will not be sufficient even to meet the
basic requirements of food and shelter. Hence, imposing tax on it will jeopardize the
survival of displaced persons.

Thus, the Act has failed to maintain a proper balance between public interest and private
interest; and has suffered from various shortcomings: Mainly, it was undemocratic.
Although it provided for a procedure that involved issuance of public notice and holding
of inquiry, practically speaking, these were mere formalities as private interest of
landowners always had to yield to the declared public purpose such as building of road,
railway line, school, industrial estate, etc. Once the acquiring authority had formed the
intention to acquire a particular piece of land, it could carry out the acquisition process
regardless of how the landowner was affected. Acquisition was not dependent on land
owner's consent at all. Although the 1894 Act provided for a hearing, it was not a
negotiation. Moreover, in cases of urgency, the land acquisition authority enjoyed special
powers. The provision enabled bypassing of the normal procedure in cases of urgency,
not all of which were defined. As a result, a lot of acquisitions under the 1894 Act invoked
the urgency clause. This resulted in the complete dispossession of land without even
following the processes listed under the Act.

Similarly, payment for the land acquired used to be made as per the prevailing circle
rates 57 which were notorious for being outdated and, hence, not even remotely indicative
of the actual rates prevailing in the area. As a result, the compensation given to
landowners used to be substantially less than the actual market value of the land.

Moreover, there were absolutely no provisions in the law regarding the resettlement and
rehabilitation of those displaced by the acquisition. A farmer losing his agricultural land
also lost his means to livelihood but the old law did not address such issues. Finally, a lot
of acquisitions, especially those done in recent years, ended up in litigation, usually after
being challenged on the ground that the compensation awarded was inadequate. This
resulted in stalling of legitimate infrastructure projects.

The 1894 Act and the manner in which it was being used by acquiring authorities had
been receiving widespread criticism, including from the judiciary. In a 2011 case, the
Supreme Court observed that ”the provisions contained in the Act, of late, have been felt
by all concerned, do not adequately protect the interest of the land owners/persons
interested in the land. The Act does not provide for rehabilitation of persons displaced
from their land although by such compulsory acquisition, their livelihood gets affected
...To say the least, the Act has become outdated and needs to be replaced at the earliest
by fair, reasonable and rational enactment in tune with the constitutional provisions,
particularly, Article 300A of the Constitution. We expect the law making process for a

57 The official area-wise rates of land are determined by the government.

9
comprehensive enactment with regard to acquisition of land being completed without
any unnecessary delay."58

The Repealing Act of 2013

On 29 August 2013, the Land Acquisition Act, 1894 was repealed by the ‘Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement
Act. However, the new Act also remains controversial. Hence a detailed discussion on the
Act has become inevitable; especially to ascertain whether the new legislation has
maintained a proper equilibrium between public and private interests.

The new legislation is intended to ensure a humane, participative, informed and

transparent process for land acquisition for industrialisation, development of essential
infrastructural facilities and urbanisation with the least disturbance to the owners of the
land and other affected families.59 The legislation further intends to provide just and fair
compensation to the affected families whose land has been acquired or proposed to be
acquired or are affected by such acquisition and to make adequate provisions for such
affected persons for their rehabilitation and resettlement and to ensure that the
cumulative outcome of compulsory acquisition should be that affected persons become
partners in development leading to an improvement in their post-acquisition social and
economic status.60

The provisions under the Act are applicable where the appropriate Government acquires
land for its own use, hold and control, for Public Sector Undertakings and for public
purpose, and shall include: (a) Strategic purposes relating to naval, military, air force, and
armed forces of the Union, including central paramilitary forces or any work vital to
national security or defence of India or State police, safety of the people;(b)
Infrastructure projects;61(c) Project for affected families; (d) Housing schemes for such

58 Ramji Veerji Patel v. Revenue Divisional Officer, MANU/SC/1288/2011

59 The term ‘affected family, includes: (i) a family whose land or other immovable property has been acquired; (ii) a
family which does not own any land but a member or members of such family may be agricultural labourers, tenants
including any form of tenancy or holding of usufruct right, share-croppers or artisans or who may be working in the
affected area for three years prior to the acquisition of the land, whose primary source of livelihood stand affected by
the acquisition of land; (iii) the Scheduled Tribes and other traditional forest dwellers who have lost any of their forest
rights recognised under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act,
2006 due to acquisition of land; (iv) family whose primary source of livelihood for three years prior to the acquisition
of the land is dependent on forests or water bodies and includes gatherers of forest produce, hunters, fisher folk and
boatmen and such livelihood is affected due to acquisition of land; (v) a member of the family who has been assigned
land by the State Government or the Central Government under any of its schemes and such land is under acquisition;
(vi) a family residing on any land in the urban areas for preceding three years or more prior to the acquisition of the
land or whose primary source of livelihood for three years prior to the acquisition of the land is affected by the
acquisition of such land; Section 3 (b), The Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Re-settlement Act, 2013.
60 See the Object Clause of the Act, Ibid.
61 (i) All activities or items listed in the notification of the Government of India in the Department of Economic Affairs

(Infrastructure Section) number 13/ 6/2009-INF, dated the 27th March, 2012, excluding private hospitals, private
educational institutions and private hotels;(ii) Projects involving agro-processing, supply of inputs to agriculture,
warehousing, cold storage facilities, marketing infrastructure for agriculture and allied activities such as dairy,
fisheries, and meat processing, set up or owned by the appropriate Government or by a farmers' cooperative or by an
institution set up under a statute;(iii) Project for industrial corridors or mining activities, national investment and
manufacturing zones, as designated in the National Manufacturing Policy;(iv) Project for water harvesting and water
conservation structures, sanitation;(v) Project for Government administered, Government aided educational and
research schemes or institutions; Project for sports, heath care, tourism, transportation of space programme; (vii)Any
infrastructure facility as may be notified in this regard by the Central Government and after tabling of such notification
in Parliament. See, Section 2 (1), Ibid.

10
income groups as specified by the appropriate government; (e) Project for planned
development or the improvement of village sites or any site in the urban areas or
provision of land for residential purposes for the weaker sections in rural and urban
areas; (f) Project for residential purposes to the poor or landless or to persons residing
in areas affected by natural calamities, or to persons displaced or affected by reason of
the implementation of any scheme undertaken by the Government, any local authority or
a corporation owned or controlled by the State.

In addition to these purposes, the provisions apply where the appropriate Government
acquires land for public private partnership (PPP) projects, where the ownership of the
land continues to vest with the government, for public purpose as defined above; and
private companies for public purpose.62

Determination of Social Impact and Public Purpose

Whenever the appropriate Government intends to acquire land for a public purpose, it
shall consult the concerned LSG in the affected area and carry out a Social Impact
Assessment study in consultation with them. 63 Members of local inhabitants, NGOs and
the members of reserved category of the LSG shall be included in the committee
appointed for the assessment study.

The notification for the commencement of consultation and of the Social Impact
Assessment study shall be made available in the local language to the LSGs, and in the
offices of the District Collector, the Sub-Divisional Magistrate and the Tehsil, and shall be
published in the affected areas, and uploaded on the website of the appropriate
Government. 64 The assessment study 65 shall be completed within a period of six months;
and the report shall be made available to the public. 66

While undertaking the study, the Government shall take into consideration the impact
that the project is likely to have on various aspects such as the livelihood of affected
families, public and community properties, assets and infrastructure particularly roads,
public transport, drainage, sanitation, sources of drinking water, sources of water for
cattle, community ponds, grazing land, plantations, public utilities such as post offices,

62 In the case of acquisition for private companies, the prior consent of at least eighty per cent of those affected families;
and in the case of public private partnership projects, the prior consent of at least seventy per cent of those affected
families shall be obtained. The process of obtaining the consent shall be carried out along with the Social Impact
Assessment study. Moreover, no land shall be transferred by way of acquisition, in the Scheduled Areas in
contravention of any law (including any order or judgment of a court which has become final) relating to land transfer,
prevailing in such Scheduled Areas. See, Section 2 (2), Ibid. The provisions relating to rehabilitation and resettlement
shall apply in the cases where:-(a) A private company purchases land, equal to or more than such limits in rural areas
or urban areas, as may be prescribed by the appropriate Government, through private negotiations with the owner of
the land (b) A private company requests the appropriate Government for acquisition of a part of an area so prescribed
for a public purpose. Section 2 (3),Ibid.
63 Section 4 (1), Ibid.
64 Section 4 (2), Ibid.
65 The Social Impact Assessment study shall, inter-alia, include all the following, namely: assessment as to whether the

proposed acquisition serves public purpose; estimation of affected families and the number of families among them
likely to be displaced; extent of lands, public and private, houses, settlements and other common properties likely to
be affected by the proposed acquisition; whether the extent of land proposed for acquisition is the absolute bare
minimum extent needed for the project; whether land acquisition at an alternate place has been considered and found
not feasible; study of social impacts of the project, and the nature and cost of addressing them and the impact of these
costs on the overall costs of the project vis-a-vis the benefits of the project. Ibid.
66 See, Section 4 (3), Ibid.

11
fair price shops, food storage go-downs, electricity supply, health care facilities, schools
and educational or training facilities, anganwadis, children parks, places of worship, land
for traditional tribal institutions and burial and cremation grounds. 67

Public Hearing for Social Impact Assessment

Whenever a Social Impact Assessment is required to be prepared, the appropriate

Government shall ensure that a public hearing is held at the affected area, after giving
adequate publicity about the date, time and venue for the public hearing, to ascertain the
views of the affected families to be recorded and included in the Report. 68 This is
definitely a beneficial provision when compared to the Land Acquisition Act, 1894.

Publication of Social Impact Assessment Study

The appropriate Government shall ensure that the Social Impact Assessment study report
and the Social Impact Management Plan are prepared and made available in the local
language to the LSGs and the offices of the District Collector, the Sub- Divisional
magistrate and the Teshil, and shall be published in the affected areas and uploaded on
the website of the Government. Wherever Environment Impact Assessment is carried
out, a copy of the Social Impact Assessment report shall be made available to the Impact
Assessment Agency authorised by the Central Government to carry out environmental
impact assessment.69 These provisions ensure transparency and minimises the pick and
choose policy adopted hitherto under the Act of 1894.

Appraisal of the Report by an Expert Group

The appropriate Government shall ensure that the Social Impact Assessment report is
evaluated by an independent multi-disciplinary Expert Group.70 If the Expert Group feels
that the project does not serve any public purpose; or the social costs and adverse social
impacts of the project outweigh the potential benefits, it shall make a recommendation
within two months from the date of its constitution to the effect that the project shall be
abandoned forthwith and no further steps to acquire the land will be initiated in respect
of the same.71

Similarly, if the Expert Group is of the opinion that the project will serve any public
purpose and the potential benefits outweigh the social costs and adverse social impacts,
it shall make specific recommendations within two months from the date of its
constitution whether the extent of land proposed to be acquired is the absolute bare-
minimum extent needed for the project and whether there are no other less displacing
options available.72

67 The appropriate Government shall also require the authority conducting the Social Impact Assessment study to
prepare a Social Impact Management Plan, listing the ameliorative measures required to be undertaken for addressing
the impact for a specific component and such measures shall not be less than what is provided under a scheme or
programme, in operation in that area, of the Central Government or, as the case may be, the State Government, in
operation in the affected area. Ibid.
68 Section 5, Ibid.
69 Section 6, Ibid.
70 The Expert Group constituted shall include two non-official social scientists; two representatives of Panchayat, Gram

Sabha, Municipality or Municipal Corporation, as the case may be; two experts on rehabilitation; and a technical expert
in the subject relating to the project. Section 7, Ibid.
71 Section 7 (4), Ibid.
72 Section 7 (5), Ibid.

12
Examination of Proposals

The appropriate Government shall ensure that there is a legitimate and bona fide public
purpose for the proposed acquisition which necessitates the acquisition of the land
identified; the potential benefits and the public purpose shall outweigh the social costs
and adverse social impact as only the minimum area of land required for the project is
proposed to be acquired; there is no unutilized land which has been previously acquired
in the area and the land, if any, acquired earlier remained unutilized, is used for such
public purpose.73

The appropriate Government shall examine the report of the Collector if any and the
report of the Expert Group on the Social Impact Assessment study and after considering
all the reports, recommend such area for acquisition which would ensure minimum
displacement of people, minimum disturbance to the infrastructure, ecology and
minimum adverse impact on the individuals affected. These provisions are intended to
minimise arbitrary exercise of powers. The involvement of the experts in the process is
also a positive step.

However, where land is proposed to be acquired invoking the ‘urgency provisions’, the
appropriate Government has been empowered to exempt undertaking of the Social
Impact Assessment study. As seen earlier, urgency is a matter of subjective satisfaction,
and it is not open to court to examine the propriety or correctness of the satisfaction.
Hence, it leaves room for arbitrariness.

Special Provision to Safeguard Food Security

Irrigated multi-cropped land can be acquired subject to the condition that it is being done
under exceptional circumstances, as a demonstrable last resort. Moreover, whenever
such land is acquired, an equivalent area of cultivatable wasteland shall be developed for
agricultural purposes or an amount equivalent to the value of the land acquired shall be
deposited with the Government for investment in agriculture to enhance food-security.
In other cases, the acquisition of the agriculture land 74 in aggregate for all projects in a
district or State shall in no case exceed such limits of the total net sown area of that
district or State, as may be notified by the Government.

However, this provision shall not be applicable in the case of projects that are linear in
nature such as those relating to railways, highways, major district roads, irrigation
canals, power lines and the like. 75 Moreover, this provision is applicable only in the case
of acquisition of multi - cropped agricultural land. Other agricultural lands are not
covered under the provision. Consequently, the benefit is available only to a limited
number of persons in the same locality. Hence, the provision is discriminatory.

Notification and Acquisition

73 Section 8, Ibid.
74 “Agricultural land” means land used for the purpose of (i) agriculture or horticulture; (ii) dairy farming, poultry
farming, pisciculture, sericulture, seed farming breeding of livestock or nursery growing medicinal herbs; (iii) raising
of crops, trees, grass or garden produce; and (iv) land used for the grazing of cattle. Section 3 (d), Ibid.
75 Section 10, Ibid.

13
Whenever, it appears to the Government that land in any area is required or likely to be
required for any public purpose, a notification (preliminary notification) to that effect
along with details of the land to be acquired in rural and urban areas shall be published.
Immediately after issuance of the notification, the concerned Gram Sabha or Sabhas at
the village level, municipalities in the case of municipal areas and the Autonomous
Councils in the case of the areas referred to in Indian Constitution, 76 shall be informed of
the contents of the notification at a meeting convened for that purpose.

The notification shall also contain a statement of the nature of the public purpose
involved, reasons necessitating the displacement of affected persons, a summary of the
Social Impact Assessment Report and the particulars of the Administrator appointed for
the purposes of rehabilitation and resettlement. Once the notification is published, a
person shall not make any transaction or cause any transaction of land specified in the
preliminary notification or create any encumbrances on such land. However, the
Collector may, on the application made by the owner of the land so notified, exempt, in
special circumstances to be recorded in writing, such an owner from the operation of this
provision. The Collector is not bound to compensate any loss or injury suffered by any
person due to his wilful violation of the above said provision.

After issuance of notice, the Collector shall undertake and complete the exercise of
updating of land records as prescribed within a period of two months. 77

Preliminary Survey of Land

For the purposes of enabling the Government to determine the extent of land to be
acquired, it shall be lawful for any officer, either generally or specially authorized by such
Government in this behalf, and for his servants and workmen, to enter upon and survey
and take levels of any land in such locality; to dig or bore into the sub-soil; to do all other
acts necessary to ascertain whether the land is adapted for such purpose; to set out the
boundaries of the land proposed to be taken and the intended line of the work (if any)
proposed to be made thereon; and to mark such levels, boundaries and line by placing
marks and cutting trenches and where otherwise the survey cannot be completed and
the levels taken and the boundaries and line marked, to cut down and clear away any part
of any standing crop, fence or jungle. The officer authorized by the Government has no
power to enter into the property and to conduct survey except in the presence of the
owner of the land or in the absence of any person authorised in writing by the owner.
The above provision is not applicable if reasonable opportunity is being given to the
owner to appear during the time of survey.78

Payment for Damage during Preliminary Survey

The officer conducting the survey shall, at the time of entry, pay or tender payment for
any damage caused, and, in a case of dispute as to the sufficiency of the amount so paid
or tendered, he shall at once refer the dispute, to the decision of the Collector or other

76 See, Sixth Schedule, Constitution of India.

77 Section 11(5).
78 Section 12, Ibid.

14
chief revenue officer of the district, and such decision shall be final .79

Lapse of Social Impact Assessment Report

Where a preliminary notification is not issued within twelve months from the date of
appraisal of the Social Impact Assessment report submitted by the Expert Group then,
such report shall be deemed to have lapsed and a fresh Social Impact Assessment shall
be required to be undertaken prior to acquisition proceedings .80 But the Government can
extend the period of twelve months, if in its opinion, circumstances exist justifying the
same.

Hearing of Objection

Any person interested in any land which has been notified as being required or likely to
be required for a public purpose, may within sixty days from the date of the publication
of the preliminary notification, object to (a) the area and suitability of land proposed to
be acquired; (b) justification offered for public purpose or (c) the findings of the Social
Impact Assessment report. Such objection shall be made to the Collector in writing, and
the Collector shall give the objector an opportunity of being heard in person or by any
person authorised by him in this behalf or by an Advocate and shall, after hearing all such
objections and after making such further inquiry, if any, as he thinks necessary, either
make a report in respect of the land which has been notified or make different reports in
respect of different parcels of such land, to the appropriate Government, containing his
recommendations on the objections, together with the record of the proceedings held by
him along with a separate report giving therein the approximate cost of land
acquisition,81 particulars as to the number of affected families likely to be resettled, for
the decision of that Government.82 The decision of the appropriate Government made on
the objections shall be final.83

Preparation of Rehabilitation and Resettlement Scheme

Upon the publication of the preliminary notification, the Administrator for Rehabilitation
and Resettlement shall conduct a survey and undertake a census of the affected families,
in such manner and within such time as may be prescribed, which shall include:
particulars of lands and immovable properties being acquired of each affected family;
livelihoods lost in respect of land losers and landless whose livelihoods are primarily
dependent on the lands being acquired; list of public utilities and Government buildings

79 Section 13, Ibid.

80 Section 14, Ibid.
81 The term “cost of acquisition” includes: (i) amount of compensation which includes solatium, any enhanced

compensation ordered by the Land Acquisition and Rehabilitation and Resettlement Authority or the Court and interest
payable thereon and any other amount determined as payable to the affected families by such Authority or Court; (ii)
demurrage to be paid for damages caused to the land and standing crops in the process of acquisition; (iii) cost of
acquisition of land and building for settlement of displaced or adversely affected families; (iv) cost of development of
infrastructure and amenities at the resettlement areas; (v) cost of rehabilitation and resettlement as determined in
accordance with the provisions of this Act; (vi) administrative cost includes, (a) for acquisition of land, including both
in the project site and out of project area lands, not exceeding such percentage of the cost of compensation as may be
specified by the appropriate Government; (b) for rehabilitation and resettlement of the owners of the land and other
affected families whose land has been acquired or proposed to be acquired or other families affected by such
acquisition; (vii) cost of undertaking ‘Social Impact Assessment study’; Section 3 (i), Ibid.
82 Section 15 (2), Ibid.
83 Section 15 (3), Ibid.

15
which are affected or likely to be affected, where resettlement of affected families is
involved; details of the amenities and infrastructural facilities which are affected or likely
to be affected, where resettlement of affected families is involved; and the details of any
common property resources being acquired.

The Administrator shall, based on the survey and census, prepare a draft Scheme which
shall include particulars of the rehabilitation and resettlement entitlements of each land
owner and landless whose livelihoods are primarily dependent on the lands being
acquired and where resettlement of affected families is involved— (i) A list of
Government buildings to be provided in the Resettlement area;(ii) Details of the public
amenities and infrastructural facilities which are to be provided in the resettlement area.

The draft scheme shall include the time limit for implementing Rehabilitation and
Resettlement Scheme, and the draft scheme shall be made known locally by wide
publicity in the affected area and discussed in the concerned Gram Sabhas or
Municipalities. A public hearing shall also be conducted. The Administrator shall, on
completion of public hearing submit the draft Scheme along with a specific report on the
claims and objections raised in the public hearing to the Collector. 84

Review of Rehabilitation and Resettlement

The Collector shall review the draft Scheme submitted by the Administrator with the
Rehabilitation and Resettlement Committee at the Project level. He shall submit the draft
Rehabilitation and Resettlement Scheme with his suggestions to the Commissioner
Rehabilitation and Resettlement for approval of the Scheme .85

Publication of Rehabilitation and Resettlement Scheme

The Commissioner shall cause the approved Rehabilitation and Resettlement Scheme to
be made available in the local language to the Panchayat, Municipality or Municipal
Corporation, as the case may be, and the offices of the District Collector, the Sub-
Divisional Magistrate and the Tehsil, and shall be published in the affected areas, and
uploaded on the website of the appropriate Government.86

Similarly, where the appropriate Government is certain that any particular land is needed
for a public purpose, a declaration shall be made to that effect, along with a declaration
of an area identified as the “resettlement area” for the purposes of rehabilitation and
resettlement of the affected families, under the hand and seal of a Secretary to such
Government or of any other officer duly authorised to certify its orders.

The Collector shall publish a summary of the Rehabilitation and Resettlement Scheme
along with draft declaration. Such a declaration shall not be made unless the Requiring
Body deposits an amount, in full or part, as may be prescribed by the appropriate
Government toward the cost of acquisition of the land. The Requiring Body shall deposit
the amount promptly so as to enable the appropriate Government to publish the
declaration within a period of twelve months from the date of the publication of

84 Section 16, Ibid.

85 Section 17, Ibid.
86 Section 18, Ibid.

16
preliminary notification. In projects where land is acquired in stages, the application for
acquisition itself can specify different stages for the rehabilitation and resettlement, and
all declarations shall be made according to the stages so specified .87

The declaration 88 shall be conclusive evidence that the land is required for a public
purpose and, after making such declaration, the appropriate Government may acquire
the land in such manner as specified under this Act.

Where no declaration is made within twelve months from the date of preliminary
notification, then such notification shall be deemed to have been rescinded . 89 However,
the appropriate Government shall have the power to extend the period of twelve months,
if in its opinion circumstances exist justifying the same; provided that such decision shall
be recorded in writing and the same shall be notified and be uploaded on the website of
the authority concerned.

The Collector shall thereupon cause the land, unless it has been already marked out to be
marked out and measured, and if no plan has been made thereof, a plan to be made of the
same.90

Notice to Persons Interested

The Collector shall publish the public notice on his website and cause public notice to be
given at convenient places on or near the land to be taken, stating that the Government
intends to take possession of the land, and that claims to compensations and
rehabilitation and resettlement for all interests in such land may be made to him .91

Such public notice shall state the particulars of the land so needed, and require all persons
interested in the land to appear personally or by agent or advocate before the Collector
at a time and place mentioned in the public notice not being less than thirty days and not
more than six months after the date of publication of the notice, and to state the nature
of their respective interests in the land and the amount and particulars of their claims to
compensation for such interests, their claims to rehabilitation and resettlement along
with their objections, if any, to the measurements.92

The Collector may in any case require such a statement to be made in writing and signed
by the party or his agent. 93 The Collector shall also serve notice to the same effect on the
occupier, if any, of such land and on all such persons known or believed to be interested
therein, be entitled to act for persons so interested, as a resident or have agents
authorised to receive service on their behalf, within the revenue district in which the land
is situated.94
87 Section 19, Ibid.
88 Every declaration shall indicate; (a) the district or other territorial division in which the land is situated; (b) the
purpose for which it is needed, its approximate area; and (c) where a plan shall have been made for the land, the place
at which such plan may be inspected without any cost, Ibid.
89 In computing the period referred to in this sub-section, any period or periods during which the proceedings for the

acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded,
Ibid.
90 Section 20, Ibid.
91 Section 21 (1), Ibid.
92 Section 21 (2), Ibid.
93 Section 21 (3), Ibid.
94 Section 21 (5): In case any person so interested resides elsewhere, and has no such agent, the Collector shall ensure

17
The Collector may also require any such person to make or deliver to him, at a time and
place mentioned (such time not being less than thirty days after the date of the
requisition), a statement containing, so far as may be practicable, the name of every other
person possessing any interest in the land or any part thereof as co-proprietor, sub-
proprietor, mortgagee, tenant or otherwise, and of the nature of such interest, and of the
rents and profits, if any, received or receivable on account thereof for three years next
preceding the date of the statement.95

Enquiry and Award by Collector

On the day so fixed , or on any other day to which the enquiry has been adjourned, the
Collector shall proceed to enquire into the objections which any person interested has
stated in pursuance of a notice given, to the measurements, into the value of the land at
the date of the publication of the notification, and into the respective interests of the
persons claiming the compensation and rehabilitation and resettlement, shall make an
award under his hand about (a) the true area of the land; (b) the compensation as
determined along with Rehabilitation and Resettlement award and which in his opinion
should be allowed for the land; and (c) the apportionment of the said compensation
among all the persons known or believed to be interested in the land, or whom, or of
whose claims, he has information, whether or not they have respectively appeared before
him .96

Application of Land Acquisition Act 1894 in Certain Cases

In any case of land acquisition proceedings initiated under the Land Acquisition Act,
1894:- (a) Where no award under section 11 of the said Land Acquisition Act has been
made, then, all provisions of this Act relating to the determination of compensation,
rehabilitation and resettlement shall apply; or (b) Where an award under said section 11
has been made, then such proceedings shall continue under the provisions of the said
Land Acquisition Act, as if the said Act has not been repealed.

In case of land acquisition proceedings initiated under the Land Acquisition Act, 1894,
where an award under section 11 has been made five years or more prior to the
commencement of this Act but the physical possession of the land has not been taken or
the compensation has not been paid the said proceedings shall be deemed to have lapsed
and the appropriate Government, if it so chooses, shall initiate the proceedings of such
land acquisition afresh in accordance with the provisions of this Act. However, where an
award has been made and compensation in respect of a majority of land holdings has not
been accepted, then, all beneficiaries specified in the notification for acquisition under
section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance
with the provisions of this Act.97

Time Limit for Award

that the notice shall be sent to him by post in letter addressed to him at his last known residence, address of place or
business and also publish the same in at least two national daily newspapers and also on his website.” Ibid.
95 Section 22, Ibid.
96 Section 23, Ibid.
97 Section 24, Ibid.

18
The Collector shall make an award within a period of twelve months from the date of
publication of the declaration and if no award is made within that period, the entire
proceedings for the acquisition of the land shall lapse. However, the appropriate
Government shall have the power to extend the period of twelve months if in its opinion,
circumstances exist justifying the same. 98

Determination of Market Value: Relevant Factors

The Collector shall adopt the following criteria in assessing and determining the
market value of the land: the market value, if any, specified in the Indian Stamp Act,
1899 for the registration of sale deeds or agreements to sell, as the case may be, in the
area, where the land is situated; or the average sale price for similar type of land
situated in the nearest village or the nearest vicinity; or consented amount of
compensation as agreed upon in case of acquisition of lands for private companies
or for public private partnership projects, whichever is higher . 99

The date for determination of market value shall be the date on which the notification has
been issued. The ‘average sale price’ shall be determined taking into account the sale
deeds or the agreements to sell registered for similar type of area in the near village or
the near vicinity during immediately preceding three years of the year in which such
acquisition of land is proposed to be made. For determining the ‘average sale price’ one-
half of the total number of sale deeds or the agreements to sell in which the highest sale
price has been mentioned shall be taken into account.

While determining the market value and the average sale price, any price paid as
compensation for land acquired under the provisions of this Act on an earlier occasion in
the district shall not be taken into consideration. While determining the market value and
the average sale price, any price paid, which in the opinion of the Collector is not
indicative of actual prevailing market value may be discounted for the purposes of
calculating market value. 100 The market value calculated shall be multiplied by a factor
to be specified in the First Schedule.

Where the market value cannot be determined for the reason that:- (a) the land is
situated in such area where the transactions in land are restricted by or under any other
law for the time being in force in that area; or (b) the registered sale deeds or agreements
to sell for similar land are not available for the immediately preceding three years; or (c)
the market value has not been specified under the Indian Stamp Act, 1899 by the
appropriate authority, the State Government concerned shall specify the floor price or
minimum price per unit area of the said land based on the price calculated in respect of
similar types of land situated in the immediate adjoining areas.101

Where the Requiring Body offer shares to the owners of the lands whose lands have been
acquired, as a part compensation for acquisition of land, such shares, on no account, shall
exceed twenty-five per cent of the value so calculated as the case may be. Similarly, the
Requiring Body shall not compel any owner of the land (whose land has been acquired)

98 Section 25, Ibid.

99 Section 26 (1), Ibid.
100 See, Explanations 1 to 4 to Section 26 (1), Ibid.
101 Section 26 (3)

19
to take its shares, the value of which is deductible in the value of the land calculated.
Moreover, the Collector shall, before initiation of any land acquisition proceedings in any
area, take all necessary steps to revise and update the market value of the land on the
basis of the prevalent market rate in that area, and the appropriate Government shall
ensure that the market value determined for acquisition of any land or property of an
educational institution established and administered by a religious or linguistic minority
shall be such as would not restrict or abrogate the right to establish and administer
educational institutions of their choice. 102

Determination of the Compensation: Parameters

The Collector having determined the market value of the land to be acquired shall
calculate the total amount of compensation to be paid to the land owner (whose land has
been acquired) by including all assets attached to the land.103

In determining the amount of compensation to be awarded for land acquired, the

Collector shall take into consideration:104 the market value and the award amount in
accordance with the First and Second Schedules; the damage sustained by the person
interested 105by reason of the taking of any standing crops and trees which may be on the
land at the time of the Collector's taking possession thereof; the damage (if any) sustained
by the person interested, at the time of the Collector's taking possession of the land, by
reason of severing such land from his other land; the damage (if any) sustained by the
person interested, at the time of the Collector's taking possession of the land, by reason
of the acquisition injuriously affecting his other property, movable or immovable, in any
other manner, or his earnings; in consequence of the acquisition of the land by the
Collector, the person interested is compelled to change his residence or place of business,
the reasonable expenses (if any) incidental to such change; the damage (if any) bona fide
resulting from diminution of the profits of the land between the time of the publication
of the declaration under section 20 and the time of the Collector's taking possession of
the land; and any other ground which may be in the interest of equity, justice and
beneficial to the affected families.

Determination of Value of Things Attached to Land or Building

In determining the market value of the building and other immovable property or assets
attached to the land or buildings which are to be acquired, the Collector may use the
services of a competent engineer or any other specialist in the relevant field. For
determining the value of trees and plants attached to the land acquired, the services of
experienced persons in the field of agriculture, forestry, horticulture, sericulture, or any
other field, may be used. For the purpose of assessing the value of the standing crops
damaged during the process of land acquisition, he may use the services of experienced

102 Ibid.
103 Section 27, Ibid.
104 Section 28, Ibid.
105 “Person interested” means; (i) all persons claiming an interest in compensation to be made on account of the

acquisition of land under this Act; (ii) the Scheduled Tribes and other traditional forest dwellers, who have lost any
forest rights recognised under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006; (iii) a person interested in an easement affecting the land; (iv) persons having tenancy rights under
the relevant State laws including share-croppers by whatever name they may be called; and (v) any person whose
primary source of livelihood is likely to be adversely affected. Section 3 (x), Ibid.

20
persons in the field of agriculture.106

Award of Solatium

Having determined the total compensation to be paid, the Collector shall, to arrive at the
final award, impose a “solatium” amount equivalent to one hundred per cent of the
compensation amount. Such solatium amount shall be in addition to the compensation
payable to any person whose land has been acquired. 107The Collector shall issue
individual awards detailing the particulars of compensation payable and the details of
payment of the compensation as specified in the First Schedule.

In addition to the market value of the land, the Collector shall, in every case, award an
amount calculated at the rate of twelve per cent per annum on such market value for the
period commencing on and from the date of the publication of the notification of the
Social Impact Assessment study, in respect of such land, till the date of the award of the
Collector or the date of taking possession of the land, whichever is earlier. 108

Rehabilitation and Resettlement Award

The Collector shall pass Rehabilitation and Resettlement Awards for each affected family.
The Award shall include: rehabilitation and resettlement amount payable to the family;
109 bank account number of the person to which the rehabilitation and resettlement

award amount is to be transferred; particulars of the house site and the house to be
allotted, in case of displaced families;110 particulars of land allotted to the displaced
families; particulars of one time subsistence allowance and transportation allowance in
case of displaced families; particulars of payment for cattle shed and petty shops;
particulars of one-time amount to artisans and small traders; details of mandatory
employment to be provided to the members of the affected families; particulars of any
fishing rights that may be involved; particulars of annuity and other entitlements to be
provided; particulars of special provisions for the Scheduled Castes and the Scheduled
Tribes to be provided.111

Infrastructural Amenities in Resettlement Area

In every resettlement area, 112 the Collector shall ensure the provision of all
infrastructural facilities and basic minimum amenities specified in the Third Schedule.

Corrections to Awards passed by the Collector

106 Section 29, Ibid.

107 Section 30, Ibid.
108 Section 30 (3), Ibid.
109 The tern “family” includes a person, his or her spouse, minor children, minor brothers and minor sisters dependent

on him. Widows, divorcees and women deserted by families shall be considered separate families; and an adult of either
gender with or without spouse or children or dependents shall be considered as a separate family. Section 3 (m), Ibid.
110 “Displaced family” means any family, who on account of acquisition of land has to be relocated and resettled from
the affected area to the resettlement area; Section 3 (k), Ibid.
111 Section 31: “The appropriate Government may, by notification increase the rate of rehabilitation and resettlement

amount payable to the affected families, taking into account the rise in the price index”. Ibid.
112 “Resettlement Area” means an area where the affected families who have been displaced as a result of land

acquisition are resettled by the appropriate Government, Section 3 (z c), Ibid.

21
The Collector may at any time, but not later than six months from the date of award or
where he has been required under the provisions of this Act to make a reference to the
Authority, before the making of such reference, by order, correct any clerical or
arithmetical mistakes in either of the awards or errors arising therein either on his own
motion or on the application of any person interested or local authority. No correction
which is likely to badly affect any person shall be made unless such person has been given
a reasonable opportunity of making representation in the matter.

The Collector shall give immediate notice of any correction made in the award so
corrected to all the persons interested. Where any excess amount is proved to have been
paid to any person as a result of the correction, the excess amount so paid shall be liable
to be refunded and in the case of any default or refusal to pay, the same may be recovered,
as prescribed by the appropriate Government. 113

Power to Call for Records

The appropriate Government may at any time before the award is made by the Collector
call for any record of any proceedings (whether by way of inquiry or otherwise) for the
purpose of satisfying itself as to the legality or propriety of any findings or order passed
or as to the regularity of such proceedings and may pass such order or issue such
direction in relation thereto as it may think fit. The appropriate Government shall not
pass or issue any order or direction prejudicial to any person without affording such
person a reasonable opportunity of being heard. 114

Finality of the Awards of the Collector

The awards shall, except as hereinafter provided, be final and conclusive evidence, as
between the Collector and the persons interested, whether they have respectively
appeared before the Collector or not, of the true area and market value of the land and
the assets attached thereto, solatium so determined and the apportionment of the
compensation among the persons interested.

The Collector shall give immediate notice of his awards to such persons interested who
are not present personally or through their representatives when the awards are made.
The Collector shall keep open to the public and display a summary of the entire
proceedings undertaken in a case of acquisition of land including the amount of
compensation awarded to each individual along with details of the land finally acquired
under this Act on the website created for this purpose.115

Power to take Possession of Land Acquired

The Collector shall take possession of land after ensuring that full payment of
compensation as well as rehabilitation and resettlement entitlements are paid or
tendered to the entitled persons within a period of three months for the compensation
and a period of six months for the monetary part of rehabilitation and resettlement

113 Section 33, Ibid.

114 Section 36, Ibid.
115 Section 37, Ibid.

22
entitlements listed in the Second Schedule commencing from the date of the award.116
The Collector shall be responsible for ensuring that the rehabilitation and resettlement
process is completed in all its aspects before displacing the affected families.

Additional Compensation in Multiple Displacements

As far as possible, the Collector shall not displace any family which has already been
displaced by the appropriate Government for the purpose of acquisition under the
provisions of this Act, and if so, displaced, shall pay an additional compensation
equivalent to that of the compensation determined under this Act for the second or
successive displacements.117

Special powers at the time of Urgency

In cases of urgency, whenever the appropriate Government so directs, the Collector,

though no such award has been made, may, on the expiry of thirty days from the
publication of the notice, take possession of any land needed for a public purpose and
such land shall thereupon vest absolutely in the Government, free from all encumbrances.
118

Special Provisions for Scheduled Castes and Scheduled Tribes

As far as possible, no acquisition of land shall be made in the Scheduled Areas. Where
such acquisition does take place it shall be done only as a demonstrable last resort. In
case of acquisition or alienation of any land in the Scheduled Areas, the prior consent of
the concerned Gram Sabha or the Panchayats or the autonomous District Councils, at the
appropriate level in Scheduled Areas under the Fifth Schedule to the Constitution, as the
case may be, shall be obtained, in all cases of land acquisition in such areas, including
acquisition in case of urgency, before the issue of a notification under this Act, or any
other Central Act or a State Act for the time being in force: Where the Gram Sabha does
not exist or has not been constituted, the consent of the Panchayats or the Autonomous
Districts Councils shall be obtained.

In case of a project involving land acquisition on behalf of a Requiring Body which

involves involuntary displacement of the Scheduled Castes or the Scheduled Tribes

116 Section 38: The components of the Rehabilitation and Resettlement Package in the Second and Third Schedules that
relate to infrastructural entitlements shall be provided within a period of eighteen months from the date of the award.
In case of acquisition of land for irrigation or hydel project, being a public purpose, the rehabilitation and resettlement
shall be completed six months prior to submergence of the lands acquired.
117 Section 39, Ibid.
118 However, the exercise of such powers shall be subjected to the following conditions:(i)the powers of the appropriate

Government shall be restricted to the minimum area required for the defence of India or national security or for any
emergencies arising out of natural calamities or any other emergency with the approval of Parliament; (ii)the Collector
shall take possession of any building or part of a building only after giving to the occupier thereof at least forty-eight
hours’ notice of his intention to do so, or such longer notice as may be reasonably sufficient to enable such occupier to
remove his movable property from such building without unnecessary inconvenience; (iii) before taking possession of
any land, the Collector shall tender payment of eighty per cent of the compensation for such land as estimated by him
to the person interested entitled thereto; and (iv) an additional compensation of seventy-five per cent of the total
compensation shall be paid by the Collector in respect of land and property for acquisition of which proceedings have
been initiated. Section 40 (5): “ No additional compensation will be required to be paid in case the project is one that
affects the sovereignty and integrity of India, the security and strategic interests of the State or relations with foreign
States.” Ibid.

23
 families, a Development Plan shall be prepared, laying down the details of procedure for
settling land rights due, but not settled and restoring titles of the Scheduled Tribes as well
as the Scheduled Castes on the alienated land by undertaking a special drive together
with land acquisition.

The Development Plan shall also contain a programme for the development of alternate
fuel, fodder and, non-timber forest produce resources on non-forest lands within a period
of five years, sufficient to meet the requirements of tribal communities as well as the
Scheduled Castes. In case of land being acquired from members of the Scheduled Castes
or the Scheduled Tribes, at least one-third of the compensation amount due shall be paid
to the affected families initially as first instalment and the rest shall be paid after taking
over of the possession of the land.

The affected families of the Scheduled Tribes shall be resettled preferably in the same
Scheduled Area in a compact block so that they can retain their ethnic, linguistic and
cultural identity. The resettlement areas predominantly inhabited by the Scheduled
Castes and the Scheduled Tribes shall get land, to such extent as may be decided by the
appropriate Government free of cost for community and social gatherings.

Any alienation of tribal lands or lands belonging to members of the Scheduled Castes in
disregard of the laws and regulations for the time being in force shall be treated as null
and void, and in the case of acquisition of such lands, the rehabilitation and resettlement
benefits shall be made available to the original tribal land owners or land owners
belonging to the Scheduled Castes.119 The affected Scheduled Tribes, other traditional
forest dwellers and the Scheduled Castes having fishing rights in a river or pond or dam
in the affected area shall be given fishing rights in the reservoir area of the irrigation or
hydel projects.120

Where the affected families belonging to the Scheduled Castes and the Scheduled Tribes
are relocated outside of the district, then, they shall be paid an additional twenty-five per
cent, rehabilitation and resettlement benefits to which they are entitled in monetary
terms along with a one-time entitlement of fifty thousand rupees.121

All benefits, including the reservation benefits available to the Scheduled Tribes and the
Scheduled Castes in the affected areas shall continue in the resettlement area. 122 Where
the community rights have been settled under the provisions of the Scheduled Tribes and
Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, the same
shall be quantified in monetary amount and be paid to the individual concerned who has
been displaced due to the acquisition of land in proportion with his share in such
community rights.

Enforcement Machinery

• The Administrator for Rehabilitation and Resettlement

Where the State Government is satisfied that there is likely to be involuntary

119 Section 41 (1) to (9), Ibid.

120 Section 41 (10), Ibid.
121 Section 41 (11), Ibid.
122 Section 42, Ibid.

24
 displacement of persons due to acquisition of land, then, the Government shall appoint in
respect of that project, an officer not below the rank of Joint Collector or Additional
Collector or Deputy Collector or equivalent official of Revenue Department to be the
Administrator for Rehabilitation and Resettlement 123 Subject to the superintendence,
directions and control of the Government and the Commissioner for Rehabilitation and
Resettlement, the formulation, execution and monitoring of the Rehabilitation and
Resettlement Scheme shall vest in the Administrator.124

• The Commissioner for Rehabilitation and Resettlement

For rehabilitation and resettlement of affected families, the State Government shall
appoint an officer of the rank of Commissioner or Secretary of that Government to be
called the Commissioner for Rehabilitation and Resettlement; who shall be responsible
for supervising the formulation of rehabilitation and resettlement schemes or plans and
proper implementation of such schemes or plans; the post-implementation social audit
in consultation with the Gram Sabha in rural areas and municipality in urban areas. 125

• The Rehabilitation and Resettlement Committee

Where land proposed to be acquired is equal to or more than one hundred acres, the
appropriate Government shall constitute a Committee under the chairmanship of the
Collector to be called the Rehabilitation and Resettlement Committee, to monitor and
review the progress of implementation of the Rehabilitation and Resettlement scheme
and to carry out post-implementation social audits in consultation with the Gram Sabha
in rural areas and municipality in urban areas.126

The Rehabilitation and Resettlement Committee shall include, apart from officers of the
appropriate Government, the following members,127 namely:(a) a representative of
women residing in the affected area; (b) a representative each of the Scheduled Castes
and the Scheduled Tribes residing in the affected area; (c) a representative of a voluntary
organisation working in the area;(d) a representative of a nationalised bank;
(e) The Land Acquisition Officer of the project; (f) the Chairpersons of the panchayats or
municipalities located in the affected area or their nominees;(g) the Chairperson of the
District Planning Committee or his nominee; (h) the Member of Parliament and Member
of the Legislative Assembly of the concerned area or their nominees; (i) a representative
of the Requiring Body; and (j) Administrator for Rehabilitation and Resettlement as the
Member-Convenor.

Where any person other than a specified person is purchasing land through private
negotiations for an area equal to or more than such limits, as may be notified by the
appropriate Government, considering the relevant State specific factors and
circumstances, for which the payment of Rehabilitation and Resettlement Costs under
this Act is required, he shall file an application with the District Collector notifying him
of: (a) intent to purchase; (b) purpose for which such purchase is being made; (c)

123Section 43 (1), Ibid.

124 Section 43 (3), Ibid.
125 Section 44, Ibid.
126 Section 45 (1), Ibid.
127 Section 45 (2), Ibid.

25
 particulars of lands to be purchased. 128

It shall be the duty of the Collector to refer the matter to the Commissioner for the
satisfaction of all relevant provisions under this Act related to rehabilitation and
resettlement. Based upon the Rehabilitation and Resettlement Scheme approved by the
Commissioner as per the provisions of this Act, the Collector shall pass individual awards
covering Rehabilitation and Resettlement entitlements as per the provisions of the Act.

No land use change shall be permitted if rehabilitation and resettlement is not complied
with in full;129 and any purchase of land by a person other than specified persons without
complying with the provisions of Rehabilitation and Resettlement Scheme shall be void
ab initio130

If any land has been purchased through private negotiations by a person on or after the
5th day of September, 2011, and, if the same land is acquired within three years from the
date of commencement of this Act, then, forty per cent of the compensation paid for such
land acquired shall be shared with the original land owners.131

Where the Collector is of the view that the obligations of the Requiring Body with regard
to rehabilitation and resettlement can be quantified into monetary amount, he shall allow
the payment of such amount into an account in complete satisfaction of such obligations,
which shall be administered by the Administrator under the supervision of the
Collector.132

• The National Monitoring Committee

The Central Government may, whenever necessary, for national or inter-State projects,
constitute a National Monitoring Committee for reviewing and monitoring the
implementation of rehabilitation and resettlement schemes or plans under this Act. The
Committee may, besides having representation of the concerned Ministries and
Departments of the Central and State Governments, associate with it eminent experts
from the relevant fields.133

The States and Union territories shall provide all the relevant information on the matters
covered under this Act, to the National Monitoring Committee in a regular and timely
manner, and also as and when required.134

• The State level Monitoring Committee

128 Section 46 (1), Ibid.

129 Section 46 (4), Ibid.
130 Section 46 (5), Ibid.
131 Section 46 (6) : “Land owner” includes any person: (i) whose name is recorded as the owner of the land or building

or part thereof, in the records of the authority concerned; or (ii) any person who is granted forest rights under the
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 or under any other
law for the time being in force; or (iii) who is entitled to be granted Patta rights on the land under any law of the State
including assigned lands; or (iv) any person who has been declared as such by an order of the court or Authority.
Section 3 (r), Ibid.
132 Section 47, Ibid.
133 Section 48, Ibid.
134 Section 49, Ibid.

26
 The State Government shall constitute a State Monitoring Committee for reviewing and
monitoring the implementation or rehabilitation and resettlement schemes or plans
under this Act. The Committee may, besides having representatives of the concerned
Ministries and Departments of the State Government, associate with it eminent experts
from the relevant fields.135

• The Land Acquisition, Rehabilitation and Resettlement Authority

The appropriate Government shall, for the purpose of providing speedy disposal of
disputes relating to land acquisition, compensation, rehabilitation and resettlement,
establish, by notification, one or more Authorities to be known as “the Land Acquisition,
Rehabilitation and Resettlement Authority” to exercise jurisdiction, powers and
authority conferred on it by or under the Act.136 The Authority shall consist of one person
only ‘the Presiding Officer’ to be appointed, by notification, by the appropriate
Government.137

A person shall not be qualified for appointment as the Presiding Officer of an Authority
unless: (a) he is or has been a District Judge; or (b) he is a qualified legal practitioner for
not less than seven years.

A Presiding Officer shall be appointed by the appropriate Government in consultation

with the Chief Justice of a High Court in whose jurisdiction the Authority is proposed to
be established.138 The Presiding Officer of an Authority shall hold office for a term of
three years from the date on which he enters upon his office or until he attains the age of
sixty-five years, whichever is earlier.139

Reference by the Collector

Any person interested who has not accepted the award may, by written application to the
Collector, require that the matter be referred by the Collector for the determination of the
Authority, as the case may be, whether his objection be to the measurement of the land,
the amount of the compensation, to the person to whom it is payable, the rights of
rehabilitation and resettlement or the apportionment of the compensation among the
persons interested. The Collector shall, within a period of thirty days from the date of
receipt of application, make a reference to the appropriate Authority. 140

Statement of the Collector

In making the reference, the Collector shall state for the information of the Authority, in
writing under his hand:(a)the situation and extent of the land, with particulars of any
trees, buildings or standing crops thereon; (b) the names of the persons whom he has
reason to think are interested in such land;(c)the amount awarded for damages and paid

135 Section 50, Ibid.

136 Section 51 (1), Ibid.
137 Section 52, Ibid.
138 Section 53, Ibid.
139 Section 54, Ibid.
140 Section 64, Ibid. No civil court (other than High Court under article 226 or article 227 of the Constitution or the
Supreme Court) shall have jurisdiction to entertain any dispute relating to land acquisition in respect of which the
Collector or the Authority is empowered by or under this Act, and no injunction shall be granted by any court in respect
of any such matter. Section 63, Ibid.

27
or tendered and the amount of compensation awarded under the provisions of this Act;
(d)the amount paid or deposited under any other provisions of this Act; and (e)if the
objection be to the amount of the compensation, the grounds on which the amount of
compensation was determined.141

The Authority shall thereupon cause a notice specifying the day on which the Authority
will proceed to determine the objection, and directing their appearance before the
Authority on that day, to be served on the following persons, namely: (a) the applicant;
(b) all persons interested in the objection, except such (if any) of them as have consented
without protest to receive payment of the compensation awarded; and (c) if the objection
is in regard to the area of the land or to the amount of the compensation, the Collector.142

Every such proceeding shall take place in public, and all persons entitled to practice in
any Civil Court in the State shall be entitled to appear, plead and act (as the case may be)
in such proceeding.143

Determination of Award by the Authority

In determining the amount of compensation to be awarded for land acquired including

the Rehabilitation and Resettlement entitlements, the Authority shall take into
consideration whether the Collector has followed the parameters set out under the Act.144

In addition to the market value of the land, the Authority shall in every case award an
amount calculated at the rate of twelve per cent per annum on such market value for the
period commencing on and from the date of the publication of the preliminary
notification in respect of such land to the date of the award of the Collector or the date of
taking possession of the land, whichever is earlier.145 In addition to the market value of
the land the Authority shall in every case award a solatium of one hundred per cent over
the total compensation amount.146

If the sum, which in the opinion of the Authority concerned, the Collector ought to have
awarded as compensation is in excess of the sum which the Collector did award as
compensation, the award of the Authority concerned may direct the Collector to pay
interest on such excess at the rate of nine per cent per annum from the date on which he
took possession of the land to the date of payment of such excess into Authority. The
award of the Authority concerned may also direct that where such excess or any part
thereof is paid to the Authority after the date or expiry of a period of one year from the
date on which possession is taken, interest at the rate of fifteen per cent per annum shall
be payable from the date of expiry of the period of one year on the amount of such excess
or part thereof which has not been paid into Authority before the date of such expiry.147

Appeal to the High Court

The Requiring Body or any person aggrieved by the award passed by an Authority may

141 Section 65, Ibid.

142 Section 66, Ibid.
143 Section 68, Ibid.
144 Section 69 (1), Ibid.
145 Section 69 (2), Ibid.
146 Section 69 (3), Ibid.
147 Section 72, Ibid.

28
file an appeal to the High Court within sixty days from the date of award. The High Court
may, if it is convinced that the appellant was prevented by sufficient cause from filing the
appeal within the period, allow it to be filed within a further period not exceeding sixty
days. Every appeal shall be heard as expeditiously as possible and endeavour shall be
made to dispose of such appeal within six months from the date on which the appeal is
presented to the High Court.148

Payment of Interest

When the amount of such compensation is not paid or deposited on or before taking
possession of the land, the Collector shall pay the amount awarded with interest thereon
at the rate of nine per cent per annum from the time of so taking possession until it shall
have been so paid or deposited. If such compensation or any part thereof is not paid or
deposited within a period of one year from the date on which possession is taken, interest
at the rate of fifteen per cent per annum shall be payable from the date or expiry of the
period of one year on the amount of compensation or part thereof which has not been
paid or deposited before the date of such expiry.149

Temporary Occupation of Land

Whenever it appears to the appropriate Government that the temporary occupation and
use of any waste or arable land are needed for any public purpose, the appropriate
Government may direct the Collector to procure the occupation and use of the same for
such terms as it shall think fit, not exceeding three years from the commencement of such
occupation.150

The Collector shall thereupon give notice, in writing to the person interested in such land,
of the purpose for which the same is needed, and shall, for the occupation and use thereof
for such term as aforesaid, and for the materials (if any) to be taken there from, pay to
them such compensation, either in a gross sum of money, or by monthly or other
periodical payments, as shall be agreed upon in writing between him and such persons
respectively.151

In case the Collector and the persons interested differ as to the sufficiency of the
compensation or apportionment thereof, the Collector shall refer such difference to the
decision of the Authority.152 On payment of such compensation, or on executing such
agreement, or on making a reference, the Collector may enter upon and take possession
of the land, and use or permit the use thereof in accordance with the terms of the said
notice.153 On the expiration of the term, the Collector shall make or tender to the persons
interested compensation for the damage (if any) done to the land and not provided for by
the agreement, and shall restore the land to the persons interested therein. If the land has
become permanently unfit for use for the purpose for which it was used immediately
before the commencement of such term, and if the persons interested shall so require,
the appropriate Government shall proceed under this Act to acquire the land as if it was

148 Section 74, Ibid.

149 Section 80, Ibid.
150 Section 81 (1), Ibid.
151 Section 81 (2), Ibid.
152 Section 81 (3), Ibid.
153 Section 82 (1) Ibid.

29
needed permanently for a public purpose.154

In case the Collector and persons interested differ as to the condition of the land at the
expiration of the term, or as to any matter connected with the said agreement, the
Collector shall refer such difference to the decision of the Authority concerned 155

Forceful Surrender of Land

If the Collector is opposed or impeded in taking possession under this Act of any land, he
shall, if a Magistrate, enforce the surrender of the land to himself, and if not a Magistrate,
he shall apply to a Magistrate or to the Commissioner of Police, and such Magistrate or
Commissioner, as the case may be, shall enforce the surrender of the land to the
Collector.156

Exemption from Income Tax Stamp Duty and Fees

No income tax or stamp duty shall be levied on any award or agreement made under this
Act, except under section 47 and no person claiming under any such award or agreement
shall be liable to pay any fee for a copy of the same.157

Change of the Purpose of Acquisition

No change from the purpose or related purposes for which the land is originally sought
to be acquired shall be allowed. However, if the land acquired is rendered unusable for
the purpose for which it was acquired due to a fundamental change because of any
unforeseen circumstances, then the appropriate Government may use such land for any
other public purpose.158

Return of the Unutilised Land

When any land, acquired remains unutilised for a period of five years from the date of
taking over the possession, the same shall be returned to the original owner or owners
or their legal heirs, as the case may be, or to the Land Bank of the appropriate Government
by reversion in the manner as may be prescribed by the appropriate Government. 159

Legislative Power of the State Governments

Nothing in the Act prevents any State from enacting any law to enhance or add to the
entitlements enumerated under the Act which confers higher compensation than payable
under the Act or make provisions for rehabilitation and resettlement which is more
beneficial than provided under this Act.160

154 Section 82 (2), Ibid.

155 Section 83, Ibid.
156 Section 91, Ibid.
157 Section 96, Ibid.
158 Section 99, Ibid.
159 Section 101. "Land Bank" means a governmental entity that focuses on the conversion of Government owned vacant,

abandoned, unutilised acquired lands and tax-delinquent properties into productive use. See, Explanation to Section
102. Ibid.
160 Section 107, Ibid.

30
 Options to the Affected Families

Where a State law or a policy framed by the Government of a State provides for a higher
compensation than that calculated under this Act for the acquisition of land, the affected
persons or his family or member of his family may at their option opt to avail of such
higher compensation and rehabilitation and resettlement under such State law or such
policy of the State. Where a State law or a policy framed by the Government of a State
offers more beneficial rehabilitation and resettlement provisions under that Act or
policy than under this Act, the affected persons or his family or member of his family
may at his option opt to avail such rehabilitation and resettlement provisions under such
State law or such policy of the State instead of under the Act.161

For a critical appraisal of the new legislation, a comparative analysis of Land Acquisition
Act, 1894 and The Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 is felt necessary:

The following drawbacks overturn the merits of the Act:

• One of the major drawbacks of the present legal frame work is the existence of different
statutes providing for different procedures, even though all of these statutes have a
common aim - “acquisition for public purpose”. For instance, in the case of acquisition for
high ways, the National High Ways Act, 1956 is applicable. Similarly, for the acquisitions
for railway, the Railways Act, 1989 is applicable. The new legislation also fails to address
this issue. The applicability of the new legislation is also confined to the acquisitions for
Government purposes as well as for public or private purposes: the subject matter
covered under 13 statutes, including acquisitions for national highways or railways
stated above, are left untouched. The Parliament could have enacted a comprehensive
and self-contained statute encompassing all acquisitions for public benefit.
• In the present democratic set up in India, it is difficult to get consensus of political parties
in a social issue. Moreover, the outcome of the studies envisaged under the Act may be
tainted with political motives. This may hamper the speedy acquisition process.
• There is no representation for the elected members of the Local Self Governments
representing the Scheduled Caste or Scheduled Tribe, in the group constituted for the
social impact study.
• Under the guise of ensuring food security, the Act requires that if any multi-cropped
agricultural land has been acquired under the Act, the same extent of cultivable land has
to be given to the displaced farmer. The logic in excluding this beneficial provision while
acquiring other agricultural lands remains a mystery.
• The incorporation of technical procedural requirements at different stages in getting
compensation makes the legislation cumbersome.
• Against the backdrop of highly fluctuating land market, the calculation of market price on
the basis of the land price at the time of preliminary notification seems to be
unreasonable.
• On the economic front, the provisions of the Act attach an arbitrary mark-up to the
historical market price to determine the compensation amount, along with numerous
entitlements to the potentially unlimited number of claimants. This can guarantee neither
social justice nor the efficient use of resources.

161 Section 108 (1) and (2), Ibid.

31
• The Act does not define the term “acquisition”. This leaves open a loophole that could
allow Government agencies to continue banking land indefinitely.
• The Act fails to adequately define the term “public purpose”. The current definition can
be interpreted vaguely. More clarity is needed. Otherwise, land acquisition will remain
hostage to politics and all kinds of disputes.
• Once the payment is made, one or more of the affected families may seek to delay the
progress of the project to extract additional compensation, thereby adversely affecting
those who chose long term employment in the affected families. In order to avoid such
difficulties, the Act should link compensation and entitlements to the progress and
success of the project, such as through partial compensation in the form of land bonds.
These success-linked infrastructure bonds may also help poor States to reduce the
upfront cost of land acquisition for essential public projects such as hospitals, schools,
universities, affordable housing, clean drinking water treatment plants, electricity power
generation plants, sewage treatment plants, flood control reservoirs, and highways
necessary to bring relief to affected public during fires, epidemics, earthquakes, floods
and other natural disasters.162
• The Act places no limit on total compensation or number of claimants. The Act should
place a limit on the total value of entitlement benefits that can be annually claimed per
acre. This entitlement pool should then be divided between the affected families, and the
government should run this programme if it is considered to be fair.
• The Act severely curtails free market transactions between willing sellers and willing
buyers. There should be no conditions imposed on free market transactions between
willing sellers and willing buyers.

Although the 1894 Act was enacted by a colonial government, it was adopted unchanged
by the government of independent India. It did not meet the evolving requirements and
gradually, the injustices caused by it began to generate resistance in the society, causing
abandonment of several projects, including the Tata Motors' small car project at Singur.
Therefore, new land acquisition law was drafted, circulated, discussed, tweaked and
finally became an act of Parliament in 2013.

The 2013 Act marked a paradigm shift in the land acquisition process and contains many
provisions to protect the interests of not only the land owners but also landless project
affected persons such as farm labour and slum dwellers. Under the new law, in cases
where PPP projects are involved or acquisition is taking place for private companies,
consent of 70% and 80% respectively of the landowners is required. This ensures that no
forcible acquisition can take place. Given the inaccurate nature of circle rates, the law
provides for payment of compensation up to four times the market value in rural areas
and up to twice the market value in urban areas. This ensures fairer payment to the
landowners.

The new law links land acquisition with the accompanying obligation for Resettlement
and Rehabilitation of all project affected persons, including the landless people. The law
contains elaborate processes and entitlements for R&R. It outlines the benefits (such as
land for land, housing, employment and annuities) that shall accrue in addition to the
one-time cash payments. The new law even has retrospective application in certain cases.

162 The State of Kerala has decided to pursue the use of infrastructure bonds as a form of payment to land owners.

32
It applies retrospectively to land acquisitions under the 1894 Act, where no land
acquisition award has been made. Also in cases where the land was acquired over five
years ago but no compensation has been paid or no possession has been taken, the land
acquisition process must be started afresh in accordance with the provisions of the 2013
Act.

In case land remains unutilized after acquisition, the 2013 Act empowers states to return
the land either to the owner or to the state land bank. The law provides that no income
tax shall be levied and no stamp duty shall be charged on any amount that accrues to an
individual as a result of the provisions of the new law. In cases where the acquired land
is sold to a third party for a higher price, 40% of the appreciated land value (or profit) is
required to be shared with the original owners. In cases where the land is acquired for
urbanization, 20% of the developed land has to be reserved and offered to the
landowners, in proportion to the area of their land acquired and at a price equal to the
cost of acquisition, plus the cost of development. All affected families are entitled to a
house, provided they have been residing in the area for five years or more and have been
displaced. If they choose not to accept the house, they are offered a one-time financial
grant in lieu of the same. Finally, under the new law, R&R provisions are applicable even
to acquisitions by private parties, subject to size thresholds to be determined by state
governments. If a private investor buys land directly from farmers and if the size of
acquisition exceeds the set threshold, the private purchaser must also bear the R&R costs.

Predictably, the industry did not welcome the new law. According to CII's estimates, the
new law was likely to increase land acquisition costs by up to 3.5 times, severely affecting
the viability of industrial projects across the board and eroding the competitiveness of
the Indian manufacturing sector.

The Amendment Bill, 2015

On March 10, 2015, the controversial amendments to the land acquisition law were
finally passed by the Lok Sabha after facing severe criticism both from the opposition
parties as well as from the government's own allies. Once the amendment bill - Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement (Amendment) Bill, 2015 - becomes an act, it will become easier for the
government to acquire private land for public purposes and companies. India has had an
archaic land acquisition law – the Land Acquisition Act, 1894 which was replaced in 2013
by The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013. The 2013 Act was criticized as being anti-industry – it was
too rigorous which made land acquisition process difficult and long-winding, thereby
reducing the availability of land for industry.

The 2015 Law has tried to address industry concerns by reducing the rigour of some of
the provisions of the 2013 Act. It does away with the social impact assessment and
consent requirement, in cases where the land is being acquired for the purposes of five
specified sectors, namely: (i) national security and defence, (ii) rural infrastructure
including electrification, (iii) industrial corridors, (iv) affordable housing and housing for
the poor and (v) infrastructure and social infrastructure projects, including PPP projects
where ownership of land continues to be vested with the government. These five
categories are quite wide in scope and will cover a lot of projects.

33
Moreover, as long as the land acquisition is for the aforesaid five purposes, there will be
no cap on the area of multi-crop fertile agricultural land that can be acquired. The
amendment replaces the word "private company" wherever appearing in the 2013 Act,
with the word "private entity", thereby enabling acquisition of land for and by other types
of privately controlled entities such as proprietorship concerns, partnerships, societies,
trusts, etc. It enables acquisition of land for private hospitals and private educational
institutions also which was not allowed earlier. Under the 2013 Act, if the acquired land
remained unutilised for a period of five years from the date of taking over the possession,
the land was to be returned to the landowners. However, under the 2015 Law, if the
period specified for setting up of any project exceeds five years, then such period (and
not the five year period) is to be taken into account; also there is no cap on what such
period can be.

Due to stiff opposition, including from some of the government's own allies, the 2015 Law
had to be diluted by removing some of the amendments. Thus, social infrastructure has
been removed as an exempted category as also private hospitals and private educational
institutions. For industrial corridors, land can now be acquired only up to one km on both
sides of the designated railway line or road. Compulsory employment is required to be
given to at least one member of the affected family of a farm labourer. It remains to be
seen what further amendments will be made by the Rajya Sabha which is yet to pass it.
Business organizations planning to set up projects requiring substantial land have no
option but to face the reality of higher acquisition costs, given the increasing pressure on
land caused by ever growing population and rapid urbanization in the country.

Conclusion

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation

and Resettlement Act, 2013 contains ample provisions for ensuring fair compensation to
displaced persons and transparency in the process of acquisition and rehabilitation of
those affected. The eagerness of the Parliament in incorporating almost all provisions of
the United Nations Declaration on The Right of Indigenous Peoples, 2007 in the present
legislation, is really laudable. But many critics point out that this Act is only for soothing
voters in the coming Lok Sabha election in 2014. This seems to be true since the
Parliament has ignored many crucial points raised in the report of the Standing
Committee on Rural Development pertaining to agricultural land. 163

Moreover, the new legislation intentionally avoided the word ‘just’; and instead of it, used
the word ‘fair’ as a pre-fix to the term ‘compensation’. It is suggested that the word ‘just
compensation’ shall be incorporated in the Act. In this context, it is to be noted that the
U.S law provides for “just compensation”; and the South Australian statute mandates “just
terms”.

Similarly, the term ‘market value’ defined under the new legislation does not make a

163 http://www.frontline.in. Many crucial points raised in the 31st report of the Standing Committee on Rural

Development pertaining to agricultural and multi-crop land as well as about narrowing the ambit of public purpose
were roundly ignored in the final run-up to the legislation. What is most significant is that the provisions regarding
rehabilitation and resettlement (R&R) shall not apply to acquisitions made under the 13 existing Acts. The Standing
Committee had recommended the inclusion of the 13 Acts. Several members who spoke on the floor of both Houses of
Parliament said land should not be acquired for private purposes but rather be given on lease. Some even suggested
that the titles should remain with the owners.

34
 major difference with the existing law. Under the new Act, market value may be the value
prescribed by the Indian Stamp Act or the average sale price for similar type of land
situated in the nearest village or nearest vicinity. 164 But, by virtue of the provisions of the
Land Acquisition Act, 1894, market value is the highest of the price paid within a
reasonable time in bona fide transactions of purchase of the lands within the similar
locality.165 Consequently, the amount has been reduced as ‘average of the similar sale
deeds’.

The major drawbacks of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 are as follows:

• It is not clear whether the Parliament has jurisdiction to impose rehabilitation and
resettlement requirements on private purchase of agricultural land.

• The Act mandates that whenever multi-crop irrigated land is acquired, an equivalent area
of cultivable waste land should be developed for agricultural purpose. However,
acquisitions of other irrigated agricultural land have been excluded from this provision.
This limited exclusion seems rather half-hearted.

• The Act expresses no serious concern about avoiding or minimising displacements.

Similarly, the principles of ‘no forced displacement' and ‘free, informed prior consent' are
not incorporated. Moreover, the requirement of consent of 80 per cent of the land-
owners is made applicable only to land acquisition by the government for companies
including public private participation cases, and not to governmental acquisition for
itself.166 It appears that there has been no dilution at all of ‘eminent domain'.

• The present Act increases the compensation amount significantly; but the problems of
delay and corruption in the payment process will remain unabated.

• The basic question as to why the State should use its sovereign power to acquire land for
private companies which are primarily in business for profit and not for conferring
benefits on the public, has not been answered properly.

• The Act provides no mechanism to reduce the asymmetry of power between those who
wish to acquire the land and those whose lands are being acquired. It extends the

164 See Section 26, The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013.
165 See Section 23 (1), The Land Acquisition Act, 1894; See also, Sadanand v. Union of India, (1995) LACC 333 (Del).
166 Section 2 (2), The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013: The provisions of this Act relating to land acquisition, consent, compensation, rehabilitation
and resettlement, shall also apply, when the appropriate Government acquires land for the following purposes,
namely:— (a) for public private partnership projects, where the ownership of the land continues to vest with the
government, for public purpose as defined in subsection (1); (b) for private companies for public purpose, as defined
in sub-section (1): Provided that in the case of acquisition for— (i) private companies, the prior consent of at least
eighty per cent of those affected families, as defined in sub-clauses (i) and (v) of clause (c) of section 3; and (ii) public
private partnership projects, the prior consent of at least seventy per cent of those affected families, as defined in sub-
clauses (i) and (v) of clause (c) of section 3, shall be obtained through a process as may be prescribed by the appropriate
Government.

35
 rehabilitation and resettlement provisions to private negotiated purchases of land but
provides no safeguard against unfair negotiation. The legality of extension of the
rehabilitation and resettlement provisions to negotiated purchases may be challenged in
the court. If the compensation that the land-owners would have received under the Act if
the land had been acquired by the government would be higher than the price negotiated
by the company with the land-owners, then nothing in the Act protects the interests of
the displaced persons.

• Transfer of agricultural land to non-agricultural use naturally affects food security. Thus
all acquisitions of agricultural land including acquisition for private company must be
done only by the State; and purchase of agricultural land should be subject to State
regulation from the point of view of land-use. On the whole, the answer to the question
of minimising transfers of agricultural land to non-agricultural use might lie in policies
supportive of agriculture rather than in control or regulation over land transactions.

• An issue that has persistently figured in the debate during the last decade or two is the
need to narrow the definition of ‘public purpose’; and limit it to a few strictly
governmental purposes (schools, dispensaries, etc.). The present Act moves in exactly the
opposite direction. It defines ‘public purpose’ very broadly and leaves it to the
bureaucracy to decide each case. Is it right to assume that any industry ipso facto serves
a public purpose warranting the alienation of agricultural land? For instance, in the
‘Singur episode’ land acquisition was for an ‘industry', i.e., Tata’s small car factory. Was
that a ‘public purpose'? Any way, it can be so declared under the present Act.

• As per the new legislation, the term ‘infrastructure' includes ‘tourism', which would
permit the acquisition of land for building hotels. It seems desirable to define ‘public
purpose' somewhat more stringently.

• The Act refers to loss of primary livelihoods; but links it to the acquisition of land. The
term ‘livelihoods' is illustrated by a reference to the gathering of forest produce, hunting,
fishing, etc. There is no reference to the sellers of goods and services in the project area,
who will lose their livelihoods when the people whom they serve move away to
resettlement areas. It is not clear whether they will be regarded as ‘project-affected
persons.’

• The Social Impact Assessment (SIA) in the present Act is an improvement on the 2007
Bill, but the idea of SIA still falls short: it does not cover the disappearance of a whole way
of life; the dispersal of close-knit communities; the loss of centuries-old relationship with
nature; the loss of roots; and so on. It is good that the SIA will be reviewed by an
independent multi-disciplinary expert body, but it should first be prepared by a similar
body. But the Act leaves SIA to be prepared by the “appropriate government.”

• The rehabilitation package envisaged under the Act is distinctly inferior to the packages
already established in certain projects: Firstly, the principle of ‘land for land' has been
abandoned. The Act envisages one acre per family instead of two acres as in the Sardar
Sarovar Project. Secondly, compensation and rehabilitation should have reference not to
the nature of the project but to the nature of the impact. Whatever be the project, if an
agricultural community is uprooted from its land and homestead, it has to be enabled to
practise agriculture elsewhere, and not expected to become carpenters or weavers or

36
 traders.

• In the case of the projects involving land acquisitions undertaken for private companies
or public private partnerships, the Act mandates the consent of 80 per cent of the people
affected. However, no such consent is required in the case of PSUs.

• The Act provides for the appointment or constitution of a number of officials and
institutions such as the Collector, the Administrator of Rehabilitation and Resettlement,
the Commissioner of Rehabilitation and Resettlement, the National Monitoring
Committee etc. Only in the Rehabilitation and Resettlement Committee, a significant
number of non-officials are present. The National Monitoring Committee is not
‘participatory'; apart from officials, it includes only a few experts. As indicated earlier, the
idea of a National Rehabilitation Commission has been abandoned.

• The requirement of a Social Impact Assessment for every acquisition without a minimum
threshold may delay the implementation of certain government programmes.

• By invoking the provisions of the Act, the government can temporarily acquire land for a
maximum period of three years. However, there is no provision for rehabilitation and
resettlement in such cases.

• It is not clear why displacement by natural calamities should be brought within the
purview of this Act. There is a vital difference between unavoidable displacement caused
by nature and deliberate displacement caused by human decisions.

In conclusion, it can be said that the Act seems to be essentially driven by a desire to make
land acquisition easier for industrialisation and urbanisation. The Act which does not
properly address many of the vital issues requires substantial improvement. Indian
experience and conception of property have a very different historical basis than that of
western economies.167 This also seems to be the hidden reason why the right to property
is suddenly much contested throughout India today and why the State is coming up
unexpectedly against huge resistance from unexpected quarters in attempting to acquire
land in India.168 In this regard, the following changes shall be brought in the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 so as to balance the interest of the community and that of the individual.

SUGGESTIONS

• The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation

and Resettlement Act, 2013 which is intended to repeal the Land Acquisition Act, 1894
must necessarily be changed in many core areas: For instance, the definition of the term
‘fair rent’, provisions relating to award by Collector, the discrimination between ‘multi
crop agricultural land’ and ‘other agricultural land’, artificial distinction between
‘Government Company’ and ‘Public Companies’ for certain purposes etc.

167 For adetailed discussion on the developments in Europe in the 17 th to 18th century, See generally, Karl Polyanii, The
Great Transformation: The Political and Economic Origins of Our Times (Beacon Press, Boston, 2001); and Milton
Freidman, Role of Government in a Free Society: Capitalism and Freedom (University of Chicago Press, Chicago, 2002)
pp. 22-36.
168 Vikramjit Banerjee, “Envisaging the Right to Property and Profit in Bharatiya Thought” 6 SCC Journal 6 (2009)

37
• Prior consultation of inhabitants shall be made compulsory.
• The time frame for the completion of acquisition shall be fixed as one year from the date
of notification.
• The entire acquisition process shall be monitored by a committee comprising higher
officials, experts and sufficient number of representatives of the displaced persons.
• Instead of the Collector, a new quasi-judicial authority with sufficient powers to award
compensation may be constituted; with a provision to prefer appeal to the District Court.
Such independent authorities exist in many legal systems like the Expropriation
Compensation Board constituted under the Expropriation Act, 1996 in British Columbia.
• Steps may be taken to avoid inordinate delay in the completion of acquisition procedures
and the erring officials, penalised.
• Lands belonging to poor peasants shall be acquired only as a last resort.
• The concept of ‘just compensation’ must be incorporated in the Act instead of “fair
compensation”.
• The market value of the property has to be calculated on the basis of the value prevalent
at the time when the government gets actual possession of the property. Moreover, the
valuation of property should be revised in every year. In addition to the market value, an
amount for future existence may be provided.
• Pension schemes must be introduced for poor persons whose property has been
completely taken for public purpose.
• In order to protect the interest of the displaced persons, classification of property for the
purpose of valuation should be rational rather than arithmetic progression.
• Complaints, irregularities and omissions in lay out and plan, including classification of
property, must be properly rectified by an independent authority.
• Very often, after having taken possession of the acquired land, the government changes
the “purpose” for which the acquisition took place. In such cases, the property may be re-
transferred to the original owners with sufficient compensation for the loss incurred due
to acquisition.
• Consent of the majority of inhabitants should be sought for the acquisition of property
for Government companies also.
• In the case of purchase of land for private companies, governmental interference shall be
the minimum. In such cases, the role of the government shall be confined to monitoring
the process.
• Tailor-made schemes suited to ‘particular’ acquisitions should be avoided. Schemes
which will be ‘litigation free’ and beneficial to all affected parties should be evolved.
Proper planning, adequate counselling and timely mediation with different groups of
land-losers should be resorted to.
• While undertaking resettlement measures, ‘priority rule’ has to be adopted: priority shall
be given to those persons whose land has been acquired completely; and that too, on the
basis of income levels.
• The following key factors shall be considered while acquiring land for private companies:
• Geography, quality, location and size of the land made available to the investors.
• Type of the company that wishes to acquire land and are accepted by the host
governments, their business plan and the willingness to invest responsibly.
• Rights of the local inhabitants and their ability to protect their rights and
develop alternative livelihoods.
• Interests of the farmers’ groups and organizations.
• Fertility of the agricultural lands, environmental equilibrium etc.

38
 •Contract negotiations, the price of the land and the conditions placed on the use
of resources.
• Sustainable land use and economic integration.
• Employment opportunities and re-settlement programmes.
• Feasibility of allotment of sufficient number of shares of the company to the
displaced persons, in addition to the compensation awarded to them.
• The name of the new legislation, the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013, creates the impression that
the Act protects the rights of all displaced persons irrespective of the statutes under
which the land was acquired. Hence the legislature could have avoided the “exclusion
clause” as given in the schedule 4.

………………………………………………………………………………………………

PROTECTION OF THE RIGHTS OF FOREST DWELLERS IN INDIA: A MYTH?

BY

PROF. (DR.) N. L. SAJIKUMAR & ADV. VEENA S. NAIR

ABSTRACT: Forests form an integral part of international peace and justice. They provide
livelihoods for millions of forest dwellers. Any threat to the forests may adversely affect
their livelihood resources. However, protection of forests remains one of the neglected
areas of international law. The absence of a comprehensive international treaty makes
the situation grim. In India, about one and a half decade ago, the Scheduled Tribes and
other Forest Dwellers (Recognition of Forest Rights) Act, 2006 was enacted to recognize
the “forest rights” of nearly 200 million individuals to inhabit India's forest land. Nearly
104 million of those people are from various tribes, constituting about 10 % of India's
population. The Act was enacted to end the historical injustice caused to them. But the
callous attitude of various State governments has frustrated the noble objectives of the
legislation. The recent amendments proposed to the Indian Forest Act, 1927 imposing
duty on forest produce and the Supreme Court order of eviction of millions of forest
dwellers based on the affidavits filed by the States are glaring examples of this attitude.

I. INTRODUCTION

"We have come to Delhi to ensure that our voice is heard by the Supreme Court so that it
doesn’t end up doing a historical injustice..." This statement has been made recently by a
farmer from Madhya Pradesh, who was one among the thousands of forest dwellers and
indigenous people who organized a protest near the Indian Parliament, days before the
apex court was about to pronounce a decision in a case relating to their eviction from their
lands. Some individuals carried placards with slogans: "We have fought and we have won.
We will fight and we will win."169

169 Akash Bisht, “Fearing Eviction, Thousands of Forest Dwellers Protest in India” Aljazeera (22nd November, 2019):
https://www.aljazeera.com

39
Months ago, the apex court has ordered eviction of more than one million forest
dwellers;170 and directed twenty one States to file affidavits on how they had processed
the claims of those forest dwellers. The forest dwellers’ claim of ownership over the forest
lands was based on their “forest rights” granted by the Scheduled Tribes and other Forest
Dwellers (Recognition of Forest Rights) Act, 2006 (the Forest Rights Act). The matter has
been brought before the court by certain environmentalists and retired forest officials
who alleged that the law has led to the fragmentation of forests, threatened its
biodiversity and caused deforestation.
The protestors have expressed their apprehensions regarding the possible dilution of the
Act by the government which has been accused of “trying to divert lands to big
corporations that have set their eyes on the rich mineral resources of these forests...” One
of them expressed his grief thus:
"The electricity in our village has been disconnected so that we
leave our land. Where will we go? This is our forefathers' land and
its rights should be given to us. We need our rights be protected.
The government is not with us otherwise the Supreme Court would
not have passed such an order." 171

Further, the Ministry of Environment, Forest & Climate Change has proposed certain
amendments to the Indian Forest Act, 1927 imposing a duty on forest produce. Many
commentators view this step as a violation of the forest dwellers’ right to livelihood.172
These incidents raise certain crucial questions: What are the basic rights of the forest
dwellers in India? How far such rights are protected? What are the respective roles of the
legislature, executive, judiciary, media and social activists in the protection of such rights?
Is there any dilution of forest rights? Whether the 'centuries-old injustices' continue? The
present article attempts a critical evaluation of the law relating to protection of the rights
of the forest dwellers in India.
II. INTERNATIONAL LAW RELATING TO FOREST DWELLERS

The history of indigenous peoples has always been marked by marginalization,

ethnocide or even genocide. Forests form an integral part of international peace and
justice, as they provide livelihoods for millions of forest dwellers. Any threat to the
world's forests may culminate in the reduction of livelihood resources, with attendant
consequences on a global scale. At present, protection of forests is a neglected area in
international law. The absence of a comprehensive international treaty makes the
situation grim.173 Since the mid-twentieth century, there have been attempts to develop
international law to protect aboriginal rights. Some of the international human rights
instruments that specifically recognize the forest rights are discussed below:

170 Decision of a three-judge Bench consisting of Arun Mishra, Navin Sinha and Indira Banerjee JJ (Wildlife First v.
Ministry of Forest and Environment, 2019 SCC On Line SC 238, order dated 13.02.2019)
171 Akash Bisht, “Fearing Eviction, Thousands of Forest Dwellers Protest in India” Aljazeera (22nd November, 2019):

https://www.aljazeera.com
172 Ishan Kukreti, “Duty on Minor Produce will violate Forest Rights: Experts (20th March, 2019)

https://www.downtoearth.org.in
173 Catherine Mac Kenzie, International Law and the Protection of Forests (Oxford University Press, 2020)

40
The International Labour Organization (ILO) Convention on Indigenous and Tribal
Populations Convention, 1957174 was the first comprehensive instrument setting forth
the rights of indigenous and tribal populations. It underlined the necessity for the
protection of social, political and cultural rights of indigenous people. This was followed
by the ILO Indigenous and Tribal Peoples Convention, 1989 175 and the United Nations
Declaration on the Rights of Indigenous Peoples (UNDRIP), 2007. India is a signatory only
to the ILO Convention of 1957. 176

The UN Convention on the Biological Diversity (CBA), 1992 ALSO highlighted necessity
to preserve and maintain knowledge, innovation and practices of the local communities
relevant for conservation and sustainable use of bio-diversity. India is a signatory to CBA.
Rio Declaration on Environment and Development Agenda 21 and forestry principle also
encourage the promotion of customary practices conducive to conservation.

The necessity to respect and promote the inherent rights of indigenous peoples especially
their rights to their lands, territories and resources have also been recognized by United
Nations in the United Nations Declaration on Rights of Indigenous Peoples, 2007.
Scheduled Tribes (STs) and other Traditional Forest Dwellers (TFDs) have a right to
maintain their distinctive spiritual relationship with their traditionally owned or
otherwise occupied and used lands.177

• The UN Universal Declaration of Human Rights (UDHR), 1948

The UDHR recognizes “the inherent dignity and of the equal and inalienable rights of
all members of the human family” as the foundation of freedom, justice and peace in the
world.178 The Declaration specifically declares: “everyone has the right to own property
alone as well as in association with others. No one shall be arbitrarily deprived of his
property.”179 These rights are particularly important as far as the forest dwellers are
concerned since they are having inherent right to live in their “natural habitat.”

• The ILO Convention Concerning Indigenous and Tribal Peoples, 1989

As seen earlier, the ILO developed the Indigenous and Tribal Populations Convention,
1957 for improving the living conditions of indigenous peoples worldwide. In 1989, it
was revised and renamed “Indigenous and Tribal Peoples Convention, 1989. It recognizes
indigenous peoples’ right to self-determination within a nation-state. It seeks to protect
ownership rights of populations over lands they traditionally occupy.180
Indigenous and tribal peoples are often known by national terms such as adivasis,
mountain dwellers, hill tribes, hunter-gatherers, and many countries have developed

174 Convention No.107

175 Convention No.169
176 See, Action Research in Community Health & Development v. State of Gujarat, Writ Petition (PIL) No. 100/ 2011,

paragraph 37
177 Ibid. at paragraph 38
178 Preamble to the UDHR, 1948
179 Article 17, Ibid.
180 For a discussion, see ILO, Understanding the Indigenous and Tribal People Convention, 1989 (No. 169)- Handbook

for ILO Tripartite Constituents (International Labour Standards Department, Geneva, 2013)

41
specific registers of these peoples.181 The Convention inter alia states that, where the
State retains ownership of mineral or sub-surface resources, governments shall establish
procedures to consult these peoples and ascertain if their interests are prejudiced. They
shall participate in the benefits and receive fair compensation.182

• The UN Declaration on the Rights of Indigenous Peoples (UNDRIP), 2007

Today, this Declaration 183 adopted by the UN General Assembly after more than 20 years
of negotiations between indigenous peoples and States, is the most comprehensive
international instrument on the rights of indigenous peoples. UNDRIP is the most recent
and fullest expression of indigenous peoples’ aspirations.

However, as a Declaration, it does not have the binding force of a treaty. It does not create
any new rights; but reflects an articulation of existing rights to the context of indigenous
peoples. The provisions of UNDRIP, 2007 and ILO Indigenous and Tribal Peoples
Convention, 1989 complement each other. Nevertheless, the former addresses additional
subjects those were not included in the latter, such as militarization of indigenous lands,
protection of traditional knowledge and indigenous peoples’ right to self-determination.

• The Rio Declaration on Environment and Development, 1992

This UN Declaration184 recognizes the vital role of the indigenous people in

environmental management thus: Iindigenous people and their communities and other
local communities have a vital role in environmental management and development
because of their knowledge and traditional practices. States should recognize and duly
support their identity, culture and interests and enable their effective participation in the
achievement of sustainable development. 185

• The UN Convention on Biological Diversity, 1992

This Convention186 has been adopted inter alia in recognition “of the close and traditional
dependence of many indigenous and local communities embodying traditional lifestyles
on biological resources, and the desirability of sharing equitably benefits arising from the
use of traditional knowledge, innovations and practices relevant to the conservation of
biological diversity and the sustainable use of its components.”187
In most of the European jurisdictions, forests are owned and managed by individuals and
local communities. This not only helps in the generation of income but also in
conservation and sustainable use of forest resources. 188 In India, the enactment of the
Scheduled Tribes and other Forest Dwellers (Recognition of Forest Rights) Act, 2006
181 Ibid. at p. 2
182 See ILO Convention No. 169, Article 15 (1) and (2)
183 A/RES/61/295- adopted by the General Assembly on 13th September, 2007 by a majority of 144 States in favour,

four votes against (Australia, Canada, New Zealand and the United States) and eleven abstentions (Azerbaijan,
Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine)
184 See the United Nations Conference on Environment and Development met at Rio de Janeiro from 3rd to 14th

June, 1992 to reaffirm the Declaration of the United Nations Conference on the Human Environment, adopted at
Stockholm on 16th June 1972
185 Principle 22
186 It was the outcome of United Nations “Conference on Environment and Development” (Earth Summit), 1992
187 See, the Preamble
188 In Mexico, 70%; and Vietnam, 30 % of the forests are managed by the communities.

42
(“Forest Rights Act, 2006”) is a step in this regard. It empowers the communities to use,
manage and govern forests for their livelihood as well as for the conservation and
protection of forests.

III. THE INDIAN LEGAL REGIME

8.2% of India’s population is “indigenous”189 and considered to be ‘descendants of the

original inhabitants of India.’190 Only a percentage of them are classified as “Scheduled
Tribes” in the Constitution of India with over 461 ethnic tribes, and an additional 174
unrecognized tribal groups.191 The Constitution only lists a few tribes but does not define
the term “Scheduled Tribes.” The ethnographic accounts of the “Scheduled Tribe” are
often disputed due to its conceptual and practical difficulties in recognizing various
communities as Scheduled Tribe.192
The Central Government largely follows a broad working definition developed by the
1965 Advisory Committee Report on the Revision of the Lists of Scheduled Castes and
Scheduled Tribes.193 It defines “Scheduled Tribes” as groups of indigenous people
characterized by “primitive traits, distinctive culture, geographical isolation, shyness of
contact with the community at large and backwardness,”194 language that is
discriminatory. The Constitution of India provides for special protections for the
classified Scheduled Tribes using paternalistic and discriminatory language: recognizing
their social, educational and economic “backwardness,” and the need to “protect” them
from social injustice and various forms of exploitation. 195

The rights of indigenous peoples are preserved under the Indian Constitutional
framework. Part IV of the Constitution196 containing the Directive Principles of State
Policy that are ‘fundamental to the governance of the country’ include ‘promotion of
educational and economic interests of Scheduled Castes, Scheduled Tribes and other
weaker sections,197 which must be enforced as laws by the State. The Fifth and Sixth
Schedules of the Constitution offer special laws on indigenous peoples’ land rights and
self-governance and are applicable to designated parts of the country with high tribal
population including central India and the North-East States.
Part III of the Constitution198 that guarantees fundamental rights promotes equality
before the law or the equal protection of laws,199 non-discrimination against any citizen
on grounds only of religion, race, caste, sex, place of birth or any of them, 200 special
provision for the advancement of any socially and educationally backward class of
citizens as well as Scheduled Castes and Scheduled Tribes, affirmative action through the
reservation of appointments or posts in favor of any backward class of citizens which, in
189 International Work Group of Indigenous Affairs, “Indigenous Peoples in India,”: www.iwgia.org
190 ACHR, “Who are the Indigenous Peoples in India?” 2 Human Rights Report Quarterly, 67 (2010)
191 The Constitution (Scheduled Tribes) Order, 1950
192 The United Nations Human Rights Council, Observations on the State of Indigenous Human Rights in India

(Universal Periodic Review 2016), p.1

193 Popularly known as the Lokur Committee Report
194 Baviskar, Amita, "Indian Indignities: Adivasi Engagements with Hindu Nationalism in India" in Marisol De La.

Cadena and Orin Starn, Indigenous Experience Today (Oxford: Berg, 2007), p. 7
195 See for instance, Articles 15(4) and 46, Constitution of India
196 Articles 36-51, Ibid.
197 Article 46, Ibid.
198 Articles 12-35, Ibid.
199 Article 14, Ibid.
200 Article 15, Ibid.

43
the opinion of the State, is not adequately represented in the services of the State, 201 and
abolition of untouchability.202

Despite these Constitutional provisions and international norms, the legal position and
actual state of affairs with regard to the rights of the forest dwellers over the forest lands,
are disappointing. Since independence, even though the Indian Forest Act, 1927203
recognizes traditional and customary rights of communities over forests, the forest
department has usurped forest areas that have provided livelihood to forest dwellers for
generations. There has been large scale conversion of tribal areas into reserve and
protected forests. Another blow to community forest rights came in the form of the Indian
Forest Conservation Act, 1980, which regards traditional forest dwellers in areas under
the forest department as “encroachers.” 204
On the other hand, some of the statutes enacted for wild life protection and land
acquisition specifically recognize the rights of forest dwellers. For instance, even though
the Wild Life (Protection) Act, 1972 declares that no person shall: (a) wilfully pick,
uproot, damage, destroy, acquire or collect any specified plant from any forest land and
any area specified, by notification, by the Central Government; (b) posses, sell, offer for
sale, or transfer by way of gift or otherwise, or transport any specified plant, whether
alive or dead, or part or derivative thereof, the Act specifically provides that, nothing shall
prevent a member of a scheduled tribe from picking, collecting or possessing in the
district he resides any specified plant or part or derivative thereof for his bona fide
personal use.205

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation

and Resettlement Act, 2013 was enacted to ensure a humane, participative, informed and
transparent process for land acquisition with the least disturbance to the owners of the
land and other “affected families” and provide just and fair compensation to the “affected
families” whose land has been acquired or proposed to be acquired or are affected by
such acquisition and make adequate provisions for such affected persons for their
rehabilitation and resettlement. 206

For the purposes of the Act, the phrase “affected family” includes the Scheduled Tribes
and other traditional forest dwellers who had lost any of their forest rights recognized
under the Forest Rights Act, 2006 due to acquisition of land; and family whose primary
source of livelihood for three years prior to the acquisition of the land is dependent on
forests or water bodies and includes gatherers of forest produce, hunters, fisher folk and
boatmen and such livelihood is affected due to acquisition of land. 207 Similarly, “land
owner” includes any person: (i) whose name is recorded as the owner of the land or
building or part thereof, in the records of the authority concerned; or (ii) any person who
is granted forest rights under the Forest Rights Act, 2006 or under any other law for the
time being in force; or (iii) who is entitled to be granted patta rights on the land under

201 Article 16, Ibid.

202 Article 17, Ibid.
203 The Act was enacted to consolidate the law relating to forests, the transit of forest-produce and the duty leviable

on timber and other forest-produce.

204 See Sections 2 and 3-A
205 Section 17-A (prohibition of picking, uprooting, etc. of specified plant)
206 See, the Preamble to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013

207 Section 2 (c) (iii) & (iv), Ibid.

44
any law of the State.208 Further, the Parliament was keen enough to ensure that the
natural habitat of the forest dwellers shall not be disturbed as far as possible. The
following special provisions are noteworthy:209

• As far as possible, no acquisition of land shall be made in the Scheduled Areas; and
where such acquisition does take place it shall be done only as a demonstrable last
resort.
• In case of a project involving land acquisition on behalf of a Requiring Body which
involves involuntary displacement of the Scheduled Tribes families, a
Development Plan shall be prepared laying down the details of procedure for
settling land rights due, but not settled and restoring titles of the Scheduled Tribes
on the alienated land by undertaking a special drive together with land
acquisition. The Development Plan shall also contain a programme for
development of alternate fuel, fodder and non-timber forest produce resources on
non-forest lands within a period of five years, sufficient to meet the requirements
of tribal communities.
• In case of land being acquired from members of the Scheduled Tribes, at least one-
third of the compensation amount due shall be paid to the affected families
initially as first instalment and the rest shall be paid after taking over of the
possession of the land.
• The affected families of the Scheduled Tribes shall be resettled preferably in the
same Scheduled Area in a compact block so that they can retain their ethnic,
linguistic and cultural identity.
• The resettlement areas predominantly inhabited by the Scheduled Tribes shall get
land, to such extent decided by the appropriate Government free of cost for
community and social gatherings.
• Any alienation of tribal lands in disregard of the laws and regulations for the time
being in force shall be treated as null and void, and in the case of acquisition of
such lands, the rehabilitation and resettlement benefits shall be made available to
the original tribal land owners.
• The affected Scheduled Tribes, other traditional forest dwellers having fishing
rights in a river or pond or dam in the affected area shall be given fishing rights in
the reservoir area of the irrigation or hydel projects.
• Where the affected families belonging to the Scheduled Tribes are relocated
outside of the district, then, they shall be paid an additional twenty-five per cent
rehabilitation and resettlement benefits to which they are entitled in monetary
terms along with a onetime entitlement of fifty thousand rupees.
• Where the community rights have been settled under the provisions of the Forest
Rights Act, 2006, the same shall be quantified in monetary amount and be paid to
the individual concerned who has been displaced due to the acquisition of land in
proportion with his share in such community rights.

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006 is the king pin legislation in India that democratize Indian forests, giving
rights to communities that have traditionally survived on them. This Act restricts private
companies from gaining access to tribal land. The Act specifically endorse the fact that,
“forest rights on ancestral lands and their habitat were not adequately recognized in the
208 Section 2 (r), Ibid.
209 Section 41, Ibid.

45
consolidation of State forests during the colonial period as well as in independent India
resulting in historical injustice to the forest dwelling Scheduled Tribes and other
traditional forest dwellers who are integral to the very survival and sustainability of the
forest ecosystem."210

The major objectives of the Act are: (i) to recognize and vest the forest rights and
occupation in forest land in “forest dwelling Scheduled Tribes” 211 and “other traditional
forest dwellers”212 who have been residing in such forests for generations but whose
rights could not be recorded; (ii) to provide for a framework for recording the forest
rights so vested and the nature of evidence required for such recognition and vesting in
respect of forest land; (iii) to ensure sustainable use and conservation of biodiversity and
maintenance of ecological balance and thereby strengthening the conservation regime of
the forests; (iv) to ensure livelihood and food security of the forest dwellings Scheduled
Tribes and other traditional forest dwellers; and (v) to address the long standing
insecurity of tenure and access rights of forest dwelling Scheduled Tribes and other
traditional forest dwellers including those who were forced to relocate their dwelling due
to State development interventions.213

The term “forest land” means “land of any description falling within any forest area and
includes unclassified forests, un-demarcated forests, existing or deemed forests,
protected forests, reserved forests, sanctuaries and national parks.”214 “Forest rights”
means the forest rights referred to in Section 3 of the Act.”215 For the purposes of this Act,
the following rights, which secure individual or community tenure or both, shall be the
forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers on
all forest lands, namely:–
(i) Right to hold and live in the forest land under the individual or common
occupation for habitation or for self-cultivation for livelihood by a member (s);
(ii) Community rights such as nistar, by whatever name called, including those
used in erstwhile Princely States, Zamindari or such intermediary regimes;
(iii) Right of ownership, access to collect, use, and dispose of minor forest produce
which has been traditionally collected within or outside village boundaries;
(iv) Other community rights of uses or entitlements such as fish and other products
of water bodies, grazing (both settled or transhumant) and traditional
seasonal resource access of nomadic or pastoralist communities;
(v) Rights including community tenures of habitat and habitation for primitive
tribal groups and pre-agricultural communities;
(vi) Rights in or over disputed lands under any nomenclature in any State where
claims are disputed;

210 See the preamble to the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights)
Act, 2006
211 “Forest dwelling Scheduled Tribes” means the members or community of the Scheduled Tribes who primarily

reside in and who depend on the forests or forest lands for bona fide livelihood needs and includes the Scheduled
Tribe pastoralist communities. (Section 2 (c)), Ibid
212 “Other traditional forest dweller” means any member or community who has for at least three generations prior

to the 13th day of December, 2005 primarily resided in and who depend on the forest or forests land for bona fide
livelihood needs. (Section 2 (o)), Ibid
213 See the Preamble, Ibid.
214 Section 2 (d)), Ibid
215 Section 2 (e)), Ibid

46
 (vii) Rights for conversion of pattas or leases or grants issued by any local authority
or any State Government on forest lands to titles;
(viii) Rights of settlement and conversion of all forest villages, old habitation, un-
surveyed villages and other villages in forests, whether recorded, notified or
not into revenue villages;
(ix) Right to protect, regenerate or conserve or manage any community forest
resource which they have been traditionally protecting and conserving for
sustainable use;
(x) Rights which are recognised under any State law or laws of any Autonomous
District Council or Autonomous Regional Council or which are accepted as
rights of tribal under any traditional or customary law of the concerned tribes
of any State;
(xi) Right of access to biodiversity and community right to intellectual property
and traditional knowledge related to biodiversity and cultural diversity;
(xii) Any other traditional right customarily enjoyed, which are not mentioned
above; but excluding the traditional right of hunting or trapping or extracting
a part of the body of any species of wild animal;
(xiii) right to in situ rehabilitation including alternative land in cases where the
Scheduled Tribes and other traditional forest dwellers have been illegally
evicted or displaced from forest land of any description without receiving their
legal entitlement to rehabilitation prior to the 13 th day of December, 2005

As seen earlier, the Constitutional validity of this Act has been challenged in 2008 on the
grounds of legislative competence of the Parliament over an item in the State List and the
possibility of disappearance of forest and wildlife on account of the recognition of the
claims of the forest dwellers. Even without proper and authoritative data, the petitioners
including environmentalists and retired forest officials have managed to mislead the
policy-makers, enforcement machinery and even the court, with the aid of the media. The
claim of the petitioners that massive deforestation has been taken place because of the
Forest Rights Act is devoid of any empirical backing. 216 Victoria Tauli- Corpuz, the UN
Rapporteur on the rights of indigenous people, vehemently criticizes the court order
thus:217 “The basic premise of this ruling, which treats tribal people as illegal residents of
the forest, is wrong — indigenous peoples are the owners of their lands and forests. This
is a phenomenon seen around the world. Indigenous people and local communities are
treated as squatters when in fact the lands belong to them, and they have protected their
holdings for generations.”218

Nevertheless, the Central Government has filed application urging the Supreme Court to
modify its order directing the eviction of thousands of traditional forest dwellers whose
claims for forest land rights have been rejected under the Forest Rights Act of 2006. The
Government has submitted that the scheme of the Forest Rights Act is in tune with
international conventions.

216 Geetanjoy Sahu, “Forest Rights Act: A Litmus Test for Government to Protect Forest Dwellers” (25th July, 2019):
www.downtoearth.org.in
217 See the statement released on March 19, 2019
218 Ishan Kukreti, “Premise of SC Ruling on Forest Dwellers Wrong: UN Special Rapporteur (20th March, 2019):

https://www.downtoearth.org.in

47
The “Observations on the State of Indigenous Human Rights in India” prepared by
Cultural Survival 219 for the United Nations Human Rights Council Universal Periodic
Review 2016, also enumerates the following specific instances of “continuing UNDRIP
rights violations” in India:220

(i) Intrusion into land rights: The Report of the High-level Committee on Socio-
Economic, Health and Educational Status of the Tribals of India (2014)
recommended certain amendments to the existing laws “to allow Scheduled
Tribes control over their own resources and to prevent further alienation of
land.221However, the government withhold the report from the public and has
failed to implement the recommendations. Further, to circumvent legal
difficulties in acquiring tribal lands for private commercial use, States like
Jharkhand attempted to amend its tribal land statutes. Various activists
protested government’s attempt to allow acquisition of tribal agricultural land
for non-agricultural purposes.222
(ii) Forced evictions: On September 2015, Tripura State government issued
eviction notices to over 1,200 indigenous families in 13 villages to acquire land
for setting up a firing range for Assam Rifles. Land was acquired without
following the legal procedure, without fair compensation to the displaced
persons and disregarding their “right to self-determination.”
(iii) Violations of free, prior and informed consent by extractive industries: In
2011, an anti-coal protest resulted in six deaths in Jharkhand. The Coal Bearing
Areas (Acquisition and Development) Act, 1967 neither requires a free, prior,
and informed consent of the affected communities nor a social impact
assessment. However, under the provisions of the Panchayat (Extension to
Scheduled Areas) Act, 1996 (“PESA” Act), Coal India is required to consult
village assemblies in protected indigenous regions before resorting to any land
acquisition or rehabilitation and resettlement measures. But no consultations
were made for any of Coal India’s three mine sites. 223
(iv) Torture, physical abuse and murder: Indigenous peoples are
disproportionately the targets of physical violence and are often targeted by
State security forces.224 Security forces are responsible for various deaths,
including that of a 52-year-old farmer on 28th June, 2015, and a youth on 18 th
August, 2015 both due to alleged torture in Assam. In September 2015, police
opened fire on indigenous peoples protesting against the government’s land
acquisition for a military project. In Kailas v. State of Maharashtra,225 the
victim, a tribal woman aged 25 years was beaten, abused, stripped of her

219 Cultural Survival is a non-profit group based in Cambridge, Massachusetts, US, which is dedicated to defending the
human rights of indigenous peoples.
220 https://www.culturalsurvival.org
221 Yearbook Article: India,” International Work Group for Indigenous Affairs (2016), p. 333
222 The United Nations Human Rights Council, Observations on the State of Indigenous Human Rights in India

(Universal Periodic Review 2016), p.3

223 “India Government and Coal India Sacrifice Indigenous Rights in the Name of Development,” Amnesty

International, 2016: http://www.amnestyusa.org

224 For 2014, the National Crime Records Bureau (NCRB) reported a total of 11,451 crimes against them committed

by non-tribals, not including human rights violations committed by security forces. This represents a 68.6%
increase from 2013 with 6, 79330 including 729 reported cases of rape and 156 murders. 5,922 crimes were
committed in 2012, and 5, 75631 in 2011.
225 (2011) 1 SCC 793

48
 clothing and paraded nude in her village by “two powerful persons.”
Markandey Katju J. declared that “It is time now to undo the historical injustice
to them (indigenous peoples).”
Mining is another hurdle in the effective implementation of the Forest Rights Act, 2006.
Forests and forest dwellers are mostly located in mineral-rich areas. Many industrial and
mining projects are on an expansion spree. State governments, by deliberately rejecting
individual forest rights claims to divert the land for such expansions, have become the
“real land mafias.”226
The Central government is also trying to dilute statutes to help mining interests. In 2018,
Ministry of Environment, Forest and Climate Change scrapped the requirement of Forest
Rights Act compliance for getting the Stage- I clearance for forest diversion. The Draft
National Forest Policy of 2018 also violates indigenous rights. International Work Group
for Indigenous Affairs (IWGIA) has written a letter to the United Nations’ Committee on
Elimination of Racial Discrimination (CERD) about the potential violations of the rights
of the indigenous peoples. They draw attention to the violation of the Forest Rights Act,
2006 and provisions of the PESA Act, 1996;227 and argue that, once the Draft is adopted,
the forest officials will abuse powers to bring the forest and forest dwellers at present
under the control of the Gram Sabhas within the ambit of the National Community Forest
Management (CFM) Mission; and that, the changes are being made to exploit natural
resources as well as to utilise the money collected and deposited with the Compensatory
Afforestation Fund Management and Planning Authority (CAMPA) of India, exclusively
for undertaking afforestation programmes under the Compensatory Afforestation Fund
Act, 2016.228

IV. CONCLUSION

International and regional human rights instruments recognize the rights of local
communities as an integral part of any sustainable and just model of conservation. In
India, the Forest Rights Act, 2006 specifically provides for the same. Forest resources are
the single source of livelihood for millions of forest dwellers. However, their rights over
forest land have been under threat mainly due to the absence of proper survey,
settlement and land records; and they are often considered encroachers. The reasons for
their failure to provide sufficient documentary evidence in support of their claims cannot
be attributed to them. Rather, the State governments are guilty of dereliction of their duty
to recognise and record the individual and community rights of the forest dwellers.
Despite this, there are some success stories as well. In places where the District Collectors
have played a pro-active role, forest dwellers benefited from recognition of both
individual and community forest rights.

Interestingly, many studies have found that wherever customary rights over forest land
of local communities have been legally recognised by governments it has led to lower
forest degradation as well as improved carbon sequestering. The Forest Rights Act also
represents a strategy for mitigating climate change and meeting India’s commitments

226 Ishan Kukreti, Priya Ranjan Sahu, “Forest Rights Act: Are State Governments the Real Land Mafias?” (20th March,
2019)
227 For a discussion on the scope of PESA Act, see Union of India v. Rakesh Kumar, (2010) 4 SCC 50
228 Ishan Kukreti, “Draft National Forest Policy 2018 Violates Indigenous Rights (14th March, 2019)

49
under the Paris Agreement, as community rights recognition under the Act has already
led to an upsurge in community-led conservation and restoration of forests.

The Forest Rights Act, 2006 was enacted to end the historical injustice caused to them.
But the callous attitude of various State governments towards its implementation has
frustrated the noble objectives of the legislation. There shall be a coordinated effort on
the part of the Central, State and Local Self Governments to implement the Forest Rights
legislations in its true spirit. The recent Supreme Court order of eviction of millions of
forest dwellers which was based on the affidavits filed by the States is a glaring example
of this. But, the eviction order has been temporarily stayed at the instance of the Central
Government.229 However, their rights remain highly uncertain.

The implementation bottlenecks include: 230

•
Lack of political will
•
Irresponsible forest officials
•
Insufficient human and financial resources with the nodal agency for
implementation of the Act
• Poor functioning of the Committees which consider the claims filed by Gram
Sabhas
• Government policies that dilute the statutory provisions (for example, Guidelines
of August 2015 to lease 40% per cent of the degraded forest to private companies;
and the scrapping of the requirement of Forest Rights Act compliance for getting
the Stage- I clearance for forest diversion in 2018 by the Ministry of Environment,
Forest and Climate Change.)
V. SUGGESTIONS

• Ratification of the ILO Convention Concerning Indigenous and Tribal Peoples,

1989
• "Forest clearances" must be ordered only after proper site visits, ‘environment
impact assessment’ and ‘social impact assessment’ on the indigenous community;
and after obtaining free, prior and informed consent of the forest dwellers, strictly
in tune with the Forest Rights Act, 2006
• The Ministry of Tribal Affairs must be strengthened with human and financial
resources for the effective implementation of the Forest Rights Act, 2006
• Proper implementation of the Compensatory Afforestation Fund Act, 2016 (CAF)
• The forest bureaucracy must be reformed to serve as service providers to Gram
Sabhas. Recognition of the powers of the Gram Sabha is central to the
implementation of both the PESA Act and the Forest Rights Act
• Repeal the provision in the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act that exempts infrastructure
projects including projects under public private partnership where the ownership
of the land continues to vest with the government from ‘social impact assessment.’

229 A Bench comprising Arun Mishra, Navin Sinha and MR Shah, JJ directed States to suspend the implementation of
the order temporarily.
230 T. Haque, “Securing the Forest Rights of Tribunals” (March 06, 2019) www.thehindubusinessline.com

50
• Avoid discriminatory language, such as “primitiveness” and “backwardness” to
describe Scheduled Tribes from the legal materials
• Review all rejected and pending claims expeditiously; and ensure regular
meetings of district and sub-division level committees to consider and approve
the claims in a time-bound manner
• Invite the UN Special Rapporteur on the Rights of Indigenous Peoples to visit India
• Proper training and sensitisation of security forces to ensure their accountability
• Create a National Action plan on implementing the rights of Indigenous Peoples
based on the World Conference on Indigenous Peoples’ Outcome Document

51