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The Right to Fair

Compensation and
Transparency in Land
Acquisition, Rehabilitation
and Resettlement Act,
2013

Constitutional Development of
Right to Property

The Constitution originally provided for the right to property under


Articles 19 and 31. Article 19 guaranteed to all citizens the right to
'acquire, hold and dispose of property'. Article 31 provided that "No
person shall be deprived of his property save by authority of law."

Forty-Fourth Amendment Act of 1978 omitted Art 19(1) (f). Moreover,


no one can challenge the reasonableness of the restriction imposed
by any law the legislature made to deprive the person of his property.

The 44th amendment act of 1978 deleted the right to property from
the list of Fundamental Rights. A new article, Article 300-A, was
added to the constitution which provided that "no person shall be
deprived of his property save by authority of law".

Both the state government as well as the union (federal) government


was empowered to enact laws for the "acquisition or requisition of
property" (Schedule VII, Entry 42, and List III).

The

JOURNEY FROM 1894 TO


2015

main central Act governing land acquisition is the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act 2013 (2013 Act). It replaced the Land Acquisition Act, 1894 (1894
Act). Many states have also enacted laws to regulate land acquisition. The 2013 Act differed from the 1894 Act in
several ways. It narrowed the definition of public purpose i.e. the types of projects for which land could be acquired. It
required the consent of land owners if the project was for a public private partnership (PPP) or a private company.
Compensation was set at two to four times of prevailing market rates and minimum norms for rehabilitation and
resettlement of affected persons were prescribed. The Act also required a Social Impact Assessment (SIA).
In

December 2014, an Ordinance was promulgated to amend the 2013 Act. The Ordinance was promulgated in a

modified form in April 2015, and again in May 2015.


The

ordinance issued thrice since last year had to be ratified by parliament within 6 weeks of the start of monsoon

session on July 22 but could not be ratified and passed and due to which land ordinance lapsed on August 31, 2015.

2013 Act and its provisions

There are total 114 sections in this Act while in the 1894 Act total
section were 55.

There are total four schedule attached with the 2013 Act.

Schedule I deals with the compensation.

Sechedule II deals with the elements of R & R.

Sechedule III deals with the provisions of infrastructural


amenities.

Schedule IV deals with certain laws which are exempted from the
purview of this act.

Why the need emerged for the


new Act?

Forced Acquisition

Once government formed the intention they will do it.

No safeguards

Hearing under Sec 5A was provided but not enough.

Silent on resettlement and rehabilitation of those displaced

Urgency clause

Never defined what constitute urgent need under sec 17 but now under sec 40 this provision
restricted to-defence and national security.

Low rates of compensation

Litigation

Even the Supreme Court said that the 1894 act had become a fraud beause of lack of all these
elements.

KEY DIFFERENCES BETWEEN THE


1894 ACT AND THE 2013

Reduction in the Powers of the Collector

Under the 1894 Act, the Collector could decide what quantum of compensation could
be paid to those displaced. Under the new law, there is a formula that does not
require the collector to exercise any discretion

Appellate Mechanism

Sec 5A Hearing of objection-Collector will give the opportunitybut now


under the 2013 Act time bound mandatory Appellate Mechanism has been
provided under sec 15.

Public Purpose

In the earlier Act-Public Purpose as well company but now only public
purpose.

Fairer Compensation

Consent

Urgency Clause

Rehabilitation and Resettlement

In what all cases the land would


be acquired

Government acquires land for its own use for public purpose.

When ultimate aim is to transfer either to the private entity or to PPP


but for public purpose

When government acquires land and immediately transfer to private


entity but again for public purpose

Now its very important that if there is no public purpose then the government
would not be acquiring land and this is the object and philosophy of the 2013 Act.
BUT EARLIER GOVERNMENT USED TO ACQUIRE LAND FOR PUBLIC PURPOSE AS
WELL AS FOR COMPANIES AS THE WHOLE CHAPTER VII (SEC 38 to 44B) WAS
DEVOTED.
Go by Preliminary Notification under sec 4 as well as the object, we will
get to know.

Now what exactly is public


purpose?
According to Section 3 (za) of the Act, public purpose shall include
the following purposes namely:

For STRATEGIC PURPOSES

Infrastructure projects

Relief Development: Project for project affected families;

Planned Housing:

Planned Development

Housing for Displaced Persons

Procedure for Acquiring Land


Step 1-Dtermination of SIA and Public Purpose (Chapter II, SEC 4
to 9)
Step 2-Specail Provision to safeguard public Security (Chapter III,
SEC 10)
Step 3-Notification and Acquisition (Chapter IV, SEC 11 to 30)
Step 4- All these will be followed by taking possession (SEC 38)

Procedure
Preliminary Notification

Once the SIA process has been executed satisfactorily, the proceedings to acquire the identified land can
begin. A Preliminary Notification is issued under Section 11 of the 2013 Act. It is different from the 1894
notification under section 4Firstly under the 2013 act it follow SIA Study, Appraisal which was absent in the 1894 Act.
Secondaly, the 1894 act empowered the govt to publish the notification that government
needed land either for public purpose or for a company, but under the 2013 Act it is only and
the public purpose.
Thirdly, the 2013 Act, requires the Preliminary Notification to state the details of the land and
the nature of public purpose involved and reasons necessating the displacement plus the
summary of the SIA report to be acquired but this was not in the earlier act.

Updating Records and Survey

Raising objections after the Preliminary Notification

Preparation of the rehabilitation and resettlement scheme by administrator

Declaration for Acquisition and summary of Rehabilitation and Resettlement report

Award

Rehabilitation and Resettlement Award

Possession

And it is to be noted that the land will be acquired only when all procedure including the Compensation, R
& R is done.

SOCIAL IMPACT ASSESSMENT

Section 4(4) of the 2013 Act provides the list of all those guiding principles to be
taken into consideration while preparing the report of SIA. These are-

a) Assessment as to whether the proposed acquisition serves public purpose.


b) Estimation of affected families and the number of families among them likely to be
displaced.
c) Extent of lands, public and private, houses, settlements and other common
properties likely to be affected by the proposed acquisition.
d) Whether the extent of land proposed for acquisition is the absolute bare-minimum
extent needed for the project.
e) Whether land acquisition at an alternate place has been considered and found not
feasible;
f) 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--vis the benefits of
the project.

Review by expert group

COMPENSATION

Provisions in the new Act

The compensation provisions are contained in Section 26 to 30, 39 and First


Schedule of the Act

Urban Area

A land owner in urban area whose land is acquired gets 2 times the market
value of his land as compensation.

Rural Area

If rural land is acquired, land owner effectively gets upto four times the
market value as compensation.

Award of Solatium

Section 30 of the New Act provides that the collector having determined the
total compensation to be paid, shall, to arrive at the final award, impose a
solatium amount equivalent to 100% of the compensation amount. Solatium
shall be in addition to the compensation payable to any person whose land
has been acquired.

Earlier it was the collector who will decide the amount of


compensation but now he cant do anything because there is whole

REHABILITATION AND RESETTLEMENT

Section 31, 32,41,42,46 read with Second and Third Schedule

Elements of Rehabilitation and Resettlement Entitlements


House

If a family loses a house in a rural area as a result of the acquisition, then the law
requires a constructed house to be provided to them

Land
In the case of irrigation project, each affected family which has lost agricultural land is
to be allotted, a minimum of one acre of land in the command area of the project.
Offer for developed land
When land is acquired for urbanization, 20% of developed land to be reserved and
offered to land owning project affected families.
Choice of annuity or Government Employment
Other Financial Payments
Fishing Rights

RETROSPECTIVE EFFECT
When the 2013 Act will apply retrospectively

if the acquisition has been initiated under the Land Acquisition


Act, 1894 (a preliminary notification has been issued under
Section 4 of that Act) but the award under Section 11 of that
act has not been passed then the provisions of the new law
which entitle the effected party to enhance compensation will
apply.

where the award under section 11 of the Land Acquisition Act,


1894 was passed five or more years ago but compensation has
not been accepted or the physical possession of the land has
not been taken by the acquiring authority then the acquisition
will be treated as having lapsed and a fresh acquisition, if
necessary, will be carried out under the new act.

where an award has been made under section 11 of the Land


Acquisition Act, 1894 and compensation in respect of a majority
of land holdings has not been accepted, then, all beneficiaries
or persons who are likely to be affected by the acquisition (as
specified in the notification for acquisition under Section 4 of
the said Land Acquisition Act, 1894), shall be entitled to

Pune Municipal Corporation vs. Harakchand


Solanki.(2014) 3 SCC 183.

On 24 January 2014, a three judge bench of the Supreme Court of India pronounced the
very first judgment on the Right to Fair Compensation in Land Acquisition, Rehabilitation
and Resettlement Act, 2013.

Facts

Number of cases were combined and in all one thing was common that a period of five or
more years had passed since the land acquisition award had been made under section 11
of the Land Acquisition Act, 1894 and the applicants had refused to accept the
compensation.

In this litigation, the acquiring authority (the Pune Municipal Corporation) argued that
they had deposited the amount in the treasury of the Government in fulfillment of their
obligations and therefore satisfied the requirement of paying compensation.

Judgment

A three judge bench of the SC (Justice Lodha, Madan Lokur and Kurien Joseph) held that
compensation would only be deemed to have been paid if it had been deposited with the
court and after having been offered to the individual concerned. In this case, the
compensation had only been deposited in the treasury.

Where only Physical Possession is


Retained and the role of the Delhi High
Court

The Delhi HC has played an important noble role in the


implementation of the Act. The High Court pronounced some of
the most detailed and insightful judgments of any High Courts on
the subject to release land that had been held up by a laconic
democracy.

In the historic case of Jagjit Singh vs. Union of India


211(2014)DLT15, Justice Badr Durrez Ahmed and Justice Sidharth
Mridul of the Honble High Court of Delhi quashed a number of
pending acquisitions by the DDA as it was found the parties had
satisfied the terms of Section 24(2) of the 2013 Act.

THE PROVISION FOR FOOD


SECURITY
The

year when the law on land acquisition was being


drafted, it also saw the also simultaneous progress of
an equally seminal legislation, the National Food
Security Act, 2013.

The

new law therefore under chapter III, Section 10


provides that no irrigated multi-cropped land shall be
acquired under this Act except under exceptional
circumstances and as last resort. Furthermore, the
acquisition of multi-cropped land should not exceed
such limits as may be notified by the appropriate
government.

PROVISIONS FOR THE


SCHEDULED CASTE AND THE
SCHEDULED
Land acquisition itself inTRIBE
tribal areas is strongly discouraged

under the new law and is to be done only in the rarest of


circumstances where no alternatives are available. The operative
section begins with the following caveat:

Section 41: (1) as far as possible, no acquisition of land


shall be made in the scheduled areas.

NEW CONCEPTS UNDER THE


LAND ACQUISITION ACT, 2013

Land Bank

Section 101 of the Act provides that when any land acquired under this act remains
unutilized for a period of 5 years from the date of taking over the possession, the
same shall be returned to the original owner or to the Land bank of the appropriate
government.

Option to the Appropriate government to take the land on lease

Section 104 of the Act provides that the appropriate government be free to exercise
the option of taking the land on lease instead of acquisition, for any public purpose.

Rehabilitation and Resettlement Provisions

1894 Act provided for payment of compensation but was silent in rehabilitating
those who have been displaced but the new 2013 Act contains provisions on
Rehabilitation and Resettlement package in the second schedule to the Act.

Mandatory SIA Study

Social Impact Assessment has been made mandatory before any land acquisition.

ORDINANCES AND THE CONTROVERSY

In December 2014, an Ordinance was promulgated to amend the 2013 Act. The
Ordinance was promulgated in a modified form in April 2015, and again in May
2015.

The ordinance issued thrice since last year had to be ratified by parliament within
6 weeks of the start of monsoon session on July 22 but could not be ratified and
passed and due to which land ordinance lapsed on August 31, 2015.

First change..
It

exempted five types of projects from certain provisions, these are-

Defence;
rural

infrastructure;

affordable
industrial

housing;

corridors (set up by the government); and

infrastructure

projects.

These five categories of land will be exempted from the 3 provisions of the Act,
and these provisions are obtaining

the consent of 80% of land owners when land is acquired


for a private project and the consent of 70% of land owners when
land is acquired for the public-private partnership project;

conducting
limits

a Social Impact Assessment; and

on acquiring agricultural and multi-cropped land.

Second and third Change..


Return of unutilized land

The 2013 Act required that if land acquired under it remained


unutilised for five years, it be returned to the original owners or
the land bank. But the Ordinance states that the period after
which unutilised land will need to be returned will be the later of:
(i) five years; or (ii) any period specified at the time of setting up
the project.

Compensation and R&R provisions of 13 other laws

The 2013 Act exempted 13 other laws (such as the National


Highways Act, 1956 and the Railways Act, 1989) from its purview.
The Ordinance brings the compensation and rehabilitation and
resettlement (R&R) provisions of these 13 laws in consonance
with the Act.

Fouth and fifth.


Time period for retrospective application of Act
The 2013 Act states that the Land Acquisition Act, 1894 will continue to apply in
those cases where an award has been made under the 1894 Act. However, if the
award was made five years or more before the enactment of the 2013 Act, and
the possession of land has not been taken or compensation has not been paid,
the 2013 Act will apply.
The Ordinance states that in calculating this time period, the following will not be
included: (i) any period during which the process of acquisition was held up due to
an order of a court; (ii) a period specified by a Tribunal for taking possession; and
(iii) any period where possession was taken but the compensation was lying
deposited in a court/designated account
Sanction
The Act stated that if an offence was committed by the government, the head of
the department would be deemed guilty unless he could show that the offence was
committed without his knowledge, or that he had exercised due diligence to
prevent the offence. The Ordinance removes this provision. It requires that the
prior sanction of the government be obtained before prosecuting a public servant.

THINK BEFORE YOU SAY


Farmers Interests vs. Development
Land Holder

Land Acquirer

Land for him is his livelihood

Business

Land is the only security for


himself and his family

Not applicable

He is always alone

Businesses are never alone but in


team

Therefore any land acquisition has to protect the


interest of the land holder because he is not single but
his whole family is attached and dependent upon him.
PM is saying that by this Act businesses will not be set
up and new jobs will not be created then we have to
understand that how development can be promoted
over the dead body of the farmer and when he doesnt
want to give his land happily.
Firstly make him feel secure because businesses can
wait but at the same time human life is valuable.

Structure of Indian Economy


GDP

Share

Work Force

Agriculture

15%

50-60%

Industry

25%

20-30%

Services

60%

20-25%

And our structure is such which is forcing more to the government


to invest more so that more employment can be generated.

LARR ACT,2013

THANK YOU
SHIKHAR