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The Land Acquisition, Rehabilitation and Resettlement Act is a mess
The Economic Times, 12 Dec 2014: Plenty has been written about the Land Acquisition, Rehabilitation and Resettlement Act of 2013 (Laar). Stated simply, in the name of protecting the poor and ensuring entitlements, Laar destroys land markets. To compound matters, stuff that should have been executive (rules) is embodied in the statute. Therefore, we are stuck until legislation is amended by Parliament.
Note that non-BJP state governments too want Laar amended, since it stifles them too. This piece isn’t about the Act’s ante-mortems or postmortems. It is more a listing of problems states have identified. Naturally, it will help if one knows chapter and verse of Laar, and this is by no means a comprehensive list.
>Consent, Section 2(2): Can private companies get prior consent of 80% of affected families? Can one get prior consent of 70% of affected families for PPP projects? Is it really necessary to have a Social Impact Assessment (SIA) in every case? Why should one effectively bar acquisition in scheduled areas?
>Affected Family, 3(c): If there is no landownership, can one pin down an affected family? If there are recognised rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006, why try to duplicate it? What does a vague provision like 3c (iv) mean? Why bring in unnecessary rights under 3c(v)? Under 3c(vi), aren’t we giving rights to those who trespass and encroach?
>Appropriate Government, 3(e)(ii): For a Union territory, why bring in the central government?
>Social Impact Assessment, 6(2): Why create duplicity through an Environment Impact Assessment and an SIA? Does one need SIAs for really small projects below a threshold?
>Special Provision to Safeguard Food Security, 10: Why should this section be applicable to small bits of land buys by state governments?
Leave Gram Sabha Alone
>Preliminary Notification for Land Acquisition, 11(2):There are elaborate notification procedures. Does one need a meeting of the gram sabha? 11(4): There is effectively a ban on land transfers until processes are complete. Is this fair to landowners? The collector is allowed to waive the ban, but that’s not an easy process.
> Preparation of Rehabilitation and Resettlement (R&R) Scheme, 16(1): All land buys don’t involve R&R. The R&R policy, 2007, has thresholds. Yet, there are no minimum thresholds in this section. 16(4) & 16(5):The objective is public hearing in the affected areas. Why set up a complicated process involving gram sabhas/municipalities that needs to be documented? (19)(2) & 19(3): Since 19(4) has elaborate processes for public declaration, (19)(2) and 19(3) only muddy waters and serve no useful purpose.
> Retrospective Application, 24(1): Since the earlier Land Acquisition Act has been repealed, what is the idea behind a clause that says “as if the said Act has not been repealed”? In a similar vein, 24(2) only opens up cases where land acquisition has been completed under the old Land Acquisition Act.
>Determination of Market Value, 26 (1)(c) and Explanations: Is it a good idea to base market value on an “agreement to sell”? Or will that only drive speculation?
>Award of Solatium, 30(1) & 30(3): 30 (1) mentions that the collector will determine a solatium of 100%. What does the 12% per annum under 30(3) mean then? Is that an interest payment? If so, why call it solatium?
> Urgency Clause, 40(2): If there is something urgent (national security or emergency), is it practical to go to Parliament? 40(5):If it is really a matter of such urgency, why should one provide for additional compensation of 75%?
Voluntary vs Rehabilitated
>Prohibition of Land Acquisition in Scheduled Areas, 41: All the subsections in this section amount to a prohibition of land acquisition in scheduled areas. Given the Partially Excluded Area (PEA) provisions, is this fair? Or does it prevent mainstreaming?
>Applicability of R&R to Negotiated Purchase, 46:Does one need R&R provisions for a negotiated and voluntary buy? Even if it does, there is plenty of bad drafting, such as in 46(5).
> Applicability of Reference Award to Third Parties, 73: This section of the Act leads to litigation and reopens settled cases.
> Offences and punishment, 84-90: These unnecessarily bring in criminal provisions into a civil law.
> Change in ownership, 100: Change in ownership is normal. One can understand a lock-in period. But how can one have a blanket and open-ended clause prohibiting change in ownership?
I have covered the major objections. There are others too: utilised land, leasing, powers to amend schedules, etc. Whose objections are these? Of state governments, who should have been consulted in the first place. Instead, the pros and cons of the Laar debate were waged in Delhi. State governments, irrespective of their political composition, are now paying the price for Delhi’s follies. For all factor markets, which tend to be on state or concurrent lists, that’s a disastrous route. Delhi doesn’t know this and shouldn’t pretend to.