32nd Conference: Report of the Commission on Land
Table of Contents
- Section A: Note presented to the Commission, revised after the discussions in the Commission
- I. The broad agenda items for discussion in the Commission on Land Issues include the following:
- II. Land Reform: Ceilings, Government Waste Land, Tenancy, House sites and homestead and related issues
- III. Land for Industry and SEZs
- IV. Land Acquisition Issues
- V. Other Issues-Land Grab by vested interests, Government assignment of ‘waste land’ to business etc.
- Section B: Gist of the Discussions at the Commission Meeting
- Annexure I: Some Figures from The Report of the Committee on State Agrarian Reforms and the Unfinished Agenda of Land Reform, Department of Land Resources, Ministry of Rural Development, GoI 2009
- Annexure II : Recommendations of the GoI Committee on Land Ceilings
- All-India Kisan Sabha Memorandum on the Land Acquisition (Amendment) Bill, 2007
- Problems with the LAA 1894 and Suggestions on LAA Bill 2007
- 1. Narrow And Restricted Definition Of ‘Persons Interested’ with a Top-Down Bureaucratic Procedure for their Identification
- 2. Exclusion of Common Property Resources from Assets and Land
- 3. Definition and Scrutiny of Public Purpose provides Sole and Absolute Prerogative of Executive/Administration without Consideration of Extent of Displacement
- 4. Land Acquisition through Surrogate Land Use Changes
- 5. Regulation of Private Companies to avoid Unscrupulous Land Acquisition
- 6. Compensation: Basis, Scope and Profit Sharing
- 7. Timely and Comprehensive Information on Acquisition Details
- 8. Objection, Appeal and Grievance Redressal
- 9. Emergency Powers
- 10. Resettlement to Precede Displacement
- AIKS Note On The Rehabilitation And Resettlement Bill, 2007
- 1. Extension to Entire Country
- 2. Numerical Restrictions on the Number of Displaced Families
- 3. Definition Of Affected Families And Areas
- 4. Social Impact Assessment (SIA)
- 5. Rehabilitation and Resettlement Authorities
- 6. R&R Package
- 7. Grievance Redressal
This Report consists of two sections. The first section contains the revised version of the Note originally presented to the Commission. The second section provides a gist of the discussions of the Commission. There are two annexures at the end. The first provides some figures from The Report of the Committee on State Agrarian Reforms and the Unfinished Agenda of Land Reform (Department of Land Resources, Ministry of Rural Development, GoI 2009). The second annexure presents the recommendations of the GoI Committee on Land Ceilings.
Section A: Note presented to the Commission, revised after the discussions in the Commission
I. The broad agenda items for discussion in the Commission on Land Issues include the following:
- Land Ceilings and Land Redistribution
- Tenancy Issues
- House sites and homestead land
- Land for Industry and other non-agricultural uses including the issue of SEZs
- Land grab by various powerful sections
- Waste lands assignment by government to corporate sector and other entities
- Land acquisition Issues
- The AIKS recognizes that genuine and comprehensive land reforms are crucial to the advance of the rural and Indian economy and society, for expansion of the home market on a sustainable basis, for elimination of caste and gender oppression, and more generally, for the establishment of a truly democratic India.
Successive governments at the Centre and in most States in India since independence have refused to carry out basic land reforms, surrendering instead to landlord interests. While initial estimates of ceiling surplus lands made in the early 1960s put the figure at a little over 25 million hectares, the report of a recent government of India committee tells us that
The States so far have declared 2.7 million hectares surplus out of which 2.3 million (87 per cent) hectares were taken possession of and 1.9 million hectares were distributed to 5.5 million households (37 per cent to the SCs and 16 per cent STs). There has been no further progress in the implementation of land ceiling legislations.
Source: Report of the Committee on State Agrarian Relations and the Unfinished Task in Land Reforms, 2009, hereafter GOI, 2009
- In fact, there has been no effort at identifying ceiling surplus land, taking it over and redistributing it to the poor except in Left led States. This is brought out in the table below showing lands declared surplus, taken possession of and distributed as of 1980, 1985, 1990, 1995 and 1998.
|Pre-revised and revised ceiling laws||As on 31.3.80||As on 31.3.85||As on 31.3.90||As on 31.3.95||As on 31.3.98|
|Area declared surplus||69.13||72.07||72.25||74.10||73.74|
|Area taken possession||48.50||56.98||62.12||65.42||65.11|
|No of beneficiaries||24.75||32.90||43.60||49.94||55.37|
The increase in land distributed is almost entirely due to West Bengal and Tripura. Things have not changed much in this regard. The ministry of rural development tells us in its 2003 annual report that:
Since inception till March, 2002, the total quantum of land declared surplus in the entire country is 73.73 lakh acres, out of which about 65.01 lakh acres have been taken possession of and 53.93 lakh acres have been distributed to 56.47 lakh beneficiaries of whom 36 percent belong to Scheduled Castes and 15 percent belong to Scheduled Tribes.
- NSS data tells us that, as of 2003, 80.40 per cent of the landowning households, consisting of small and marginal farmers, account for 43.50 per cent of the land area owned. At the other end, households owning 4 hectares or more constitute 3.5 per cent but own 37.72 per cent of the total land. There is clearly considerable scope for redistributive land reform in India.
- Apart from redistributive land reforms, there is also scope for vesting the considerable amounts of waste lands in government possession. Here too, the picture across the country is quite dismal.
- As we know very well, except for the States of Kerala, West Bengal and Tripura under Left-led governments, there has in general been no serious attempt at land distribution-of either ceiling-surplus lands or government waste lands- to the landless and land-poor.
- Some of the achievements of the Left Front in West Bengal are listed below:
- West Bengal having only 2% of the geographical area and 3.5% of agricultural land in the country accounts for 22% of the total ceiling surplus land distributed in the country.
- Over 29.85 lakh acres of land has been distributed to around 29.84 lakh beneficiaries so far (as of 15-04-2007).
- S.C. and S.T. account for 56% of the beneficiaries though they constituted 27% of state population/
- More than 5.9 Lakhs of pattas distributed are joint pattas given in the name of both husband and wife. The number of female pattdars is 1.60 lakhs.
- Non SC, non ST groups account for 67 % of population and 44 % of all patta recipients under the land reforms. Persons belonging to the minority communities who account for 27 % of the non SC, non ST population constitute36.24 % of patta recipients among this category.
- About 1.5 million of share croppers have been recorded through Operation Barga and settlement of operations, thereby protecting them from eviction by landlords.
- Over 5 lakhs of landless families were given homestead lands.
- The total number of vested land allotted, recorded sharecroppers and recipients of home stead land together will exceed 4.5 million which accounts for 48% of the total land reform beneficiaries in the country.
- National Sample Survey data in 48th rounds shows that 78% of land in West Bengal is owned by small and marginal farmers, as against 35.52% held by them in the country as a whole.
- The pioneering effort in implementing radical land reforms in independent India was, of course, that of the undivided Communist Party government in Kerala in 1957 with Com EMS as the chief minister. The government brought in the historic Land Reforms Bill, but before it could be enacted into law, the democratically elected government was dismissed and the Legislative Assembly dissolved by the Congress government at the Centre in 1959 in complete violation of all norms of parliamentary democracy. However, thanks to the sustained struggles by the peasantry under the leadership of the Left, a diluted version of the original draft Bill was passed as the Kerala Land Reforms Act in 1969. The efforts of the Left-led peasant movement in Kerala led to the abolition of Jenmi lanlordism and vesting of ownership of leased out jenmi lands with erstwhile tenants of these landlords. The land reforms of Kerala also included, very importantly, provision of homestead land for the rural landless population. Between 1957 and 1993, about 2.8 million tenants were conferred ownership rights (or had their rights protected) and about 0.6 million hectares of land accrued to them. A significant number of landless agricultural workers received ownership rights over the plots of homesteads. Between 1957 and 1996, about 528,000 households were issued homestead ownership certificates. The fierce opposition to and sabotage by the Union government led by the Congress in the 1950s and 1960s blocked the Left-initiated redistribution of ceiling-surplus land, giving enough time for landlords to conceal a part of their holdings. Nevertheless, it must be noted that Kerala and West Bengal taken together account for around 35 % of all ceiling-surplus land taken over and redistributed in the entire country, and that practically all of this was achieved by Left-led State governments.
- Tripura, under the Left Front governments, has restored alienated land to the tribals. It has also implemented land reforms vigorously and effectively.
- While the situation varies a great deal across the country in respect of the level of development of the democratic movement, the AIKS must take up the issue of redistributive land reforms as well as assignment of government waste lands in a big way wherever the subjective and objective conditions are conducive. It must seek to create such conditions where they are currently absent.
- On tenancy, we learn from the 60th Round of NSS that, in 2004, the leased-in area formed nearly 7 percent of the operated area while 11.5 percent of the rural households had leased in some land. Other studies suggest that the incidence of tenancy varies between 15 and 35 percent. About 90 percent of the leased area is informal and unrecorded. Most of those leasing in land belong to landless and the marginal farmer households. Moreover, while the share of total area under tenancy may seem modest, it is important to remember that tenancy occurs in specific pockets, often on irrigated lands, and can be a significant phenomenon in the pockets where it occurs, sometimes accounting for even up to half the cultivated area. Rentals on irrigated leased lands can be oppressive, as for instance in coastal Andhra Pradesh. The threat of eviction too remains an important issue. On the basis of concrete local information, the AIKS has to take up the issues relating to tenancy.
The experience of Tamil Nadu suggests that the issues of house sites and homestead land are important and that it is possible to mobilize the landless and the poor peasantry on this issue. The GOI committee on State Agrarian Relations and the Unfinished Task of Land Reforms has recommended as follows, in this regard:
Homestead land and a house need to be recognised within the minimum rights structure of every homeless/landless. A priority list of landless/homeless should be prepared with the approval of the Gram Sabha. A minimum of 10-15 cents of land should be provided for each landless-homeless household in a time bound manner and land entitlement should be preferably in the name of women with heritable but inalienable rights.. …The Committee recommends a centrally sponsored scheme to allocate 10 to 15 cents of land to the houseless rural poor through market purchase on 75:25 cash basis.
This could be a starting point for the AIKS to formulate demands in respect of house sites and homestead land.
- Of particular concern is the reversal of land reforms in many States with ceilings being revised upwards and lands in government possession assigned on long leases at throwaway rentals to big business companies. A campaign on this issue is needed.
III. Land for Industry and SEZs
- The Special Economic Zones Act of 2006 confers huge tax benefits to big business and also encourages land grab besides allowing business to bypass labour laws. The government has ignored the reasoned amendments to the Act proposed by the Left Parties.
- As of September 2009, a total of 579 private SEZs had been formally approved, of which 335 had been notified. Another 147 had received approval in principle. The land allocation to the SEZs formally approved amounted to 73,731 hectares and if the other 147 is also included, the total land allocation comes to 1.99,000 hectares. Interestingly, the notified SEZs with a total investment of 1.04, 589 crores of rupees have generated employment only for 1, 34, 627 persons, implying 1.3 jobs per 1 crore rupees worth of investment. The argument that SEZs will lead to big increase in employment is clearly not borne out by the evidence.
- The real issue in SEZs is not so much about the amount of land at the macro level that would go to SEZs. The total land allocated to SEZs including for those approved in principle amounts to hardly 0.122 per cent of arable land. It is fundamentally about the mode and process of acquisition of land, the compensation package for those parting with land as well as others affected by the land being turned over to non-agricultural uses, the huge tax concessions provided to private capital, the utilization of land for purposes other than for the designated economic activity often amounting to land grab for real estate speculation and the bypassing of labour laws.
- It is of course important that as far as possible, land not usable for agricultural purposes should be earmarked for industrial and other uses, but sometimes it may become necessary that land under cultivation has to be converted to other uses. Utmost caution needs to be exercised in such cases and the peasantry has to be taken into confidence. No forcible acquisition must be made and in the event of acquisition adequate rehabilitation and resettlement policy must be put in place before effecting the acquisition.
IV. Land Acquisition Issues
- Land acquisition for non-agricultural development is inevitable in the course of economic growth. The real issues are about the fairness of the process, the purposes for which such acquisition is done, its democratic character, its transparency and appropriate relief and rehabilitation measures for all affected by acquisition.
- The government of India had come out with two draft bills in this regard. One is the Rehabilitation and Resettlement Bill 2007 (R and R Bill) and the other is the Land Acquisition Amendment Bill (LAA Bill).
- The AIKS has put forward a number of suggestions on both Bills to eliminate the anti-people provisions and strengthen pro-people aspects. The AIKS documents in this regard are appended.
- The Commission on Land Issues discussed these two Bills and present the views put forward here to the AIKS conference.
V. Other Issues-Land Grab by vested interests, Government assignment of ‘waste land’ to business etc.
- In several States we have the phenomenon of land grab by the rural and urban rich including the real estate mafia. Lands are being bought at distress prices from peasants weakened by the agrarian crisis. In some cases being illegally acquired without even the knowledge of the owner of the land and any resistance is sought to be suppressed using criminal means.
- Encroachment by the rich with the connivance of the revenue officials is also an increasingly prominent feature in some states.
- Several State governments have been assigning land under their possession to large private companies on nominal rentals for very long periods. There is no transparency in this process and lands which could have been redistributed to landless persons are being pre empted in this manner by the rich in collusion with governments. The AIKS needs to gather systematic information on this as a starting point for a powerful campaign.
Section B: Gist of the Discussions at the Commission Meeting
- The meeting of the Commission on Land was held under the chairmanship of Com A.R. Mollah, CKC member and Minister for Land and Land Reforms, Government of West Bengal. Com. Suryakanta Mishra coordinated the proceedings. A total of 178 delegates were present at the meeting.
The initial presentation of the Draft Note was made by Com. Venkatesh Athreya.
The delegates were then given forty-five minutes of time to discuss the draft Note among themselves, state-wise. Following this, a total of 19 delegates from 15 States presented the views of their delegations.
- The delegates, for the most part, presented the situation with respect to land issues in their States and shared the experience of the State units in intervening on these issues and organizing struggles and movements. Specific suggestions were also made on the issues put forward in the Draft Note.
- Among the important suggestions that were received are the following:
- The Draft Note should be strengthened by the inclusion of the significant achievements of the Left movement in Kerala in the field of land reforms, starting with the pioneering legislation brought forward by the EMS ministry in 1957. Land reforms are continuing in the state of Kerala, the decision of the LDF government to provide one acre of land to every dalit and tribal household being a case in point. The delegation from Tripura also provided inputs on specific land reform achievements of Tripura in the recent period. Comrades from West Bengal have made available updated data for inclusion in the Commission’s report.
- Land issues are important in practically all the States. The situation differs from state to state in terms of the importance of specific aspects of these issues. A series of state level consultations on these issues may be initiated by the new CKC and programmes for action drawn up for each State.
- An urgent issue on which an all India action plan is required is the implementation of the Tribal Forest Rights Act. This should be finalized as soon as possible and action launched.
- It was clear from the presentations of all the delegates that there has been little transfer of ceiling surplus lands to the rural poor across the country except for the three Left led States of Kerala, West Bengal and Tripura. While the suggestions of the Committee on State Agrarian Relations and the Unfinished Task of Land Reform may merit closer examination by AIKS, the fact needs to be underlined that the move of setting up such a Committee and publicizing its “radical” recommendations cannot hide the utter failure of the Center and most State governments to implement even existing land ceiling legislation.
- The question of land held as plantations needs discussion. These lands are presently exempt from ceilings, but in some cases, the lands are not being utilized as plantations. The AIKS needs to initiate a discussion on this issue based on state specific data.
- The issue of land acquisition is important. While recognizing that lands will need to be acquired for non agricultural purposes, the AIKS should fight for effective relief, rehabilitation and resettlement measures as well as transparency in the process of acquisition. Specific suggestions were put forward by delegates from Himachal Pradesh on what would constitute reasonable norms in this regard. Delegates also suggested that acquisition of land for non agricultural purposes must be guided by the principles of “no more than the necessary amount of land, non fertile lands first, less fertile next and fertile lands only as a last resort”. The compensation packages must be comprehensive and must include not only land losers but also all those affected by the acquisition.
- On the question of TFRA, the view was put forward by the Tripura delegation that the insistence on documentary proof of three generations of possession was effectively denying land to traditional non-tribal forest dwellers. A reasonable amendment in this regard was felt necessary, though the Tripura and the Assam delegations had different suggestions on what this could be.
- Delegates from Assam and Tamil Nadu pointed out that the exemption given to trusts, temples and other religious institutions were being misused by landlords and other powerful sections to retain lands far in excess of ceilings. Almost all delegates from States other than Kerala, West Bengal and Tripura noted that no significant land redistribution had taken place in their States. In fact, in most States, land was being grabbed by rich and powerful sections including ruling class politicians with the assistance of conniving revenue officials.
- In States such as AP, the State itself was acting as a big land grabber, buying lands cheap from the peasantry and making it available to large domestic and foreign private capital. The issues of corporate land grab through SEZ and other means and the State sponsored land were referred to by several delegates. The AIKS needs to undertake a campaign of exposure on these issues and put forward our alternative position.
- Tenancy issues were brought up by delegates from Tamil Nadu, Andhra Pradesh, Assam and Bihar. In all these States our AIKS units have carried out movements and struggles on these issues. In the coming period, these need to be taken forward with the help of the AIKS centre.
- Issues relating to forest lands and to tribal land rights were brought forward by the delegates from several States including Uttaranchal, Jharkhand, Chattisgarh, Orissa and Madhya Pradesh. These need to be discussed more fully at the level of the respective States in the background of the specific features of each State.
- The general conclusion that one can reach from the Commission meeting is that land issues have become very important across all States in the current period, both in the sense of traditional demands pertaining to tenancy reforms, land ceilings and so on, and in relation to the need to save the peasantry and agriculture from the onslaught of corporate and other land grabbers and real estate mafia as well as the Central and State government policies favouring corporatization of agriculture and seeking to evict the small and marginal peasants from agriculture to pave the way for corporate take over.
- It is important to stress in this context that the fight against these developments has to be linked to a principled position in defense of the glorious record of the Left and the governments led by it on the issue of land reforms and in defense of the peasantry.
Annexure I: Some Figures from The Report of the Committee on State Agrarian Reforms and the Unfinished Agenda of Land Reform, Department of Land Resources, Ministry of Rural Development, GoI 2009
- In 1973, as much as 23,15,000 acres of land was declared surplus under ceiling laws, out of which 12,55,800 acres of land was distributed officially. This stood at 54.24 % of the area declared surplus to be already distributed to individual beneficiaries.
- As of December, 2007, ‘the total area of the land declared surplus was 65, 59,292 acres, out of which total area of land taken under possession was 59,98,390 acres. This implies that 87% of the land declared surplus has been taken under possession. Then, the total area distributed was 49, 67,940 acres to 55, 34,176 individual beneficiaries, which is 72% of the land declared surplus and 83% of the land taken under possession.
- An area of 18, 30,182 acres of distributed land went to SC population of 21,35,356 individual beneficiaries. This constituted 37% of the total area of land distributed and 39% of the total number of beneficiaries.
- An area of 7, 77,311 acres of land was distributed to 8, 44,622 ST individuals which constituted 16% of the total area of land distributed and 15% of the total number of beneficiaries.
An area of 22, 63,516 acres of land was distributed to 25, 04,270 individuals other than SC and ST individuals. This distribution constituted 46% of the total area of land distributed and 45% of the total number of beneficiaries.
The net area of land declared surplus is only 1.86% of the total cultivated land. This reflects a glaring failure and backwardness of the agenda of land redistribution.
Annexure II : Recommendations of the GoI Committee on Land Ceilings
- Ceiling limits must be re-fixed and implemented with retrospective effect. The new limit should be 5-10 acres in the case of irrigated land and 10-15 acres for non-irrigated land, to be decided by the concerned state governments.1
- Absentee landlords or non-resident landowners should have lower level of ceiling.
- Introduction of Card Indexing System for preventing fictitious transfers in benami names. This card should be related to allottee’s Voted I/D Card or PAN.
- Discontinue exemptions granted to religious, educational, charitable and industrial organizations under ceiling laws of various states. Each entity should have the same ceiling as a family, even though state may exempt any particular category on valid grounds.
- Mutts, religious establishments including temples, Church, etc which have been existing since 1950 would be allowed one unit of 15 acres. A temple having numerous deities will also have only one ceiling as one religious entity. A temple will be considered as a single unit and if there was a cluster of temples with the same campus they would also come under the same unit.
- For Research Organisations, Agricultural Universities/Colleges and similar types of institutions including proposed industrial and commercial units, in the future the government would have the power to allow more than one unit of ceiling to fulfill strictly the objectives for which these institutions/ organisations would be set up. It has to be done on a customized case-to-case basis. The organisation/entity will enter into an actionable agreement with the government that in case, they fail to fulfill the utilization of land as agreed upon such lands will be resumed by the government.
- The general exemption that has been given for plantation, orchard, mango/litchi groves, fisheries and other special categories of land use should be done away with.
- Set up Land Tribunals or Fast Track Courts under Article 323-B of the Constitution for expeditious disposal of appeal cases.
- Impose criminal sanction on the failure to furnish declaration of ceiling surplus land by land holders.
- Specifically in the case of Land Ceilings where the cases have been decided basing on fraud and misrepresentation of facts, which are at Primary Tribunal stage. In cases where the Courts have already passed orders in Appeal or Revision, action may be taken to file Review Petition.
- Penal provision for non-submission of returns for ceiling surplus holdings should be strict and rigorous. A penal clause inserted within existing ceiling laws should make officers accountable and responsible for intentional lapses.
- The Divisional officers cum Tribunal Officers should dispose off the cases within the stipulated period. As and when the cases are disposed by the superior courts, the tribunal officer should take immediate action to ensure surrender of excess land by the declarants.
- The District Magistrate or Deputy Commissioner should be empowered to speed up allotment of surplus land. Civil Court jurisdiction must be barred in respect of agricultural land. Any decree or order passed by any court should be treated as null.
- No decree or order to evict an allottee to be executed unless it is approved by the Board of Revenue or by the High Court.
- The Benami Transactions (Prohibition of the Right to Recover Property Act) of 1989 should be amended so that evasion of ceiling laws through fraudulent land transactions can be monitored.
- Cases of illegal or improper allotments of ceiling surplus land to be investigated and allotments to be cancelled. All transactions after commencement of Ceiling Law to be declared null and void.
- Identify cases of non-physical possession of allotted lands and cases where pattas have not been issued to owners or those cases which are still under litigation.
- Distribution of all ceiling surplus land should be in the name of both husband and wife, on a joint basis, as that would help control benami land. Land ceiling laws should ensure gender equity.
- While making allotment of ceiling surplus land to the landless poor persons, the definition of landless poor person shall be taken as one who owns no land. In case such person is not available in the village, a person who owns a land of not more than 1 acre of wet land or 2 acres of dry land be treated as a Landless Poor person.
- In order to bring newly irrigated lands under the purview of Ceiling laws, these lands should be reclassified in consultation with the Revenue Department and Gram Sabhas.
- A group should be set up, composed of Gram Sabha members and revenue functionaries who identify benami and farzi transactions.
- The allotment of ceiling surplus land to the landless poor shall be done free of cost as in the case of assignment of Government lands.
- With computerization of land records, separate files should be opened in respect of actual and suspected evaders of ceiling law, so that their lands held in different districts could be consolidated in one file, for the purpose of imposition of one ceiling unit.
- Land ceiling should take in to account the local environment such as reserved areas where indigenous people are residing.
- Huge amount of government lands have been encroached by politically and economically powerful players for which there is no reasonable estimate. State governments must be advised to undertake an assessment of this on a fast track basis.
- Substantial amounts of lands were acquired for industrial and non-agricultural purposes however, field visits indicate that substantial amounts have not been utilised till date. Such lands must be reclaimed without delay and distributed back to the marginalized and the needy according to a priority basis.
- For addressing problems relating to land, single windows approach to be provided by the administration.
- Restrictions on land leasing within ceiling limits should be removed to help improving poor people’s access to land through lease market and also for improved utilization of available land, labour and capital. However, there should be legal safeguards in the lease contracts that would protect the small and marginal farmers, and a clear recording of all leases, including share cropping.
All-India Kisan Sabha Memorandum on the Land Acquisition (Amendment) Bill, 2007
At the moment, the legal framework for land acquisition for public purpose is provided by the Land Acquisition Act, 1894 (LAA), last amended in 1984. The main purpose of the LAA under the British colonial administration was to acquire land in a quick, cheap and easy manner with little concern for adequate compensation and rehabilitation of landowners. Public purpose was essentially an administrative decision with opaque and authoritarian procedures with token avenues for appeal or objection. The 1984 amendments essentially did little more than bring Companies within the purview of the Act.
Over the years, judicial exposition has highlighted its numerous lacunae, as has the ground experience of its adverse impact on the livelihood of those giving up land and being displaced. The All India Kisan Sabha therefore believes that the Land Acquisition Act should be comprehensively amended to ensure that while pursuing genuine public interest, it is made more democratic, transparent and accountable, safeguarding the rights and interests of displaced persons and securing their livelihoods through improved and sustainable livelihood-generation and fair compensation. *The Government’s proposed amendments to the LAA unfortunately, do not address several core deficiencies and anomalies, while introducing several amendments that are examples of the cure being worse than the disease. *
While there are some positive features in the present Land Acquisition (Amendment) Bill, 2007 proposed by the Government, which needs to be further strengthened, there are some provisions, which are quite objectionable. These objectionable features include:
- Redefining public purpose to include all private companies and
entities and force the privatization of public services.
- Allow un-scrutinized and un-monitored market-based land
acquisition, thereby undermining the State and people’s right to interrogate public purpose
- Reduce the amount of the compensation awarded by linking it to
stamp value, registrations, etc.
- In the name of fast-tracking, deny interested persons access to
Courts by creating a separate Authority constituted by the Government itself with a clear merger of judicial and executive roles
The Government has also introduced the Rehabilitation and Resettlement Bill, 2007 (RRB). The RRB should essentially deal with the process and components of resettlement and rehabilitation when there is displacement while the LAA should identify persons affected adversely by the land acquisition and land use change and compensate them after due process of scrutiny, consultation and appeal.
Problems with the LAA 1894 and Suggestions on LAA Bill 2007
1. Narrow And Restricted Definition Of ‘Persons Interested’ with a Top-Down Bureaucratic Procedure for their Identification
The definition of interested persons covers only landowning peasants and tenant farmers, excluding landless agricultural labourers, collectors/users of common property resources, artisans and others servicing the farmers’ needs – persons whose livelihoods depend on the land. Additionally, the Collector is the sole Authority to identify ‘interested persons’ and there is no procedure for filing claims verifiable by the Gram Sabha and the Collector. Furthermore, the LAA deals with the landed and tenants while the RRB deals with the compensation package for the landless and other service providers through two different definitions. Finally, ambiguity in the definition of interested parties has resulted in Courts putting those who pay compensation at par with those who receive it.
Definition of interested persons in the LAA Bill should include the non-landed and non-cultivating persons dependent on the land and local economy for livelihoods and common property. The Act must contain a procedure for filing of claims and application for self-identification as interested person to eliminate wrong exclusion. There should be a single inclusive definition of ‘interested persons’ (LAA) and ‘affected family’ (RRB). Moreover, the rights of Objections, Appeals, etc. should only apply to those receiving compensation, not those who are acquiring the land.
2. Exclusion of Common Property Resources from Assets and Land
The present version of the Act only estimates and compensates private property. Large-scale acquisition covers entire villages and their common property resources – tanks, grazing lands and village forests. Common property resources play a major role in supporting the livelihood of the villagers, specially the poorer ones.
The loss of access to these common property resources too must be listed and compensated. They should be included in the Notification, Declaration and Compensation.
3. Definition and Scrutiny of Public Purpose provides Sole and Absolute Prerogative of Executive/Administration without Consideration of Extent of Displacement
The “public purpose” needs to be properly defined. If the definition of “public purpose” is to remain as a purely administrative/executive prerogative, which is not subject to democratic and judicial scrutiny, the basic problem arising from the present LAA will not be addressed. Furthermore, no attempt is made to scrutinize the Project as the least displacing option in order to fulfill the stated “public purpose”. Finally, land is often acquired in the guise of a more plausible purpose and then transferred to some other use. This has not been properly addressed.
Government’s Proposed Amendment Clause 3(f)(iii)
The proposed definition of ‘public purpose’ is made limited to the requirements of land for (i) strategic purposes relating to naval, military and Air force works or other work vital to the State, (ii) Land for infrastructure projects (including mining) and (iii) to the extent of 30% for the companies where they have already procured 70 per cent for a vague and all-inclusive “any other purpose useful to the general public”.
Critique of Government’s Proposed Amendment
- This severely restricts the scope of the State to fulfill pro-poor public purpose since it can no longer acquire land for inter alia, the schemes for planned development of villages and towns or for providing housing for landless and poor or for carrying out any educational, housing or health or land distribution schemes, leaving these services to the private sector.
- Denies the 70 per cent whose lands are bought in the ‘market’ their due legal rights to compensation under the LAA and relief under the RRB, since they are outside the definition of ‘interested persons’ in the former and ‘affected family’ in the latter (since it is treated as voluntary dispossession and/or displacement through ‘free’ market contract).
- Allows a free play of market forces resulting in large scale and cheap land alienation and dispossession in a context of acute rural distress through deceitful and forced land purchases by private entities and real estate speculators.
- Reduces the Government to a formal rubber stamp with the ‘public purpose’ becoming a fait accompli, with the Project and its purpose effectively outside government examination thus pre-empting any a priori scrutiny of the proposed project as the least displacing one or as contributing to ‘public purpose’
- All-inclusive and vague nature of “any purpose useful to the general public” ensures that virtually any possible economic and non-economic activity can fit in.
These proposals should be completely rejected. Public purpose should be clearly and unambiguously defined and limited in the law to certain types of pro-poor, redistributive, employment-intensive and public good oriented activities, which are Government-owned to the extent of at least 50 per cent. The decision of what constitutes public purpose should be democratized and the legislature involved along with the PRIs. This should not remain in the hands of the executive alone. All project proposals should be scrutinized based on three yardsticks:
- public purpose,
ii. least displacing, and
iii. in accordance with land-use policy and plan.
The mechanisms for this are:
- Social Impact Assessment by an Expert Committee with official, non-official and elected representatives.
- State-level Project Approval Committee comprising elected representatives of all levels, experts and bureaucrats.
- Public consultation with affected Gram Sabhas or Assemblies of interested persons in case an entire village is not affected
All transfer from one public purpose to another to require scrutiny of the new public purpose by Social Impact Assessment, Project Approval Committee and under Sec 5 to eliminate proxy acquisition.
4. Land Acquisition through Surrogate Land Use Changes
Private companies and land speculators attempt backdoor land acquisition through benaami and other instruments and subsequently change land use, with or without post facto clearances, leaving landowners at the mercy of the market and speculators. These are usually in violation of the land use plans and laws of the relevant state, UT, Central or State governments.
The Act should define “major land use alteration” as a change in the purpose for which land is utilized and classified, including but not restricted to changes from agriculture (including fallows and wasteland) to non-agriculture, government-owned public land to privately leased or owned land, and forest to non-forest use, that exceeds the relevant agricultural land ceiling in the case of land use change from agriculture (including fallows, wastelands, etc.) to non-agriculture; or exceeds an area of fifty hectares in all other cases of change in land use, or violates the Land Use Plan of the relevant State or UT government or the concerned local government’s plans under 243 G. All such alterations in land use should require (1) Social Impact Study (2) prior prima facie approval subject to Sec 5 of the Act from the Project Approval Committee after SIAs and (3) MoUs to be signed with the Government. Subsequently, they should be treated as land acquisition to be brought under the provisions of the LAA, with the Government undertaking the land acquisition. Violations and un-scrutinized “major land use alterations” should invite penalties.
5. Regulation of Private Companies to avoid Unscrupulous Land Acquisition
Part VII of the LAA Bill deals with private companies in a very limited set of cases. While the Government can, after 1984, acquire land for a Company as defined in the Act, the Companies are only required to state their ability and willingness to meet the cost of acquisition. There is a marked absence of the requirements and its due process in the case of such Projects.
Government’s Proposed Amendment
The Government proposes to leave Companies entirely out of the purview of the Act and delete Part VII entirely except in cases specified under proposed Clause 3(f)(iii).
Critique of Government’s Proposed Amendment:
The Government has basically allowed a free run to Companies and market-based land acquisition by bringing them under the definition of public purpose itself provided that at least 70 per cent of the land is acquired by them. Having done that, the Government too becomes free from its obligations to protect the interests of the peasantry and other land-dependents and common property users on the one hand and regulate land use and public purpose, on the other.
Acquisition by Companies and individuals should be brought strictly under the purview of the Act. Companies should first approach the Government with their proposals, and only after the public purpose and displacement is examined through Social Impact Assessment and the Project Approval Committee and given prima facie approval subject to Sec 5 of the Act, and a MoU signed, should the Government acquire the land for Companies through the provisions of the LAA.
6. Compensation: Basis, Scope and Profit Sharing
The Act keeps acquisition costs low by an unfair and arbitrary method of evaluating the price of land and restrictive coverage of persons and assets resulting in very low compensation. This is achieved through five devices: (1) basing the valuation on past sale deeds that are officially recorded; the land prices in these deeds are often under-reported in order to escape taxes and duties and therefore do not reflect the operative market rates. (2) refusal to transfer any part of the gains of the higher values accruing from the proposed change in land use to the affected persons. (3) Payment of depreciated value for assets making it impossible to replace them. (4) The procurer (the Government) deciding the price, a system antithetical to a fair and democratic valuation. (5) Land-dependence through labour and services and common property resources as well as unrecorded occupancy is not compensated.
Government’s Proposed Amendment
The proposed Amendment 11B links compensation to ‘market’ value based on recorded transactions and officially determined stamp value which invariably undervalue real market rates. This results in the acquirer of land continuing to have an upper hand. The government also proposes an increase in solatium.
Critique of Government’s Proposed Amendment
This will make acquisition even cheaper and result in systematic undervaluation to underestimate project costs. It will override the entire Case Law that provides for calculation of the value on the basis of the highest exemplar amongst proximate land, where proximity is defined in terms of time, space, quality and area of the sale (and not averages). The increase in solatium is miserly and inadequate.
The Act must shift to a methodology in which compensation ensures livelihood security and improves living standards. The present proposal is one of market-based valuations, of which shares may be a part to a ‘fair’ valuation that is computed as the highest amongst the following: the basis of market prices, replacement cost, augmented value and output value. This paradigm of calculating the compensation needs to change. The land prices must be determined on the basis of a Survey by an Evaluation Team which should include elected respresentatives and representatives of the ‘interested persons’ whose lands are being acquired besides the Collector and Government representatives. In addition, there must be higher solatium given the compulsory nature of the acquisition.
The affected persons should also get a share in the increased income arising from the change in land use, which is expressly prohibited in Section 24. Shares and Debentures should be given over and above the compensation, as a part of ‘profit-sharing’ and not as a portion of the compensation. For this, the State Governments should create a Corpus Fund/Depository which can manage the Shares and Debentures of the affected persons and provide them with a future stream of monthly/annual income. The award of shares and debentures should be made by the Expert Group undertaking the Social Impact. The arrangement should be such that the affected persons do not have to bear any risk of loss from the project, while they gain in case profits are being made.
Furthermore, there must be compensation for loss of livelihood and income of land-dependent workers, service providers, artisans, as well as loss of access to CPRs at four years minimum wages. All interested persons who loose their livelihood and/or land must be provided 200 days annual guaranteed employment at minimum wages as a part of their compensation and rehabilitation.
There should be reversion of unused land to original owners without recompense to the State.
7. Timely and Comprehensive Information on Acquisition Details
Section 4 of the LAA provides for preliminary notification for proposed or likely acquisition, without the requirement of individual notice to the person concerned. However, the notices are published in the Gazette in newspapers to which people do not have access. The notices are vague and imprecise in terms of the exact land parcel involved, its categorization and description, the purpose of acquisition and the interested persons. It is therefore incapable of conveying a clear description of the land to be acquired, the very foundation on which objections can be submitted under Sec 5A of the Act. Since the Section does not require individual notices to all interested persons, there is no opportunity for the wrongly excluded to either know of their exclusion or object under section 5A.
The affected persons must be individually served the notification at the very beginning with complete description of land parcels and the conspicuous places in the locality too must be specified, to prevent it from becoming a mere formality. Furthermore, no notification should be made prior to the complete recognition and vesting of rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2007 if their rights are to be protected during land acquisition proceedings.
8. Objection, Appeal and Grievance Redressal
There are broadly seven deficiencies in the Act in relation to the appeals process: (1) information about the procedure and sequence, (2) locus standi or who can appeal, (3) the grounds on which appeals are permissible, (4) the time limitation within which appeals must be made (5) slow pace of dispute resolution and (6) the agency/body to which appeals can be made and (7) absence of democratic process for grievance redressal.
Government’s Proposed Amendment
The amendment proposes an Authority for the State and Centre comprising handpicked appointees of the relevant Government and brings all these matters outside the purview of Civil Courts.
Critique of Government’s Proposed Amendment
None of the existing problems except of slow pace of dispute resolution has been addressed by the proposed amendment. There are several problems with this. Firstly, the Constitution is based on a separation of functions between the legislature, executive and judiciary and it seems patently unfair and undemocratic that a body appointed by the executive will scrutinize its own decisions. It violates the basic premise of independent functioning of the judiciary. Secondly, denying access to Courts in this manner is not in keeping with the Constitution. Finally, if the Courts take too long, it is better to address that issue directly by increasing the size of the judiciary or simplifying procedures rather than bypassing the judiciary completely.
In the interest of justice and independence, a far better approach would be to increase the strength of the judiciary by creating a separate judicial bench for fast-tracking disputes on the Land Acquisition Act. The better option is a Designated Court presided over by a Judge appointed by the State. The Supreme Court must certainly have the authority to hear cases.
There should be procedural simplicity and fairness in the appeals and objections process and removal of unjust barriers to appeal. Time limitation should become less rigid for interested persons while requiring a time bound response from the Appellate Authority.
The Gram Sabhas should have more consultative and deliberative powers where entire villages are involved as shall assemblies of those affected where entire villages are not affected.
9. Emergency Powers
Under the ‘Emergency’ clause, land can be acquired without Enquiry and Objections or giving the interested persons an opportunity of being heard. In recent times, a lot of land has been acquired for corporate mining and infrastructure projects using this extraordinary power.
The Act must contain adequate safeguards against its misuse. Section 17(1) must be deleted.
10. Resettlement to Precede Displacement
Possession of land is often taken prior to rehabilitation and payment of due compensation.
The Government correctly proposes that people should not be dispossessed from their land until compensation has been paid. However, it is important to ensure that in all cases of displacement, rehabilitation and resettlement must precede the physical possession of the land by the acquirer.
AIKS Note On The Rehabilitation And Resettlement Bill, 2007
The demand for a Rehabilitation and Resettlement Bill was based on the understanding that it is better to have a law since statute rights defined (or denied) in law are binding, while a R&R Policy would only have persuasive value that can be ignored by both the Government and Courts. Seen in this light, the present Bill is an important step towards recognizing rehabilitation and resettlement rights of displaced persons.
Unfortunately, however, the proposed Rehabilitation and Resettlement Bill, 2007 is toothless as it is full of platitudes without any binding provisions. The several conditions associated with rehabilitation and resettlement and the un-enforceability of different provisions render the proposed legislation ineffective. It focuses more on form and governance framework with a multitude of Committees and processes rather than granting substantive rights beyond recognition of status.
1. Extension to Entire Country
In the present form of the R&R Bill, the Government can bring the legislation into force at different points in time in different parts of the country.
The R&R Act must come into force in the entire country upon its notification.
2. Numerical Restrictions on the Number of Displaced Families
Presently, there are numerical restrictions of the number of displaced families for the applicability of the R&R Bill. Clause 20(1) suggests that an area would be declared as an affected area only in case of “involuntary displacement of four hundred or more families en masse in plain areas, or two hundred or more families en masse in tribal or hilly areas, DDP blocks or areas mentioned in the Fifth Schedule or Sixth Schedule to the Constitution”. These numerical restrictions are arbitrary.
These restrictions must be removed. All en masse displacements should come under the purview of the R&R Act. There can be some minimum number of displaced families (which must be lower than the present provision of 400 for plain areas and 200 for hilly areas) for the applicability of the provision for a Social Impact Assessment, but the provision of rehabilitation and resettlement should apply to displaced families in all cases.
3. Definition Of Affected Families And Areas
The current definitions neglect common property resources on land from which people derive private income (like fish, weeds, minor forest produce, etc.) as well as sustain livelihoods (fodder, fuel, water, etc). Nor does it include habitats that go beyond private land use through cultivation or labour (farm and off-farm).
Common Property Resources and users must be included in the definitions.
The definition of “family” is seriously deficient from a gender perspective, since it subsumes adult unmarried women and unmarried dependent sisters within the natal family instead of treating them as independent families as in the case of all adult sons and brothers (married or single).
Adult unmarried women and unmarried dependent sisters should be treated at par with their male counterparts.
The current definitions limit the applicability of the R&R Act to “involuntary” acquisitions, implying thereby that market-based displacement shall be treated as “voluntary” displacement. However, market-based displacements are often distress-driven or forced.
All displacement, whether involuntary or voluntary, should be covered by the R&R Act.
The insistence on ‘continuous’ residence for a period of five years for being eligible will exclude several migrants workers who work away from their residences. Tribals who practice traditional modes of agriculture, involving temporary shifting from one place to another place every two-three years for cultivation of crops, and other nomadic forms of life, and other seasonal migrants may not be residing continuously for the required period in a particular place and hence not qualify as an “affected family”.
The criteria should be changed to residence for at least half the year for the past three years.
The R&R Bill repeatedly refers to Scheduled Tribes in occupation of forest land from prior to 2005, except in section 49(11), which refers to Other Traditional Forest Dwellers as well.
It should refer to all holders of forest rights under The Scheduled Tribes and Other Traditional Forest Dwellers Recognition of Forest Rights) Act, 2006.
The definition of ‘affected area’ is narrow and restrictive, limited to the following three conditions:
- involuntary displacement due to acquisition of land
- displacement of four hundred or more families en masse in plain areas, or two hundred or more families en masse in tribal or hilly areas, DDP blocks or areas in the Fifth Schedule and Sixth Schedule to the Constitution,
- area of village or locality
When fewer persons are displaced, or when displacement is not ‘en masse’ but dispersed in time and space, or when the amended LAA permits 70 per cent acquisition through market purchases, or when the lands involved are outside the village or locality, the RRB will not come into operation. The definition of agricultural land too is flawed, as it does not include fallows, wasteland, culturable wasteland and land under agro-silvi-pastoral plants and agro-forestry. The exclusion of ‘land used for cutting of wood only’ is inexplicable.
“Affected Area” must include all areas of displacement irrespective of the cause, extent and frequency. The requirement of number of affected families for notification of affected areas is too high. This should be reduced to… families in case of plain areas and …families in case of tribal or hilly areas. All Blocks covered by the Drought Prone Areas Programme should be included.
There is only a top-down procedure for identification and verification of Project Affected Persons (PAPs). At the moment, the Administrator is required to conduct a Survey to identify PAPs, and allows for objections after completion of Survey.
There must instead be a procedure for application and verification of claims by people who claim to be affected. The verification process must involve the Gram Sabha. There must be a proper appeals process against faulty exclusion. The information of likely displacement in the declaration should be served as a notice on all ‘interested persons’ under Sec 4 of the LAA. In the case of land situated in or around a village, the declaration should be displayed on the notice board at the office of the panchayat within whose jurisdiction the land lies, and a notice board specially erected for this purpose on the land to be acquired. Affected areas must also include commons, habitats and forests.
4. Social Impact Assessment (SIA)
The provision for a Social Impact Assessment is welcome. But the process needs to be further strengthened in terms of scope, institutions and methodology.
SIA should be done by an Expert Committee comprising official, elected representatives, representatives of affected persons and non-official experts. It should be done in all cases of displacement involving… or more families. It should cover all categories of land acquisition permitted under the LAA either directly or as an adjunct. There should be no exemptions, in the name of defence or national security. It should examine the Project proposal on the basis of (i) public purpose, (ii) least displacing option (iii) costs and benefits. The SIA must cover any rights / activities covered by The Scheduled Tribes and Other Traditional Forest Dwellers Recognition of Forest Rights) Act, 2006. The Rehabilitation and Resettlement requirements too must form a part of the consultations and requirements and expectations must be discussed. There must be consultations with the persons likely to be affected, the gram sabha (if the entire or substantial part of a gram panchayat is affected) or assembly of affected persons (if a small part of a gram panchayat is affected) after proactively providing relevant information. The SIA and the clearance must apply to the project as a whole and piecemeal clearance of applications should not be permitted.
The present R&R Bill also proposes to include a representative of the requiring body (i.e. the entity causing displacement) on the SIA expert group. This is an obvious conflict of interest, since they end up assessing their own project, and should therefore be removed.
5. Rehabilitation and Resettlement Authorities
The role and functions of the National Monitoring Committee proposed in the R&R Bill are in violation of the federal principles and structure. There are far too many Committees – seven from Project to Centre – which are needlessly dominated by officials and give a consultative role to the requiring body. This is undesirable. It is not at all clear who the Ombudsman is: an official or a non-official?
The R&R committees at various levels must not be dominated by officials and there must be a strong presence of elected representatives and of the affected families. The ‘formulation, execution and monitoring of the rehabilitation and resettlement Plan’ must be done in consultation with the affected persons and the final package must have their prior informed consent. Affected persons must be clearly informed about the extent to which the costs of R&R shall be realized from their compensation package under the LAA. The post-implementation social audits must be carried out by the gram sabha (if the entire or substantial part of a gram panchayat is affected) or assembly of affected persons (if a small part of a gram panchayat is affected)
6. R&R Package
The present R&R package does not ensure livelihood security for the displaced persons. The emphasis on lump sum cash compensation rather than sharing the benefits of the development process by creating sustainable and decent livelihood opportunities is disappointing. There are all kinds of numerical restrictions for the applicability of its provisions, which must be removed. It actually gives far less than what several Awards and state government policies have given in the past. Moreover, the provisions remain mostly recommendatory in nature rather than being binding.
(i) Employment for the displaced persons in the projects has been linked to the “/availability of vacancies and suitability of the affected person for the employment/”. If employment for displaced persons cannot be provided in a project, the affected persons must be provided guaranteed employment for 200 days each year at the statutory minimum wages for unskilled rural/urban labour. (ii) The provision which provides for rehabilitation of affected families displaced by linear acquisitions, says that they would only be provided if they become “landless or is reduced to the status of a ‘small’ or ‘marginal’ farmer”, failing which only ex-gratia payment which is not less than Rs 20,000 will be given. This is unduly restrictive and should be removed. (iii) References at several points to limiting certain types of compensation to only those below the poverty line (BPL) should be removed. (iv) Complete and not ‘adequate’ rehabilitation must precede displacement. (v) Fishing rights must be provided to PAPs in case of reservoirs. (vi) All assets/compensation must be in the joint name of spouses. (vii) The provision of land in irrigation projects should be compulsory. (viii) The option of lump sum payment in lieu of all entitlements must be deleted since it is effectively a nullifying clause.
7. Grievance Redressal
Besides banning access to Courts, the R&R Bill does very little by way of addressing grievances. The same officials who are acquiring the land and carrying out R&R are supposed to hear appeals against themselves. The R&R administration is all-powerful, with civil courts barred from admitting suits on matters that are the responsibility of the R&R administration, which include (1) Identification of “affected families”, (2) the resettlement plan and (3) the implementation of the plan. Thus, right-holders and their benefits are determined solely by the Government except if the process is violated.
The designated judicial bench that hears appeals in the LAA Bill must also have jurisdiction over the R&R Bill.
Report of the Sub Committee on Land, Planning Commission (2006), Report of the Expert Group on Prevention of Alienation of Tribal Land and its Restoration, Ministry of Rural Development (2006), Report of the PESA Enquiry Committee, Ministry of Panchayati Raj(2006), Report of the Governor’s Committee, GOI (2005)