Persis Ginwalla[1]
Sagar Rabari[2]
The Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARR, hereafter
referred to as LARR 2013) was the culmination of decades of struggle by
people’s movements against arbitrariness, injustice and land grab. It appeared
that people’s voice was finally reaching the portals of power. And although the
Act did not cede the power of eminent domain in favour of the people, there
were, nevertheless, some rather progressive elements there.
Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARR, hereafter
referred to as LARR 2013) was the culmination of decades of struggle by
people’s movements against arbitrariness, injustice and land grab. It appeared
that people’s voice was finally reaching the portals of power. And although the
Act did not cede the power of eminent domain in favour of the people, there
were, nevertheless, some rather progressive elements there.
The task for the new government was to implement it in right
earnest and to iron out the difficulties encountered therein. Much to the
contrary, yet very much in the ambit of the expected, has happened. All
indications in the run up to the Lok Sabha elections of 2014 were that the LARR
2013, which was perceived by the corporate world as being ‘anti-growth’ and
‘anti-investment’, would be amended on the double by the new dispensation at
the centre. And in fact the new Rural Development Minister called a meeting of
Revenue Ministers of the states to review the LARR 2013 on June 27th,
a mere 40 days since assuming power[3]. By
31st December 2014 it stood amended through an Ordinance!! By any
standards, the amendments are regressive and anti-people, anti-farmer and
anti-agriculture. All in all, the amendments in the Ordinance 2014 make the LAQ
1894 look benign in comparison.
earnest and to iron out the difficulties encountered therein. Much to the
contrary, yet very much in the ambit of the expected, has happened. All
indications in the run up to the Lok Sabha elections of 2014 were that the LARR
2013, which was perceived by the corporate world as being ‘anti-growth’ and
‘anti-investment’, would be amended on the double by the new dispensation at
the centre. And in fact the new Rural Development Minister called a meeting of
Revenue Ministers of the states to review the LARR 2013 on June 27th,
a mere 40 days since assuming power[3]. By
31st December 2014 it stood amended through an Ordinance!! By any
standards, the amendments are regressive and anti-people, anti-farmer and
anti-agriculture. All in all, the amendments in the Ordinance 2014 make the LAQ
1894 look benign in comparison.
At the outset, let us clarify our usage of the term ‘farmer’ or
‘anti-farm’ or ‘agriculture’ in connection with land acquisition. The ambit of
the land acquisition Act – old or new – is limited to private land holding only. Forests, coasts, rivers,
pasturelands, wastelands, lakes and waterbodies – appropriately termed Common
Property Resources (CPR) – are not covered by this Act. Not only are they not
covered by the LA Act, they are also not covered by any policy directive or
legal instrument formulated by any government of independent India even today. Pastoralists,
fisherfolk, tribals, landless agriculturalists, saltpan workers – all
communities that depend on these CPRs are hence left out of the provisions of
this Act.
‘anti-farm’ or ‘agriculture’ in connection with land acquisition. The ambit of
the land acquisition Act – old or new – is limited to private land holding only. Forests, coasts, rivers,
pasturelands, wastelands, lakes and waterbodies – appropriately termed Common
Property Resources (CPR) – are not covered by this Act. Not only are they not
covered by the LA Act, they are also not covered by any policy directive or
legal instrument formulated by any government of independent India even today. Pastoralists,
fisherfolk, tribals, landless agriculturalists, saltpan workers – all
communities that depend on these CPRs are hence left out of the provisions of
this Act.
Comparison of some key features of the 2013 LARR Act and the Ordinance
2014
2014
|
Category
|
LARR 2013
|
Ordinance 2014
|
|
Definition of Private Companies
|
The Act defines private companies as per
the Companies Act, 1956. The provisions of the Act apply to private companies “with a public purpose”. |
Private company is replaced with
“private entity”. A private entity being “any entity other than a Government entity or undertaking and includes a proprietorship, partnership, company, corporation, non-profit organization or other entity under any law for the time being in force”. |
|
Types of projects the Act applies to
|
Sec. 2 (1) (b) (i): Private hospitals, private educational
institutions were not exempt from the provisions of the Act viz. consent and SIA |
Removes private hospitals and private educational institutions
from the provisions of consent and SIA |
|
Types of projects the provisions dealing
with Social Impact Assessment and Consent apply to |
The process of obtaining consent,
conducting a Social Impact Assessment and determining public purpose are applicable to public projects, PPPs where the ownership of the land continues to vest with the government, and private companies with a public purpose (Section 2 and Sections 7-9) |
The process of obtaining consent and
conducting SIA are not applicable to the following projects: 1. such projects vital to national
security or defense of India and every part thereof, including preparation for defense; or defense production; 2. rural infrastructure including
electrification 3. affordable housing and housing for
the poor people; 4. industrial corridors
5. infrastructure and social
infrastructure projects including projects under PPP where the ownership of the land continues to vest with the government.* |
|
Types of projects food security
provisions apply to |
The measures to safeguard food security including
the prohibition on acquisition of irrigated and multi-cropped land except in rare and demonstrably unavoidable circumstances is applicable to public projects, PPPs where the ownership of the land continues to vest with the government, and private companies with a public purpose (Section 10) |
The measures to safeguard food security
are not applicable to land acquisition for the following projects: 1 to 5 as above
|
|
When land acquired under the LAA, 1894
is said to have lapsed |
Where land acquisition proceedings were
initiated under the LAQ, 1894 where an award was made five years or more prior to the commencement of this Act and physical possession has not been taken or compensation has not been paid the proceedings will be deemed to have lapsed. Fresh proceedings should commence under the provisions of this Act. |
In cases where proceedings have been
delayed due to an injunction or stay issued by a court, or where possession has been taken but compensation is lying deposited in a court or any account, proceedings will not be deemed to have lapsed. |
|
Punishment for Offenses
|
If any offense is committed under this
Act and it is proven that it has been committed with the connivance or consent or can be attributed to neglect on part of any officer, that officer will be liable to be proceeded against. |
Proceedings against government official
will require the sanction of the appropriate government. |
|
Power to Remove Difficulties
|
If any difficulties arise in
implementing this Act the Central Government may, by order, make such provisions, not inconsistent with the Act, to remove difficulties, provided that no power shall be exercised after the expiry of two years from the commencement of this Act. |
The Central government has the power to
make such orders up to five years from the commencement of this Act. |
|
Transparency before parliament
|
Notifications pertaining to compensation
and R&R needed to be tabled before the houses of parliament |
Omitted
|
Table
compiled by Samantha Agarwal
compiled by Samantha Agarwal
*The definition of
infrastructure can be found from the Cabinet Committee on Infrastructure (http://pib.nic.in/newsite/erelease.aspx?relid=80634)
See table in Annexure 1.
infrastructure can be found from the Cabinet Committee on Infrastructure (http://pib.nic.in/newsite/erelease.aspx?relid=80634)
See table in Annexure 1.
What do these mean?
Overturning
the very purpose of the new Act
the very purpose of the new Act
The raison de etre of
the new Act was the blatant injustice to farmers and others dependent on land
in the process of land acquisition. In that sense, there were a few provisions
that were at the core of the popular demands which got reflected in the new
Act.
the new Act was the blatant injustice to farmers and others dependent on land
in the process of land acquisition. In that sense, there were a few provisions
that were at the core of the popular demands which got reflected in the new
Act.
Firstly, the Act, for the first time responded to the public
outcry over the arbitrariness involved in the unexplained term ‘public
purpose’. Many battles have been waged on this issue. Hence, the term public
purpose, in this Act, was applied to explicitly stated items (in Section 2),
which were:
outcry over the arbitrariness involved in the unexplained term ‘public
purpose’. Many battles have been waged on this issue. Hence, the term public
purpose, in this Act, was applied to explicitly stated items (in Section 2),
which were:
Box 1 ‘Public purpose’
projects exempt from consent and SIA requirements
projects exempt from consent and SIA requirements
|
a) For strategic purposes
relating to naval, military, air force, and the 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; or b) For infrastructure
projects, which includes the following, namely: – 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)
Projects 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; vi)
Project for sports, health care, tourism, transportation or 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; c) Project for project
affected families; d) Project for housing for
such income groups, as may be specified from time to time 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 fro 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. |
Although these cover vast areas with broad brush strokes, it is
nonetheless a beginning. But more on this later.
nonetheless a beginning. But more on this later.
Secondly, ‘prior and informed consent’ and Social Impact
Assessment (SIA) became mandatory elements for all projects not covered under
the ‘public purpose’ rubric. The eminent domain powers in the Act of 1894 made
the government undertake land acquisitions without any form of consultation
with the people who were to be displaced. The new Act therefore introduced the
consent requirement, albeit with a caveat. The consent requirement was
necessary for PPPs where the ownership of the land continues to vest with the
government, and private companies with a public purpose. It was, however, not
applicable to public sector undertakings and for ‘public purpose’ (mentioned
above). Gram sabha consent was also introduced for the first time in this Act,
along with the introduction of a new category called ‘affected families’, i.e. consent,
not only of land owners only, but all such families that derived their sources
of livelihood/income, directly or indirectly, from the said land. In other
words, the participation of the people and their voice in ‘development’ was
legislated.
Assessment (SIA) became mandatory elements for all projects not covered under
the ‘public purpose’ rubric. The eminent domain powers in the Act of 1894 made
the government undertake land acquisitions without any form of consultation
with the people who were to be displaced. The new Act therefore introduced the
consent requirement, albeit with a caveat. The consent requirement was
necessary for PPPs where the ownership of the land continues to vest with the
government, and private companies with a public purpose. It was, however, not
applicable to public sector undertakings and for ‘public purpose’ (mentioned
above). Gram sabha consent was also introduced for the first time in this Act,
along with the introduction of a new category called ‘affected families’, i.e. consent,
not only of land owners only, but all such families that derived their sources
of livelihood/income, directly or indirectly, from the said land. In other
words, the participation of the people and their voice in ‘development’ was
legislated.
Along with this, there was also the requirement of a Social Impact
Assessment for all projects which mandated the consent requirement. The SIA was
introduced with the objectives of ascertaining the impacts of the project on
the area, its environment and ecology, on the natural resources of the area,
and on the people residing therein, the extent of livelihood generation for the
local population (to be displaced from land-based occupations), and whether the
land being acquired was absolutely the minimum requirement for the project. Moreover,
such an exercise would also help to ascertain the number of ‘affected families’.
Assessment for all projects which mandated the consent requirement. The SIA was
introduced with the objectives of ascertaining the impacts of the project on
the area, its environment and ecology, on the natural resources of the area,
and on the people residing therein, the extent of livelihood generation for the
local population (to be displaced from land-based occupations), and whether the
land being acquired was absolutely the minimum requirement for the project. Moreover,
such an exercise would also help to ascertain the number of ‘affected families’.
Two of these most crucial elements of the new Act stand amended by
the Ordinance. Amendment 3(i) of the ordinance does away with both these
requirements i.e. consent and SIA, for “private hospitals and private
educational institutions” (which were earlier not exempt from these
provisions). 3(ii) exempts projects listed in section 10 A which is newly
introduced. Section 10A is part of a new chapter, III A, which is essentially a
listing of projects which will be exempt from the provisions of consent and SIA
over and above those contained within the definition of ‘public purpose’ (Box
1). The list of projects which are covered by the ‘consent’ and SIA requirement
would be shorter that the one exempting projects from them!! The new exemptions
include:
the Ordinance. Amendment 3(i) of the ordinance does away with both these
requirements i.e. consent and SIA, for “private hospitals and private
educational institutions” (which were earlier not exempt from these
provisions). 3(ii) exempts projects listed in section 10 A which is newly
introduced. Section 10A is part of a new chapter, III A, which is essentially a
listing of projects which will be exempt from the provisions of consent and SIA
over and above those contained within the definition of ‘public purpose’ (Box
1). The list of projects which are covered by the ‘consent’ and SIA requirement
would be shorter that the one exempting projects from them!! The new exemptions
include:
Box 2 Section 10(A) of
Chapter III A of the Ordinance exempting further areas from consent and SIA
requirements
Chapter III A of the Ordinance exempting further areas from consent and SIA
requirements
|
a)
Such projects vital to national security or defence of India and every part thereof, including preparation for defence; or defence production; b)
Rural infrastructure including electrification; c)
Affordable housing and housing for the poor people; d)
Industrial corridors; and e)
Infrastructure and social infrastructure projects including projects under public private partnership where the ownership of land continues to vest with the Government. |
The struggle over inclusion of the definition of ‘public purpose’
thus stands negated. This is a regressive step and dangerous in its
implications – for livelihoods, for farm-displaced and low or semi-skilled
workers, for foodgrain production and food security. The above items are also
exempt from the ‘measures to safeguard food security’ viz. the prohibition on
acquisition of multi cropped irrigated land except in “rare and demonstrably
unavoidable circumstances”.
thus stands negated. This is a regressive step and dangerous in its
implications – for livelihoods, for farm-displaced and low or semi-skilled
workers, for foodgrain production and food security. The above items are also
exempt from the ‘measures to safeguard food security’ viz. the prohibition on
acquisition of multi cropped irrigated land except in “rare and demonstrably
unavoidable circumstances”.
At another level, it poses serious threat to the socio-economic
fabric of the country. Land / private property have not been granted the status
of fundamental right as in other countries. Eminent Domain powers were a
colonial imposition for exploitative use of land by the colonial power. The retention
of eminent domain powers was to safeguard society
from the pitfalls of zamindari system
that was prevalent in India till land reforms were initiated by the
post-independent state. In other words, the eminent domain powers were granted
to the state to be used on the side of the poor and marginalised, the last
among the least[4]. The history of the
implementation of the LAQ in post-independent India has been anything but. The
LARR 2013 was thus a correction of a wrong (although it does not do away with
the eminent domain powers of the state). The Ordinance is reversing this and
moving towards facilitating the transfer of and consolidation of massive
amounts of land in the hands of a few corporate / industrial houses and big
industrialists.
fabric of the country. Land / private property have not been granted the status
of fundamental right as in other countries. Eminent Domain powers were a
colonial imposition for exploitative use of land by the colonial power. The retention
of eminent domain powers was to safeguard society
from the pitfalls of zamindari system
that was prevalent in India till land reforms were initiated by the
post-independent state. In other words, the eminent domain powers were granted
to the state to be used on the side of the poor and marginalised, the last
among the least[4]. The history of the
implementation of the LAQ in post-independent India has been anything but. The
LARR 2013 was thus a correction of a wrong (although it does not do away with
the eminent domain powers of the state). The Ordinance is reversing this and
moving towards facilitating the transfer of and consolidation of massive
amounts of land in the hands of a few corporate / industrial houses and big
industrialists.
Likewise ‘Consent’ and SIA were achievements of decades of
struggle by farmers, people’s organisations, social movements. Removing these
eases the road for corporate houses and big industry. Again, the terms here
e.g. ‘projects vital to national security or defence of India’ or ‘rural
infrastructure’ or ‘affordable housing’ are fluid and lend themselves to flexible
interpretations to suit then current convenience. Food shortages can also
endanger national security. Ports are also vital for the defence of India. Which
can be included and which can be exempt? This will perforce have to be decided
by the judiciary. Which will take 10, 15, 20 years. Perhaps more. In effect, a
zero-sum game for big industry with deep pockets.
struggle by farmers, people’s organisations, social movements. Removing these
eases the road for corporate houses and big industry. Again, the terms here
e.g. ‘projects vital to national security or defence of India’ or ‘rural
infrastructure’ or ‘affordable housing’ are fluid and lend themselves to flexible
interpretations to suit then current convenience. Food shortages can also
endanger national security. Ports are also vital for the defence of India. Which
can be included and which can be exempt? This will perforce have to be decided
by the judiciary. Which will take 10, 15, 20 years. Perhaps more. In effect, a
zero-sum game for big industry with deep pockets.
New element in the Ordinance
The Ordinance has added one new aspect viz. substituting the words
‘private company’ in the Act with ‘private entity’. This new term, ‘private
entity’, has been defined as: “any entity other than a Government entity or
undertaking and includes a proprietorship, partnership, company, corporation,
non-profit organisation or other entity under any law for the time being in
force” (Section 3(ii)(yy)).
‘private company’ in the Act with ‘private entity’. This new term, ‘private
entity’, has been defined as: “any entity other than a Government entity or
undertaking and includes a proprietorship, partnership, company, corporation,
non-profit organisation or other entity under any law for the time being in
force” (Section 3(ii)(yy)).
The government’s power to acquire land was restricted, earlier, to
companies registered under the Companies Act. This amendment removes this
restriction and empowers the government to acquire it for anyone or anything as
per its will, choice or discretion, including an individual (this has not been
spelt out explicitly but is implied). This level of arbitrariness was perhaps
not there even in the LAQ 1894. This must be looked at in conjunction with the
changes in the definition of Company introduced in the new Companies Act, 2013
(see Annexure 3). There is an addition here: one-person company, private
company, small company and dormant company. In other words, the employment
potential of the upcoming industry had to be weighed against the displacement
of the residents from agriculture or any other land-based occupations. This
limitation is now removed and land can now be acquired even for a business
establishment employing 1 person!!
companies registered under the Companies Act. This amendment removes this
restriction and empowers the government to acquire it for anyone or anything as
per its will, choice or discretion, including an individual (this has not been
spelt out explicitly but is implied). This level of arbitrariness was perhaps
not there even in the LAQ 1894. This must be looked at in conjunction with the
changes in the definition of Company introduced in the new Companies Act, 2013
(see Annexure 3). There is an addition here: one-person company, private
company, small company and dormant company. In other words, the employment
potential of the upcoming industry had to be weighed against the displacement
of the residents from agriculture or any other land-based occupations. This
limitation is now removed and land can now be acquired even for a business
establishment employing 1 person!!
Removing / altering clauses in
LARR 2013
LARR 2013
Section
24 (2) stipulated that in cases where land had been acquired under the
provisions of LAQ 1894 but physical possession had not been taken or
compensation had not been paid, then the proceedings were to be deemed to have
lapsed and the matter would have to be started afresh under the provisions of
this Act. The Ordinance amends this provision by adding a proviso which
essentially means that any delay on account of litigation (court mandated stay
or injunction), or where the compensation amount lies unclaimed in the court,
then such period will not be factored into the computation of the period of
limitation.
24 (2) stipulated that in cases where land had been acquired under the
provisions of LAQ 1894 but physical possession had not been taken or
compensation had not been paid, then the proceedings were to be deemed to have
lapsed and the matter would have to be started afresh under the provisions of
this Act. The Ordinance amends this provision by adding a proviso which
essentially means that any delay on account of litigation (court mandated stay
or injunction), or where the compensation amount lies unclaimed in the court,
then such period will not be factored into the computation of the period of
limitation.
Section
87 stipulated when and under what conditions a government officer
could be held guilty and proceeded against in a court of law. It removed the
earlier constraint, viz. “the previous sanction of the appropriate Government”
and would therefore act as a deterrent to bureaucrat-businessman nexus which
was always detrimental to farmers’ interests. This section has been amended by
the Ordinance and restores the previous limitation of government sanction for
prosecution of a government employee.
87 stipulated when and under what conditions a government officer
could be held guilty and proceeded against in a court of law. It removed the
earlier constraint, viz. “the previous sanction of the appropriate Government”
and would therefore act as a deterrent to bureaucrat-businessman nexus which
was always detrimental to farmers’ interests. This section has been amended by
the Ordinance and restores the previous limitation of government sanction for
prosecution of a government employee.
Section
101 stipulated that any land acquired but remaining unutilised for a
period of 5 years from the date of possession would revert back to the original
owner/s or their heirs or to the Land Bank of the government. The amendment has
substituted the words “a period of 5 years” by the words “a period specified
for setting up of any project or for five years, whichever is later”. This is
another major concession to the corporate lobby. The original stipulation was
to remedy the situation where land was acquired without any work being carried
out on it, and farmers rendered landless and jobless, and having to contend
with the fact of their land having appreciated ten or twenty fold since
acquisition and feeling cheated out of their due. The amendment again brings in
arbitrariness in acquisition and holding. The project proponent may stipulate a
longer duration (say 10 or 20 years) for setting up of a project and retain the
land (most often for speculation). This is a draconian provision which will
return India to a state of oligarchy and zamindari
under a new socio-economic dispensation with a new set of zamindars.
101 stipulated that any land acquired but remaining unutilised for a
period of 5 years from the date of possession would revert back to the original
owner/s or their heirs or to the Land Bank of the government. The amendment has
substituted the words “a period of 5 years” by the words “a period specified
for setting up of any project or for five years, whichever is later”. This is
another major concession to the corporate lobby. The original stipulation was
to remedy the situation where land was acquired without any work being carried
out on it, and farmers rendered landless and jobless, and having to contend
with the fact of their land having appreciated ten or twenty fold since
acquisition and feeling cheated out of their due. The amendment again brings in
arbitrariness in acquisition and holding. The project proponent may stipulate a
longer duration (say 10 or 20 years) for setting up of a project and retain the
land (most often for speculation). This is a draconian provision which will
return India to a state of oligarchy and zamindari
under a new socio-economic dispensation with a new set of zamindars.
Section
105 (3) stipulated that in cases of land acquisition (acquired under the
provision of LAQ 1894) where compensation was pending or possession had not
been taken, compensation and R&R provisions as per LARR 2013 had to be made
applicable to all enactments listed in the Fourth Schedule[5] of
the Act within 1 year from the date of commencement of this Act, i.e. by
September 2014. The ordinance has extended this limit to 1st January
2015.
105 (3) stipulated that in cases of land acquisition (acquired under the
provision of LAQ 1894) where compensation was pending or possession had not
been taken, compensation and R&R provisions as per LARR 2013 had to be made
applicable to all enactments listed in the Fourth Schedule[5] of
the Act within 1 year from the date of commencement of this Act, i.e. by
September 2014. The ordinance has extended this limit to 1st January
2015.
Section
105 (4) which mandated that any notification pertaining to compensation
and R&R applicable to the enactments in the Fourth Schedule would have to
be tabled (as a draft) in each House of Parliament, would have to be passed by
them and only such notification as has been passed (with modifications) may be
issued and if not passed, then would not be issued. This section has been
omitted in its entirety by the Ordinance. This means that R&R and
compensation matters, the source of much heartburn, had to be transparent and
open. The deletion of this clause means that these would not be brought before
the Houses of Parliament and may be legislated through GRs. How are people to
know about these matters? RTI queries are routinely scuttled under one pretext
or the other. The word ‘Transparency’ in the title of the Act is thus
completely negated.
105 (4) which mandated that any notification pertaining to compensation
and R&R applicable to the enactments in the Fourth Schedule would have to
be tabled (as a draft) in each House of Parliament, would have to be passed by
them and only such notification as has been passed (with modifications) may be
issued and if not passed, then would not be issued. This section has been
omitted in its entirety by the Ordinance. This means that R&R and
compensation matters, the source of much heartburn, had to be transparent and
open. The deletion of this clause means that these would not be brought before
the Houses of Parliament and may be legislated through GRs. How are people to
know about these matters? RTI queries are routinely scuttled under one pretext
or the other. The word ‘Transparency’ in the title of the Act is thus
completely negated.
This last issue, legislation and governance through GRs, is
important to understand for the implications for democracy and transparency. ‘Governance
through GRs’ was an indispensable part of the ‘Gujarat Model of Development’,
now going national. Important policy related issues were routinely dealt with
through GRs instead of being tabled in the Assembly and being debated there. Elections,
elected representatives, opposition party were all systematically sidelined and
made redundant. ‘Governance through Ordinance’ is but an imitation of this
tried and tested method. 6 months, by when the Ordinance will have to be put
before the Houses of Parliament, is a long time for any and all kinds of
political deals. Unless the people make their voices heard loud and clear. So
far, it is one court that the politicians do fear.
important to understand for the implications for democracy and transparency. ‘Governance
through GRs’ was an indispensable part of the ‘Gujarat Model of Development’,
now going national. Important policy related issues were routinely dealt with
through GRs instead of being tabled in the Assembly and being debated there. Elections,
elected representatives, opposition party were all systematically sidelined and
made redundant. ‘Governance through Ordinance’ is but an imitation of this
tried and tested method. 6 months, by when the Ordinance will have to be put
before the Houses of Parliament, is a long time for any and all kinds of
political deals. Unless the people make their voices heard loud and clear. So
far, it is one court that the politicians do fear.
Suppression
of civil liberties
of civil liberties
Whenever such draconian provisions to existing laws are made, it
is imperative that they be challenged publicly by the people by voicing their
dissent, in a non-violent manner and within the bounds of law. However, in
recent times, the state, through its law and order machinery, has been coming
down heavily on such public forms of protest, at least in Gujarat. Although no
violence has been committed by the state the voice of dissent and protest has
been successfully stymied. The routine methods of doing so are: a) denial of
permission by the police for peaceful protests; b) holding activists and
leaders into preventive detention of 24 – 72 hours; c) arrests of activists and
leaders and court cases on them; and, d) routine visits and phone calls by LIB,
IB officials to activists and leaders (as a means of intimidation). In such an
atmosphere organising and leading protest programmes becomes difficult and
dissent is successfully silenced. Suppression of civil liberties is thus
another method for furthering the neo-liberal agenda.
is imperative that they be challenged publicly by the people by voicing their
dissent, in a non-violent manner and within the bounds of law. However, in
recent times, the state, through its law and order machinery, has been coming
down heavily on such public forms of protest, at least in Gujarat. Although no
violence has been committed by the state the voice of dissent and protest has
been successfully stymied. The routine methods of doing so are: a) denial of
permission by the police for peaceful protests; b) holding activists and
leaders into preventive detention of 24 – 72 hours; c) arrests of activists and
leaders and court cases on them; and, d) routine visits and phone calls by LIB,
IB officials to activists and leaders (as a means of intimidation). In such an
atmosphere organising and leading protest programmes becomes difficult and
dissent is successfully silenced. Suppression of civil liberties is thus
another method for furthering the neo-liberal agenda.
Conclusion
The amendments in the Ordinance have, at the stroke of a pen,
decimated the achievements of decades of hard struggle by adivasis, farmers,
people’s movements against injustice in land acquisition. All amendments, it is
clear, are to the benefit of the corporate lobby and are farm-unfriendly. 18
industrial corridors all over the country, which will take away land from a
majority of farmers of the country, being exempted from the provisions of this
Act reveals the anti-farm, anti-people attitude of the government. All farmers
in the DMIC route falling in Gujarat (covering 18 districts and 60% of its
land) will be adversely affected by these amendments. Incidentally,
the new amendments, by and large, remain true to the demands voiced by the
Revenue Ministers of the states (Annexure 2).
decimated the achievements of decades of hard struggle by adivasis, farmers,
people’s movements against injustice in land acquisition. All amendments, it is
clear, are to the benefit of the corporate lobby and are farm-unfriendly. 18
industrial corridors all over the country, which will take away land from a
majority of farmers of the country, being exempted from the provisions of this
Act reveals the anti-farm, anti-people attitude of the government. All farmers
in the DMIC route falling in Gujarat (covering 18 districts and 60% of its
land) will be adversely affected by these amendments. Incidentally,
the new amendments, by and large, remain true to the demands voiced by the
Revenue Ministers of the states (Annexure 2).
However,
it is not that farmers are the only large group coming for severe punishment.
Labour laws are also slated for amendment. While it is not clear what they will
be, given the anti-people or pro-management attitude so far displayed, they
will certainly not benefit the labourers. Dismal as the scenario seems, these
amendments could yet prove to be an opportunity to bring together two huge
labouring classes of our society viz. farmers (rural) and industrial labourers
(urban). It could be a moment of reckoning.
it is not that farmers are the only large group coming for severe punishment.
Labour laws are also slated for amendment. While it is not clear what they will
be, given the anti-people or pro-management attitude so far displayed, they
will certainly not benefit the labourers. Dismal as the scenario seems, these
amendments could yet prove to be an opportunity to bring together two huge
labouring classes of our society viz. farmers (rural) and industrial labourers
(urban). It could be a moment of reckoning.
[1] Persis
Ginwalla is a development sector professional and an activist with Jameen
Adhikar Andolan Gujarat (JAAG), Ahmedabad.
Ginwalla is a development sector professional and an activist with Jameen
Adhikar Andolan Gujarat (JAAG), Ahmedabad.
[2] Sagar
Rabari is an activist associated with the land rights struggles in Gujarat and
India and is Secretary, Khedut Samaj – Gujarat, Ahmedabad.
Rabari is an activist associated with the land rights struggles in Gujarat and
India and is Secretary, Khedut Samaj – Gujarat, Ahmedabad.
[3] The Conference of
State Revenue Ministers was held on 27th June, 2014 at Vigyan Bhavan
under the Chairpersonship of Hon’ble Minister of Rural Development Shri Nitin
Gadkari. Altogether 32 States and Union Territories participated. 12 States/UT
namely, Assam, Chhattisgarh, Delhi, Goa, Himachal Pradesh, Karnataka, Kerala,
Madhya Pradesh, Maharashtra, Meghalaya, Tamil Nadu and Telangana were
represented by their Lt. Governor / State Deputy Chief Minister in-charge
Revenue / Revenue Ministers / Rural development Minister; the reset were
represented by their Principal Secretaries / Secretaries. The States of
Arunachal Pradesh, Mizoram, Nagaland and Sikkim did not attend the Conference.
State Revenue Ministers was held on 27th June, 2014 at Vigyan Bhavan
under the Chairpersonship of Hon’ble Minister of Rural Development Shri Nitin
Gadkari. Altogether 32 States and Union Territories participated. 12 States/UT
namely, Assam, Chhattisgarh, Delhi, Goa, Himachal Pradesh, Karnataka, Kerala,
Madhya Pradesh, Maharashtra, Meghalaya, Tamil Nadu and Telangana were
represented by their Lt. Governor / State Deputy Chief Minister in-charge
Revenue / Revenue Ministers / Rural development Minister; the reset were
represented by their Principal Secretaries / Secretaries. The States of
Arunachal Pradesh, Mizoram, Nagaland and Sikkim did not attend the Conference.
[4] “…right
of eminent domain of the State (is) … merely an assertion that natural wealth
belongs to the people, to the State” (K. T. Shah, in CONSTITUENT ASSEMBLY OF
INDIA DEBATES (PROCEEDINGS), Vol. VII, 9th December, 1948)
of eminent domain of the State (is) … merely an assertion that natural wealth
belongs to the people, to the State” (K. T. Shah, in CONSTITUENT ASSEMBLY OF
INDIA DEBATES (PROCEEDINGS), Vol. VII, 9th December, 1948)
[5] Viz.
the Ancient Monuments and Archeological Sites and Remains Act, 1958 (24 of
1958); the Atomic Energy Act, 1962 (33 of 1962); the Damodar Valley Corporation
Act, 1948 (14 of 1948); the Indian Tramways Act, 1886 (11 of 1886); the Land
Acquisition (Mines) Act, 1885 (18 of 1885); the Metro Railways (Construction of
Works) Act, 1978 (33 of 1978); the National Highways Act, 1956 (48 of 1956);
the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land)
Act, 1962 (50 of 1962); the Requisitioning and Acquisition of Immovable
Property Act, 1952 (30 of 1952); the Resettlement of Displaced Persons (Land
Acquisition) Act, 1948 (60 of 1948); the Coal Bearing Areas Acquisition and
Development Act, 1957 (20 of 1957); the Electricity Act, 2003 (36 of 2003); and
the Railways Act, 1989 (24 of 1989).
the Ancient Monuments and Archeological Sites and Remains Act, 1958 (24 of
1958); the Atomic Energy Act, 1962 (33 of 1962); the Damodar Valley Corporation
Act, 1948 (14 of 1948); the Indian Tramways Act, 1886 (11 of 1886); the Land
Acquisition (Mines) Act, 1885 (18 of 1885); the Metro Railways (Construction of
Works) Act, 1978 (33 of 1978); the National Highways Act, 1956 (48 of 1956);
the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land)
Act, 1962 (50 of 1962); the Requisitioning and Acquisition of Immovable
Property Act, 1952 (30 of 1952); the Resettlement of Displaced Persons (Land
Acquisition) Act, 1948 (60 of 1948); the Coal Bearing Areas Acquisition and
Development Act, 1957 (20 of 1957); the Electricity Act, 2003 (36 of 2003); and
the Railways Act, 1989 (24 of 1989).
Annexure
1
1
Master List of Infrastructure sub-sectors
|
Sl.No.
|
Category
|
Infrastructure
sub-sectors |
|
1.
|
Transport
|
Roads and bridges
Ports
Inland Waterways
Airport
Railway Track, tunnels, viaducts, bridges1
Urban Public Transport (except rolling stock in case
of urban road transport) |
|
2.
|
Energy
|
Electricity Generation
Electricity Transmission
Electricity Distribution
Oil pipelines
Oil/Gas/Liquefied Natural Gas (LNG) storage facility2
Gas pipelines3
|
|
3.
|
Water Sanitation
|
Solid Waste Management
Water supply pipelines
Water treatment plants
Sewage collection, treatment and disposal system
Irrigation (dams, channels, embankments etc)
Storm Water Drainage System
|
|
4.
|
Communication
|
Telecommunication (fixed network)4
Telecommunication towers
|
|
5.
|
Social and Commercial Infrastructure
|
Education Institutions (capital stock)
Hospitals (capital stock)5
Three-star or higher category classified hotels
located outside cities with population of more than one million Common infrastructure for industrial parks, SEZ,
tourism facilities and agriculture markets Fertilizer (Capital investment)
Post harvest storage infrastructure for agriculture
and horticultural produce including cold storage Terminal markets
Soil-testing laboratories
Cold Chain6
|
1. Includes
supporting terminal
supporting terminal
2. Includes
strategic storage of crude oil
strategic storage of crude oil
3. Includes city
gas distribution network
gas distribution network
4. Includes optic
fibre/cable networks which provide broadband / internet
fibre/cable networks which provide broadband / internet
5. Includes Medical
Colleges, Para Medical Training Institutes and Diagnostics Centres
Colleges, Para Medical Training Institutes and Diagnostics Centres
6. Includes cold
room facility for farm level pre-cooling, for preservation or storage of
agriculture and allied produce, marine products and meat.
room facility for farm level pre-cooling, for preservation or storage of
agriculture and allied produce, marine products and meat.
Annexure
2
2
The
Conference of State Revenue Ministers
Conference of State Revenue Ministers
The Conference of State
Revenue Ministers was held on 27th June, 2014 at Vigyan Bhavan under
the Chairpersonship of Hon’ble Minister of Rural Development Shri Nitin
Gadkari. Altogether 32 States and Union Territories participated. 12 States/UT
namely, Assam, Chhattisgarh, Delhi, Goa, Himachal Pradesh, Karnataka, Kerala,
Madhya Pradesh, Maharashtra, Meghalaya, Tamil Nadu and Telangana were
represented by their Lt. Governor / State Deputy Chief Minister in-charge
Revenue / Revenue Ministers / Rural development Minister; the reset were
represented by their Principal Secretaries / Secretaries. The States of
Arunachal Pradesh, Mizoram, Nagaland and Sikkim did not attend the Conference.
Revenue Ministers was held on 27th June, 2014 at Vigyan Bhavan under
the Chairpersonship of Hon’ble Minister of Rural Development Shri Nitin
Gadkari. Altogether 32 States and Union Territories participated. 12 States/UT
namely, Assam, Chhattisgarh, Delhi, Goa, Himachal Pradesh, Karnataka, Kerala,
Madhya Pradesh, Maharashtra, Meghalaya, Tamil Nadu and Telangana were
represented by their Lt. Governor / State Deputy Chief Minister in-charge
Revenue / Revenue Ministers / Rural development Minister; the reset were
represented by their Principal Secretaries / Secretaries. The States of
Arunachal Pradesh, Mizoram, Nagaland and Sikkim did not attend the Conference.
A summary of the suggestions
on the Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement (RFCTLARR) Act, 2013 made during the Conference
of State Revenue Ministers is as follows:
on the Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement (RFCTLARR) Act, 2013 made during the Conference
of State Revenue Ministers is as follows:
§ The Consent Clause [Section 2(2)] should be
re-examined, as ownership of land vests with the Government in PPP projects.
The Consent clause should be removed from PPP projects. Alternatively, consent
requirement may be brought down to 50%.
re-examined, as ownership of land vests with the Government in PPP projects.
The Consent clause should be removed from PPP projects. Alternatively, consent
requirement may be brought down to 50%.
§ Definition of ‘affected family [Section 3(c)]
needs to be re-examined as it is very elaborate and includes ‘livelihood
losers’ working in the affected area for three years prior to acquisition of
land and whose primary source of livelihood is affected. The Act provides for
R&R benefits to the affected families. Hence, the provision is likely to be
misused in the absence of clear criteria for determination of affected
families.
needs to be re-examined as it is very elaborate and includes ‘livelihood
losers’ working in the affected area for three years prior to acquisition of
land and whose primary source of livelihood is affected. The Act provides for
R&R benefits to the affected families. Hence, the provision is likely to be
misused in the absence of clear criteria for determination of affected
families.
§
Posers of
‘Appropriate Government’ [Section 3(e)] which are with the Central Government
should be delegated to the Union Territories.
Posers of
‘Appropriate Government’ [Section 3(e)] which are with the Central Government
should be delegated to the Union Territories.
§
Mandatory
Social Impact Assessment study (Sections 4 to 9) should be done away with, SIA
should be confined to large projects/PPP Projects as it may delay the
acquisition process.
Mandatory
Social Impact Assessment study (Sections 4 to 9) should be done away with, SIA
should be confined to large projects/PPP Projects as it may delay the
acquisition process.
§
The
provision to safeguard food security (Section 10) by development of ‘culturable
wastelands’ in lieu of acquisition of ‘multi-cropped irrigated land’ needs to
be amended as States like Delhi, Goa, Himachal Pradesh and Uttarakhand do not
have any wasteland for the purpose.
The
provision to safeguard food security (Section 10) by development of ‘culturable
wastelands’ in lieu of acquisition of ‘multi-cropped irrigated land’ needs to
be amended as States like Delhi, Goa, Himachal Pradesh and Uttarakhand do not
have any wasteland for the purpose.
§
The
Retrospective clause (Section 24) which stipulates that land acquisition
proceedings would lapse in case compensation is not paid or physical possession
is not taken should be modified. Payment of compensation as per New Act to the
persons specified in Section 4 notification under old Act leads to increased
burden on the State exchequer. The provisions of Section 24 need to be amended
as it is leading to litigations.
The
Retrospective clause (Section 24) which stipulates that land acquisition
proceedings would lapse in case compensation is not paid or physical possession
is not taken should be modified. Payment of compensation as per New Act to the
persons specified in Section 4 notification under old Act leads to increased
burden on the State exchequer. The provisions of Section 24 need to be amended
as it is leading to litigations.
§
The
litigation period or period of stay / injunction should be excluded while
calculating the prescribed time limits for completing various proceedings under
the Act a.g. Section 24(2), Section 25.
The
litigation period or period of stay / injunction should be excluded while
calculating the prescribed time limits for completing various proceedings under
the Act a.g. Section 24(2), Section 25.
§
Section 26
should be re-examined as determination of market price of land based on
‘agreements to sell’ will lead to speculation in land prices. As such, at
present the compensation paid is higher than market value in Himachal Pradesh,
Lakshadweep, Kerala etc.
Section 26
should be re-examined as determination of market price of land based on
‘agreements to sell’ will lead to speculation in land prices. As such, at
present the compensation paid is higher than market value in Himachal Pradesh,
Lakshadweep, Kerala etc.
§
In Section
30(3), the date from which an amount of 12% of market value is to be given,
should be calculated from date of preliminary notification under Section 11 and
not from Section 4 notification which deals with SIA study as stipulated in the
Act presently. It also contravenes the Section 69(2) of the New Act which deals
with determination of Award by authority and stipulates calculation of 12% of
market value from date of preliminary notification under Section 11.
In Section
30(3), the date from which an amount of 12% of market value is to be given,
should be calculated from date of preliminary notification under Section 11 and
not from Section 4 notification which deals with SIA study as stipulated in the
Act presently. It also contravenes the Section 69(2) of the New Act which deals
with determination of Award by authority and stipulates calculation of 12% of
market value from date of preliminary notification under Section 11.
§
Under the
Urgency Clause (Section 40), the powers to determine ‘any other emergency’
should also be exercised by the State Government. At present, urgency clause is
restricted to ‘the Defence of India or National Security or for any other
emergency arising out of natural calamity or any other emergency with the
approval of Parliament’.
Under the
Urgency Clause (Section 40), the powers to determine ‘any other emergency’
should also be exercised by the State Government. At present, urgency clause is
restricted to ‘the Defence of India or National Security or for any other
emergency arising out of natural calamity or any other emergency with the
approval of Parliament’.
§
Section 46
stipulating R&R obligation in case of private purchase beyond limits
specified by the State Government should be deleted.
Section 46
stipulating R&R obligation in case of private purchase beyond limits
specified by the State Government should be deleted.
§
The
jurisdiction of Authority (Section 51) should be restricted to dispute
resolution only and not be on determination of award.
The
jurisdiction of Authority (Section 51) should be restricted to dispute
resolution only and not be on determination of award.
§
Penalty
Provisions (Sections 84-90) including imprisonment of 6 months extendable to 3
years or with fine of with both for the Government Servants are too stringent
and may lead to harassment of civil servants.
Penalty
Provisions (Sections 84-90) including imprisonment of 6 months extendable to 3
years or with fine of with both for the Government Servants are too stringent
and may lead to harassment of civil servants.
§
Section
101 dealing with return of unutilised land to the original land owners or heirs
should be deleted.
Section
101 dealing with return of unutilised land to the original land owners or heirs
should be deleted.
§
The clause
specifying sharing of 40% enhanced cost with original land owners (Section 102)
when the land is transferred on higher consideration should be deleted as it
leads to disputes.
The clause
specifying sharing of 40% enhanced cost with original land owners (Section 102)
when the land is transferred on higher consideration should be deleted as it
leads to disputes.
§
Under
Section 104 of the Act, a formula for calculating ‘lease amount’ may be given,
as a formula has been prescribed for calculating compensation value.
Under
Section 104 of the Act, a formula for calculating ‘lease amount’ may be given,
as a formula has been prescribed for calculating compensation value.
§
There
should be threshold for R&R entitlements in Second Schedule and
infrastructural amenities in Third Schedule.
There
should be threshold for R&R entitlements in Second Schedule and
infrastructural amenities in Third Schedule.
§
Under
Second Schedule, the provision of ‘land for land’ should be re-examined.
Under
Second Schedule, the provision of ‘land for land’ should be re-examined.
§ State Specific Acts dealing with land
acquisition should be included in the Fourth Schedule exempting the enlisted
Acts from provisions of the New Act.
acquisition should be included in the Fourth Schedule exempting the enlisted
Acts from provisions of the New Act.
Annexure
3
3
Definitions
and changes introduced in the Companies Act 2013
and changes introduced in the Companies Act 2013
1.1 One-person company: The
2013 Act introduces a new type of entity to the existing list i.e. apart from
forming a public or private limited company, the 2013 Act enables the formation
of a new entity a ‘one-person company’ (OPC). An OPC means a company with only
one person as its member [section 3(1) of 2013 Act].
2013 Act introduces a new type of entity to the existing list i.e. apart from
forming a public or private limited company, the 2013 Act enables the formation
of a new entity a ‘one-person company’ (OPC). An OPC means a company with only
one person as its member [section 3(1) of 2013 Act].
1.2. Private company: The 2013 Act introduces a change in the definition
for a private company, inter-alia, the new requirement increases the limit of
the number of members from 50 to 200. [section 2(68) of 2013 Act].
for a private company, inter-alia, the new requirement increases the limit of
the number of members from 50 to 200. [section 2(68) of 2013 Act].
1.3. Small company: A small company has been defined as a company,
other than a public company.
other than a public company.
(i) Paid-up share
capital of which does not exceed 50 lakh INR or such higher amount as may be
prescribed which shall not be more than five crore INR
capital of which does not exceed 50 lakh INR or such higher amount as may be
prescribed which shall not be more than five crore INR
(ii) Turnover of which
as per its last profit-and-loss account does not exceed two crore INR or such
higher amount as may be prescribed which shall not be more than 20 crore INR:
As set out in the 2013 Act, this section will not be applicable to the
following:
as per its last profit-and-loss account does not exceed two crore INR or such
higher amount as may be prescribed which shall not be more than 20 crore INR:
As set out in the 2013 Act, this section will not be applicable to the
following:
• A holding company or
a subsidiary company
a subsidiary company
• A company registered
under section 8
under section 8
• A company or body
corporate governed by any special Act [section 2(85) of 2013 Act]
corporate governed by any special Act [section 2(85) of 2013 Act]
1.4. Dormant company: The 2013 Act states that a company can be
classified as dormant when it is formed and registered under this 2013 Act for
a future project or to hold an asset or intellectual property and has no significant
accounting transaction. Such a company or an inactive one may apply to the ROC
in such manner as may be prescribed for obtaining the status of a dormant
company.[Section 455 of 2013 Act]
classified as dormant when it is formed and registered under this 2013 Act for
a future project or to hold an asset or intellectual property and has no significant
accounting transaction. Such a company or an inactive one may apply to the ROC
in such manner as may be prescribed for obtaining the status of a dormant
company.[Section 455 of 2013 Act]
(Excerpted
from Companies Act, 2013: Key Highlights and Changes, Pricewaterhouse Coopers)
from Companies Act, 2013: Key Highlights and Changes, Pricewaterhouse Coopers)
