ARADHANA BHANSALI and RUCHIT PARIKH discuss the metamorphosis of law relating to acquisition of land in India.
The Land Acquisition Act, 1894 (´Act of 1894´) was enacted by the British during their regime in India. The Act of 1894, over the past hundred years, revealed five major problems that led to widespread public discontent. First, the Act of 1894 only recognised the rights and interests of landowners and, as such, failed to take into account the interests of those who, though were not owners of the land, were nevertheless dependent on it for their livelihood. Second, the Act of 1894 contained only an inclusive definition of ´public purpose´ and courts consistently deferred to legislative determination of what constituted a public purpose. The third problem derived from the legal requirement that those deprived of their land and livelihood must be paid a fair value of the land as compensation. Fourth, the procedure involved in acquiring the land was criticised by the government for delays in acquisition and by the people for the lack of their participation in the government´s decision to acquire their land and for the delay involved in the determination and payment of compensation. The fifth problem arose on account of wide variation in various state laws in the provisions for acquisition, including the definition of public purpose, the relevant date for determination of the market value of the land, the principles for determining compensation, and the appointment of tribunals to determine the compensation and adjudicate disputes.
The massive displacement and dispossession of poor peasants and traditional communities including extensive environmental damage led to land conflicts in several states. On account of such conflicts, there were several moves for comprehensive amendment of the Act of 1894 since 2007, followed by attempts in 2011 to repeal and replace the Act of 1894, which finally paved way to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (´Land Acquisition Act´).
Land Acquisition Act
The Land Acquisition Act that came into force on and from January 1, 2014, inter alia, aims at bringing transparency to the entire process of acquisition, providing better and fair compensation and rehabilitation and resettlement facilities to landowners. Some key highlights of the Act are:
Issues in the Act
Some issues that may arise on account of the Land Acquisition Act are: òThe scope of the term ´affected family´ as defined under the Land Acquisition Act is wide, which may, in future, lead to complexities and confusion in procuring the consent of all such affected families as required under the Land Acquisition Act.
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014 The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014 (´Ordinance´) was promulgated by the President of India on December 31, 2014, in order to amend the Land Acquisition Act on the basis of the issues faced in implementing the same in its inaugural year.
The Ordinance, inter alia, provides for the following amendments:
1.National security and defence.
2.Rural infrastructure including electrification.
4.Affordable housing and housing for the poor.
5.Infrastructure and social infrastructure projects including PPPs in which the ownership of land continues to vest with the government.
The Land Acquisition Act together with the Ordinance are enacted to make developmental and security- related projects much faster without compromising on the benefits or compensation to be paid to the affected families. However, on the one hand, while doing away with the requirement of a social impact assessment and consent of the affected families with respect to certain categories of projects may lead to issues similar to those faced under the Act of 1894, on the other hand, it is imperative that at least certain categories of projects such as defence projects are permitted to be exempt from such requirements to prevent inordinate delays. The question whether the Land Acquisition Act will actually achieve the purpose for which it is enacted is something that can only be answered with the passage of time.
About the Authors:
Aradhana Bhansali, Partner, Rajani, Singhania & Partners, handles the real-estate and trust-related practice of the firm.
Ruchit Parikh is an Associate at Rajani, Singhania & Partners.