By AW Desk
A rights organization the ‘Adivasi Campaign for Human Rights’
has demanded for rejection of the Land Acquisition Ordinance enforced by the present BJP led NDA Government.
The Forum claims in its report that in order to address historic
injustices committed against mainly indigenous peoples of India under the Land
Acquisition Act of 1894, the Government of India enacted the ‘Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act 2013’ (LARRA) on 27 September, 2013 and the Rules for the
LARRA on 19 December, 20013. The present BJP led National Democratic Alliance
government introduced an ordinance on 31st December 2014 to amend the LARRA. The
Ordinance set aside the five major safeguards – social impact assessment,
mandatory consent of the affected people, provisions to safeguard food security
of the communities, punishment to the government officials and returning of utilised land to the original land owners.
These amendments effectively
reintroduced the Land Acquisition Act of 1894 and ought to be rejected for the
following reasons:
1. Social Impact
Assessment:
First major amendment was made to strike out the Social Impact
Assessment (SIA), which is one of the most important components in the ‘Right
to fair compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act 2013. The SIA is a
methodology to review the social, cultural and environmental consequences of a
development project on the affected communitiesso
that mitigation plans could be put in place in advance. The
chapter – II of the principal Act has been provided to determine the social
impact and public purpose of the project. The Social Impact Assessment study
would assess whether the proposed acquisition serves public purpose. It would
estimate affected families and the number of families among them likely to be
displaced. It would estimate the rehabilitation, resentment, requirement of
land the projects, cost benefit and overall impact of the project to the
affected people. The Social Impact Assessment study would be completed within
the period of six months from the date of its commencement. It seems that the
present central government sees the social impact assessment study as one of
the major obstacle for the mega projects.
Therefore, the Chapter IIIA
was incorporated through the ordinance, which empowers the appropriate
Government to exempt the provisions of Chapter II and III in the public
interest in five major areas – national security, rural infrastructure,
housing, industrial corridors and public private partnership projects. Thus,
there would be no social impact assessment study and mandatory consent of the
affected people, which is the assassination of the spirit of the ‘Right to fair
compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act 2013’. The displacement induced by the development projects is a
major area of concern.
It has been estimated that there
were about 60 million displaced persons/project affected persons (DPs/PAPs),
since independence to 2000[1] and as per Government sources at least
75 percent of them have not been rehabilitated[2]. The Expert Group on
Prevention of Alienation of Tribal Land and its Restoration set up by the
Government of India estimated that, of the total displaced due to development
projects, 47 per cent are tribal population[3]. The Constitutional
provisions and protective laws – Land laws, the provisions of the Panchayats
(Extension to the Scheduled Areas) Act (PESA), Forest Rights Act (FRA), etc
have special safeguards for protection of tribals’ individual and community
right to land and forest, religious identity, cultural, tradition and
self-determination.
The consequences of not complying
with the social impact assessment in land acquisition for industrial
development are vividly demonstrated in the cases of three mega development
projects – Tata Steel Ltd (TSL), Heavy Engineering Corporation (HEC) and Bokaro
Steel Ltd (BSL) in Jharkhand. The Study reveals that these projects had been
established without undertaking any social impact assessment. The DPs/PAPs
mostly the tribal people lost their identity, culture, tradition, language and
system of self governance. As per the study report, 43,925 people of 12,550
families of 24 villages were displaced by the TSL, 40,000 people of 12, 990
families of 23 villages were uprooted by the HEC and 30,095 people of 6019
families of 51 villages were displaced by BSL[4]. Presently, the DPs/PAPs
of the above projects have assimilated in the crowd of daily wage labourers,
rickshaw pullers and domestic servants.
The Comptroller and Auditor General (CAG) observed that
rehabilitation is not up to mark in the Special Economic Zone (SEZ) projects.
For instance, APIIC acquired 9287.70 acres of land (6922.29 acres of Patta
land and 2365.41 acres of Government/assigned land) during 2007-08
inAtchyutapuram, Rambilli mandals of Visakhapatnam district of Andhra Pradesh
for development of integrated SEZ. The rehabilitation pay out was proposed at
Dibbapalemand Veduruvada villages for the Project Displaced Families (PDF) and
the cost of rehabilitation package was worked out at 106.21crore. 5079
families were affected in 29 villages (15 villages in Atchyutapuram mandaland
14 villages in Rambillimandal). It was observed that only 1487 families could
be shifted to Dibbapalem till date.
Further, out of 4300 plots developed for the major married sons
of the affected people, only 3880 could be allotted. In Vedurvada too, no plots
had been allotted till date[5]. It clearly shows that
once the land is acquired, the developers never bother for the rehabilitation
of the project affected people. Secondly, the land is also acquired more than
the actual requirement for the project. For instance, 31,287.24
acres of land was acquired for the Bokaro Steel Limited, Bokaro in 1965 for
establishment of a steel plant with the capacity of 6 MT per annum. However,
merely 15221.92 acres of land was utilized for the actual purpose of the
project and rest of the land remained unutilized for years. Later on, out of
15221.92 acres unutilized land, 2246.01 acres were diverted to other government
agencies and 417.66 acres subleased illegally[6]. Therefore,
the social impact study must be undertaken in all development projects.
2. Mandatory consent of
the community:
Second major change was made
regarding the mandatory consent. It has been provided in the section 4(1) of
the Principal Act that ‘whenever the appropriate Government intends to acquire
land for a public purpose, it shall consult the concerned Panchayat,
Municipality or Municipal Corporation, as the case may be, at village level or
ward level, in the affected area[7]. Further provided that
‘the appropriate Government shall ensure that adequate representation has been
given to the representatives of Panchayat, Gram Sabha, Municipality or
Municipal Corporation’[8].
The protection provisions
provided under PESA and FRA were upheld by incorporation of Chapter IIIA. The
ordinance clearly denies the mandatory consent of the community in land
acquisition for the major projects. How can the land of farmers and Adivasis be
acquired without their consent, when the Government actively involves the
corporate sector in each and every policy formation for them? How can democracy
be so selective? Is democracy one day business in every five years for the
farmers, Adivasis and poor?
Indeed, it is a serious concern
for the states having Fifth and Sixth Scheduled areas, where the Constitutional
provisions, PESA 1996 and Land Laws prohibit the transfer of tribal land to
non-tribal, and requires their consent if their land were acquired for the
public purposes. These laws also recognized the identity, culture, custom,
tradition and rituals of the community. Similarly, the Forest Rights Act 2006
recognized the individual and community rights of the Adivasis and other forest
dwelling communities. Therefore without the mandatory consent, land cannot be
acquired. For instance, two Industrial corridors, namely Koderma – Bahragora
and Ranchi-Patratu-Ramgarh have been proposed in the Jharkhand Industrial
Policy 2012. It proposes to acquire the land of 25 KM each side of 4 laning
between Koderman and Bahragora[9]. In the proposed
industrial corridor, the major part of the land belongs to the Adivasis, who
are historically marginalized.
The Supreme Court of India in the
case of “Orissa Mining Corporation
Ltd Vs Ministry of Environment reinforced that section 4(d) of the PESA Act
1996, which provides that every Gram Sabha shall be competent to safeguard and
preserve the traditions, customs of the people, their cultural identity,
community resources and community mode of dispute resolution. Therefore, Grama
Sabha functioning under the Forest Rights Act read with Section 4(d) of PESA
Act has legal obligation to safeguard and preserve the traditions and customs
of the STs and other forest dwellers, their cultural identity, community
resources etc”[10]. Thus, the
Government can’t curtail their rights in any manner, much less through an
ordinance.
A High Level Committee on Socio-Economic, Health and Educational
Status of Tribal community of India, constituted by the Indian Government known
as ‘Xaxa Committee’ reiterates that ‘Land is the
basis of their socio-cultural and religious identity, livelihood and their very
existence. Their lives are closely interlinked with forests for food, fuel,
medicine, fodder and livelihood. Their God and guardian spirits reside in
hills, forests, groves etc. Traditionally, ownership of land was by the
community and economic activity mainly agrarian, including shifting
cultivation, which fostered egalitarian values which influenced their power
relations and organizational system. Forest and hills are the main source of
tribal identity[11].
Therefore, merely providing compensation without considering the socio-economic
conditions and consent of the community would not serve the purpose.
3. Food Security:
Third major amendment was done to strike out the special
provision to safeguard food security provided in the chapter – III of the
principal Act. The section 10(1) states, “No
irrigated multi-cropped land shall be acquired under this Act”[12]. Provided that in case of
inevitability, (3) ‘whenever multi-crop irrigated land is acquired under
sub-section (2), an equivalent area of cultivable wasteland shall be developed
for agricultural proposes or an amount equivalent to the value of the land
acquired shall be deposited with the appropriate Government for investment in
agriculture for enhancing food-security’[13]. However, the above
provisions have been struck out by the ordinance, which would create severe
food insecurity in the country precisely because its 55 percent population[14] depends on agriculture for their food
security. The experience of last two decadesindicates
the decline in both food production and yields. It has been observed that
during the period 1996-2008 as compared to the years 1986-97, the growth rate
in food grain production declined very sharply from nearly 3 percent to around
0.93 percent and the growth rate of yields in food grain also declined from
3.21 percent to 1.04 percent[15]. Therefore, the food
security cannot be compromised in any case also because there is rapid
population growth in the country.
4. Liability of government officials:
Fourth significant change made was related to
liability of the government officials committing offence under the principal Act.
In the principal Act, Section-87(i), it was provided that “Wherever an offence under this Act
has been committed by any department of the Government, the head of the
department shall be deemed guilty of the offence and shall be liable to be
proceeded against and punished accordingly”. Further Section-87(ii) states that “where any offence under this Act
has been committed by a Department of the Government and it is proved that the
offence has been committed with the consent or connivance of, or is attributable
to any neglect on the part of any officer, other than the head of the
department, such officer shall also be deemed to be guilty of that offence and
shall be liable to be proceeded against and punished accordingly”. This has
been substituted by “where an offence under this Act has been committed by any
person who is or was employed in the Central Government or the state
Government, as the case may be, at the time of commission of such alleged
offence, no court shall take cognizance of such an offence except with the
previous sanction of the appropriate Government, in the manner provided in
section 197 of the Code of Criminal Procedure”. Thus the ordinance
protects the officials who commit offence in land acquisition, rehabilitation
and resettlement.
The studies and government
sources confirm that at ‘least 75 percent of displaced people have not been
rehabilitated[16] in last 5 decades. Similarly, the CAG
observed that the rehabilitation is not up to mark in the SEZs[17], which is serious
concern. It is obvious, that the Government officials do not focus on
rehabilitation and resettlement precisely because they are neither held
accountable nor punished for the non-performance. Hence, the accountability
needs to be fixed for the achievement of the objectives of principal Act.
Therefore, the provision for punishment needs to be reinforced.
5. Returning of unutilized
land:
Fifth major amendment was done
regarding the return of unutilized land by incorporation of “substitution of
period” in the section 101 of the Act, which is again the denial of the rights
to original land owners with the clear intention to protect the corporate
interest. The section - 101 in the principal Act provides, “When any land
acquired under this Act remains unutilized for the period of five years from
the date of taking over the possession, the same shall be returned to the
original land owner or owners or their legal heirs[18]. There are many cases,
where the land was acquired under the provisions of ‘public purpose’ but
remained unutilized for years and later on some part of land was diverted
against main purpose it was acquired for. For instance, 12,708.59[19] acres of land was acquired for the
Tata Steel, Jamshedpur (Jharkhand) in 1907 but only 2163.1 acres land was used
for the actual purpose till 2005 and rest of the land remained unutilized. Out
of this, 4031.075 acres of land was illegally sub-leased[20]. 7,199.71 acres of land
was acquired for the Heavy Engineering Corporation, Ranchi in 1958 but 4,008.35
acres of land was used for the actual purpose and rest 2,910 acres of land
remained unutilized[21]. Out of it 793.68 acres
of land subleased illegally.
It seems that the ordinance was
brought with the clear intention to protect the corporate interests. Those
corporate will harvest the benefit, who have acquired huge chunk of land under
the purview of ‘public purpose’ but unable to utilize for many years and later
diverted the land for pure commercial purposes. It was proved in the CAG report
on the performance of Special Economic Zone (SEZ) 2012-13, tabled during the
winter session of the Parliament. The report reveals that the land acquired by
invoking the ‘public purpose’ under the section 6 of Land Acquisition Act 1894
didn’t serve the objectives of the SEZ Act[22].
As per the CAG report, since the
enactment of SEZ Act, 576 formal approvals of SEZ covering 60374.76 hectares
was granted in the country, out of which 392 SEZs covering 45,635.63 hectares
have been notified till March, 2014[23]. Out of 392 notified
zones, only 152 have become operational (28488.49 hectares). The land allotted
to the remaining 424 SEZs (3188.6.27 hectares, which is 52.81% of total
approved) was not put to use, even though the approvals and notifications in 54
cases date back to 2006[24].
The CAG further observed that out
of the total 392 notified SEZs, in 30 SEZs (1858.17 hectares) in Andhra
Pradesh, Maharashtra, Odisha and Gujarat, the Developers had not commenced
investments in the projects and the land had been idle in their custody for 2
to 7 years[25].
The report also reveals that only a fraction of the land so acquired was
notified for SEZ and later de-notification was also resorted to within a few
years to benefit from price appreciation[26]. In terms of area of the
land, out of 39245.56 hectares of land notified in the six states, 5402.22
hectares (14%) of land was de-notified and diverted for commercial purposes in
several cases[27].
The CAG has criticized developers, including Reliance, DLF and Essar, for
acquiring land for SEZs but using only a fraction of it and most part of the
land remained unutilized. It is a clear denial of rights to the communities.
Conclusion and Recommendation:
The Land Acquisition Ordinance
defeats the prime objectives of the ‘Right to fair compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013’ The
provisions under chapter – II & III i.e. social impact assessment,
mandatory consent of the affected people and provisions to safeguard food
security of the communities constitute soul of the principal Act. Making the
provisions under section – 87 regarding offence & punishment to the
government officials and section – 101 regarding the returning of unutilized
land to the original land owners, non-applicable has shattered the confidence
of the land owners and project affected persons, whose moral was otherwise
boosted up by the provisions of the principal Act.
There seems to be pressure of the
corporate business lobby, real estate developers and political class. A very important point needs serious
attention is that the principal Act has been implemented for a year and there
is no difficulties or negative consequences reported by the government while
land acquisition but the provisions were trucked out merely on the basis
of assumption not empirical data. The empirical evidence of the earlier period
does not support government view[28].
Indeed, the land
acquisition ordinance assassinates the spirit and denounced the prime
objectives of the principal Act, which was brought to ensure the right to fair
compensation to the project affected people and maintain transparency in land
acquisition, rehabilitation and resettlement. The Principal Act intends to
right the historic wrong done on the projects affected people in the name of
economic growth, development and national interest in the country for last
several decades. Therefore, the government must withdraw the above stated five
major amendments from the Ordinance for protection of the rights of the land
owners and project affected communities especially the Adivasis/Scheduled
Tribes of India.
[1]
Report
of the High Level Committee on Socio-Economic, Health and Educational Status of
Tribal community of India published by the Ministry of Tribal Affairs, May,
2014.
[2] Ibid.
[3] Ibid.
[4] Minj, Sunil
& Dungdung, Gladson. 2013. Vikas Ke Kabargah. Bihar-Jharkhand: Desaj
Prakashan.
[5]
CAG Report
on the performance of SEZ for the year 2012-13
[6]
The
documents provided by the Bokaro Steel Limited under the Rights to Information
Act.
[7]
Right
to fair compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act 2013.
[8]
Ibid.
[9]
Jharkhand
Industrial Policy, 2012.
[10]
WRIT
PETITION (CIVIL) NO. 180 OF 2011 Orissa Mining Corporation Ltd versus Ministry
of Environment & Forest & Others.
[11]
Report
of the High Level Committee on Socio-Economic, Health and Educational Status of
Tribal community of India published by the Ministry of Tribal Affairs, May,
2014.
[12]
Right
to fair compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act 2013.
[13]
Ibid.
[14]
Itterah,
Anil Chandy. 2013. Food Security in India-Issues and suggestions for
effectiveness. New Delhi: Indian Institute of Public Administration.
[15]
Ibid.
[16]
Report
of the High Level Committee on Socio-Economic, Health and Educational Status of
Tribal community of India published by the Ministry of Tribal Affairs, May,
2014.
[17]
CAG Report
on the performance of SEZ for the year 2012-13
[18]
Right
to fair compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act 2013
[19]
The documents
provided by the Deputy Commissioner of Jamshedpur under the Rights to
Information Act.
[20]
Ibid.
[21]
The
documents provided by the Department of Revenue and Land Reform, Govt. of
Jharkhand under the Rights to Information Act.
[22]
CAG Report
on the performance of SEZ for the year 2012-13
[23]
Ibid.
[24]
Ibid.
[25]
Ibid.
[26]
Ibid.
[27]
Ibid.
[28]
Gill, Sucha Singh. 2015. Land ordinance not fair, transparent. Chandigarh:The
Tribune, February 2.
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