Legal Developments in Land Acquisition: 2015

Introduction
Land acquisition is an important process for development but it should balance out the loss of the land loser. The Department of Land Resources which is administering this important task under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“New Land Acquisition Act”). This Act came into force on 01.01.2014 by repealing the Land Acquisition Act, 1894. However, It was observed that some provisions of the Act were making the implementation process difficult and therefore this made it necessary to bring changes in the aforesaid Act, while safeguarding the interest of farmers and affected families in cases of land acquisition. The amendments and notifications issued by various governments under the Act are mentioned herein for our readers.

A. Highlights of Amendment Bill passed by Lok Sabha: 2015 

Changes in the provisions of the New Land Acquisition Act was intended to facilitate farmers to get better compensation, rehabilitation and resettlement benefits in lieu of land being compulsorily acquired by the appropriate Government and to remove the procedural difficulties in the acquisition of lands required for important national projects. In view of the urgency, these amendments were brought about by an Ordinance on 31.12.2014 subsequently, on 10.03.2015 the Lok Sabha passed the Amendment Bill to replace this Ordinance. The Amendment Bill passed by the Lok Sabha includes some further changes to the Ordinance which are as follows:

(i) Compensation as per Schedule extended to 13 Acts: Compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules of the Act are extended to the thirteen Acts mentioned in the Fourth Schedule of the New Land Acquisition Act namely-

(1) The Ancient Monuments and Archaeological Sites and Remains Act, 1958,

(2) The Atomic Energy Act, 1962,

(3) The Damodar Valley Corporation Act, 1948,

(3) The Indian Tramways Act, 1886,

(4) The Land Acquisition (Mines)Act, 1885,

(5) Not provided

(6) The Metro Railways (Construction of Works) Act, 1978,

(7) The National Highways Act, 1956;

(8) The Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962;

(9). The Requisitioning and Acquisition of Immovable Property Act, 1952;

(10) The Resettlement of Displaced Persons (Land Acquisition) Act, 1948;

(11) The Coal Bearing Areas Acquisition and Development Act, 1957

(12) The Electricity Act, 2003;

(13) The Railways Act, 1989.

(ii) Exemptions from Consent Provisions: In order to expedite the process of land acquisition for strategic and development activities such as:

  1. National security or Defence of India including preparation for defence and defence production;
  2. Rural infrastructure including electrification;
  3. Affordable housing and housing for poor;
  4. Industrial corridors set up by the appropriate government and its undertakings (in which case the land shall be acquired upto 1 km on both sides of the designated railway line or roads for such industrial corridors);
  5. Infrastructure projects including projects under public private partnership where the ownership of the land continues to vest with the Government,

Appropriate governments are empowered to take steps for exemption from “Social Impact Assessment” and “Special Provisions for Safeguarding Food Security”. In addition acquisition for such projects are exempted from the “Consent” provisions of the Act as well. However, the appropriate governments are required to ensure that the extent of land for the proposed acquisition is the bare minimum land required for the project. The appropriate government is also required to undertake a survey of wastelands including arid land and maintain a record detailing the same.

(iii) New Term ‘Non-Governmental Entity’: Prior to the amendment, the provisions of the New Land Acquisition Act, extended to a ‘private company’. However, as per the Companies Act, 2013, a ‘Private company’ means a company having a minimum paid-up share capital of one lakh rupees or such higher paid-up share capital, thereby restricting the provisions of the Act to such companies only and excluding other form of companies like proprietorships, partnerships, corporations, nonprofit organizations, etc. Therefore, in place of the term ‘private company’, the term ‘private entity’ has been substituted thereby including all non-governmental entities.

(iv) Substitution of the word ‘Companies Act, 1956’: RFCTLARR Act 2013 was drafted prior to the passage of the Companies Act, 2013. Therefore, the referral Act was Companies Act, 1956 for the definition of ‘Company’; which is substituted by the Companies Act, 2013 now.

(v) Lapsing of Acquisition Proceedings: In cases where land acquisition process under Land Acquisition Act, 1894 had been initiated and the Award was passed, but either possession of land was not taken or compensation was not paid, there is provision of lapsing of such proceedings after five years of passing of Award. The period during which the proceedings for acquisition of land was held up on account of any stay or injunction issued by any court is excluded for the purpose of calculation of five years period. Similarly the period where possession has been taken but compensation is lying deposited in a court or in any designated account is also to be excluded in the calculation of the  period of five years.

(vi) Amendment of Section 46 of the RFCTLARR Act, 2013: Section 46 of the Act was amended to clarify that provisions relating to rehabilitation and resettlement in case of land purchased through private negotiations is applicable in cases when land is purchased by persons other than the Government, Government Company and Trust or Society aided or controlled by the Government.

(vii) Jurisdiction of Hearing for Land Losers: To facilitate the process of hearing of objections by land losers, the authority, constituted for this purpose, shall hear such objections within the district where the land has been acquired.

(viii) Cognizance of Offence against the Employee: When an offence under this Act is committed by any person who is employed in the Central or State Government at the time of commission of such an alleged offence, the court will take cognizance of offences under this Act provided the procedure laid down in section 197 of the Code of Criminal Procedure, 1973 is followed.

(ix) Period for Return of Unutilized Land: The period provided in Section 101 for return of unutilized land has been modified to five years or the period specified for the completion of the project.

(x) Removal of Difficulties: The provision of “Removal of Difficulties” was made applicable to the entire Act instead of part. Further, the time period to remove the difficulties was extended from two years at present to five years.

B. Notification of Ministry of Road Transport and Highways

The Ministry of Road Transport & Highways vide its notification dated September 9, 2015 has said that the acquisition for land under the National Highway Act, 1956 (which extends to whole of India for declaration of National Highway) to be in terms of the RFCTLARR (Removal of Difficulties) Order, 2015. It has been decided that the provisions of the New Land Acquisition Act relating to rehabilitation and resettlement in accordance with the second schedule of the Act and Infrastructure amenities according to the third schedule to the aforesaid Act or as specified by the concerned State Government in pursuance of the provisions of the aforesaid Act, which ever is lower and applicable.

C.Maharashtra Government

The Maharashtra government has provided for land acquisition by offering the maximum compensation allowed, four times the price of land, for rural areas. The Revenue Department has issued a notification in this regard. This is the maximum allowed by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

D. Pending Second Amendment Bill to the New Land Acquisition Act

Highlights of the Bill

1. This Bill amends the RFCTLARR Act, 2013.

2. Exemptions: The Bill enables the government to exempt five categories of projects from the requirements of:

  • Social Impact Assessment,
  • Restrictions on acquisition of multi-cropped land, and
  • Consent for private projects and public private partnerships (PPPs) projects.

The five categories of projects are:

  1. Infrastructure including PPPs where government owns the land.
  2. Industrial corridors, and
  3. Affordable housing,
  4. Rural infrastructure,
  5. Defence

3. Retrospective Application: The amendment to the aforesaid Act would apply retrospectively, if an award had been made five years earlier and compensation had not been paid or possession not taken.  The Bill exempts any period when a court has given a stay on the acquisition while computing the five-year period.

4. Prior Sanction to Prosecute Government Employee: The Act deemed the head of a government department guilty for an offence by the department.  The Bill removes this, and adds the requirement of prior sanction to prosecute a government employee.

Conclusions

  • Changes in the provisions of the RFCTLARR Act 2013 was intended to facilitate farmers to get better compensation and rehabilitation and resettlement benefits in lieu of land compulsorily acquired by the appropriate Government.
  • Notification of Ministry of Road Transport & Highway for acquisition of land under the National Highway Act, 1956 for attention of all stakeholders.
  • Maximum compensation under land acquisition by the Maharashtra Government
  • Committee has been constituted to amend the Registration Act, 1908
  • The Parliament has extended time for presentation of the Report of the Joint Committee on the RFCTLARR (Second Amendment) Bill 2015 upto the last day of the first part of the Budget Session, 2016.
  • The concerned ministry has notified Rules of the RFCTLARR Act 2013.

 

 

RFCTLARR: Right to Fair Compensation  and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

Published :
January 5, 2016
Practice Area :