Guest post by SHUBHAM JAIN, SARANGAN RAJESHKUMAR and DHRUVA GANDHI

The Right to Fair Compensation and Transparency in Land Acquisition, Resettlement and Rehabilitation Act, 2013 was passed with Objective to promote transparency and participative governance in the acquisition of land for industrialisation and urbanisation and to, thereby, ensure overall socio-economic development. In the pursuit of this objective, the law introduced mechanisms as Social Impact Assessment, Consent, and Rehabilitation et al.

This law, however, attracted widespread criticism from the industry on account of the supposedly time consuming barriers created for the acquisition of land. Accordingly, the Ordinance of 2015 was promulgated as a measure to hasten the process of Land Acquisition and to, thereby, contribute towards the economic development of the country. Unfortunately, most of the debate on this Ordinance has barely focussed on the problems it sought to address and, consequentially, there has been a dearth of an analysis of solutions proposed therein in the backdrop of these problems. Let us, therefore, contextualise the debate on the Ordinance and, then, examine the merits of the same.

A bare perusal of the Land Acquisition Act, 2013 reveals that the entire process of Land Acquisition shall consume at least two to four years to be completed. Why, one may wonder, is this case? The Act broadly divides the entire process of acquisition into three phases: Social Impact Assessment Study [i], Rehabilitation & Resettlement [ii] and Acquisition [iii]. Social Impact Assessment, as the name suggests, is a study to look at the implications of Land Acquisition in terms of (a) the public purpose served, (b) the scale of displacement, (c) the impact on local ecology, (d) livelihood of owners as well as dependants of the land and (e) extent of land acquired. In other words, the study is a cost benefit analysis that seeks to ensure that the people, themselves, are not lost sight of in an urge for development. The SIA, then, is a manifestation of participative Democracy. Accordingly, when the Government wants to acquire land, a Social Impact Assessment Study must mandatorily be conducted before the commencement of the process by a suitable body established by the Government and the findings of the Study must be scrutinised by an Expert Committee. The Study is finally approved by the appropriate Government. A period of 8 months is prescribed for the completion of this phase.

On an approval of the Study, the Collector, then, issues a notification under Section 11 that signifies the intention of the Government to acquire the concerned land. The Collector is also provided a period of 2 months to update the requisite Land Records. Simultaneously, an Administrator of Resettlement and Rehabilitation (R&R) must prepare a draft Scheme of R&R within such time period as is prescribed by the Government (Section 16). In the event that the land acquired is in excess of 100 acres, the Scheme is to be approved by a Commissioner of R&R. Subsequent to the approval; the Government must issue a suitable Declaration to give effect to the Scheme within a period of 12 months (Section 19). Wait! The process does not end here.

After the abovementioned Declaration has been issued, the Collector must award compensation as specified therein within the next 12 months from the date of issuance of the Declaration. The payment of the compensation or the monetary part of the R&R Scheme eventually allows the Collector to acquire the land within a period of 3 or 6 months, as the case may be. Obviously, a process that provides for as many varied authorities and multiple tiers of bureaucracy coupled with lengthy time periods allowed for every function is bound to be tedious and cumbersome, especially in the Indian context. (Nonetheless, as noted above, a certain level of inefficiency is inevitable in light of the necessities of Democratic society- consent, public hearings, social impact, rehabilitation etc. and cannot be done away with in toto.)

Evidently, to mend Land Acquisition to make it suitable for both private entities as well as the land owner, the cumbersome processes have to be addressed with immediate effect by the Government. Processes that are not prone to excessive inefficiency must be the objective of the law. When analysed in this paradigm, the Ordinance is, indeed, a disappointment. More so because the rationale for the Ordinance finds genesis in the concerns examined above.

The Ordinance seeks to minimise the inefficiency of the process of Land Acquisition without the slightest concern for Democratic manifestations. The concerns of farmers, tenants, sharecroppers, landless labourers; the needs of the local environment; the extent of displacement have all been side-lined for the sake of ‘Development’. The same has, especially, been sought to be done through Section 5 of the Ordinance. Section 5 of the Ordinance allows the Government to exempt projects on roads, bridges, airports, ports, inland waterways, electricity generation, electricity transmission, power distribution, gas pipelines, oil pipelines, water supply pipelines, storm water drainage, telecommunication, telecommunication towers, education, hospitals, three-star or higher category hotels, SEZs, tourism facilities, terminal markets, post-storage infrastructure, industrial corridors, mines, water conservation, agro-processing and national security among others (!) from the requirements of consent, social impact assessments and restrictions as to multi-crop irrigated lands. An obvious question that comes to the fore at this stage is, ‘What’s left out?’ (Wildlife Sanctuaries, may be?)

To answer this question in a tangible manner, let us take a look at another fact. As per the PPP Database made available by the Union Government, six sectors, namely, roads, ports, airports, urban development, energy and railways account for almost all public private partnership ventures in India. Moreover, two sectors (roads and ports) alone account for 67% of all ventures in terms of value and 75% in terms of number. For public private partnerships, therefore, one may, indeed, ask, ‘What’s left out?’ In Section 5, the Ordinance goes well beyond the problems vis-à-vis Land Acquisition to an extent that it virtually nullifies the very Objective of the law enacted in 2013.

Delays, Cumbersomeness and Over-runs with regard to Land Acquisition are, indeed, a reality of our times. However, they are a necessity as well. In light of the same, therefore, it is to be urged that the Ordinance, in its current form, be dropped and resources be diverted to better solutions. Time over-runs can be cured through rationalisation and integration of current processes. Amendments must focus on the same with alacrity so that the debate on land may soon move to better Land Titling laws and Land Zoning policies. In the interest of the nation, our vision with regards to land must, indeed, be futuristic. Unfortunately, as of now, we seem to be headed nowhere.

Shubham Jain, Sarangan Rajeshkumar and Dhruva Gandhi study at the National Law School University of India, Bangalore, and are associated with its Law and Economics Initiative