PROBLEMS OF LAND ACQUISITION IN THE ...

PROBLEMS OF LAND ACQUISITION IN THE CONTEXT OF URBAN DEVELOPMENT

Dr. Anis Mukhopadhyay HONORARY ASSOCIATE, CENTRE FOR URBAN ECENOMIC STUDIES, CALCUTTA UNIVERSITY e-mail: [email protected]

e-mail: [email protected]

Paper presented in the Seminar on “URBAN WEST BENGAL: CURRENT ISSUES”, Session III Land, Location and Urban Planning on December 03, 2005 at the Centre for Urban Economic Studies, Calcutta University (With a Rejoinder 2012) 1

Problems of Land Acquisition in the context of Urban Development Introduction Land is the scarcest resource in the process of urban growth and development and land acquisition is a complex, sensitive and vexed question in planned urbanization. The problem has gained more attention in recent years in view of the controversial issues related to development-induced displacement, resettlement and rehabilitation. The present paper has been based on some case studies from Kolkata Metropolitan Area in general and Howrah in particular, which has been infamous for plan failure during last five decades. Part I of this paper is concerned with land acquisition experiences and presents two models of frictionless land acquisition within the existing legal framework. Part II of the paper suggests alternatives to the application of existing legal and statutory framework, – alternatives implying reforms of the land acquisition mechanism for the purpose of urban planning. Part - I Land Acquisition Experiences For any planned urbanization, private demand for land has its counterpart, demand for land as a public good. For creation and promotion of the basic urban infrastructure as well as for implementation of different development projects, public use of land is eventually related to land acquisition. The new economic policy, large scale investments in infrastructure and inflow of foreign investments have induced an enhanced demand for land for both private and public use, – particularly large areas of land, – and therefore, have induced the need for land acquisition on a large scale. The issues related to land acquisition deserves special attention in this context. In West Bengal, the Land and Land Reforms Department is the nodal Department for land acquisition, which works through the Land Acquisition Offices under the jurisdiction of the District Collectors. Occasionally, other official agencies are also entrusted with specific land acquisition tasks (e.g. Howrah Improvement Trust) if the administration finds it necessary. Among the complex problems associated with land acquisition, we are familiar with two common stories: (i) (ii)

Long drawn litigation on compensation, ownership and apportionment; Public opposition which gains strength in the event of an organised resistance.

On the other hand, delay in land acquisition and project implementation has impacts on both land owners and the society. One example of delay in project implementation on account of land acquisition problems is Kona Express Way – the major link on the west bank to Vidyasagar Setu (Second Hoogly Bridge) – a project of national importance. The project was initiated in 1966, major land acquisition process was completed during 1980 – 1987; but Kona Express Way could be opened to traffic only in 1998, eight years after the bridge was inaugurated. Some compensation cases are still pending. To find out the roots of land acquisition problems we may first have a look into the legal framework available for it.

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The Legal Framework The problem with land acquisition in West Bengal starts from the very legal premises. Until recently, two Land Acquisition Acts were in vogue in West Bengal: Act I of 1894, known as the Central Act and Act II of 1948, known as the State Act. There is a difference between the basic characters of the two Acts: Act I of 1894, the national act, has the provision for ‘possession after compensation’ which is consistent with the constitutional rights of the land owner, although it was enacted in the colonial period. Act II of 1948, the state act, has the provision for ‘possession by notification’ which ipmlies Hukum Dakhal (possession by fiat). Act of 1894 : Procedure of land acquisition has been laid down under sections 4 to 16 and has to follow the important steps mentioned below : 1. Notification in the Official Gazette. 2. Objections by any ‘person interested in the land’ has to be put up within 30 days from this date of notification and value of land for the purpose of compensation would also be determined on the date of notification. 3. Declaration of Acquisition for a Public Purpose has to be made in in News papers and Official Gazette; where ‘public purpose’ includes (i) provision of village sites, extension, planned development or improvement of existing village sites; (ii) for town or rural planning; (iii) planned land development and subsequent disposal; (iv) for a corporation owned or controlled by the State; (v) the provision of land 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 govt., any local authority or a corporation owned and controlled by the State; (vi) provision of land for carrying out any educational, housing, health or slum clearance scheme by government, registered society, local authority, co-operative society; (vii) provision of land for any other scheme of development; (viii) the provision of any premises or building for locating a public office. In addition to these general guidelines, special provision has been made in the Act for land acquisition for railway expansion under sections 43 and 44. 4. After land being marked out, measured and planned, the Collector serves notice to persons interested that the government intends to take possession of the land and that any claim for compensation is to be made to the Collector. 5. Enquiry into claims, determination of the value of land and Award of compensation (or its apportionment) has to be made by the Collector before taking possession. 6. Agrieved persons may move the court for redressal within six weeks from the award 3

Compensation vide Act 1894 is determined by the Collector; but compensation at market value is a necessary condition of land acquisition vide Art. 31A of The Constitution of India. In terms of section 23 of the Act (1894), in addition to the land value, matters to be considered by the Court for determining the amount of compensation are: (i) Damage due to standing crop or trees at the time of possession, (ii) Damage due to severing land from his other land, (iii) Damage due to affecting his other property or earning, (iv) Damage due to diminution of the profits of the land, damage due to loss of earning directly from such land, if the persons interested are compelled to change residence or place of business. But, the Court shall not take into consideration, the degree of urgency which has led to acquisition. This question arises on account of certain special provisions in the Act under sections 17, 43 and 44 mainly for the Railways. The Government of India by a historical agreement (1870) is bound to provide land for Railway companies and all the statutory provisions of acquisition for companies (Part VII of the Act) are not applicable to Railways. Section 17 makes a provision for acquisition in cases of urgency owing to unforeseen emergency when “it becomes necessary for any Railway Administration for maintenance of traffic, for making a convenient access to station, or maintenance of irrigation, water supply, drainage, road communication or electricity.” There is no scope for ‘objection’ in such cases, but eighty percent of the award and compensation for standing crop and trees has to be paid at the time of possession. In part VI of the Act, there is also a provision for temporary occupation of land by the state – for a period not exceeding three years. It may be noted here that land acquisition at the time of enacting the law (1894) was related to rural or agricultural land; and acquisition of urban land (where land value is much higher) did not occur. On the other hand, under the colonial perception of ‘public purpose’, question of rehabilitation and resettlement of displaced persons was not considered in the law as an obligation of the state; award of cash compensation was the only consideration. The most significant amendment to the land acquisition act was made in 1984. According to this amendment, the acquisition procedure from notification to declaration is to be completed within one year and procedure from declaration to award is to be completed within two years; otherwise the entire land acquisition proceedings shall lapse and the case is to be restarted. Such a binding prompted the government to continue with the state act (1948) beyond its targeted application. Act of 1948 The act was designed along ‘urgency’ requirements contained in the Act of 1894. Announced objective of the Act in its preamble was to provide for speedy acquisition of land for certain purposes like maintaining supplies and services essential to the life of the community, increasing employment opportunities by establishing commercial and industrial estates, for providing proper facilities for transport, communication, irrigation or drainage, for creating better living conditions in urban and rural areas by construction and reconstruction of dwelling places in such areas or for purposes connected therewith and incidental thereto. In the Annual Report (1996-97) of the Land and Land Reforms Department, Government of West Bengal, the purpose of 1948 Act has been spelt out as: “After the partition of the country, there was huge influx of refugees from the other side of 4

the borders. To cope with the need of their quick settlement and uplift, it was found that the Act I (1894) is too long a process in this matter. Therefore, to quicken the process, the concept of Act II, 1948 was thought of and enacted.” The Report is, however, silent as to why application of Act II (1948) has been continued in West Bengal for such a long period of time (till March 1997) beyond the needs of refugee rehabilitation. Procedure of land acquisition according to this act has been laid down under sections 3 to 7 and follows the steps given below: 1. Gazette notification and public notice that the State Government has acquired the land, persons interested may file claims for compensation. Possession follows notification. 2. Compensation is to be paid as per Sec.23 of 1894 Act and 80 % of it is to be paid immediately after possession. If there is disagreement on valuation of property for payment of compensation, decision of the Court is final. 3. Provision for interest payment on delayed compensation has been made – at the rate of 9 percent from the date of notification till award and at the rate of 15 percent after expiry of one year. Repeal of Act II The Act of 1948 was originally scheduled to expire on 31.3.1967, but it was continued for thirty years more till 31.03.1997, although the Conference of the Revenue Secretaries of States in July 1989 agreed that all land should be acquired under the provisions of the Land Acquisition Act 1894 only and other laws would be repealed immediately. By virtue of Land Acquisition (West Bengal Amendment) Act, 1997, effective from the 1st April 1997, transfer of acquisition cases from Act II to Act I became inevitable and created a lot of administrative problems in land acquisition. Public resistance Mass psychology behind public resistance to land acquisition in Kolkata Metropolitan Area has not been moulded by political factors only. There are other contributing factors, of which Act II of 1948 itself is important. The approach of Hukum Dakhal in this Act affected mass psychology adversely, particularly when people suffered from various issues related to award and when people have the experiences of unnecessary land acquisition due to nonimplementation of projects or unnecessary excess / surplus land acquisition. The Status Reports 2000 of Land and Land Reforms Department has also admitted “Indecisions on the part of Requiring Bodies regarding Project Implementation”… “Lack of interest of the Requiring Bodies in early settlement of land acquisition cases once they get possession of the required land”… and, “Extreme difficulty in getting funds from the Requiring Bodies who are generally reluctant to release fund in time”1. On a closer scrutiny, it can be seen that these evils are inherent in the character of 1948 Act by virtue of which land is available by fiat of the government department in charge of acquisition. 1

Page 4 Item No. III (ii) ANNEXURE – A (Agenda Note for discussion with the MIC, April 2000) ‘Requiring Body’ means the organization or department which places the requisition for land.

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A few examples of wasted acquisition may be cited here: (1) Sankrail-Abada Railway Goods Terminal & Shalimar Passenger Terminal (S E Rly) This is a twin project of South Eastern Railway but is of great importance to the transport system of Kolkata Metropolitan Area; – shifting the existing goods terminal from Shalimar to Sankrail and converting Shalimar into a modern passenger terminal. For the Freight Terminal at Sankrail 627 acres of land have been acquisitioned and handed over to S E Railway between 1980 and 1986; for half of this chunk of land final payment of compensation has been made, others have got eighty percent compensation. But the goods yard has not been constructed. Regarding the passenger terminal at Shalimar – projected as the alternative terminal to Howrah Station for South Eastern Railway – the new station was planned on a massive scale mainly on Railway’s own land; only18.80 acres were to be acquisitioned from the public and the Kolkata Port Trust – all open land or gray areas. The Master Plan was prepared by a Consultant Firm in 1989 and the Project was scheduled to be completed within 1995. The project has not taken off and the Passenger Terminal has not yet come up. An incomplete proposal for acquisition of only 2.7 acres of land has been sent by the S E Railway to the District Land Acquisition Collector in May 2000, but no fund has been placed by the Requiring Body till December 2005 in spite of repeated reminders. Deprivation of land losers at Sankrail has become absolutely pointless; their grievances are undoubtedly genuine. (2) Special Purpose Truck Terminal of Indian Oil Corporation – Mourigram Indian Oil Corporation (IOC) planned this Truck Terminal to the east of their present oil depot at Mourigram. Proposal for acquisition of 41 acres of land – both agricultural and homestead at Panchpara Mouza – was placed before the District Collector in 1991; and funds were fully placed by the Requiring Body. Within three years, 16.215 acres were acquisitioned and handed over to IOC and cent percent compensation was paid (pending final settlement of about 4 acres). But land acquisition process was stopped midway on the basis of District Collector’s Report to the effect: (i) that the area is thickly populated, (ii) that cost of acquisition of homestead land is very high, and (iii) that a number of the affected families face second time eviction in less than ten years, because they settled here after getting displaced by another project All these points raised by the District Authority suggest that no study excepting that of the Mouza-map, was made before starting the acquisition process. Therefore, the project has been stalled after unnecessary displacement of a large number of families and farmers. (3) Howrah Fish Market It was a Redevelopment Plan with World Bank assistance on the site of Howrah Fish and Pan Markets. The objective was to reorganize activities of wholesale trade in fish and pan and to improve infrastructure in the area of approximately10.21 acres near Howrah Station. 6

The project initiated in 1976 and scheduled to be completed in three yearly phases, had two parts: (i) the Fish Market Redevelopment on approximately 4 acres, and (ii) Construction of Office and Hotel Complex with a Twin Tower Block of 16 and 12 storeys on rest of the land. Land acquisition – prime land in Howrah city – was almost completed in 1982. The Fish market, completed by 1982, remained unused for its specified purpose from 1982 to 1999 for a court case on allotment of stalls, in which nine of the allotees filed a petition that they received smaller stalls than they are eligible for. The construction was used as a police barrack for some years more, and ultimately, has been put to its actual use on one part of the redeveloped site. But, the Twin Towers on more than 6 acres, constructed up to the first floor by 1984 has been permanently wasted – wastage to the extent of 12.12 crores at 1997 valuation according to World Bank norm. Rehabilitation of 1154 vendors in the entire project ended in a fiasco. Similar is the story of West Howrah Township – a project originally proposed in 1966 – for which more than 400 acres were specified, most of which was acquisitioned in 1970s and is under the possession of the government. But implementation of the project is not in sight in spite of involuntary displacement of persons and households. However, there is a recent press report that a new concept of township for the affluent is going to be implemented with foreign investment on that land. Apart from non-completion of projects mass resistance is also fuelled by the experiences of official paraphernalia and procedural delay for getting compensation, the trauma of involuntary displacement, loss of shelter and livelihood (including livelihood for land-losers and share croppers in the case of agricultural land), apprehension of impoverishment due to non-availability of rehabilitation and resettlement. Other Problems Improper land records and imperfect land information system create the problem of identification. A large proportion of poor rural households have no records to prove ownership of ancestral land they cultivate or live on. On the other hand, landless and other households dependent on the local economy are totally ignored in land acquisition process as far as compensation is concerned. These aspects of acquisition increase the apprehensions of uncertainties related to involuntary displacement and mould mass-psychology behind a move for resistance. Notifications are served more to meet the requirements of law than to ensure that all concerned have been well informed. On the other hand, real estate dealers know the Blue Print of any project much earlier than the affected people and are able to use such information to serve their own market interests. When developer companies perform as promoters of or partners in state launched projects, they come to know the Master Plans and find a scope for using this information for the purpose of private gains in and around the project site. Through such activities of the companies, genuine land owners are often deceived and are denied a share in development at a particular area. Right to information is vital in all respects not only to those who are deprived of their land, but also to those who are otherwise adversely affected. 7

Problems are also there from the official point of view. The Status Reports 2000 of Land and Land Reforms Department, mentioned above, has also admitted problems like escalation of land acquisition cost, particularly interest burden, due to delay in settlement, shortage of staff and inadequate “Law Cell”. Since April 1997, a problem of ‘denotification’ has cropped up which some times grows to menacing proportions. An example is the land for Central Howrah Expressway through Mandirtala. Acquisition of about 5 acres was made during 1974-76, a large chunk of vacant land of this area is still under direct possession of Kolkata Metropolitan Development Authority; but denotification has not been made according to Land Acquisition (West Bengal Amendment) Act 1997, and therefore, interest liability accrues on the government. Cases of corruption in market value determination have also been detected. Success Stories Taking lessons from plan-failures and from experiences of other problems in land acquisition is not enough to fulfill the objective of a frictionless land acquisition. Positive experiences and success stories are also to be studied. Two alternative Models based on successful experiences (within the existing legal set up) in Kolkata Metropolitan Area (KMA) have been portrayed below. Model I: Rehabilitation Model Land Acquisition in this case, was made by Howrah Improvement Trust (HIT), the Programme Agent of Hoogly River Bridge Commissioner (HRBC) for the construction of Second Hoogly Bridge (Vidyasagar Setu). In the construction of Vidyasagar Setu Approach on the West Bank need for reorganizing land resources demanded displacement and rehabilitation of about 2200 households in about 700 standing houses on 74 acres of land in densely populated area of Shibpur (Howrah) in early 1980s. The scale of displacement, unprecedented in the history of land acquisition in Howrah and Kolkata, posed a challenge before HIT, which was also empowered with a Land Acquisition Cell. It is a history now that the challenge was met with Land Acquisition Act II of 1948 and with compulsory rehabilitation of all. Till date, in KMA it is the largest but the most successful and frictionless land acquisition programme with rehabilitation. The cost of land acquisition including rehabilitation was also kept significantly low. The achievement, unique and unparallel in Kolkata-Howrah, deserves special attention. The inhabitants of the area marked for acquisition were largely middle class households and slum dwellers and each household had before it a wide range of options for compensation: from cash compensation to ready flats in a nearby area where they have subsequently been able to share the long run benefits of transport development embodied by the Vidyasagar Setu. A study of the process of land acquisition executed by HIT offers us an insight into the required reforms of land acquisition procedure. HIT was committed to the success of their land acquisition programme, within a given time frame, required for a project of national importance. In their efforts, the dedicated team of officials had to innovate means 8

that implied a commitment to acquisition with rehabilitation, – a development goal of ‘shelter for all’ – the international norm for resettlement policy worked out later in mid-1980s. HIT first carried out a thorough Phase-wise Socio-Economic Survey to acquire information on the project-affected people. Through this survey, HIT identified the owners and occupiers, the family types, their choices and necessities for rehabilitation etc. Data so collected were processed through a tight-sieved device by the administrative machinery of HIT to decide upon the offers for compensation as well as to take effective measures for adequate back up of their mission of frictionless land acquisition. Data with HIT collected from the survey also unfolded before the authorities, not only the socio-economic realities of the operation area, but also a pattern-variation in land acquisition costs depending upon the living standards of different income groups and having general implications regarding unit cost of space acquired for Urban Renewal.2 Among the middle class, it was found, 55 percent were owner-occupiers; others were tenants. Land acquisition was implemented with resettlement for all of them according to their choice. Seventy-five percent of the middle class households opted for ready flats which were relatively attractive to them at a distance of 3.5 km from their existing residential area and which were going to be well connected with the coming up of Vidyasagar Setu. Only 1.2 percent of the middle class opted for land, and the rest (23.8 percent) opted for cash compensation. It should be pointed out here that progress of land assembly at Shibpur was contributed by the advance acquisition, development and construction of a housing complex by HIT at Doomrajala–Ichhapur, a site within 3.5 km of the operation area. This was, in fact, a prerequisite for success. Among the slum dwellers, economic, social and ethnic considerations were more dominating than an attraction for a residential space with better living conditions. Their preferences were for land and cash compensation. Some minority community groups among the slum dwellers preferred land grant close to the same community, places of worship and ancestral graveyards; but to most of them cash compensation was a source of capital for starting a new venture in the informal sector, and they were prepared to find a new shelter in the nearby slums. A large section of the slum dwellers were in casual employment or in the informal sector in the immediate vicinity and it is striking to note their unwillingness to move to a different area for the apprehension of loss of employment. This was not unusual as in the public mind, particularly among poorer sections of the society, there is a trade off between distance and economic opportunities. On a portion of total land acquisitioned, arrangements were made to accommodate a small group of slum dwellers with minority identity, so that their preference for settlement close to existing community ties can be met. Virtually, through a carefully executed rehabilitation planning, resettlement of different communities and income groups at different locations of their own choice had to be made possible, because clubbing of settlements was not acceptable to all. It is on account of the voluntarily accepted resettlement that there has been no post-acquisition dispute in this part of the project. It is remarkable that, on the day of transfer and shifting, HIT even played the role of Packers & Movers and cooked food was supplied to the households who opted for it. 2

For a detailed account of the cost analysis of this land acquisition programme: Datta, Shyamales – “How Costly is the Western Bank”, Institution of Engineers (India) Journal, Architectural Engineering Division, Vol. 71, July 1990

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It is also remarkable that against the usual lack of transparency in declaring the ‘public purpose’ of acquisition, the HIT Engineers prepared a replica model of the Second Hoogly Bridge which was going to be constructed, and launched a mass campaign for the project of national interest during and after the socio-economic survey. The public mind was shaped to accept the impact of the project on the local economy; – this was a case of empowerment by diffusion of information. Model II: Negotiation and Mass participation Model Land Acquisition for Rajarhat New Town Project to the North of East Kolkata Wetland and Waste Recycling Region. Government of West Bengal has set up a government company, viz, Housing Infrastructure Development Corporation Limited (HIDCO) in April 1999 and declared it the Planning Authority for New Town under the West Bengal Town and Country (Planning & Development) Act 1979. The objective of the project (very close to the International Airport) is to provide developed land for housing and commercial purposes such that economic activities here are intensified to supplement the Central Business District of Kolkata. Planned urbanization here wants to check unplanned urban sprawl and related congestion around Kolkata. Land for the entire project had been under private possession and is being procured and allotted on an experimental basis without budgetary support.3 In this project, no socioeconomic study at the macro level has been made, but friction-less land acquisition has been achieved through institutional innovations and through a political process of constant interaction with the project-affected people and the beneficiaries, which has been dubbed as ‘negotiation and mass participation’ for democratization of land acquisition. Out of 7 square kilometres for Action Area I of the project 4 about 6000 acres have been procured till November 2005, the general category of land procured is agricultural (only a tiny fraction of 0.1 percent is homestead), and the economic character of households is small farmers of whom 95 percent are own land cultivators mostly with documentary evidences. In the case of homestead land, 15 percent of total households who possess recorded land titles are relatively well off; but majority of the households are labourers and squatter type settlers mostly on Government Khas land. They can be treated as having unrecorded rights on the settlement ground, and some of them are even refugees from Bangladesh. Regarding compensation, the project authority followed principles of ‘compensation for all, cent percent rehabilitation for homestead land, and non-displacement (or minimization of displacement) of existing settlements i.e., ‘entrapped (or encircled) villages’. Cash compensation has been paid for all agricultural land including compensation for standing crops at the time of possession. This is, in fact, the basic mode of acquisition for the project. 3

For details of Rajarhat New Town Project: Roy, Sunil Kumar, Principal Consultant, WBHIDCO, New Town Kolkata – “Urban Development and Land Management Strategy” in the Technical Session on Land Economy and Urban Growth, 3rd Indian Congress on Surveying, Valuation & Land Economy-2002 organised by The Institution of Surveyors (India), 5-6 July 2002; And Seminar presentation by Sunil Kumar Roy at the Centre for Urban Economic Studies, CU, on September 22, 2005 on “Planned Urbanisation: The New Town” 4 Total Project Area is 30 sq km (to be extended to 50 sq km) compared to Salt Lake City of 12.5 sq km.

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Some other minor but significant types of compensation have also been paid, e.g. compensation paid to fish farmers for their loss of income at the time of digging the near by bheries (shallow water-bodies used as fisheries) for land development in the project. The squatters were identified through the Panchayet and all households – with or without land titles – were provided with either, plots on the fringe of the township or, rehabilitated in houses built with subsidy by HIDCO, with bank loan recommended by HIDCO and located beyond the peripheral canal and green cover of the project area. Land meant for rehabilitation on plots or in houses has been acquisitioned and developed with basic infrastructure by HIDCO. ‘Freehold’ title document has been provided to all those resettled. For the relatively better-off, additional compensation in the form of rent reimbursement has been given to those who are displaced and are staying in rented houses till rehabilitation process is completed. HIDCO has also taken care of some neighborhood development in the villages adjacent to the project area, with the help of government departments concerned, with water supply, drainage, electricity etc. The entire process of resettlement and possession of land by HIDCO are still under implementation, but the negotiations and acceptance have been completed and cash compensations have been fully paid. The basic Institutional Innovation in land acquisition for Rajarhat New Town Project is twofold: (1) setting up Land Procurement Committee (LPC), and (2) Direct purchase of land from the farmers. The innovations were made to achieve bulk acquisition speedily within the existing legal constraints and to overcome possible resistance and social conflicts. Given the provisions of Land Ceiling Acts and the limit to powers of the Land Acquisition Collector (LAC), in area and value terms, acquisition of 6000 acres is a huge task, particularly without any budgetary support. Altogether 925 separate land acquisition cases have been filed for the total land. Equally complicated is the process of transferring large commercial plots according to demand, on account of the legal bindings which is overcome by ‘module-wise’ transfer of a chunk of land to any company. The Collector’s office is also located at a distant place. Hence, a separate cell of the LAC office was formed and posted close to the project area as a camp office of the Collectorate. The basic task of negotiation for compensation at market value (avoiding the risk of corruption), determination of secondary compensations like crop value, income loss of the fish farmers or any other land acquisition related matter is performed by the Land Procurement Committee (LPC). The Committee has been formed with Special Officers, Technocrats, People’s representatives including the Panchayet and is headed by one Minister from the State Cabinet. It is through this local level involvement – not merely an administrative exercise – that land acquisition for the project has been subjected to mass participation and political monitoring. The scope for any dispute is thus effectively bypassed. Two types of land procurement have been made for the project: (a) Conventional land acquisition through LAC (special cell) and compensation by negotiation; – 96.8 percent of total land procured so far has been acquired through this method; (b) Direct purchase on an experimental basis where value of land is determined through negotiation by the LPC – this method has yielded 4.2 percent of total land procured so far. A Camp Registration Office has also been set up to expedite the process. Direct purchase has been cost-efficient, because, 4.2 percent of total land has been procured at 3.08 percent of total cost of land procurement. 11

A Review of the two Models Taking it for granted that cost-benefit study for alternative uses of land has been made prior to the decision for land acquisition both the models have resulted into a frictionless land acquisition. In the first case, it was achieved because the statutory procedure was supplemented by a socio-economic study and appropriate actions thereon. In the second case, it is local level democracy that supplemented the statutory procedure and minimized massresistance. It is also noteworthy that whatever temporary and minor resistance has been experienced in the second model, came from relatively better-off households; weaker sections, who are the overwhelming majority of displaced persons, fully complied with the negotiations and agreements. In both the models, within the existing legal framework, owners and occupiers were identified beyond paper-documentation, both procedural delay and litigations were avoided and valuable project-time and project-cost have been saved. But the differences are, nevertheless, conspicuous. The real strength of Model I (HIT) is that it treated resettlement as an integral part of the project. The aspirations and needs of the affected people were carefully studied, a variety of options at reasonable terms were placed before diverse sections of the community and resettlement planning was almost elevated to a level of ‘voluntary resettlement’. Moreover, the resettled population got the opportunity of sharing the benefits of the project after its implementation, which is a unique phenomenon. In Model II (Rajarhat) resettlement issue has not been addressed as a general principle, although there was the need for occupational resettlement. Only a small fraction of displaced population received resettlement in terms of shelter. Majority of affected community received cash compensation for their agricultural land which attracted planned urbanization only for their site value. The question of sharing long term benefits of the project does not arise, excepting the prospect of future employment opportunities in the ‘entrapped villages’, provided that alternative skill is acquired by the inhabitants. Whether the ‘mass participation’ model has been able to generate a sense of involvement in planned urbanization project is subject to further study. The question of land ownership and cultivation as a mark of identity to agrarian population has been ignored in our legal framework for land acquisition and in this respect, Model II has not been able to rise above the statutory framework. On the other hand, in this model, an apprehension of achieving political control on land bypassing other democratic institutions for the protection of private property may not be fully unfounded. This is particularly important in the context of the state government’s present need for seeking avenues for allocation of large chunks of land to future projects like Special Economic Zone, Housing-cum-Industrial Township and so on. Acquired land in Model I was utilized for the construction of an infrastructure of national importance; but in Model II, all land would be developed and sold, in the process of which value added per unit of land input is very high; – there would be a shift of activities from primary to tertiary segments of the metropolitan economy. High valued activity like information technology will have a special focus in the planned ‘New Town’. This kind of a transition has the disadvantage that speculative activities of big promoters and developer companies bid up land price in the neighbourhood to the disadvantage of economically weaker local residents. This is particularly because of enhanced site value of the area on 12

account of the forthcoming New Town. Some of these companies are involved in project implementation at Rajarhat and knew the plan layout and land map much earlier than the local people who sold out their land to such developers only to discover later that they have been deprived of a share of market appreciation. Big housing and commercial projects in the area are already coming up although development of the ‘New Town’ itself has not yet taken a complete shape and plots have not been fully distributed. Neighbourhood development by the Project Authority may eventually miss the target population on account of such pressure from the real estate dealers; because transfer of land has been restricted under the Registration Act only in the Mouzas within the project area and in the ‘entrapped villages’. However, there is scope for a detailed socio-economic study of the project affected people, in the entrapped villages, at the locations of resettlement and in the immediate neighbourhood. Rehabilitation and Resettlement Rehabilitation for loss of shelter and income on account of any state action, including development projects, is a commitment of UN members in terms of various International Agreements for rehabilitation of the homeless, viz, UN Conference 1976 Vancouver (Canada) – Habitat I, UN Conference 1996 Istanbul (Turkey) – Habitat II (dubbed as “City Summit”), World Urban Forum 2002 Nairobi (Kenya). The Millennium Development Goal of the UN 1990-2015 has also set the targets, as obligation of the state, like making services work for the poor, equal access to affordable and adequate housing for all, enhancing access to land and credit and assisting those who are unable to participate in housing market etc. But in India, a National Rehabilitation and Resettlement Policy is yet to be formulated. The demand for such a policy has not been induced by urban development programme and land acquisition experiences, but has been the result of protest movement of NGOs in 1980s against large scale eviction of people for the construction of dams, e.g., Sardar Sarovar in Narmada Valley, – people known as ‘oustees of reservoir’5. The legal framework used in land acquisition programme in Kolkata Metropolitan Area neither attempts to minimize displacement nor has it any binding on the state to accept the liability of rehabilitation as an integral part of land acquisition for development., ‘Land for land’ compensation to agrarian population is also not a legal binding now and the state is not guided by any such approach that assures the existing settlers to share the long run benefits of urban development programme. But, there should not be any difference of opinion on the strategy that a development project can not be allowed to result into impoverishment of any population group in any manner. World Bank in its Operational Directive 1990, has set a norm for rehabilitation obligation of the development agency along this line, “… to assist displaced persons in their efforts to improve, or at least, restore former living standard and earning capacity.” The World Bank 6 view has been criticized in many third world countries on the 5

For an account of the issues related to such resettlement: Dreze Jean, Samson Meera, and Singh Satyajit (eds) – The Dam and the Nation: Displacement and Resettlement in the Narmada Valley, OUP, Delhi 1997 6 For ‘The World Bank Policy on Resettlement’ Mathur Hari Mohan, Mardsden David (ed) – Development Projects & Impoverishment Risks: Resettling Project-Affected People in India, OUP, New Delhi 2000, Appendix – B

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ground that it does not take into account, access to environmental and common property resources (important for poor people) and other aspects of quality of life, e.g. family ties, community participation.7 Therefore, Jean Dreze mooted the idea of “voluntary resettlement” i.e., leaving it to displaced persons to decide for themselves what constitutes ‘adequate resettlement’ and any project is not to be implemented until mutually agreeable resettlement is provided.8 Rather, resettlement exercises may be taken as an opportunity to develop local human skill and local area development. It is equity and social justice in developmentinduced resettlement that needs to be incorporated into our land acquisition practice for urbanization programme. Minimisation of displacement should also be a part of the strategy, because forced displacement epitomizes social exclusion of certain groups of people. Redressing the inequities caused by displacement is imperative on both economic and moral grounds. 9 As against such levels of consideration of the intelligentsia and different organizations on ‘rehabilitation’ of project affected people, the poverty of our land acquisition acts and practices are really shocking.10 The Land Acquisition (Ammendment) Bill 1998, The Draft National Policy for Rehabilitation of Persons Displaced as a Consequence of Acquisition of Land 1995, The National Draft Policy for Rehabilitation: Principles of the NGO Alternative 1995, National Guidelines for Resettlement and Rehabilitation 2004 prepared by the Ministry of Rural Development, Govt. of India, are all under consideration and debate. We are, therefore, left with a colonial act, a democratic constitution and political will of governments to formulate policies and mitigate impoverishment risks on account of ‘planned urban development’. Part – II Going beyond the Existing Legal Framework: There are two alternatives to the application of existing legal and statutory framework for land acquisition, pending amendment of Land Acquisition Act and adoption of a National Resettlement Policy: (a) Transfer of Development Rights and Land Sharing Model In Land Sharing Model the basic proposition was “On-site Rehabilitation” of existing settlers on a part of redeveloped land leaving rest of the area for project development. The viability of such ‘land sharing’ option was studied by us during 2000-2002 in a specific

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For a detailed account of socially responsible resettlement, Cernea Michael M – “Risks, Safeguards and Reconstruction A Model for Population Displacement and Resettlement” in Economic and political Weekly, Vol. XXXV No. 41, Oct. 7 – 13, 2000 8 Dreze Jean, et al (eds) – The Dam and the Nation, op cit, p 5 9 Cernea Michael M – “Risks, Safeguards and Reconstruction A Model for Population Displacement and Resettlement” in Economic and political Weekly, op cit, p 3659 10 In the context of planned urbanization, the Delhi Development Act 1957 has made some provisions for accommodation to the original owners of land developed by the Development Authority (Section 21 of the Act). Four states, viz, Maharashtra, Madhya Pradesh, Punjab and Karnataka have enacted state-wide Resettlement and Rehabilitation Policies. Such Acts are still inadequate in the opinion of the protesters.

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private sector renewal project in Howrah Municipal Corporation Area.11 The suggestion was primarily meant for its application to restructuring of urban space in Howrah slums, because it goes beyond the scope of Calcutta Thika Tenancy Act 1981 and is capable of plugging the loopholes of existing legal provisions. It has a general applicability in at least two cases mentioned below: (i) Slum area Redevelopment may be undertaken in Kolkata-Howrah through such land sharing because the Thika Tenancy Act (1981) has been complemented neither by a dynamic and imaginative land use management nor by any effective control on property market. In the context of changing aspirations of lower income groups of the twin city in recent period, their rights, needs and capabilities, renewal programmes through land sharing may have profound socioeconomic implications, as the model values participation of poor in the development process and recognizes their status as citizens. The model also takes care of the principle of ‘Minimisation of displacement’ for urban projects. However, application of the ‘Land Sharing model’ must be preceded by legislative reforms and project-wise socio-economic studies to identify the beneficiaries and their preferences. ‘Making cities work for the poor’ is a global challenge and experiments are already on in many Asian countries. Let us also accept it. (ii) In North and Central Kolkata as well as in some parts of Howrah, there are clusters of old dilapidated houses with multiple shares in the ownership of property, which is a hindrance to both maintenance and renewal. If a few such adjoining houses are clubbed together, the available land may be utilized simultaneously for resettlement and implementation of desirable new projects. In the face of soaring urban land prices and pressure of private developers on urban renewal, such a programme may also arrest the trend of changing demographic composition in traditional localities of the two cities. Land assembly in this case may be possible through ‘Transfer of Development Rights’ within the existing statutory set up; but its success depends on the existence of an efficient planning and regulatory machinery empowered with institutional capabilities for appropriate intervention. For such empowerment, adequate Land Use and Development Control Plan supplemented by new legislation may be required. Without institutional reforms, present forces of property market may cause irreversible transformation of a city and its social fabric that goes against any policy aiming to achieve equity. Both these applications imply some kind of partnership between landowners and occupants and are open to a third partnership – that of the State or a Local Government – for public sector projects. The validity of Land Sharing is also corroborated by the special provision in

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Mukhopadhyay Anis – “Urban Renewal and Economics of On Site Rehabilitation”, Newsletter, The Institution of Surveyors (India), July 2002 Mukhopadhyay Anis – “Urban Land Use Management: Some Issues in the context of Howrah”, in the Technical Session on Land, Economy and Urban Growth, 3rd Indian Congress on Surveying, Valuation & Land Economy-2002 organised by The Institution of Surveyors (India), July 5-6, 2002.

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Delhi Development Act 1957, mentioned earlier, relating to provision of accommodation to the original owners on land developed by the Authority.12 This kind of Land Acquisition or land sharing may be considered to be useful in ‘Infrastructure Development through shortages’. (b) Long-run Approach to Land Acquisition – ‘Selective Acquisition’ To overcome the fundamental resource constraint to urban planning, i.e. scarcity of land, Land Use Control mechanism is generally applied and land acquisition process precedes the implementation of planned urbanization. A sound land management system is undoubtedly the precondition for an efficient urban planning. In the case of Kolkata metropolis, experts opine, it “could not grow in the desired direction due to non-availability of buildable land”.13 On the other hand, Statutory Urban Planning Authorities prepare Long Term Perspective Plans and Master Plans both for the whole Metropolitan Area and for specified areas within it. Therefore, there is a need for some arrangements to meet long run demand for land in the context of an extended planning horizon. It is some kind of reservation for a long term planned urbanization vide Master Plan or Perspective Plan, mainly for public use. But such reservation must be complemented by adequate enforcement of ‘Land Use & Development Control Plan’. It is in this context that we propose Selective Land Acquisition. Mode of traditional land acquisition – particularly for New Town development (in which development strategy for infrastructure is ‘development through excess capacity’) – may be called a process of ‘total land acquisition’, where all land to be developed is acquired. Therefore, freedom of planning and plan implementation is enjoyed by the Planning Agency. But, in the case of Master Plan, the time lapse between framing of a Master Plan and investment allocation, new constructions as well as unpredictable land use distortions crop up to make plan execution an extremely difficult and costly affair. Situations may also arise where total land acquisition may be constrained by various socio-economic factors or policy issues. For example, in the case of New Town Rajarhat, protection of existing settlements in the form of entrapped villages (which have reduced displacement) acted as a constraint on freedom of planning. Whatever be the significance of such an innovative design of town planning in the New Town, the proposition of ‘selective land acquisition’ is a plausible one. Here, ‘selective’ implies selected for requirements of long term planning, – reserved, of course, with a time limit. A new legislative framework would be required to meet this end. Selective Land Acquisition thus implies: Land Acquisition to the extent of requirement of infrastructure, common services, public and semi-public facilities and the shelter needs of identified groups, leaving rest of the land to be developed by the land owners themselves in accordance with the development plan and land use control. Land transactions may not be stopped, but the entire exercise must be guided by certain principles like: 12

Delhi Development Act 1957, Section 21, op cit. the Supreme Court upheld this provision of this Act in a land acquisition case against Meerut Development Authority; Shivamurthy Y M and Sinha Vinita – Land Acquisition Law and Practice in ‘India Infrastructure Report 2001’, 3i Network, OUP, New Delhi 2001, p 83. 13 Roy, Sunil Kumar, Principal Consultant, WBHIDCO, New Town Kolkata – “Urban Development and Land Management Strategy” in the Technical Session on Land Economy and Urban Growth, 3rd Indian Congress on Surveying, Valuation & Land Economy-2002 organised by The Institution of Surveyors (India), 5-6 July 2002, op cit, Souvenir p 105

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1. All agreed cash compensations are to be paid on the date of possession; 2. Selective Acquisition must abide by the ‘Right to Information’ of the land owners and existing settlers; 3. A systematic and democratic Resettlement Policy is to be made an integral part of the Long Term Urban Planning. 4. The purpose of Real Estate Development is to be excluded from this mode of land Acquisition. Legal loopholes in this respect are also to be plugged. Selective Land Acquisition mode is particularly suitable for open areas on the fringes of the city for checking high crowding and congestion of undesirable urban sprawl. But it can also be applied to certain purposes of supplementing and supporting private development activity in growing areas after bulk of land has been assembled by the private players obeying the development control norms. However, this mode of acquisition allows for a specified role of private developers in planned urbanization instead of the state shouldering the entire burden of planned urban development. But, adequately detailed Land Use Mapping and a perfect Land Information System are essential preconditions for the application of this method. Concluding Remarks Land Acquisition Act of the country is more than a century old and contains a colonial understanding of land; still it is compatible with the right to private property guaranteed in our constitution and it places the judiciary in the position of ultimate authority in the case of any grievance. But as a product of the colonial regime it is based on an incapability of understanding the traditional community perception of land, lack of transparency in ‘public purpose’, total disregard for the human aspect of compensation and so on. On the other hand, the Act based on the agrarian framework of the economy, is absolutely inadequate and a mismatch for urban planning. The legal framework must be reformed to accommodate a human approach so that natural justice is not denied and that needs of modern urban growth and planning are taken care of. The entire country has been debating, during last two decades, over a draft of the New Land Acquisition Bill and a draft National Resettlement Policy, while intelligentsia and organizations across the country are making efforts to put a human face to these policies. Pending such legal reforms, we have the colonial Act as well as experiences of success and failures in the application of this act, and also a variation of it, in the process of urban planning in Kolkata Metropolitan Area in recent decades. The experiences suggest that there must be a paradigm shift in the land acquisition process. Direct requirements of urban planning should not be the only guiding principle behind any legislative reform or in any programme of action in land acquisition. For example, the Act of 1948 in West Bengal, prompted by urgency of state, is not the kind of amendment that is required. The new framework must be capable of providing more than immediate needs of the planners or the authority. From the experiences we also learn that land acquisition programme should be directed to go beyond its present legal and statutory 17

process, should be more democratized and a systematic rehabilitation and resettlement, drafted in a foregoing section, should be made an integral part of acquisition – a part of the schedule of project construction itself. Minimisation of displacement is not enough. It is a social responsibility of the state to enable the affected communities to assess and react in an informed way to the policy of resettlement. Their full participation in implementing and monitoring the rehabilitation schemes has to be assured. Right to information is a tool of empowerment and it opens up the scope for informed choice. It also ensures that original land-owners are not deprived and deceived by private developers. Relief is to be given not only to those who are losing their land, but also to those who are otherwise adversely affected. Careful consideration must be made of the prospect of local community sharing the long-run benefits of development. It is through such a shift in approach to land acquisition that affected people may have a sense of belonging to the urban development and planning instead of being alienated from the development process. Friction-less land acquisition can be ensured only by an equitable and democratic policy. The norms of paradigm shift also encompass the possible experiments with the two alternatives to traditional land acquisition suggested in this paper, viz, Land Sharing and Selective Acquisition. For these an appropriate legal framework is to be provided through amendments and new enactments. The propositions in Part II of this paper, nevertheless, deserve further comments from the experts and researchers. Finally, today’s urban planning in different parts of the world, is deeply concerned with formulating a standard appropriate for land use, conservation and development, – appropriate in the social context. Land acquisition policy in conjunction with land use policy frames a set of land policy that is subservient to the major goals which society is striving to attain. Therefore, it is the political economy of development which ultimately shapes such land policy in urban development.

ANNEXURE – I REJOINDER TILL SEPTEMBER 2012 Initial Guidelines for reform came from the Ministry of Rural Development (Department of Land Resources), Government of India, 2004 under the title: National Policy on Resettlement and Rehabilitation for Project Affected Families-2003 (Published in the Gazette of India, Extraordinary Part-I, Section 1, No-46, dated 17th February, 2004) These guidelines were particularly concerned with major issues like: 1. Displacement of people depriving them of their lands, livelihoods and resource-base, along with other traumatic psychological and socio-cultural consequences. The Government of India recognizes the need to minimize large scale displacement to the extent possible and, where displacement is inevitable, the need to handle with utmost care and forethought issues relating to Resettlement and Rehabilitation of Project Affected Families specially in respect of tribal population, small & marginal farmers and women. 2. It was recognized that the system of extending cash compensation does not, by itself, in most cases, enable the affected families to obtain cultivable agricultural land, homestead and 18

other resources which they have to surrender to the State. The difficulties are more acute for persons like landless agricultural workers, forest dwellers, tenants and artisans, as their distress and destitution is more severe, and, yet they are not eligible for cash compensation. Subsequently two Bills (which reinforce each other) were drafted for being passed in the Parliament: THE LAND ACQUISITION (AMENDMENT) BILL, 2007 and THE REHABILITATION AND RESETTLEMENT BILL, 2007 Some major points to note in THE LAND ACQUISITION (AMENDMENT) BILL, 2007: 1. In the Bill to amend the Land Acquisition Act, 1894 provision for land acquisition for Companies shall be omitted. 2. The provisions of the Rehabilitation and Resettlement Act, 2007 shall apply in respect of acquisition of land by the appropriate Government under LA Act. 3. The definition of “person interested” particularly included (i) tribals and other traditional forest dwellers, who have lost any traditional rights recognised under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006; (ii) persons having tenancy rights under the relevant State laws. 4. The expression “cost of acquisition” included additional cost of resettlement as may be required after admissible adjustment of rehabilitation and resettlement cost against compensation awarded to affected persons or families; 5. The expression “public purpose” included, among other things, (i) the provision of land for strategic purposes relating to naval, military and air force works or any other work vital to the State; (ii) the provision of land for infrastructure projects of the appropriate Government, where the benefits accrue to the general public; and (iii) the provision of land for any other purpose useful to the general public, for which land has been purchased by a ‘person’ under lawful contract to the extent of seventy per cent but the remaining thirty per cent of the total area of land required for the project as yet to be required.’ The word “person” included any company or association or body of individuals, whether incorporated or not. (iv) the provision of land for town or rural planning; for planned development of land from public funds in pursuance of any scheme or policy of Government; (v) the provision of land 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 Government, any local authority or a corporation owned or controlled by the State; 6. Whenever the appropriate Government would intend to acquire land for public purpose involving physical displacement of(i) four hundred or more families en masse in plain area; or (ii) two hundred or more families en masse in tribal or hilly areas or Desert Development Programme area, a social impact assessment study shall be carried out in the affected area. 19

7. It is desirable to make the various steps of the land acquisition process time-bound, so that the entire process can be completed within a reasonable period of time. This will be in the interest of the land owners and farmers whose lands are acquired as well as the projects and requiring bodies. When any land or part thereof, acquired under this Act remains un-utilised for a period of five years from the date of taking over the possession, the same shall return to the appropriate Government by reversion. 8. The State Government/ Central Government shall, for the purpose of providing speedy disposal of disputes relating to land acquisition compensation, establish, by notification in the Official Gazette, an Authority for the State to be known as the Land Acquisition Compensation Disputes Settlement Authority. THE REHABILITATION AND RESETTLEMENT BILL, 2007 attempted to provide for the rehabilitation and resettlement of persons affected by the acquisition of land for projects of public purpose (under the Land Acquisition Act, or any other Act of the Union or a State for the time being in force) or involuntary displacement due to any other reason, and for matters connected therewith or incidental thereto. This bill recognised: “There is an imperative need to recognise rehabilitation and resettlement issues as intrinsic to the development process formulated with the active participation of affected persons and families. Additional benefits beyond monetary compensation have to be provided to families affected adversely by involuntary displacement.” and “While undertaking a social impact assessment, the appropriate Government shall, take into consideration the impact that the project will have on public and community properties, assets and infrastructure; particularly, roads, public transport, drainage, sanitation, sources of drinking water, sources of water for cattle, community ponds, grazing land, plantations, public utilities, such as post offices, fair price shops, food storage godowns, electricity supply, health care facilities, schools and educational or training facilities, places of worship, land for traditional tribal institutions, burial and cremation grounds. Provisions for independent multidisciplinary expert group to examine the social impact assessment report and for concurrent social impact assessment study in cases requiring environmental impact assessment study would be made.” The R & R Bill 2007 also made provisions like: (1) A National Rehabilitation Commission shall be set up by the Central Government with the power to supervise and exercise general oversight over rehabilitation and resettlement of the affected families covered under this Act. (2) The Administrator for Rehabilitation and Resettlement shall undertake a baseline survey and census for identification of the persons and families likely to be affected and village-wise information of the affected families including their house, agricultural land, employment, source of trade, business, occupation or vocation, vulnerable persons such as the disabled, destitute, orphans, widows, unmarried girls, abandoned women, or persons above fifty years of age, who are not provided or cannot immediately be provided with alternative livelihood, families that are landless and below poverty line etc. Completion of the survey and publication of draft of the details of findings/survey by the Administrator has to be made within 90 days from the date of declaration. 20

(3) No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Administrator for Rehabilitation and Resettlement, the Commissioner for Rehabilitation and Resettlement, or the Ombudsman is empowered by or under this Act to determine, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. (4) The Scheduled Tribes affected families shall be resettled preferably in the same Schedule Area in a compact block, so that they can retain their ethnic, linguistic and cultural identity. The affected Scheduled Tribes, other traditional forest dwellers and the Scheduled Castes families having fishing rights in a river or pond or dam in the affected area shall be given fishing rights in the reservoir area of the irrigation or hydel power projects. Both the bills of 2007 lapsed because they were not tabled in the Parliament for lack of a national consensus; and these were redrafted as 2009 Bills. But the draft bills 2007/2009 laid the foundations of future amendment proposals. The 2009 drafts also met the same fate. Government of India; National Advisory Council Recommendations Extracts from Press Release: 25th May, 2011 The Thirteenth meeting `of the National Advisory Council (NAC) on 25th May, 2011 has recommended the following: I - Land Acquisition, Resettlement & Rehabilitation NAC after due consideration of the proposal of Working Group on Land Acquisition, Resettlement and Rehabilitation decided to recommend a single comprehensive legislation, i.e. “National Development, Land Acquisition, Resettlement and Rehabilitation Act.”, rather than the two separate ones as at present, namely, the Land Acquisition (Amendment) Bill 2009 (LAA 2009) and the Resettlement and Rehabilitation Bill, 2009 (R&R 2009). NAC further recommends that the proposed legislation has the following key elements: (a) A single comprehensive law which would discourage forced displacement, and minimise adverse impacts on people, habitats, environment, food security and biodiversity. The law should ensure that all possible options of more barren, less fertile and waste lands have been explored before acquiring agriculture land. (b) On the condition that other less-displacing alternatives are not available, the law will provide for acquisition only for public purposes. This will be defined as acquisition necessary for strategic and infrastructural purposes, and for social services like education and health care. (c) The NAC is deeply concerned above all that all persons who lose their lands, livelihoods and shelter because of acquisition for any public purpose must be brought under the protection of this law, and their rights to suitable compensation, resettlement and rehabilitation benefits are fully protected in all cases (d) The processes will be transparent and participatory, requiring full information and consultation with affected communities. (e) Compensation tends to be greatly under-valued, because registered sale deeds are undervalued. Therefore NAC proposes that compensation for those who lose land will be six times 21

the registered sale deed value, including solatium. The option will also be offered to those who lose land to receive all or part of their compensation in the form of annuities. (f) A very significant proposal for the poor is that not only those who lose land, but also those who lose livelihoods should be compensated. These include agricultural workers, artisans, fisher-folk and forest-gatherers. They would be entitled to a grant amounting to 10 days of minimum wages per month for 33 years. (g) The land will be held jointly by women and men of the family, and other assets as well as cash will be paid into joint accounts held by women and men. (h) If land is acquired for a public purpose and not used within five years, private property that was acquired should be returned to its original owners. (i) Urgency clause shall not be used, unless it for national security and defense purposes. (j) An independent Social Impact Assessment (SIA) should be conducted for all larger projects to assess the social and environmental impacts from the project. (k) At least one person from affected family will be given first preference in available employment in commercial projects, in conformity with their skills. (m) A National Commission for Land Acquisition, Resettlement and Rehabilitation (NCLRR) should be set up, with powers to supervise, and exercise oversight over land acquisition, resettlement and rehabilitation. NAC advised the Working Group to work out details of the remaining key elements which require further discussion. The entire process of drafting and redrafting and identification of key issues led to a new Amendment proposal in September 2001 – the Bill 2011. The Land Acquisition Rehabilitation and Resettlement Bill, 2011 (Major Provisions): Issue 1: Public Purpose • Government acquires land for its own use • Government acquires land with the ultimate purpose to transfer it for the use of private companies for stated public purpose (including PPP projects) • Strategic purpose • For the purpose of Infrastructure & Industry • Land for Rehabilitation and & Resettlement (R & R) • For the purpose of Planned Development • Needs arising out of natural calamities Issue 2: Urgency clause • Defence and Security • R&R • Natural Calamities Special emphasis has been given on: • Transparency in the process of acquisition; and • Consent of 80% of project affected families. Issue 3: Affected families • Land losers • Forest Right losers • Livelihood losers 22

Social Impact Assessment (SIA) and the socio-economic study preceding land acquisition has to be examined by an Expert Group Institutional Structure for dispute settlement has been specially designed. Issue 4: Awards • Minimum comprehensive compensation package : 2 to 6 times the market value • Subsistence allowance for 12 months; • Annuity for 20 years; • House with infrastructural amenities, employment, shares and special provisions for SC & ST etc. R&R provisions will also apply when: 1. Private companies buy land, equal to or more than 100 acres, on their own; 2. Private company approaches Government for partial acquisition for public purpose. Note: Government does not envisage acquiring land in cases where: 1. Land is required by private companies for private purposes. 2. Any multi-crop irrigated land is required for public purposes While introducing the LARR Bill 2011 in the Lok Sabha in September 2011, it was mentioned on behalf of the Ministry for Rural Development (GoI), “The bill aims to ensure a humane, participatory, informed, consultative and transparent process of land acquisition for industrialization, development of essential infrastructure facilities and urbanization with least disturbance to owners of land and other affected families”. The National Debate on LARR Bill 2011: While the LARR Bill 2011 seeks to achieve dramatic changes in land acquisition law and process, there is hardly any unanimity among the social activists, political parties and academicians regarding whether solutions to the grievances of the people and their agitations preceding the Draft Bill are available in the draft. To some social activists, release of land and natural resources to capital owners and the creation of a workforce out of peasantry, and at the same time the destruction of the existing modes of exchanges are all parts of actions and reactions of global capital; and such broad issues of protecting the existing national socioeconomic fabric remain unaddressed in the Bill 2011. Therefore, this Bill will guarantee neither social justice nor the efficient use of resources. To some people, the overall perception of resources like land in tribal societies is distinctly different from the perception in non-tribal areas and the Land Acquisition, Rehabilitation and Resettlement Bill, 2011 has not paid adequate emphasis on this. To some others, the logic of market emphasised by the state holds good as long as people are willing to sell their land at a desired price (or for an attractive compensation and rehabilitation package). But the specific context which has given rise to resistance to land acquisition is not “imperfect land market” but the non-existence of land market – i e, an absent market where there are no “willing sellers” for a particular land, though there are buyers. That is why the Bill tries to attract sellers by enhancing the compensation value. On the other hand, others apprehend that farmers may be allured to remain idle instead of getting engaged in unprofitable agriculture while industrialists would be discouraged to invest because cost of land becomes too high. 23

In spite of such debates, the basic provisions of R & R have not been contested and the Social Impact Assessment before acquisition is also welcome. But, the debate within the government has added a new dimension to the uncertainty about smooth passage of the bill in the next session (2012) of the parliament. Debate within the Govt regarding the pending Bill 2011: The Bill was introduced in the parliament in September 2011 and it was referred to a Parliamentary Standing Committee (PSC) for detailed examination. The PSC in its report (May 2012) cited the example of Developed Countries (DC) where land is purchased by private enterprises and not acquired by the state (such acquisition is not a public purpose, particularly in a liberalised regime and free market). PSC also pointed out that some other Central Acts are in force which allow for land acquisition; these are related to – Atomic Energy, Cantonments, Mines, SEZ, the Railways etc. These are outside the scope of the LARR Bill 2011 and the PSC recommended application of LARR Act to SEZ, Defence and Cantonment Acts. It also recommended a revised version of the title as “Right to Fair Compensation, Resettlement, Rehabilitation and Transparency in Land Acquisition Bill”. On the other hand, the Rural Development Minister of Government of India (who introduced the Bill in the Parliament) disagreed with the PSC, because Indian reality is different from the DCs; the governments should have a role in Land Acquisition for PPP projects and private industry. The Union Cabinet on 28 August 2012 has faced opposition to the draft Bill from different ministries (including urban development ministry) within the government on the apprehension that its enactment may stall urbanisation and industrialisation; and, therefore the Bill has been referred to a ‘Group of Ministers’ for further study. Meanwhile, Confederation of Indian Industries on 07 August 2012 called for streamlining LA Act to promote job creation and income generation through boosting of manufacturing industries particularly in the context of slowing down of economic growth. Recent Policy Changes in West Bengal: ‘Singur Land Rehabilitation and Development Bill 2011’ was passed on 14 June 2011 to settle the question of ‘unwilling farmers’ in 2006 and to return their land acquired then. The Tata Motors moved the High Court and two opposite views of HC on constitutional validity of the Act were available: On September 28, 2011 (by the single judge) and on June 22, 2012 (by the division bench). On the other hand, New Draft Land Policy of West Bengal 2011, in addition to the commitment of creating a Land Bank and Land Maps, has made the provision that industrialists will purchase 100% of land required for their project directly from the land owners; government would not acquire land for them because the government does not share the profit of industrialists. Therefore, after 118 years, relevance of the theory of ‘Eminent Domain’ is still alive in the debate on land acquisition in this country. The doctrine of eminent domain vests power in the state to acquire private land for public purpose on payment of compensation. 24