|
|
|
|
Land Acquisition, Resettlement and Rehabilitation Bill, 2011: A Boon or a Bane?
"We won’t sell the land, for it is the only capital we have. It feeds us through the year and through generations. But a few crores won’t feed us indefinitely." |
|
|
The present Land Acquisition, Resettlement and Rehabilitation draft Bill of 2011 however has tried to make amends by way of offering comprehensive packages; albeit they are attractively arranged, there exists no comparison as the demands made by the oppressed usually include "just" compensation by way of market price, a job and a certain amount for loss of livelihood. However there are no specific demands, as ideally the livelihood losers don’t wish to part with their land writes Shreya Bose. |
| |
|
| |
Introduction
Exploring Article 21 – The Right to Life , one of the basic tenets of the constitution is akin to opening the Pandora’s Box. It is known to have thrown up a plethora of interpretations. More recently the Courts have started to take a broad and expansive view, by guaranteeing right to livelihood. In fact the Supreme Court has clarified its position by including “the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing, and shelter over the head.” Meanwhile, it must be noted that Art. 21 does not place an absolute embargo on the deprivation of life or personal liberty or anything encompassing within the varied interpretations .Although it does insist that such deprivation ought to be according to the procedure established by law which should be “fair, just and reasonable” and not arbitrary, fanciful or oppressive. Based on which it can be assumed that anyone who is deprived of his right to livelihood without just and fair procedure established by law can challenge that deprivation as being against Art.21. Logically this would mean that the Government is under no obligation to compensate for loss of livelihood in cases of acquisition for public purpose. The Courts have reiterated this point in numerous cases.
Yet at the same time they have accepted that, right of agriculturists to cultivate is a part of their fundamental right to livelihood ; and that the Right to dignity, which is recognized as guaranteed by Art. 21 insofar as is violated by withholding of the means of livelihood by any means or process whatsoever would attract Art. 21. Thus there is a contradiction in the way Courts have viewed this problem.
Research Question
The researcher is perplexed as to how there has been no legislation or policy to address the concern of those people who have lost their livelihood and primary source of income through Land Acquisition by the Government. So, the researcher would like to critique the present bill and analyze whether-"the bill provides for a just compensation and rehabilitation package, sensitive to their loss of primary income, aspirations, culture, community, natural resource base and skill base of the affected people?"
The need for this Bill
The ‘Tata Nano-Singur’ project is a perfect instance of why India needs this Bill. As the case unfolded, it evolved into a prominent controversy garnering widespread international media attention. Tata Motors, India’s biggest Multi-National Corporationproposed to construct a factory manufacturing family cars worth $2,500 at Singur. The Communist Party of India-Marxist ruled State Government of West Bengal used the doctrine of eminent domain to take over997 acres of fertile multi-cropping agricultural lands.Furthermore this land had a cropping density of 220 percent and was supported by a well-established system of irrigation. The justification extended by the government for acting as brokers for a private company like Tata was that West Bengal had reduced to being an industrial graveyard, a morass of economic stagnation, in urgent need of fresh investment to revive its economic solidity. They conceived the move to be an immediate fulfilment of their electoral promises and an initiation towards an escalation in industrial growth rate. However the sites allotted were discovered to be the most fertile and agriculturally productive areas of West Bengal. Thus law as a tool of legitimized oppression in the guise of developing private industries actually assisted the state incapturing land for public purposes. Eventually the Kolkata High Court declared the acquisition prima facie legal, but at the same time it conceded to the fact that there existed an illegality of purpose behind this acquisition.
Thus, ultimately victory was awarded to the voices of those who fundamentally challenged the policy of industrialization through private capital in the name of development. But more importantly, it brought to fore the importance of livelihood and consequently the impact of its loss. Being a member to the International Covenant on Economic, Social and Cultural Rights, Indiaand its states are obligated to respect andprotect the peasants’ right to adequate food. By acquiring their lands without taking effectivesteps to ensure the peasants’ and similar others’ right to feed themselves in a sustained manner, India and thestate of West Bengal would violate these people’s human right to food. The right to live indignity as described under Article 21 and 39 of the Indian constitution is also violated.
Compensation and Rehabilitation has always been a sticking point for most Land acquisitions as expounded above. It has taken us 118 years to look beyond the Land Acquisition Act of 1894; it is now our duty to ensure that the Centre government passes an act which provides for "just compensation and rehabilitation package, sensitive to the loss of primary income, aspirations, culture, community, natural resource base and skill base of the affected people?"
Critique of the Bill
The preamble of the bill is striving to strike a balance between growing industrialization and urbanization and seeking to address concerns of people whose livelihood depends on the land being acquired. Emphasis lies on the significance of rehabilitation following acquisition, as by not combining the both within one Bill, the risk of neglecting Rehabilitation and Resettlement runs high. Nevertheless certain fallacies, as detailed below, must be rectified before tabling this bill.The 2011 Bill must be appreciated for analyzing the requirements in case of loss of livelihood and for providing a well thought out calculation for compensation. However certain minute but important details have been overlooked. For instance, a clear demarcation has been made for rural and urban areas, while calculating the compensation.ie; the market value calculated shall be multiplied by three in rural areas. This is of course logical, as the price value of land in rural areas is lesser than that of urban areas.
But the same line of thought has not been carried forward, in the case of preparing the comprehensive package for resettlement and rehabilitation. In the package formulated for land owners and livelihood losers a monthly subsistence of Rs. 3000 is provided to all. This adversely affects the impact of the generous package offered, as the crucial aspect of urban v. rural cost of living is being ignored. If the compensation provided can be calculated keeping in mind the disparity in the price of land in urban and rural areas. Similarly while making the comprehensive package; one must arrive at a calculation that would take into account the high cost of living in urban areas. The "monthly subsistence of Rs. 3000 or Rs 2000 per month per family as annuity for 20 years, with appropriate index for inflation or Rs. 2 lakh if employment is not offered, or a onetime resettlement allowance of Rs. 50,000" would hardly suffice for someone residing or earning their livelihood through their piece of land in the urban areas. We must not instantly assume that all those people working and residing in urban areas earn a lot more than those residing in rural areas. If that is the case then it must be noted that the cost of living is also a lot more.
Therefore Isuggest that, the Ministry of Rural Development must look into this matter and consider the difference in cost of living in urban and rural areas while finalizing the comprehensive package for Resettlement and Rehabilitation. By way of model, the three divisions originally made should be retained. But in the landowners and livelihood loser segment, two subdivisions should be made, segregating the rural and the urban calculation of minimum entitlements. The government has also brought in another provision of returning unutilized land , as it has been observed that often, after the land is acquired, the project for which it is acquired is abandoned.
An illustration of this would be the 750 acres of land that was given to the Birla’s by the West Bengal Government in the 1950s for an automobile project. Over fifty years down the line, only 300 acres have been used. The researcher would like to point out the absurdity of this provision. Assuming that, as per the bill, the land to be acquired is not transferred until rehabilitation and resettlement is carried out. If the said condition is fulfilled¸ why should the displaced families be transferred again to their original land after 5 years or given the land at one-fourth of its price? The question then arises, is that whether the government is diligently performing and distributing the rehabilitation and resettlement comprehensive package? Another instance would be the case in Hooghly where, a large portion of acquired agricultural land was unutilized and degraded to such an extent that it was no longer fit for agricultural use. In such situations it would be extremely unfair to return the acquired land to its original owner and further demand a return of 25% of the compensation awarded to him, as technically the land is of no agricultural value to him.
Thus, in my opinion the Ministry should amend this clause to include only transference to other governmental departments for similar public purpose, after another round of social impact assessment. Whilst concentrating on optimum fulfilment of the package allotted to landowners and livelihood losers.Another glaring flaw in the bill is the Tribal Displacement Plan or the Tribal Development Plan which is to be drafted only if 100 or more families of Schedule Tribes are affected. Clearly the Government is trying to be oblivious to reality, as it is a known fact that the tribals are a nomadic lot and are rarely discovered in such huge numbers. Also they are in need of special protection, as their livelihood is solely dependent on land and their interaction with urban civilization is extremely limited. Thus instead of 100 or more families, they should place a minimum limit of 100 or more tribals. The Bill is in compliance with The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, which permits acquisition of Tribal Land, whilst the Bill provides rehabilitation, a tribal development plan will assist them in building a suitable future, thus to craft that reality, the government must endeavour to create such a plan for instances where 100 tribal members are displaced instead of 100 tribal families as the latter case situation is unrealistic and extremely rare.
Further the Bill has promised to provide a house, without requiring the affected person to pay the price for such house, in an extent of a minimum of 150 square metre of plinth area in rural areas or, as the case may be, 50 square metre of plinth area in urban areas. This is in reference to cases when affected families are involuntarily displaced due to Land acquisition. However the condition of the affected family without any ownership on that land having to reside in that area continuously for a period of not less than three years preceding the date ofnotification seems unfair and arbitrary. Firstly not only is it difficult to gauge the continuous residence of the affected family for three years. Secondly the Ministry must acknowledge that involuntary land acquisition will affect all families irrespective of the number of years they have resided in that area.
The Bill has strived to be gender neutral by including both the husband and wife’s name in the allotment of land or house, although to prevent abuse, it should make it mandatory.
Authorities concerned - Section 31 of the Bill empowers the Administrator with powers, duties and responsibilities. The section is sufficient to understand the role of the Administrator, but to restrict the scope of misuse, it is imperative to realize that a broad outline must be framed to notify the people and the Administrator of his powers and duties. The researcher is not objecting to the discretion used by the appropriate government or the Administrator, but she would definitely object to the apparent lack of overarching guidelines, which would permit the Administrator to arbitrarily use his powers and neglect his duties.
As stated in Section 33 – a Rehabilitation and Resettlement Committee at Project Level must be formed to monitor and review the progress of implementation of the scheme offered and to carry out post-implementation social audits in consultation with the village panchayat in rural area and municipality in urban areas. However the researcher feels that a legal officer should be given the post of one of the representatives of the committee. The benefit of having such an officer would be plenty, as not only would he impart legal knowledge and knowledge regarding such transactions to the affected families, but he would also inform the other party of the duties, powers and responsibilities of the party in question.
Section 39 – The Collector is in charge of conveying all objections made by people regarding themeasurement of the land, the amount of the compensation, the person to whom it is payable, the rights of Rehabilitation and Resettlement under Part III and IV of this Act or the apportionment of the compensation among the persons interested. But this is subject to the collector’s discretion and that, according to the researcher is the biggest flaw in the model as it would give rise to ample opportunity for misuse of power. Presuming livelihood is imperative to living, we must understand that transparency and opportunity to raise complaints is an absolute must while carrying out the scheme of rehabilitation and resettlement. Thus there must be an impartial neutral body which would receive all complaints and consider them after a majority vote.
The Future
The Cabinet had suggested a few changes that are being incorporated in the Bill – for instance, the time period after which abandoned projects are adopted has been increased to 10 years, the un-utilized land will not be returned to the original owners and rightly so, as explained above. The compensation rate in rural areas that was to be calculated six times the market value is reduced to four times the market value. While the urban rate is kept the same, yet again the disparity in the cost of living in these two areas has been ignored.
|
| |
| SHREYA BOSE is a fourth year student pursuing B.A.LL.B (Hons.) at NALSAR, Hyderabad. She may be reached at shreyabose15@gmail.com. |
| |
| REFERENCES |
|
|
