State Governments Taken to Court for Land Acquisition Amendments

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Land Acquisition Act) had been amended twice through Ordinances in 2014 and 2015. However, the Ordinances lapsed and thus, the unamended law came back into force. The impact of the temporary laws has been felt in several states which have enacted laws in conformity with the Ordinances, though not necessarily in conformity with the Act.

Since ‘acquisition and requisitioning of property’ is under entry 42 in List III of Schedule VII to the Constitution, several states have passed amendments. At present, a petition filed by Medha Patkar and nine other petitioners in the Supreme Court seeks to strike down these amendments. The petition has challenged the amendments passed by the governments of Andhra Pradesh, Jharkhand, Tamil Nadu, Telangana, Gujarat, Uttar Pradesh, Karnataka, Odisha, Chhattisgarh, Madhya Pradesh, Himachal Pradesh, Assam, Haryana, Tripura and Sikkim. On November 10, the Supreme Court issued notice to the governments of Gujarat, Andhra Pradesh, Telangana, Jharkhand and Tamil Nadu in connection with the petition.

The Act

In 2013, Parliament passed the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and the Ministry of Law and Justice had published it through Gazette Notification on September 27 the same year. The petition has noted that this Act had several positive features such as taking the consent of landowners as well as provisions related to food security. However, the primary concern with the Act at the time was the wide definition accorded to the ‘public purpose’ for which land could be acquired. Some of the uses for which land can be acquired under the Act are:

• National Defence and Security Projects
• Infrastructure Projects
• Relief Development
• Planned Housing
• Planned Development
• Housing for Displaced Persons

The December 2014 Ordinance

On December 31, 2014, the Union Government passed an Ordinance which amended several provisions of the principal Act. The ordinance introduced amendments which relaxed the restrictions on ‘private entities’ to acquire land under the Act ostensibly for public purposes. Thus, acquiring land to establish public schools and hospitals became a lot easier. One of the key changes was to replace the words ‘private company’ with ‘private entity’. The effect of such a change is that a company is an entity defined and governed by the Companies Act. The definition of private entity introduced through the Ordinance was so wide that even a Hindu Undivided Family (HUF) could technically acquire land through the government under the Act.

A further blow to the public was dealt when a whole list of ‘projects’ were exempted from falling under Chapter II and III of the Act. Chapter II deals with ‘Determination of Social Impact and Public Purpose’ and Chapter III deals with ‘Special Provisions to Safeguard Food Security’.

The May 2015 Ordinance

The earlier Ordinance was repealed on April 3, 2015, and a fresh one was promulgated on May 30. Apart from reiterating the contents of the December 2014 Ordinance, some new amendments were added. For example, section 87 of the principal Act which specifies who should be proceeded against for offences under the Act with regard to government departments, was amended to ensure that section 197 of the Code of Criminal Procedure would be applied. Section 197 requires prior sanction for prosecuting public officials. With respect to returning unutilised land, the principal Act had stated that if the acquired land is not used within five years, it should go back to the original owners or their legal heirs. The amendment to this provision mentioned “a period specified for setting up of any project or for five years, whichever is later”.

The Ordinance lapsed on August 31, 2015, and no further Ordinances were passed.

The State Amendments

Though the states’ amendments to the Act and Rules were not entirely uniform, they deviated considerably from the original 2013 Act. For example, with regard to the provisions concerning social impact assessments, the principal Rules specify that the notice period for ensuring participation in public hearings is three weeks. Andhra Pradesh and Telangana reduced the period to one week, whereas Jharkhand, Sikkim and Uttar Pradesh reduced the period to two weeks. Uttar Pradesh was also the only state to reduce the time period for completing and submitting the social impact assessment report to two months as opposed to the six months prescribed in the principal Rules.

With regard to the return of unutilised land, the principal Rules specify that if the acquired land is unused for a period of five years or more, the land will go back to the original owners, their legal heirs, or the concerned government land bank. Jharkhand and Odisha have removed the original owners from ever receiving the unutilised land. Instead, the land will be transferred to a land bank. Karnataka and Tripura have introduced provisions that the original owners or their heirs must deposit the current market value of the land minus the compensation they received when the land was acquired. In the case of Tamil Nadu, if the District Collector is satisfied that the land can be used for a public purpose, the land will go back to a land bank. In Telangana, the period for holding the land follows the second Ordinance to the extent that either five years or a specified time for setting up the project, whichever is later.

With regard to food security, the principal Rules have put a limit on the acquisition of irrigated multi-cropped land at 1 per cent of the total irrigated land in the state. Both Chhattisgarh and Jharkhand have raised the limit to 2 per cent. Where the principal Rules have stated that not more than 5 per cent of the net sown area in the state can be acquired under the category of other agricultural land, Jharkhand and Madhya Pradesh have outdone themselves. Jharkhand raised the limit to one-fourth of the net sown area, and Madhya Pradesh raised it to 50 per cent.

Himachal Pradesh, Jharkhand and Sikkim have also diluted the provisions related to obtaining consent from land owners. The principal Rules state that the quorum of the Gram Sabha for obtaining consent is 50 per cent. In the case of Jharkhand, it has been reduced to one-third. Whereas for Himachal Pradesh, it has been made subject to various Acts related to local bodies and varies between one-third and half depending on the situation. Himachal Pradesh has also done away with having at least one-third representation for women. Whereas, Jharkhand and Sikkim have reduced the time period for displaying the terms and conditions of the acquisition from three weeks to 10 days and 15 days respectively.

The crux of the petition is that the principal Act was passed in 2013 to ensure that human dignity protected under Article 21 of the Constitution is maintained even in the case of acquisition and requisition of property. The amendments that the Union Government wished to implement met widespread opposition, as it would dilute the purpose of the Act. Thus, the Union government passed these amendments as Ordinances. It is unclear what reasons the state governments had for following suit.