Simply put: After govt climbdown, points of convergence in land law

Nine substantive amendments had been brought through an ordinance and, subsequently, as part of a Bill. The ordinance has been repromulgated thrice.

5 min readNew DelhiAug 13, 2015 02:52 AM IST First published on: Aug 13, 2015 at 02:52 AM IST

Lok Sabha

The government last week beat an unexpected retreat on The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013, agreeing to drop some of the most contentious amendments. Nine substantive amendments had been brought through an ordinance and, subsequently, as part of a Bill. The ordinance has been repromulgated thrice.

While disagreement persists over two crucial clauses, here’s a look at some of the important aspects where consensus has been evolved:

Section 10(A)
The government has agreed to drop the entire clause pertaining to Section 10(A) in its Bill. Under this section, the government had included five new categories of projects to which requirements of consent and social impact assessment (SIA) would not apply. These included projects for defence and defence production, rural infrastructure including rural electrification, affordable housing and housing for the poor, industrial corridors, and infrastructure projects, including Public Private Partnership projects wherein ownership continued to be with the government.

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The 2013 legislation had called for a mandatory SIA, besides consent of 80 per cent of affected families in respect of land being acquired for private companies, and consent of 70 per cent of affected families in respect of land being acquired for PPP projects. The process of obtaining consent was to be carried out along with the SIA study.

The opposition had argued that the five exempted categories were extremely broad and loosely defined, diluting the entire concept of SIA and consent by exempting an almost all-encompassing gamut of acquisitions.

Certain other types of acquisitions, such as for metro rail networks, highways and atomic energy, were already exempt under the 2013 law. In all, 13 categories of land acquisitions will continue to be under sector-specific laws.

‘Private Entity’
Another key clause the government has agreed to drop involves replacing the term “private company” with “private entity”, which meant that while earlier acquisitions for private purposes was limited to private companies registered under the Companies Act, they could be extended to any private entity as per the NDA government’s amendments.

Prosecution
Another widely opposed amendment that eased the burden on defaulting civil servants will also be dropped. The ordinance and the subsequent Bill had said they could be prosecuted only after obtaining sanction from the government in line with Section 197 of the Code of Criminal Procedure, as against the original Act which provided for provisions to penalise them in case of violations.

Industrial Corridors
The provision of exemption from acquisition of 1 km on either side of industrial corridors from consent and SIA will also be done away with.

Section 113
A compromise has also been reached on the amendment of Section 113, according to which the power of the state to remove difficulties which might arise in giving effect to the provisions of the Act could only be exercised after a period of five years from the commencement of the Act (according to NDA Bill) as opposed to a shorter period of two years under the 2013 Act. The government has agreed to change it to three years.

Sticking Points
The hurdles that remain in the passage of the law relate to a clause on the time after which a piece of unutilised acquired land must be returned to its original owner, and the retrospective clause.

* While the original law said if acquired land is not utilised after five years, it should be returned, the ordinance had amended the provision (Section 101) from a “period of five years” to a “period specified for setting up of any project or for five years, whichever is later”. The opposition argues that the latter category is ambiguous, and can stretch to any length of time.

* Discussion remains inconclusive on the change to the retrospective cause. The ordinance had sought to amend the retrospective clause of the 2013 legislation by excluding the period spent on litigation from the applicability of the retrospective clause. It amended Section 24 (2) to exclude time spent under litigation where a stay order has been passed. The original 2013 Act stipulated the retrospective clause would apply in cases where the land was acquired five years or more before the commencement of the new Act, but no compensation has been paid or possession has not been taken, even if the delay includes the litigation period. The ordinance also changed the definition of “compensation paid” from an amount deposited in the court (as defined by the Supreme Court) to any amount paid into any account maintained for the purpose.