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Thursday, July 19, 2018

Land Acquisition Act: Ordinance also dilutes clause on return of unused acquired land

NDA govt’s ordinance to amend the Land Acquisition Act, 2013 quietly makes other provisions less stringent.

Written by Ruhi Tewari | New Delhi | Updated: January 3, 2015 3:32:32 pm

The NDA government’s ordinance to amend the land acquisition Act does not merely expand the list of projects that would be exempted from requirements of consent and Social Impact Assessment but also quietly makes other provisions in the law less stringent. It dilutes the requirement that unused acquired land be returned to the original owners, makes it tougher to prosecute defaulting civil servants, reduces the scope of the retrospective clause and expands the definition of permissible infrastructure.

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, was brought in last year by the previous UPA government and was criticised by the industry for making land acquisition more tedious.

While on Monday — the day the Cabinet recommended the promulgation of the ordinance — the government merely announced the amendment of Section 10 (A) to include five new categories of projects on which the requirement for consent and SIA will not apply, a closer look at the ordinance shows several other clauses have also been tweaked.

The ordinance relaxes the period of time after which a piece of unutilised acquired land must be returned to its original owner, by amending Section 101. While the original law said if acquired land is not utilised after five years, it should be returned, the ordinance has amended the provision from a “period of five years” to a “period specified for setting up of any project or for five years, whichever is later”. Thus, an entity with unutilised acquired land can keep it for the period it specifies for setting up the project, even if it is much more than five years.

Easing the burden on defaulting civil servants, the ordinance says they can be prosecuted only after taking sanction from the government, as against the original Act which provided for provisions to penalise them in case of violations. “Where an offence under this Act has been committed by any department of the government, the head of department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly…,” the original Act states. The amendment, however, says “…no court shall take cognizance of such offence except with the previous sanction of the appropriate government, in the manner provided in section 197 of the Code of Criminal Procedure”.

In another change that would narrow down the scope of the retrospective clause and thus, reduce the number of beneficiaries, the ordinance says the clause will not apply in case the delay is caused due to any stay or injunction by court. The original Act says the retrospective clause will 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 acquisition got stuck due to litigation. The ordinance, however, amends Section 24 (2) in a way that time spent under litigation will not be included in calculating the five-year period if a stay order had been passed leading to the acquisition being held up.

The ordinance also changes 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.

It also expands the scope of infrastructure to include private hospitals and educational institutions, which were left out in the original Act. The original Act, while defining infrastructure projects for which land can be acquired, says “excluding private hospitals, private educational institutions and private hotels”.

The ordinance also replaces the term “private company” with “private entity”, which means while earlier acquisitions for private purposes was limited to private companies registered under the Companies Act, it can now be extended to any private entity.
Crucially, the original law gave the government the power to take any action necessary to implement the law for two years after its passage, which has been extended to five years by the ordinance, thus increasing the period available with the government to remove difficulties in implementing the Act.

The five projects excluded from consent and SIA requirements include projects for defence and defence production, rural infrastructure including rural electrification, affordable housing and housing for the poor, industrial corridors as well as infrastructure and social infrastructure projects, including Public Private Partnership projects wherein the ownership continues to vest with the government. Defence is defined as “projects vital to national security”. The provisions relating to compensation, relief and rehabilitation will remain the same.

On Friday, Rural Development Minister Chaudhary Birender Singh dismissed suggestions that he was unhappy with the ordinance and said farmers’ interests have been protected since the clauses related to compensation and R&R have been left untouched.

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