Gaurav final pol. research A052 syba llb PDF

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ON LAND ACQUISITION...

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A Research Project Submitted On Land Acquisition in India: A study of laws and policies related to acquisition of land by state with a special reference to the case of Statue of Unity IN COMPLIANCE TO THE PARTAIL FULFILLMENT OF THE MARKING SCHEME, FOR 2019-20, IN THE SUBJECT OF Political Science (Indian Administration)

SUBMITTED TO: -

SUBMITTED BY:-

Mr. Ravi Saxena

Gaurav_Chahar

Faculty of Political Science

Roll.no. A052

NMIMS UNIVERSITY

BA LLB (Hons.)

Mumbai

(Second Year)

Received by………………. Time…….. On date ……………... Time…….

On

date

…………….

Abstract On various instances supreme court have mentioned that Article 19(f) (Constitution of India, 1949 Art. 19(f)) and article 31(Constitution of India, 1949 Art. 31) of Indian constitution many times acts as a deterrence to the development projects of state and central Govts. As the process of acquisition is very important for the development of country as it is fundament requirement of infrastructural in cases where land acquisition done by govt. which is necessary for ‘any public purpose’ (Sathe 219) it is in other terms actually a restriction on legal right to property of an individual citizen. India is 2nd largest in term of population with 1/7 of world population as its residents and in such a case the land resource has a great importance. (Khan) The primary occupation of our country is still farming which is completed based on land. In such situation if govt. requires land for development projects it is very obvious that it would certainly face some sort of opposition from dissenting land owners to cope up with this problem and to establish a very transparent and effective system for acquisition many amendments were done continuously in the older legislation. But still there are many lacunae in the present system as the ground reality is very different from land acquisition policies of govt., In this paper the researcher has tried to study the procedure followed by appropriate authorities and identify some of the negligent actions (if any) on part of Govt. of Gujarat in the construction of Statue of Unity and how it affected the resident tribal population. Keywords: Land Acquisition Act, 2013, The National Rehabilitation and Resettlement Policy, 2007, Statue of Unity, Indian wildlife Act, 1972, Shoolpaneshwar Wildlife Santuary, Kevadia.

1. Introduction Human beings need land even more so than they need money; the monopoly of land- not the monopoly of money is the primary driver of poverty and inequality. -Justice Prafullachandra Natwarlal Bhagwati (21 December 1921 – 15 June 2017) (Kumawat) In India, Land Acquisition has been brought out by Land Acquisition Act, 1894, which then amended by introduction of Land Acquisition, Rehabilitation and resettlement Bill, 2013 (UPA Government), Land Acquisition, Rehabilitation and resettlement Ordinance, 2015 (NDA government) and finally by Land Acquisition, rehabilitation and resettlement act, 2015. All regulating bodies related land acquisition comes under Indian Department of land Resources Ministry. Present cabinet minister Shri Narendra Singh Tomar and Minister of State Sadhvi Niranjan Jyoti. (Cabinet Minister) The Land Acquisition Act, 1894 is that the primary legislation in India that deals with the acquisition of land by the govt. for a public purpose. It can be considered as a Parent Act of all Central and State laws for acquisition. But with time, amendment is done in order to make the process simpler, efficient and transparent as the earlier statue have many drawbacks such as bad compensation provisions and no mention of resettlement and rehabilitation. According to the policy of government of National Rehabilitation & Resettlement Policy, 2007(Government of India, 48) proper compensation should be provided and should be calculated as in urban area the owner should be paid the amount which double of the market value and similar in the rural area but the amount there is four times of the market value. Land is a scarce resource, with the majority of the population having very small parcels of agricultural land on which their livelihood depends. In such a country, compulsory acquisition of land can create a deep sense of fear. Since farming is the only occupation on which the rural population depends, compensation for the lost land cannot really be enough for most of them. The money was spent very quickly and the person is left without an alternative means of livelihood. That’s why new amendment was done in the older statue and process of land acquisition completely change with time. Prima facie the new act looks flawless but what the actual truth or ground reality needed to be investigated.

2. Statutes for Acquisition of Land 2.1.

Land Acquisition Act, 1894

The Land Acquisition Act, 1894 is that the primary legislation in India that deals with the acquisition of land by the govt. for a public purpose. It can be considered as a Parent Act of all Central and State laws for acquisition. The main features of the legislation, which was repealed simultaneously with the enactment of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act, 2013) are described below. Public purpose: The acquisition under the law could be for the use of land by public or private bodies. Some specific examples of public purpose were mentioned in the law such as town or rural planning, providing residences to the poor and landless persons, “carrying out any educational, housing, health or slum clearance schemes sponsored by Government” (Land Acquisition Act, 1894 sec.25). There were also more references such as to “the provision of land for planned development of land from public funds in pursuance of any scheme or policy of Government and subsequent disposal thereof…with the object of securing further development as planned”. (Land Acquisition Act, 1894 sec.29) The Act also provided for acquisition of land for “the construction of some building or work for a Company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose.” (Land Acquisition Act, 1894 sec.28) 2.2.

Changes made in the form of new statue, Land acquisition rehabilitation and resettlement act, 2015

Land is a scarce resource, with the majority of the population having very small parcels of agricultural land on which their livelihood depends. In such a country, compulsory acquisition of land can create a deep sense of fear. Since farming is the only occupation on which the rural population depends, compensation for the lost land cannot really be enough for most of them. The money could be spent very quickly and the person is left without an alternative means of livelihood. (Sengupta)The new act broadening of the concept of following terms:

1.“interested persons”: Persons having interest in the land include not only those having title of the land but also persons with easement and tenancy rights, including sharecroppers and any person whose primary source of livelihood is likely to be adversely affected. (Government of India, 48) 2. Purpose of land acquisition: Land can be acquired for land needed by the government for its own use, including public sector undertakings and for any public purpose including strategic purposes, infrastructure projects, or urbanization or housing projects. Land acquisition under the Act can also be made for public private partnership (PPP) projects and for private companies for public purposes. (Government of India, 50) 3. Enhancement of compensation: The most far-reaching change in the 2013 Act is a steep increase in the compensation to be paid to the landholder for compulsory acquisition of land. For land in rural areas the compensation is four times the value of the average of registered sale deeds (market value) and for urban lands, it is twice of the market value. (Government of India, 49) Some changes which gives special powers to government in some specific cases such as prior consent of affected persons is not required in following cases: (a) Projects vital for national security or defense (b) Rural infrastructure projects (c) Affordable housing and housing for the poor (d) Industrial corridors (e) Infrastructure and social infrastructure projects including PPP projects

For these purposes there is no requirement of carrying out social impact assessment and govt. can acquire land by introduction of a mere notification and also acquire agricultural land in these cases with any prior requirement of permission from land owners. (Government of India, 53) 3.

Procedure followed for acquiring land 1. Notification: The first step was the issuance of a preliminary notification in the Official Gazette informing the public of the proposal to acquire the land. Such notification was intended to alert the public of the government’s intention for acquisition and generally resulted in freezing the development of the land as well as its ownership. (Government of India, 64) 2. Hearing of objections: Any person interested in the land notified for acquisition could file an objection within 30 days of the date of publication of the notification and every such person had to be given a hearing by the Collector. (Government of India, 64) 3. Declaration: After hearing the objections and making further inquiry where necessary, the collector was required to make a report with his recommendations on the objections for a decision by the government. After consideration of the report, if the government was satisfied that any particular land was needed for a public purpose, it would issue a declaration to that effect. There was a requirement in the Act as amended in 1984 that the declaration should be made within one year of the initial notification. (Government of India, 64) 4. Procedure for compensation: After the declaration, the Collector proceeded to mark out the land and measure it and then give notice that the government intended to acquire the land and invite claims for compensation for all interests in the land. At the same time, notice had to be given to the occupiers of any of the land and to all persons known to have an interest in the land. The award had to be made within a period of two years of the declaration, failing which the entire proceeding was deemed to have lapsed. If any person did not accept the award on the basis of “measurement of land, amount of compensation, or the person to whom it was payable”, or to the apportionment of the compensation, he had the right to ask for the matter to be referred to a court. (Government of India, 64) 5. Determination of compensation: The main compensation to be paid to the interested persons was the market value of land that prevailed at the time of the initial notification. To this had to be added interest at the rate of 12 per cent for the period between the

publication of notification and the date of award or possession, whichever was earlier. More importantly, the compensation was to be enhanced by 30 per cent of the market value, “in consideration of the compulsory nature of the acquisition”. There was also an entitlement to compensation on account of damage to standing crops or the damage caused to other property at the time of taking possession. There was provision also for payment of reasonable expenses incidental to change of residence or place of business if such a change was necessitated by the acquisition. (Government of India, 64) 6. Possession: After the award had been made, the Collector would take possession of land, “which thereafter vested absolutely in the government free from all encumbrances”. (Government of India, 64) 4.

Regulations The Right to fair compensation and transparency in land Acquisition, Rehabilitation and Resettlement Act, 2013 Social Impact Assessment and consent rules, 2014 The appropriate govt. Department should maintain all the record of documents related the land which is planned to be acquired such as names of the land owner, land rights and names of occupants. In case of public private partnership project the consent of 70% of the members of meeting is required on the other hand in case of private acquisition consent of 80% people is required. Social impact assessment if carried out in a proper manner then it could result in a proper strategic plan for acquisition. It deals with 5 fundamental areas (Ministry of Rural Development, 55)1. It includes strategy to mitigate with the plan and the owner, avoid the selected site if aftermaths are harsh for owner and compensate the land owner. 2. As the act mandates it deal with the resettlement and rehabilitation of affected families. 3. To give a brief explanation of the project which would be carried out and how it would be beneficial for us.

4. To inform the owner about the documentation work and time period would be taken because of that. 5. To provide maximum benefit to the affected parties in form of employment and business opportunity 5. The management planThe social impact assessment is done to ensure that the maximum attempts were done to assess to the land owner and compensate them in a proper manner. The appropriate departments dealing with the acquisition are required to upload all the information to related to the development and acquisition should be upload online on their website and publicly available to all. (Naga 596) Every development made in this made should be available online in public domain. In this process it is required by the state or center government to appoint an assessment unit which keeps record of the data related to assessment process. It the responsibility of the assessment unit to make sure that the assessment should be done in a manner that it maintains the proper level of efficiency and transparency. The state and central govt. Are also responsible to form a social impact team work under the appropriate department caring out the acquisition it should consist of independent practioner, social activist and technical specialist and one-woman member. One member is needed as the leader of the team who can assist with the assessment unit. (Naga 599) It is the responsibility of the assessment team to information the public about the following issues1. if any adverse effects of the upcoming project on the public of that area 2. Feasibility of the project if possible, to shift the project to some different site. 3. The quantum of land that short and whether it is more than what is needed for project. 4. In case of acquisition done in schedule area than the government need to prove that the acquisition done is the last resort. 5. Whether any waste and barren land is available for the same project as an alternative.

6. Statue of Unity Gujarat Government announced on 7th October, 2010 that a monument of 182 meter of Sardar Vallabhbhai Patel facing Narmada Dam, 3.2 km away on the river island Sadhu belt of Narmada river near Bharuch in Gujarat(Chowdhury 15) .A 392 feet tall statue of our late first home minister Sardar Patel was built by govt. of Gujarat at the cost of more than Rs. 2500 crore in Narmada district near Narmada dam in the tribal zone was alleged by some part of public to be wasteful expense and a completely politically motivated move which is resulted in wastage of public money, that money could be spent on tribe of Narmada and other welfare projects. (Desai 98) The Chief Minister and his Council of Ministers are trustees of public funds and as such, they have an obligation to preserve public money and to avoid wasteful expenditure, more particularly, when the expenditure is not for the benefit of the subjects of this particular State and is only for the political mileage. (Jena) The project has been passed by the state govt. without any social impact analysis and environmental clearance which makes this whole project completely illegal but govt. has managed to find loop holes in the present legislation and taken the benefit of declaring the project as an urgent state project. (Bhardwaj) The project has faced legal suite in high court as well as green tribunal. Chief Justice of Gujarat High Court had heard a Public Interest Litigation (PIL) filed by 336 occupants of 57 plots of land at Vagadia, Gora, Nava Gam and Limbdi villages near the Statue of Unity. (Guha, Abhijeet., et. 147). Villager complains about inadequate compensation for land as well as no guidelines of National Rehabilitation and Resettlement policy were followed by Govt. of Gujarat. In this case court decided the case in favor of Govt. of Gujarat (Jignesh Dhirendrabhai Goswami versus State of Gujarat) court rejected all the issues of inadequate compensation and followed the argument of defense that the acquisition was already done by the Govt. at the time when Sardar Sarovar Dam was built. Hence this project has never undergone for new acquisition project of state Govt. Eminent lawyer Trupti Shah filed application against the trust as she mentioned that the statue stands at the cost of violation of large no. of rules and regulation. (Trupti Shah ors. V. Sardar Vallabhbhai Patel R.E.T,2019)The land acquisition for Statue of Unity, govt. hasn’t followed due process such as no environmental impact assessment was done as result of that 500 crocodiles

which comes under the category venerable have to be shifted to other site after the Statue was built as ensure the safety of tourists and staff work there, this is a clear example of violation of wildlife protection Act. The govt. Officials and Gujarat environment protection department failed to carry out the study for the impacts on the downstream after installation of statue which resulted in submerge of the near areas under water. All this cause losing means to survival of poor tribal people as they lost their land and homes in this unnecessary project of State Gov. This is an ideal example of exploitation done by authorities in the name of development even the High court as well as Green Tribunal recognized that the project was irrational in sense of necessity for general public but they don’t possess the power to decide whether it was a public function or not even court mentioned said the work of audit can be performed by C.A.G but he also doesn’t possess the power to decide whether the project under taken by Gujarat govt. was a public function or not. Court held that they don’t have the power to decide what is a public function it should be decided by govt. of the state. 7. Conclusion The statue passed by parliament are appropriate to deal with the land acquisition projects in an efficient and transparent way, the regulations such as social impact assessment and environmental assessment are very advance in nature but due to heavy political pressure and corruption in bureaucracy the ground realty always proves different as supposed to be if law followed properly. As in case of the land acquisition for Statue of Unity, govt. hasn’t followed due process such as no environmental impact assessment was done as result of that 500 crocodiles which comes under the category venerable have to be shifted to other site after the Statue was built as ensure the safety of tourists and staff work there, this is a clear example of violation of wildlife protection Act. The govt. Officials and Gujarat environment protection department failed to carry out the study for the impacts on the downstream after installation of statue which resulted in submerge of the near areas under water. All this cause losing means to survival of poor tribal people as they lost their land and homes in this unnecessary project of State Gov. This is an ideal example of exploitation done by authorities in the name of development even the High court as well as Green Tribunal recognized that the project was irrational in sense of necessity for general public but they don’t possess the power to decide whether it was a public function or not even court mentioned said the work of audit can be performed by C.A.G but he also doesn’t

possess the power to decide whether the project under taken by Gujarat ...