Land Acquisition Act
The Land Acquisition Act, which was enacted in 1894 and still continued to be practiced in independent India except the state of Jammu and Kashmir, is one of the remnants of the colonial legacy. The Act has been perpetually (mandatory) used by the state or central government to undertake massive development projects for ‘public purpose’. Certainly, there have been amendments to the Act but the basic character of the Act still remains the same. The Act has various sections but we do not intend to go into the details for lack of space. Nonetheless, we attempt to present the basic contents, objectives and procedural sequences of all the sections, step by step, in the backdrop of the State’s massive land acquisition drive as witnessed since the past few years.
The Act is basically meant to acquire land for ‘public purposes’ (sic. Government sponsored projects) and for private companies.
Section 3(a) of the Land Acquisition Act states, “The expression ‘land’ include benefits that arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth.” The Maharashtra Government amended this section in 1964 stating, “The expression ‘arable land’ means land fit for cultivation whether in fact cultivated or not; and includes garden land.”
Section 4(1) and 4(2) are mandatory to be used by any government when any land is intended to be acquired by the government. The appropriate Government makes a preliminary notification that land is required for public purpose or a company. This notice made under Section 4(1) has to be published in the official gazette and in two local newspapers at least one of them being in local vernacular.
Primary survey is then conducted to ascertain the suitability of land. Any interested party, meaning owner of land, can within 30 days of publication of notice u/s 4(1) submit his objections to the Collector who hears the objections and after making necessary enquiry submit his recommendations and report to the Government.
The Government after considering the report of the Collector, issues a declaration u/s 6(1) that the said land is required for public purpose or for a company. This declaration has to be made within one year of the notification u/s 4(1). This declaration is then published in the official gazette and two local newspapers. After this, the Collector initiates further action such as measurement, etc.
Once this is done, the Collector acting under Section 9 directs through a public notice that any claims for compensation of the land be made to him. These claims are heard and then the Collector gives his award for compensation u/s 11.
This award has to be made within two years from date of declaration u/s 6.
The Collector can take possession of the land after the order is made.
On making the award u/s 11, the Collector then makes payment of the compensation awarded by him.
In case amount is not paid or deposited in court of law as the case be before taking possession of the land, the Collector has to pay an interest of nine per cent per annum for the first year and 15 per cent per annum subsequently. Anybody who does not accept the amount of compensation can through the Collector appeal to the District Court. The court can only decide on the amount of compensation and nothing else. Further, the court cannot decrease the compensation awarded by the Collector.
In addition to the above compensation, courts should award a sum of 30 per cent on the market value ascertained by it. Further, courts shall also award a sum of 12 per cent of market value for the intervening period from date of notification u/s 4 to the date of actual taking possession of land/or date of award whichever is earlier.
· The Act states that compensation is payable only to interested parties which mean the person is interested in an easement affecting the land. This means that the agricultural labourers who are also dependent on the land but have no rights cannot be compensated.
· Act assumes that money is an adequate means of compensation.
· There is no standard and well defined process of fixing compensation.
· In case where local bodies are the interested parties, they do not even have the right to go to court. They simply have to surrender and can only represent regarding compensation to the collector.
· Under urgency provisions u/s 17, the Collector can do away with most of the above procedures and take possession of land. But what constitutes urgency or essential requirement has nowhere been defined.
· Section 45 discusses how notice should be served. In case notice cannot be served on the person named, it has to be served on any other male member of the family. It is not lawful to serve the notice to a female member of the family.
The pertinent question is, how can Government acquire land forcibly and hand over to a company whose sole interest is making profit?
· The rules and norms of market are not followed. Normally in market, land is traded for an amount mutually agreed to after negotiations.
· The entire process is very slow and due to inordinate delays causes great hardships to the people involved.
· Compensation is not immediately paid to the evicted people resulting in great hardship to them.
However, it is equally true that sometimes house owners claim astronomical amounts as compensation while refusing to pay betterment charges.
Prevention of forced Eviction under CESCR
The Committee on Economic, Social and Cultural Rights (CESCR) is the body of independent experts that monitors implementation of the International Covenant on Economic, Social and Cultural Rights by its State parties. The Committee was established under United Nations Economic and Social Council (ECOSOC) Resolution 1985/17 of May 28, 1985 to carry out the monitoring functions assigned to the ECOSOC in Part IV of the Covenant.
The international community has long recognized that the issue of forced evictions is a serious one. In 1976, the United Nations Conference on Human Settlements noted that special attention needs to be paid to “undertaking major clearance operations should take place only when conservation and rehabilitation are not feasible and relocation measures are made”. In 1988, in the Global Strategy for Shelter to the Year 2000, adopted by the United Nations General Assembly in its resolution 43/181, the “fundamental obligation [of Governments] to protect and improve houses and neighbourhoods, rather than damage or destroy them” was recognized. Agenda 21 stated that “people should be protected by law against unfair eviction from their homes or land”. In the Habitat Agenda, Governments committed themselves to “protecting all people from, and providing legal protection and redress for, forced evictions that are contrary to the law, taking human rights into consideration; [and] when evictions are unavoidable, ensuring, as appropriate, that alternative suitable solutions are provided”. The Commission on Human Rights has also indicated that “forced evictions are a gross violation of human rights”. However, although these statements are important, they leave open one of the most critical issues, namely that of determining the circumstances under which forced evictions are permissible and of spelling out the types of protection required to ensure respect for the relevant provisions of the Covenant.
The practice of forced evictions is widespread and affects persons in both developed and developing countries. Owing to the inter-relationship and inter-dependency which exist among all human rights, forced evictions frequently violate other human rights. Thus, while manifestly breaching the rights enshrined in the Covenant, the practice of forced evictions may also result in violations of civil and political rights, such as the right to life, the right to security of the person, the right to non-interference with privacy, family and home and the right to the peaceful enjoyment of possessions.
Issues of Land Acquisition in Manipur
Using the rigid Sections of the Land Acquisition Act, Government of Manipur has been forcibly acquiring lands in the name of ‘public purpose’. Manipur Government has been forcibly acquiring land right from expansion of road and airport to construction of Industrial growth centre, hydel power project, dam and exapansion of trade centre, etc. The construction of Industrial Growth Centre at Waiton, Chingarel, Imphal East District, a scheme initiated in the Eighth Plan by the Government of India in 2008, concerns the acquisition of 519.843 acres of agricultural land affecting 339 pattadars. The commissioning of the Loktak Hydro Project at Komkeirap in year 1994 resulted in submersion of 27,404.94 acres of agricultural land in three districts of Manipur affecting around 12,129 pattadars (approximately).
In spite of the visible damages that have come forth with the commissioning of a hydro project, Government of Manipur still has not learnt a lesson. Development is still understood in terms of large projects at the cost of land, gene pool of bio-diversity and human beings. Proposed construction of a multipurpose project at Tipaimukh, which was granted notification in 2003, is likely to affect 15,000 hectares of land, affecting 168 villages and 30,000 villagers are going to be displaced, 300 sq. km of natural habitat likely to be destroyed and 60 km of NH 37 likely to be dislocated.
The expansion of trade at Moreh is a matter of concern as far as land acquisition and eviction is concerned. Starting from 1996, there has been land acquisition drive for the trade centre. First was the case of construction of Integrated Check Post at Moreh wherein the Assam Rifles took over the land on behalf of Ministry of Home Affairs. Further, by year 2012, the State Government has announced acquisition of 27 acres of land for construction of Special Economic Zone and has engaged Accenture, the American ICT company. And, after the Prime Minister’s visit to Myanmar, it has been reported that the State Government has already identified the areas which should be acquired for development and expansion of Moreh town. It remains to be seen how many will be affected by such drives.
Two issues arise as a consequence of acquisition of land for ‘public purpose’. On one hand is the immediate injury caused to the owners of the land, and second is the damaged caused in the aftermath of construction of development projects, both of which affect human security. The trend of development undertaken so far in Manipur at the cost of human security reinforces a classical example of Greek thinking and others, which embodies destruction is an inherent element of development. In its classical origin, and not only in ancient Greece, development was understood as a natural process in which phases of renewal, expansion, contraction and decomposition followed each other sequentially according to a perpetually recurrent cycle. In the modern world, a world in which it is artifice rather than nature that provides the analogue for the understanding of movement, development has increasingly come to refer to a discontinuous process in which destruction and renewal are simultaneous, as much as sequential. However, the essential unity of creation and destruction contained within the process of development has not changed; it still involves destruction.
This article was published in The Sangai Express on Sunday, June 3, 2012