This document is part of the reference guide to laws, created and published to help unpack the vast and complicated landscape of laws useful for the protection of India’s coasts. Information contained in this document is collated from various sources. Treat this as a beginner’s reference guide, useful for people on the ground, who are committed to protecting India’s coastal commons.
This document simplifies and unpacks the Right to Fair Compensation and Transparency in Land Acquisition, Resettlement and Rehabilitation Act, 2013
Context
In India, with its diverse land-types and large resource-dependent population, land holds a lot of value, both monetary and non-monetary. India’s rural economy in particular has intricately woven land into its cultural landscapes. Relations with land are layered with complex mechanisms of caste and gender relations. For example, cultivated lands are often owned by one caste and class and tilled by another. Additionally, some lands are community-owned, and benefit people involved in non-land occupations as well. People in India are also heavily dependent on natural spaces like forests and coastal lands. At the most fundamental level, state ambitions require the acquisition of land – be it for land reforms, mega-irrigation projects, slum development or relocating polluting industries for tackling environmental pollution. However, increasing encroachment on community lands has serious consequences for water depletion, air pollution, and community livelihoods.
Conflicting ideas of land use and value, coupled with legislative, administrative and judicial factors have led to numerous land conflicts in India. According to Land Conflict Watch, 781 conflicts have been reported in India, affecting ~3.8 million hectares of land and ~7.8 million people. Of this, the largest number of conflicts (42%) pertain to the infrastructure sector, followed by 15.9% to land-use, 14.8% to conservation and forestry, 10.7% to industry and the remaining to mining and power (Landconflictwatch.org, 2022).
The complexity around land arises from multiple stakeholders and jurisdictions which affect the interpretation as well as implementation of land laws (Wahi n.d.). Many subjects concerning land are in the state as well as concurrent lists of the Constitution – for example, entry 18 in the State list is for “Land…transfer and alienation of agricultural land…”, whereas entry 6 in the Concurrent list is for “Transfer of property other than agricultural land…” and entry 45 in the Concurrent list is for “Acquisition and requisitioning of property”.
Legislation regarding the compulsory acquisition of land was first introduced during the period of the East India Company Rule in 1824 in Bengal. In 1894, during the British Raj, the Land Acquisition Act was passed, and this colonial legislation continued to be the primary legislation for land acquisition well after India’s independence from colonial rule. In 2013, after decades of debate on reforming the land acquisition law, the Right to Fair Compensation and Transparency in Land Acquisition, Resettlement and Rehabilitation Act (hereafter referred to as ‘LARR Act, 2013’) was passed. In December 2014, an ordinance was promulgated to amend the LARR Act, which was then introduced as LARR (Amendment) Bill, and passed by the Lok Sabha in March 2015. However, this Bill was not passed by the Rajya Sabha. In April 2015, a second Ordinance was promulgated to further amend the LARR Act, 2013 and was introduced as a second Bill into Parliament, but this was not passed either. Eventually neither of the Bills were passed through Parliament, and with the dissolution of the Lok Sabha in 2019, both Bills have now lapsed.
This primer is firstly, an attempt towards understanding key points under the LARR Act, 2013 and the amendments; and secondly, to look at some important judgments that have interpreted the Act.
LARR Act, 2013 and interpretations
The Preamble to the LARR Act, 2013 states that it is an act to ensure a “humane, participative, informed and transparent process for land acquisition” (Ministry of Law and Justice 2013). It united the procedure of land acquisition with that of the consequent resettlement and rehabilitation. This was an acknowledgment of the integral connection between acquisition and rehabilitation and resettlement. This also not only meant providing fair compensation to the owners of land being acquired, but also being mindful of its users who might not always be recorded owners, as is largely the case in India.
While the LARR Act, 2013 was landmark in some ways, it has also been controversial. Many activists believe it did not go far enough and those in the government and industry felt that it went too far. In this section, we look at some of the key provisions of the LARR Act, 2013.
- ‘Public purpose’ – Compulsory acquisition of land is meant to be for “public purpose”. While legal scholars tussle between the positions Indian courts have taken in the matter of development-related land acquisition, it is clear that there is no coherent definition of what precisely constitutes “public purpose” or “public interest”. The Land Acquisition Act, 1894 did not have a definition of ‘public purpose’, and therefore, the interpretation of the term had been very wide, going much beyond public necessity. The LARR Act, 2013 categorised public purpose under Section 2(1), however, it retained a wide interpretation of the term. The meaning of public purpose was also stretched to include public-private-partnerships (PPP) and privately-managed projects (Section 2(2)).
- Free, prior, informed consent (FPIC) – LARR Act, 2013 did not call for full FPIC, but acknowledged consent by requiring 80% consent of affected families for private projects and 70% for PPP projects to go forward with any acquisition process as per the provision under Section 2(2), but did not call for consent in the case of government projects. Additionally, S. 41 requires that in the case of land acquisition in a Scheduled Area, prior consent of the concerned Gram Sabha (or Panchayat or autonomous district council if Gram Sabha does not exist) must be obtained.
- Social Impact Assessment (SIA) – Under S. 4, the appropriate government is required to conduct a Social Impact Assessment (SIA) in consultation with the local self-governing institutions at the village or ward level. The SIA determines, among other things, whether the acquisition is for public purpose, identification of affected families, whether extent of acquisition is bare minimum, whether alternate sites were considered, and the cost-benefit analysis of the project including the costs of social impacts. LARR Act, 2013 mandates Social Impact Assessments (SIA) to be carried out for all projects except in case of urgency (S. 9) or irrigation projects that require Environment Impact Assessment (S. 6(2)).
- Compensation – The LARR Act, 2013 takes into consideration the market price of the land in question as a baseline to offer appropriate compensation (S.26), and adds assets attached to the land in the compensation. Additionally, it requires adding the damage to standing trees or crops, the costs of severing land and its effects on other property, reasonable expenses for change of residence and diminution of profit due to the acquisition notice.
- Rehabilitation and Resettlement (R&R)– The LARR Act requires the appointment of an Administrator for Rehabilitation and Resettlement (‘Administrator’) who is responsible for the formulation, execution and monitoring of the Rehabilitation and Resettlement Scheme (S.43). The R&R Scheme is a census of the affected families, and includes the details of the land being acquired of each affected family, livelihoods lost of the landowners and also that of landless people dependent on the land being acquired, public utilities and infrastructural amenities which may be affected, and details of common property resources (S. 16).
Section 51 LARR Act, 2013 also established the Land Acquisition, Rehabilitation and Resettlement Authority (the Authority) which could be approached in case a party/person was not satisfied with an award under the Act. The Authority is a government-headed body with the administration defining its jurisdiction and appointing its Presiding Officer (S.52). The Authority has the powers of a civil court (S.60), and therefore, has the power of summoning people and examining them on oath, discovery of evidence, and other matters. The Second Schedule contains a detailed list of the elements of a Rehabilitation and Resettlement Award, including details of housing units, land for land, choice of employment or annuity, and subsistence grant among others.
Coastal land
Most common lands in India (e.g coastal lands) are classified as ‘waste lands’ under revenue land categories (Singh 2013), and its many uses especially by marginalised communities are hardly recognised in the dominant discourse surrounding land use. For example, despite having a marine fisher population of about 4 million (CMFRI 2010), their uses of coastal spaces such as keeping and mending boats and nets, community gatherings etc are hardly incorporated in development plans of the central, state and Panchayati Raj institutions. The LARR Act, 2013 has a limited recognition of commons by requiring that the SIA and R&R Scheme includes details of the common property resources that are being acquired.
In regard to coastal areas, many land acquisition cases surround port development. Some of these include Vizhinjam port in Kerala, Machilipatnam and Bhavanapadu ports in Andhra Pradesh and Kanyakumari port in Tamil Nadu (Landconflictwatch.org 2019). Thirty-eight per cent of the land conflicts are over common lands (Wahi n.d.). Since most coastal areas come under such common properties – collectively used by fishing and other communities – a certain overlap can be expected.
Land acquisition in common lands is often invisible due to the fact that fishers do not possess ownership documents over these lands. Complicating matters further with regard to coastal lands is that much of this land is officially under government control and therefore, many cases are not considered land acquisition at all. This omission has significant adverse impacts for coastal fishing communities. For example, the Mumbai coastal road project didn’t directly acquire private lands occupied by fishers, but the construction activities had a bearing on fish breeding sites, thereby impacting fisher livelihoods. Additionally, fishers were concerned that it can damage coastal ecology leading to increased flooding and degradation of the lands they occupy (Sharma 2018). Similarly, in Ramdas Janardan Koli vs. State of Maharashtra [Misc. Application No. 19/2014 (WZ], although fisher livelihoods were affected by the development of the Jawaharlal Nehru Port Trust, since the fishers only had traditional fishing rights, they were paid compensation based on the Mahul Creek (Extinguishment of Rights) Act 1922, rather than the LARR Act, 2013.
The governance of coastal land is also further complicated because most of the matters relating to coastal India come under the Coastal Regulation Zone (CRZ) notification 2019 and its previous versions. The CRZ notifications were issued under the Environment Protection Act (EPA), 1986. They declared coastal land of 500 m from the High Tide Line (HTL) all along the coast as CRZ and brought the activities within it under the purview of the Ministry of Environment, Forests and Climate Change (MoEFCC). The primary judicial body for all cases pertaining to CRZ is the National Green Tribunal (NGT), including land related cases. Cases arising from coastal regions coalesce around tourism, industry, fisheries, community rights etc (Gupta 2017).
The land acquisition system is primarily framed from a terrestrial/ agrarian perspective, and is focused on the rights of agrarian and forest-dwelling communities. However, it is inadequate to address the acquisition of ocean and coastal lands. As such, coastal commons are protected by a combination of a continually weakening CRZ regime, the Wild Life Protection Act, 1972 and various easement Acts. However, protection of commons based on these legislations is proving to be ineffective as they are not rights-based, unlike LARR Act, 2013.
Judicial Intervention
Not surprisingly, a staggering number of cases reach all levels of the Indian judiciary. The judiciary has taken different positions when it comes to the fate of land and the communities and economies dependent on it. Upendra Baxi noted that while the Supreme Court has assumed the role of an activist in the matter of tannery businesses polluting Ganga (MC Mehta vs Union of India, 1987: 1988 AIR 1115), it had fallen remarkably short of safeguarding human rights in cases of large-scale dam projects which rendered millions landless and homeless (Sinha 2019).
At the state level, different courts have taken different positions. More than once, courts have refused to take a position on matters of land acquisition on the grounds of expertise. For example, in N. Sudhakaran Pillai vs The Local Level Monitoring Committee, Choornikara Gram Panchayat (WP(C). No. 11609 OF 2014 (A)), while the land conversion required by the Kochi MRTS overruled the local village council of the area, the court stated that selecting the project’s location was the domain of expert agencies and the government. It stated that since this was a highly technical decision, the court could not interfere in it. This was despite the fact that the Kerala Conversion of Paddy Land and Wetland Act, 2018 empowers a local level committee comprising villagers as its members to make recommendations in the matter of land conversion for public purposes in their area (Sinha 2019).
Courts have also interpreted the term ‘public purpose’ widely by equating manufacturing units partnered with the state’s initiatives for industrial development in Calcutta, real estate development in Noida (UP) and MRTSs in Bangalore as well as Kochi to mean public interest or as serving larger state development goals. This was further made clear in the 2014 N. Sudhakiran Pillai case judgement by the Kerala HC which suggested: “Personal opinions, private interest, trivial issues and minimal damages to the environment should always give way to larger public interest.”
Seen as a means to increasing economic growth and in favour of the majority of the population, various scholars (Bhushan 2009, Bhuwania 2016, Dupont and Ramanathan 2008) argue that courts appear to be ruling in favour of a growing middle class – marginalising the already marginalised.
Role of civil society
These systemic aspects of land acquisition’s long history are responsible for the subjugation of socio-economic rights and ecological considerations in favour of so-called “development” priorities, and this is where civil society can play a role.
Existing literature on land acquisition suggests that people facing more risk are more likely to sell their lands. Moreover, considering that benefits of public goods are not limited to their intended use, the unintended benefits accrue to politically connected or socially well-off sections of the community. Networks assist specific groups by providing essential information in relation to the proposed project as well as an opportunity to participate in the public works (Sinha 2019). A report by the Centre for Policy Research argues for a committed shift towards administrative reforms like building state capacity for the meaningful compliance of increased procedural requirements introduced by the LARR Act, 2013 and devising institutional structures that incentivise the compliance with law (Wahi 2017).
The report also points out that the primary cause for inequality in cases of land acquisition is the coercive nature of this process. This imbalance of power between the state and people follows from the earlier Land Acquisition Act, 1894 and has been further propagated by the non-compliance of the reformed laws. This suggests that while legislation does lay out the foundational change, it alone does not ensure efficiency and equality in the process of land acquisition. It requires undeniable administrative and bureaucratic support as well as continuous compliance of the rule of law by the executive to be proven successful (Wahi 2017). It is here that civil society organisations have a crucial role in ensuring that the agencies involved follow the spirit of the law.
References:
Ghose, Jyothi (2015). LARR (Amendment) Bill, 2015 as passed by Lok Sabha. PRS Legislative Research
Gupta, Debayan (2017). Coastal Regulation Zone Disputes before the National Green Tribunal. Centre for Policy Research, 04 July 2017. https://www.cprindia.org/news/6314
Jazeera, Al (2015) Indian protesters decry “anti-poor” land bil. Aljazeera.com, 24 April 2015. https://www.aljazeera.com/news/asia/2015/04/indian-protesters-decry-anti-poor-land-bill-150419071102269.html
Kohli, Kanchi (2015). India Together: What the new processes mean for the dispossessed. India Together, 6th January, 2015. http://indiatogether.org/changes-to-land-acquisition-law-through-jaitley-ordinance-laws
Kohli, Kanchi and Menon, Manju (2015) Ignore the TV debates: Land acquisition is not in national interest ‒ it’s a contest for power. Scroll.in, 09 March 2015. https://scroll.in/article/711564/ignore-the-tv-debates-land-acquisition-is-not-in-national-interest-its-a-contest-for-power
Kohli, Kanchi (2015). India’s Land Acquisition law: changes and trends. Global Legal Empowerment Network, September 2015. https://community.namati.org/t/indias-land-acquisition-law-changes-and-trends-2014-onwards/1926
Landconflictwatch.org: Land Conflict Watch (2019) https://www.landconflictwatch.org/
Ministry of Law and Justice (Legislative Department) (2013). The Right to Fair Compensation and Transparency in Land Acquisition, Resettlement and Rehabilitation Act. The Gazette of India, No. 20 of 2013. https://legislative.gov.in/sites/default/files/A2013-30.pdf
Mukherjee, Anirban and Sarkhel, Prasenjit (n.d.). Land Acquisition in Indian Sundarbans: The role of information networks in the land sale for building public infrastructure. https://www.isid.ac.in/~epu/acegd2015/papers/PrasenjitSarkhel.pdf
Sinha, Meenakshi (2019). Land, Law and Courts in India: Tracing Land Rights Debates through Processes of Judicial Decision Making. Development and Change, Volume 50, Issue 4, July 2019. https://onlinelibrary.wiley.com/doi/epdf/10.1111/dech.12501
Wahi, Namita (2017) Understanding Land Acquisition Disputes in India. Centre for Policy Research, 10 March 2017. https://cprindia.org/news/5978
Wahi, Namita (n.d.). Understanding Land Conflict in India and Suggestions for Reform. Policy Challenges 2019-2024: Regulations and Resources, pp 140-144. https://prrcindia.org/understanding-land-conflict-in-india-and-suggestions-for-reform/
S. Singh (2013). Common lands made ‘wastelands’: making of the ‘wastelands’ into common lands. Foundation for Ecological Security, Working Paper 29. https://dlc.dlib.indiana.edu/dlc/bitstream/handle/10535/9074/SINGH_0217.doc.pdf
Saurabh, S (2018). Land Acquisition Compensation: India, Legal Bites – Law and Beyond. https://www.legalbites.in/land-acquisition-compensation-india/
Sharma, Rouhan.(2018). No payout to fishermen affected by Mumbai projects, Financial Express, 1st February, 2018. https://www.financialexpress.com/market/commodities/no-payout-to-fishermen-affected-by-mumbai-projects/1038840/
(2020) Need for more clarity on ruling in land acquisition matter: Supreme Court. Indian Express, 29th September, 2020.
Cases Referred:
Municipal Corporation Of Greater Mumbai v. The National Green Tribunal, Western Zone Bench. Writ Petition No. 1720 of 2014 before the High Court of Bombay. https://indiankanoon.org/doc/40242571
Khimanand vs State of Gujarat. Special Civl Application of 959 of 2014 before the High Court of Gujarat. https://indiankanoon.org/doc/152888812/
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The views expressed in this paper are of the authors and do not necessarily reflect the views of their organisations.
