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Disclosure of materials on amendments to land acquisition law sought

By Venkatesh Nayak*
In its order dated 20th June, 2016, the Central Information Commission (CIC) has directed the Department of Land Resources (DoLR) in the Union Ministry of Rural Development to disclose all materials such as the Cabinet Note and file notings about the now lapsed Ordinance which sought to amend the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARR Act). The Ordinance was first promulgated on 31st December 2014. The RTI application was sent to President’s Secretariat in the first instance as the Ordinance had been promulgated by the Hon’ble President of India. Rashtrapati Bhawan transferred it to DoLR. In response to the RTI application, the DoLR had claimed that it did not have any of the requested information in its custody and transferred my RTI application to the Legislative Dept. and back to Rashtrapati Bhawan.
The Legislative Dept. explained in its reply that it was the DoLR which should have the information sought, as it falls under its jurisdiction. Thanks to this admission, the CIC has now directed the DoLR to disclose all information within 4 weeks. The DoLR did not send any representative to the hearing held by the CIC on 20th June, 2016. Although the Ordinance has lapsed its contents are before Parliament in the form of a Bill to amend the RFCTLARR Act which is being deliberated upon by a Joint Committee of Parliament chaired by Shri S. S. Ahluwalia, MP.

Background to the case

Parliament enacted the RFCTLARR Act in September 2013. The Government of India (GoI) enforced this Act fully on 01 January, 2014. This law repealed the Land Acquisition Act of 1894 under which the Central and State Governments acquired land for public purpose. Through the Ordinance issued on 31st December, 2014, GoI made several amendments to the RFCTLARR Act.
One major aspect of these amendments was the inclusion of all 13 laws listed in the 4th Schedule under the RFCTLARR Act for the twin purposes of calculating and paying compensating persons whose lands are acquired for “public purpose” as defined in the Act and also for ensuring their rehabilitation and resettlement (if they are displaced as a result of the land acquisition). The earlier chapters such as conducting Social Impact Assessment (SIA) and preparing a mitigation plan required under RFCTLARR Act do not apply to these Ministries administering these 13 laws many of which permit land acquisition for linear projects such as highways, railways, oil pipelines etc.
RFCTLARR Act is not only important because it seeks to bring about a sea change in the manner in which appropriate governments acquire land from people for public purposes and how the affected and interested individuals and families must be compensated and rehabilitated and resettled, if displaced, but also because it places enormous emphasis on the transparency of all actions and decisions taken under this law. Every document relating to land acquisition under this law is required to be accessible to any person, let alone those affected by land acquisition, is to be made accessible to people on request or in a large majority of circumstances, publicised through various means including websites of the Ministries which acquire land for public purposes.
However, neither the Dept. of Land Resources nor any other public authority in the Central Government bothered to explain to the people what was the urgency that led to the promulgation of the Ordinance. Parliament’s winter session had concluded just a few days earlier and the budget session of 2015 was just a couple of months away when the Ordinance was promulgated on the last day of 2014. Although the Ordinances were notified in the Official Gazette, the urgency that entails their promulgation was never properly conveyed to the people, officially.

Exploring myth-building around the issue of stalled developmental projects

In the Economic Survey (ES) presented in Parliament in February 2015 the Central Government claimed that problems with land acquisition were a major reason for the stalling of several developmental projects in the public and private sector. However detailed data on such projects was not annexed to that report. Official spokespersons repeatedly argued that the amendments to the land acquisition law were necessary to pull up the economy out of the nadir it had reached. After reading ES 14-15, I sought granular data from the Ministry of Finance (Fin Min) under The Right to Information Act, 2005 (RTI Act) out of sheer curiosity.
Fin Min, moved with exceptional speed and provided a list of projects within less than a month of receiving the RTI application and surprisingly without demanding any additional fee. Analysis of the data showed that according to the Government’s own data only about 8% of the projects had stalled due to problems of land acquisition. Other factors such as lack of promoter interest, weak economic conditions and lack of necessary clearances from the authorities were primarily responsible for the stalling of the developmental projects. Clearly, the official data did not bear out the “urgency” argument of the Government. Readers will find reportage of and comments on this study at these links:
1) http://articles.economictimes.indiatimes.com/2015-04-28/news/61616398_1_land-acquisition-law-stalled-projects-consent-clause
2) https://factly.in/is-land-acquisition-prime-reason-for-stalling-of-projects-data-obtained-using-rti-says-no/
3) http://www.business-standard.com/article/opinion/nitin-desai-the-wrong-land-war-115052001588_1.html
Thanks to the dissent voiced in a big way by people from various parts of the country, the Government felt compelled to let the Ordinance lapse and introduced in the Lok Sabhaa Bill to amend the RFCTLARR Act. The Bill has since been languishing with aJoint Committee of Parliament. The JPC held its most recent meeting in March 2016. It is not clear when this Committee will submit its report to Parliament.

Despite issuing the Ordinance the Central Government did not use RFCTLARR Act to acquire land between January-June 2015

Later in 2015, we analysed the Gazette notifications issued by various public authorities and Departments under the Central Government relating to land acquisition between January – June 2015. These notifications are published online in the Official Gazette. These were our findings from the study of about 505 gazette notifications declaring:
a) Intent to acquire land for “public purpose” (NOIs)
b) The competent authority for the purpose of land acquisition (NOCAs);
c) That they have acquired the land (NOAs) for the public purpose declared in the NOI.
***
1) The study did not reveal any instance of the use of the RFCTLARR Act by these ministries for the purpose of acquiring land for developmental projects. All 219 acquisitions were made under the sector-specific land acquisition laws administered by each Ministry (which the Ordinance sought to bring under the RFCTLARR Act).
2) During the entire six month period, these Ministries declared their intention to acquire land under their sector-specific land acquisition laws instead of the RFCTLARR Act, 2013 despite being brought under this law through the Ordinances issued in December 2014, then in April and again in June 2015 for the purpose of determining compensation and ensuring rehabilitation and resettlement of the displaced persons, if any.
3) A large number of segments of land acquired are wetland or irrigated agricultural plots.
4) Two of the developmental projects are in Schedule V areas (inhabited by members of Scheduled Tribes) in Chhattisgarh and Jharkhand. According to Section 41 of the RFCTLARR Act, land may be acquired in a Scheduled Area only as a last resort and that too after obtaining prior consent of the Gram Sabha or the panchayat. Nothing in the Gazette notifications studied here mention details of such a process having been undertaken prior to the acquisition of land.
Our other findings from the study are accessible at this link:  http://www.governancenow.com/files/GOI-LAQnotifics-tabulatedsummary-prelimfindings-dissemdoc-Jul15.pdf
So clearly the data collated from the Government’s own notifications also showed that the Ministries which were brought under the RFCTARR Act through the Ordinance were also not using its provisions to acquire land for the developmental projects that they were implementing, such as roads, railway lines and oil and natural gas pipelines apart from coal mining.
As the information available in the public domain officially and unofficially did not justify adequately the urgency that prompted the promulgation of the Ordinance(s) to amend the RFCTLARR Act, and the reluctance of the Ministries to acquire land under the RFCTLARR Act despite its amendment through the Ordinance, my RTI application assumed considerable significance. What information the DoLR will disclose in compliance with the CIC’s order remains to be seen. Will they challenge the CIC’s order before the Courts, time alone will tell. I will keep you posted on future developments.

*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

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