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India – Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement (Amendment) Ordinance, 2014.

28 January, 2015

 
 
Recently, the Central Government has come up with an Ordinance on 31st Dec, 2014 titled Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014. The Ordinance came into effect from 1st January 2015 amending the “Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013” (2013 Act) effective from 01st January, 2014. The 2013 Act replaces the Land Acquisition Act, 1894.

The main purpose to amend the 2013 Act is to remove the difficulties being faced in its implementation and to further strengthen the provisions to protect the interests of the “affected families”.
 
Major amendments in 2013 Act made by the Ordinance are mentioned below:
 
  • There were 13 Acts (including National Highways Act, 1956 and Railways Act, 1989) enumerated in Schedule IV read with Section 105 for acquiring land for the Govt. projects, which were exempted from the ambit of 2013 Act. Section105(3) states that the compensation, rehabilitation, and resettlement provisions of these 13 Acts be brought in consonance with 2013 Act within a year of its enactment, through a notification. Hence, to give effect to the same, Section 105(3) was amended bringing all the 13 exempted acts within the purview of 2013 Act as regards determination of compensation, rehabilitation and resettlement and infrastructural amenities.
 
Thus, a large number of farmers and interested parties who were deprived of the compensation and R&R measures can now enjoy the fruits of the 2013 Act in all respects.
 
  • The 2013 Act excludes the acquisition of land for private hospitals and private educational institutions from its purview vide Section 2 (1)(b)(i) but the Ordinance removes this restriction and brings them also within the ambit of 2013 Act.
 
  • The Ordinance has enumerated five special categories of land use under Section 10A which are exempted from certain provisions of 2013 Act, namely
 
I. defence,
II. rural infrastructure including electrification,
III. affordable housing and housing for poor people,
IV. industrial corridors, and
V. infrastructure projects including Public Private Partnership (PPP) projects where the ownership of land vest with central government.

  • Earlier, the consent of 80% land owners was obtained in case of acquisition for private companies and 70% in case for PPP projects. The Ordinance exempts the above fivecategories from the consent clause. Thus the present amendment allows a fast track procedure of land acquisition in the benefit of the rural India.
 
  • The Ordinance further allows the government to exempt the above five categories from following provisions of the 2013 Act for speedy development i.e.
 
I. To conduct a Social Impact Assessment to identify affected families and calculating the social impact when the land is acquired;
 
II. Restrictions imposed on the acquisition of multi cropped land and other agricultural land.

  • The 2013 Act was earlier applicable for the acquisition of land for Private Companies, now the Ordinance broadens the ambit by substituting it with ‘Private entities’ which includes any entity other than a government entity or undertaking, and includes a proprietorship, partnership, company, corporation, non-profit organisation, or other entity under any other law.
 
  • The 2013 Act states that the Land Acquisition Act, 1894 will continue to apply in certain cases, where an award has been made under the 1894 Act. However, if such an award was made five year or more before the enactment of the 2013 Act, and the physical possession of land has not been taken or compensation has not been paid, the 2013 Act will apply. In this regard, the Ordinance states that in calculating this time period, any of the following period shall be excluded during which the proceedings of acquisition were held up:
 
I. due to a stay order or injunction issued by a court, or
II. a period specified in the award of a Tribunal for taking possession, or
III. any such period where possession has been taken but the compensation is lying deposited in a court or any account,
 
  • The 2013 Act stated that if an offence is committed by any government Department, the head of the department would be deemed guilty unless he could show that the offence was committed without his knowledge, or that he had exercised due diligence to prevent the commission of the offence. The Ordinance replaces this provision and states that if an offence is committed by any government official, court shall not take cognizance of the offence without the prior sanction of the appropriate government.
 
  • The 2013 Act states that the land acquired and remained unutilised for five years shall be returned to the original owners or the land bank. The Ordinance states that the period after which unutilised land will need to be returned will be five years, or any period specified at the time of setting up the project, whichever is later.
 
To sum up, this ordinance meet the twin objectives, firstly, the welfare of the farmer by bringing the 13 exempted acts under the purview of 2013 Act, and secondly, by meeting the strategic and developmental needs of the country in expeditious manner without compromising on the compensation or R&R measures.

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For further information, please contact:
 
Ravi Singhania, Partner, Rajani Singhania & Partners
ravi.singhania@rsplaw.in

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