On the face of it, some clauses in the new land ordinance looks pro-farmer but in reality it is not so. The problem is two-fold. The first is the vagueness of the law itself. The other problem with this ordinance is that it is against the very ethos of judicial interpretation, says Vidhan Vyas.
President Pranab Mukherjee gave his assent to The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2015 on April 2. This is in continuation of the land ordinance 2014 that was to lapse on April 5.
Now, going through this land ordinance 2.0, it is clear that it is a carbon copy of ordinance that was passed by the Lok Sabha in the recently concluded Budget Session. This 2.0 ordinance includes the amendments that were introduced in the Lower House of the Parliament. Therefore, it is different from the Land Ordinance that was introduced in the end of 2014.
For example, in the 2015 ordinance, the projects falling under social infrastructure and affordable housing has been expressly removed from the exemption list in regard to regulatory provisions of the 2013 Act.
Moreover, Social Impact Assessment, survey of wasteland and compulsory employment of one of the affected family has been introduced among other amendments.
On the face of it, this looks pro-farmer but in reality it is not so. The problem is two-fold. The first is the vagueness of the law itself.
For instance, social infrastructure and affordable housing are expressly removed from the exemption list. However, they still fall within the parameter of the definition of ‘infrastructure project’ under section 2 (1) of 2013 Act and such infrastructure is included in the exempted list. Then, the clarification in regard to industrial corridor by stating that they have to be government owned lies redundant as such clarification is only in regard to setting up of such corridor. Once the corridor is established, then the land within the corridor can be sold to private players.
Apart from the exempted list, the other new provisions of this ordinance also do not provide any relief to farmers. If one reads this ordinance with the 2013 Act, then it is clearly established that SIA is not necessary for the exempted list in-spite of a separate expressed provision of SIA and its effect on the projects under the exempted list (clause 3 of this ordinance gives such relief from SIA as it acts as a proviso to section 2 of the 2013 Act).
Another cloak that this ordinance put forth is the provision in regard to complaint against the government officer under the 2013 Act. One major issue on the ordinance 1.0 was prior consent from the government before filling a complaint against such officer. The government tried to placate the public and the opposition by changing the provision to “cognisance in accordance to Section 197 of the CrPC. However, Section 197 of the CrPC also provided for prior sanction from the government before taking cognisance of a complaint against a public officer. This clearly shows the intention of the present dispensation.
The other problem with this ordinance is that it is against the very ethos of judicial interpretation. What this ordinance has done is given a liberal interpretation to certain terms of the exemption list. This is clearly against the principle of restrictive construction and strict interpretation held by the Supreme Court of India in plethora of cases.
Similarly, the Supreme Court has also taken stands against any provision that curtails the right to be heard. The introduction of the provision for proceedings against the public officer in accordance to Section 197 of the CrPC clearly does that by requiring the precondition of consent from the government. In the case of Devendra Singh and others vs State of UP and others, the court has observed that the right to be heard is tantamount to the principles of natural justice and any violation or restriction would make such order void ab intio.
Therefore, it is safe to say that the ordinance will find it difficult to stand the test of judicial scrutiny.
It is of no surprise that farmer groups and various other parties are in opposition of this ordinance. It is in the interest of the government to revisit the ordinance’s provisions so as to make it more effective and also judicially sound. However, what are to be these changes so that the ordinance is welcomed from all the stakeholders and especially the farmers. Some of these changes that will definitely be beneficial to the farmers and also to the public at large are:
- Make the definition of infrastructure project restrictive rather than inclusive, as this will clearly define the projects that would be exempted. This would definitely placate the farmer bodies and activist. Moreover, to balance the corporate interest, the government should make a provision of case-by-case approval of large land acquisition through the cabinet committee as done for Foreign Direct Investment.
- It is a fact that a public officer does an act or fails to do an act, especially in land matters, only when he receives any consideration. Therefore the provision for prosecution of public officer under section 197 of the CrPC should be removed and the prosecution of such officer should be done under the Prevention of Corruption Act. This will not only create deterrence but also avoid multiple litigations.
- It is ironic that India, China and United States all follow the principle of eminent domain (land ultimately belongs to the State) in regard to land policy and yet our laws and their implementation differ. The government should take a leaf out of the United States law and should define the term ‘interest in land’. This would definitely reduce the litigation and compensation claims as it filter those who are to be actually compensated from those who are not. At present, the act provides for claims from persons having interest in land but the term “interest in land” has not been defined in the Act.
- India should follow the compensation regime as enacted in Australia. the Commonwealth Government’s Lands Acquisition Act of 1989 and the New South Wales Government’s Land Acquisition (Just Terms Compensation) Act of 1991 follow the broad principles of compensation which include:
1) the market value of the interest in the land acquired;
2) the special value (financial advantage in addition to market value incidental to the claimant’s ownership/use of the land);
3) severance (value loss to other retained land due to a partial land acquisition);
4) injurious affection (value loss to other retained land due to the carrying out of or the proposal to carry out works for public interest on the acquired land);
5) consequential financial losses; and
6) solatium (a sum of comfort money paid over and above the actual damages as solace for the interest in land being compulsorily acquired)
- The Land Acquisition, Rehabilitation and Resettlement Authority that is to be created by the act for adjudication of compensation matters should include two technical members who are expert in the concerned field and also one sarpanch of the affected village.
- The clash in regard to social impact assessment be removed from the ordinance through inclusion in the words “except social impact assessment” in the proviso which is added by clause 3 of the ordinance.
These suggestions would surely dilute the land ordinance and subsequently the act to the moderate and pragmatic level. A level that would be welcomed by all stakeholders. In accordance to the Constitution and the parliamentary rules, the 2015 ordinance would need to be cleared by Parliament all over again. Hopefully, the government this time makes the correct changes and gathers the support of other parties to give the country a land bill that would in true sense reflect its title.
Vidhan Vyas is an advocate in the Delhi high court and represents the National Green Tribunal.