land rights – the myLaw.net blog

Even as presentations were underway at a meeting on land rights somewhere in the capital, a lady seated next to me craved some specifics. “What is the latest with the land acquisition process in the country? Someone told me that I could actually get my land back? It had been taken away a decade ago.” Pushpa behan was among several people who had come for the meeting from the eastern part of the country and had lost her land to the expansion of a government-owned iron ore mine.

I pulled out the latest version of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“The RFCLARR Act”). I knew that some of its clauses would apply to the question that she had raised.

We were temporarily distracted by a voice from the dais that informed the audience that the RFCLARR Act had replaced an 1894 land acquisition law under which the government had the power to acquire land for public purposes. A notice and a short time frame to move out of your home is all that people had. The RFCLARR Act had faced criticism but it had come a long way from the 1894 law and had linked the process of land acquisition with corresponding resettlement and rehabilitation obligations.

During a short tea break, we decided to step out to the canteen to talk at length. Our discussion soon revealed that about 20 families had lost about 100 hectares of agricultural land when the state government had issued them notices for evacuation. While their homes remained with them, the loss of their land had an impact on their source of livelihood. While she did not have many details, she also knew of others who had faced similar issues in neighbouring areas.

When we sat down to look at the Hindi version of the law together, I read out the two relevant clauses. Since the legalese was difficult to fathom, we broke it down. Just as we were talking, a few others from her village joined us. It was turning out to be an impromptu study session.

Section 101 is clear and simple. It says that “when any land acquired under this Act remains unutilised for a period of five years from the date of taking over the possession, the same shall be returned to the original owner or owners or their legal heirs, as the case may be, or to the Land Bank of the appropriate Government by reversion in the manner as may be prescribed by the appropriate Government.” This however, applies only to land acquired under the 2013 law. That was not the case with Pushpa behan’s land.

Image from Vinoth Chandar’s photostream on Flickr. CC BY 2.0

I asked Pushpa and the others if they had received any “award” or been paid compensation following the notice that their land was being acquired. Under the 1894 law, an award had to be issued by a District Collector or District Magistrate (depending on the state). Such an award would include details such as the true area of the land, the amount of compensation due, and the list of people among whom the compensation would be apportioned. Three scenarios could have emerged:

(1) no award was issued;

(2) an award was issued; and

(3) an award was issued but the physical possession of land was not taken and no compensation was paid.

Is repatriation possible?

Clauses (1) and (2) of Section 24 of the RFCLARR Act deal with these three scenarios. When no actual award was issued pursuant to a land acquisition notice under the 1894 law, then all the provisions related to compensation in the 2013 law would apply under Section 24(1)(a). The compensation available under the 2013 law is much higher and has to be determined using a range of criteria including market value of the land and damages incurred by standing crops or trees.

But this was not the case with Pushpa behan and the others from her village. They fell into the third category. Even though an award had been made in relation to the land that had been acquired, no compensation had been paid and physical possession of the land had not taken place for over eight years. Under Section 24(2), in such a situation, the proceedings of land acquisition undertaken so far would be deemed as lapsed and a fresh process would now need to be initiated under the 2013 law. This includes a detailed process of social impact assessment and the seeking of the consent of 70 per cent of the landholders in case the project is a public sector project or 80 per cent if there is private sector involvement.

(Left) The former Union Minister for Rural Development, Shri Jairam Ramesh addressing a press conference on Land Acquisition Bill, in Jaipur on September 15, 2013. (Right) The Union Minister for Road Transport & Highways and Shipping, Shri Nitin Gadkari addressing a Press Conference, during an Interaction with Farmer’s Association on land acquisition, in Hyderabad on June 01, 2015. Both images from PIB.

“Does this mean that we have a chance to say no to this acquisition and possibly get back our land?” one person in the group enquired. In principle, yes, I said, but we still had to test it out. The 1894 law had no provision for social impact assessment or any provision about seeking consent and that is why many project authorities feel that the 2013 law would make it impossible for land to be acquired.

He asked, “if the compensation had been paid and physical possession taken in the last 5 years, then this possibility would not arise, right?” That’s what the law says as of now, I replied.

What next?

Several groups across the country have taken steps with the help of lawyers to get better compensation or to restart land acquisition processes under the 2013 law. In fact there is recent news that Reliance Industries has challenged this legal provision in the Gujarat High Court in response to a case filed by farmers.

But the 2013 law does not say that these processes need to be initiated through the courts alone. It is perhaps even possible to do so by approaching the departments that had first initiated land acquisition proceedings and where the records lie.

It would have been useful to have a set of executive rules to enable these provisions but the two and half years of the existence of this law has seen such resistance from the government that little attention has been paid to issue enabling rules. The clauses we had discussed were at the heart of a series of ordinances promulgated to amend the 2013 law and which were allowed to lapse last year.

For now, we know that these provisions are in place and are open for all to use. Pushpa smiled, took the copy of the Hindi text of the law from me and said, “Well, we have the clause in our favour for now and we have to try and use it. Get our paperwork in order and get going.” The half and hour we spent discussing what was and what could be had opened many doors.

Kanchi Kohli is a researcher working on law, environment justice, and community empowerment.

http://www.youtube.com/watch?v=Agx48qg1jYM&feature

The implementation in the state of Gujarat, of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (“the Forest Rights Act”), was the subject of a panel discussion at the India International Centre in New Delhi yesterday.

The distribution of land titles to members of forest dwelling communities is a key part of the law and about eight months ago, the Gujarat High Court chided the state government for not following the law while handling claims for titles. Acting on a Public Interest Litigation filed by an NGO named ARCH — Action Research in Community Health and Development, the Court ordered the state government to review all the claims to title that it had previously rejected. The Court also ordered the government to consider new types of evidence while evaluating the rejected claims and any new claims filed under this law.

Speaking on the panel, Ambrish Mehta, an ARCH trustee, placed the rights of the tribal cultivators of Gujarat in historical context. The conference was organised by the Centre for Policy Research, the Christian Michelsen Institute, and the University of Bergen.

Extracts from the edited transcript of Mr. Mehta’s talk:

Gujarat’s tribal belt, in the eastern part of the state and neighbouring Rajasthan, Madhya Pradesh, and Maharashtra, had been largely ruled by Rajput kings. These kingdoms had British residents and the land settlement processes were quite sophisticated. Technically, the tribals were tenants of the concerned jaagirdaar or similar revenue authority. They were also forced to supply labour to the jaagirdar, which was a system similar to serfdom. At that time, even though the forests were owned by the kings, local communities could influence the way they were used. The British then nationalised the forests and reached an arrangement to exploit the timber from the Dang forests in exchange for a pittance. After Independence, the forests became reserve forests. Many people — even those who were cultivating — lost their land and were instead declared encroachers. Most of the land in villages was reserve forest and the communities did not even have rights to the forest produce.

The most serious deforestation in Gujarat also happened under the aegis of the Forest Department and in the name of scientific forest management. During the sixties and the eighties, the most productive mixed forests were felled to raise fast-growing teak plantations.

The Forest Rights Act came in this context and gave the tribals rights over the lands they were cultivating and rights over forest produce, including bamboo. They also have the right to manage forests as community forest resources.

We have been fighting an uphill battle with the state government for a proper implementation of the Act. Even though about 1,82,000 claims were filed, only 20,000 of them were approved. The rest were rejected. The Gujarat High Court held in May 2013 that all the rejected claims had to be reviewed and that all the evidence the government did not consider must be taken into account.

Previously, people did not act in the interests of the environment because they did not own anything. Once the rights came, they immediately started not only improving their land but also protecting and regenerating the forests. In many areas, there are forest regeneration committees. The enthusiasm had dipped when the government rejected their claims but now, with the judgment of the High Court, people are once again taking steps to improve their land and their cultivation.

(Aju John is part of the faculty on myLaw.net.)