AIKS: Memorandum seeking redressal of farmers’ problems

AIKS General Secretary, Hannan Mollah and AIKS Joint Secretary Vijoo Krishnan met the Agriculture Minister on 4th December, 2014 and submitted a Memorandum seeking redressal of Farmers’ problems. A detailed discussion was held and the Minister assured to look into matters raised by the Kisan Sabha as well as have a pre-Budget discussion with AIKS. The detailed Memorandum is attached herewith.

Dated 4th December, 2014

To
Shri.Radha Mohan Singh
The Hon’ble Minister For Agriculture
Government of India,
Krishi Bhavan, New Delhi-110001

Sub: Seeking Redressal of Farmers’ Problems

Sir,

The All India Kisan Sabha wishes to place before you some of our serious concerns regarding the acute agrarian crisis and conditions of the peasantry in the country and seek immediate steps for overcoming the bleak scenario.

The unprecedented crisis has put farmers in acute distress and it has manifested in the unfortunate escalation of farm suicides. According to independent estimates in Telangana alone in the 6 month period preceding 26th November 2014 over 430 farmers committed suicide. Vidarbha and Marathwada in Maharashtra have also been reporting an increase in farmers’ suicides with over 120 farmers committing suicide in November alone. In West Bengal there are reports of even paddy farmers committing suicide which is unprecedented. The agrarian crisis has not spared any State and even States like Punjab are seeing an increase in suicides due to indebtedness. The crash in prices of many major crops and absence of any Price Stabilisation effort or Support mechanism is only likely to further worsen the situation.

The stated objective of the Government’s price policy for agricultural produce is to ensure remunerative prices to the farmers for their produce and thereby to encourage higher investment and production. In reality leave alone getting remunerative prices, the farmers are not even able to realise the costs of cultivation rendering agriculture unviable. The Government policies have led to increased input costs and due to the decontrol of fertiliser sector the prices of fertilisers have risen manifold. Increasing prices of diesel and electricity has made irrigation and other farm activities much more costly. The pricing will fail to meet its objective of providing confidence to the farmers if it does not reflect the prevalent costs of agricultural inputs in the market and provide a reasonable margin of at least 50 percent over and above the Cost of Production as suggested by the Swaminathan Commission. The NDA Government practice of increasing prices of Wheat and Paddy by merely Rs.50/Qtl is no different from the Congress-led UPA policy and is unacceptable. MSP of many crops are even below the Cost of Production for many crops.

The Ministry of Consumer Affairs, Food and Public Distribution has issued a letter to States regarding change in policy of procurement for the Central Pool. This will dismantle even the present weak Public Procurement as well as the Price Support System to India’s Farmers. The letter clearly takes a position against States giving bonus over and above the Minimum Support Price (MSP) on the pretext that it “distorts the market” and “drives private buyers out of the market”. It declares that in case a surplus Decentralised Procurement State (DCP State) declares bonus for wheat or paddy from Kharif Marketing Season 2014-15 and Rabi Marketing Season 2015-16 onwards, the Central Government will limit the procurement to the Central Pool. The letter states that it has been “decided” that if a State announces bonus over and above MSP, the FCI will “not take part” in procurement and MSP operation in the State. This is contrary to the Government’s position at the WTO and is in effect implementation of the demands of USA, EU and other advanced capitalist countries. AIKS demands withdrawal of the ban on procurement from States providing bonus over and above the MSP.

The neo-liberal policies and trade liberalisation has exposed the Indian Farmers to volatile world market prices and they have been the root of the unprecedented crisis. Price crash is witnessed in major crops like tea, rubber, pepper, coconut, cotton, tur, gram/chana, onion etc due to the faulty trade policies. Cotton pricesthat Farmers are getting are even far below the already unremunerative MSP. The rubber crisis as well as crisis of pepper growers and small tea growers is also taking serious proportions.  Onion farmers in Karnataka and Maharashtra were forced to throw away their produce due to the price crash and absence of scientific storage facilities. The Indian peasantry can be protected from vagaries of the volatile world market prices only if the Government puts in place an effective procurement policy complemented by remunerative support prices. It also entails a complete ban on Futures Trading. It is required that certain measures like revamping the Marketing Boards or making certain allocations for building a Price Stabilization Fund as suggested by the National Commission of Farmers has to be implemented. In the absence of any protection for our Farmers the rush for Free Trade Agreements (FTAs) with EU, USA and the RCEP with ASEAN and other countries will lead to dumping of cheap goods and put Farmers’ livelihood in danger. AIKS demands that a review of Neo-Liberal policies be made and India withdraw from such unequal FTAs.

Sugarcane farmers in India are facing acute distress and thousands of crores of arrears are due from Sugar mills to the poor farmers. The Government has doled out further benefits to the Sugar lobby without any concrete action by them to clear the arrears due to the Cane Farmers which by the Government’s own admission is 110 billion rupees ($1.84 billion). This is in continuation of the policies of the Congress-led UPA Government which in December had approved Rs.6,600 crore interest free loans for the sugar industry exclusively for clearing sugarcane arrears. The present Government has extended this to allow Corporate Sugar Mills to avail additional interest-free loans of up to Rs.4,400 crore from banks which will add up to Rs.11,000 crores altogether. In addition the Government has given Export subsidy of Rs.3600/Tonne for sugar even as there is no effort to give a fair price to Farmers. The Government prices fixed are neither fair nor remunerative and AIKS feels that unless at least a price of Rs.350/Qtl is ensured and all arrears are paid, farmers will be forced to gradually stop cultivation as it has become a loss making venture. AIKS wants the withdrawal of decision to decontrol sugar industry, stopping of the huge subsidies to corporate sugar companies and calls upon the Government to use Sugarcane Development Fund for the benefit of Farmers.

Jute farmers in India are also in dire straits as the Government policy of allowing plastic bags has sharply curtailed the demand for jute bags and also the MSP is very low. AIKS demands Mandatory 100 percent usage of Jute bags for transport and packaging of Food Grains and Sugar and for a Ban on use of Synthetic Bags with strong deterrent action against violators. Jute Corporation of India should be instructed to open adequate purchasing centres and assure procurement at a MSP of Cost of Production plus 50 percent  (C2+50%).

Thousands of cattle were dying in the States of Karnataka, Tamilnadu, Kerala, Andhra Pradesh and Maharashtra due to a suspected outbreak of the dreaded “Foot-and-Mouth” disease. The suspected viral infection had taken epidemic proportion and the fatalities crossed over 30,000 putting the poor and marginal farmers into great misery. However, now it has come to light that the vaccines provided were sub-standard and probably even hazardous as AIKS had pointed out to the then Agriculture Minister. A Report prepared by Dr.Bhoj Singh, CCS NIAH, Baghpat for the Government of India has found that Companies are providing substandard vaccines for treatment of FMD and one of the Companies Intervet India Pvt Ltd used an anti-biotic Enerofloxacin whichshould not be used in dairy or food animals as preservative in the vaccine. Brilliant BioPharma and Indian Immunologicals Ltd also provided sub-standard vaccines. AIKS demands a thorough investigation and calls for Blacklisting of these companies and cancellation of their licenses as well as punishment of the guilty.

There must be timely fixation of MSP and it must be mandatory upon the Government to announce the MSP well before the crop sowing season. In addition to timely fixation of MSP there is need for timely procurement and the Food Corporation of India as well as other Governmental agencies involved with procurement should stay and involve with procurement for a longer period. An effective procurement mechanism complemented by a Universal Public Distribution System is indispensable if the farmers have to be led out of the present crisis. Procurement by the Government bodies has to be enhanced. Public procurement operations must be expanded and Farmers’ Cooperatives and Self Help Groups must be also drafted into this activity. The restrictions imposed on procurement through Panchayats and State Corporations has to be revoked and such efforts should be encouraged by having incentives to encourage better performers.

The middlemen and big traders control the dynamics of the local Mandis making it impossible for farmers to get a fair deal. There has to be stringent regulation of activities of such elements. The dilution of APMC Act to favour big organised retailers must be reversed and Farmers’ Cooperatives, SHGs as well as Panchayats must be engaged for Marketing.  Storage and agro-processing facilities must be modernised and augmented. Timely procurement should be complemented by an adequate storage mechanism to ward off problems arising out of erratic climatic conditions and ensure sufficient quantity can be procured at remunerative MSP. Agro-processing and value addition is indispensable for making agriculture more viable. Special attention to address the problem of perishables is required. There is hence a need for augmentation of storage facilities including cold storages and also facilities for agro-processing under the Cooperative sector giving encouragement to Farmers’ Cooperatives and Self-Help-Groups.

There has to be urgent efforts to widen the crop basket under the purview of the CACP and procurement of the same should be ensured. At present MSP excludes important crops like basmati and premium rice varieties, chilly, areca-nut, spices, castor, other oilseeds, aromatics, cash crops, traditional staples etc, thereby leaving the producers at the mercy of private traders. Minor Forest Produce must be procured at remunerative prices from Tribal people as it is their main source of livelihood and avenues for value addition must be ensured.

An alteration in the situation of persistent agrarian crisis can be possible only if the farmers are assured of truly fair and remunerative prices. Immediate steps to rein in costs of inputs and provide them at subsidised rates are also necessary. Input prices must be regulated and Fertiliser prices must be frozen at pre-Nutrient Based Subsidy rates. A comprehensive social security scheme for Agricultural Workers and strengthening of the MGNREGA is also required. Indiscriminate land acquisition must be stopped. Measures must be undertaken on a war-footing to address specific problems of areas hit by cyclones and drought. Unequal Free Trade Agreements and Trade Liberalisation measures must not be implemented. Dumping of cheap agricultural produce from other countries must be disallowed. All Trade negotiations should be transparent and the Parliament as well as States must be taken into confidence.

We hope you will look into the issues raised above and take immediate steps in the best interests of the peasantry.

Thanking you,

Hannan Mollah
General Secretary

AIKS: Oppose Authoritarian Anti-People Land Acquisition Ordinance

The All India Kisan Sabha condemns the BJP Government’s undemocratic move to amend the Land Acquisition legislation through an Ordinance by subverting the Parliament. The move smacks of authoritarianism and is clearly aimed to promote profiteering and real estate speculation by the corporates and land mafia. It further dilutes the existing Act which itself was flawed and loaded heavily against interests of the peasantry, land owners and dependents on land. The Ordinance ignores genuine concerns of farmers and millions of persons dependent on land. AIKS rejects this anti-farmer and anti-poor Ordinance. It shall build broad united movements at all sites of indiscriminate, unjust land acquisition and fight to protect the rights of the peasantry, tenants, agricultural workers and all affected persons. 

The Ordinance removes even the existing weak norms requiring consent of the land owners and Social Impact Assessment which are central to dealing with the problem of indiscriminate and forcible land acquisition. It also dilutes the existing definition of public purpose and will bring Private companies and their activities of unbridled profiteering into public purpose and promote further unregulated takeover of land by corporates. Even the weak provisions seeking to address food security concerns have been revoked making it possible to easily acquire multi-cropped fertile land as well as productive rain-fed and semi-arid land for industrial corridors, infrastructure projects including the PPP projects. Along with multi-cropped, irrigated lands protection for rain-fed, dry-land, semi-arid land as well as paddy lands, common property resources are indispensable to ensure food and livelihood security. Food security of the nation will be under threat as there are no effective safeguards against take-over of agricultural land, paddy lands, water bodies and protection for productive rain-fed, dry and semi-arid land although majority of cultivation in India is under such regions. The Government claim of bringing 13 Acts under the purview of the Land Acquisition Act would be rendered hollow by the new changes as well as the diluted nature of the provisions.

Rather than resorting to the Ordinance route what was required was to arrive at a democratic legislation by correcting the anomalies present in the Act relating to definition of public purpose, affected persons, ensuring stringent adherence to the principle of prior-informed consent and Social Impact Assessment, addressing food security concerns, effective compensation, rehabilitation and resettlement. Promotion of food security and livelihood security through the adherence to an equitable and sustainable National as well as State Land Use Plans monitored by Land Use Commissions at respective levels should have been emphasised. The Ordinance ignores all such issues and merely is an instrument for speedy expropriation and facilitation of land acquisition in a quick, cheap and easy way with little concern for consent, adequate compensation and rehabilitation of landowners and other dependents on land. It has only shifted from a “colonial” to a “neo-liberal” legal framework which is as draconian if not more.

AIKS will resist any moves to hand-over land for corporate profiteering and without ensuring prior informed consent. The BJP Government’s anti-people move will be defeated by the peasantry and the toiling masses through intense united struggles.

30th December, 2014

Interview: Land Acquisition Imperatives

We are happy to refer the readers to a brief video interview with Dr Smita Gupta, senior economist with the Institute of Human Development, New Delhi and someone who is actively involved with the activities of farmers' organisations. She comments here on the issues related to land acquisition in India.

This is a Newsclick production. We have borrowed it from http://newsclick.in/india/active-role-state-well-defined-public-purpose-consent-imperatives-land-acquisition.

AIKS on the Rehabilitation And Resettlement Bill, 2007

The demand for a Rehabilitation and Resettlement Bill was based on the understanding that it is better to have a law since statute rights defined (or denied) in law are binding, while a R&R Policy would only have persuasive value that can be ignored by both the Government and Courts. Seen in this light, the present Bill is an important step towards recognizing rehabilitation and resettlement rights of displaced persons.

Unfortunately, however, the proposed Rehabilitation and Resettlement Bill, 2007 is toothless as it is full of platitudes without any binding provisions. The several conditions associated with rehabilitation and resettlement and the un-enforceability of different provisions render the proposed legislation ineffective. It focuses more on form and governance framework with a multitude of Committees and processes rather than granting substantive rights beyond recognition of status.

1. Extension to Entire Country: 

In the present form of the R&R Bill, the Government can bring the legislation into force at different points in time in different parts of the country.

Suggestion: The R&R Act must come into force in the entire country upon its notification.

2. Numerical Restrictions on the Number of Displaced Families: 

Presently, there are numerical restrictions of the number of displaced families for the applicability of the R&R Bill. Clause 20(1) suggests that an area would be declared as an affected area only in case of “involuntary displacement of four hundred or more families en masse in plain areas, or two hundred or more families en masse in tribal or hilly areas, DDP blocks or areas mentioned in the Fifth Schedule or Sixth Schedule to the Constitution”. These numerical restrictions are arbitrary.

Suggestion: These restrictions must be removed. All en masse displacements should come under the purview of the R&R Act. There can be some minimum number of displaced families (which must be lower than the present provision of 400 for plain areas and 200 for hilly areas) for the applicability of the provision for a Social Impact Assessment, but the provision of rehabilitation and resettlement should apply to displaced families in all cases.

3. Definition Of Affected Families And Areas:

a. The current definitions neglect common property resources on land from which people derive private income (like fish, weeds, minor forest produce, etc.) as well as sustain livelihoods (fodder, fuel, water, etc). Nor does it include habitats that go beyond private land use through cultivation or labour (farm and off-farm).

Suggestion: Common Property Resources and users must be included in the definitions.

b. The definition of “family” is seriously deficient from a gender perspective, since it subsumes adult unmarried women and unmarried dependent sisters within the natal family instead of treating them as independent families as in the case of all adult sons and brothers (married or single).

Suggestion: Adult unmarried women and unmarried dependent sisters should be treated at par with their male counterparts.

c. The current definitions limit the applicability of the R&R Act to “involuntary” acquisitions, implying thereby that market-based displacement shall be treated as “voluntary” displacement. However, market-based displacements are often distress-driven or forced.

Suggestion: All displacement, whether involuntary or voluntary, should be covered by the R&R Act.

d. The insistence on ‘continuous’ residence for a period of five years for being eligible will exclude several migrants workers who work away from their residences. Tribals who practice traditional modes of agriculture, involving temporary shifting from one place to another place every two-three years for cultivation of crops, and other nomadic forms of life, and other seasonal migrants may not be residing continuously for the required period in a particular place and hence not qualify as an “affected family”.

Suggestion: The criteria should be changed to residence for at least half the year for the past three years.

e. The R&R Bill repeatedly refers to Scheduled Tribes in occupation of forest land from prior to 2005, except in section 49(11), which refers to Other Traditional Forest Dwellers as well.

Suggestion: It should refer to all holders of forest rights under The Scheduled Tribes and Other Traditional Forest Dwellers Recognition of Forest Rights) Act, 2006.

f. The definition of ‘affected area’ is narrow and restrictive, limited to the following three conditions:

(i) involuntary displacement due to acquisition of land

(ii) displacement of four hundred or more families en masse in plain areas, or two hundred or more families en masse in tribal or hilly areas, DDP blocks or areas in the Fifth Schedule and Sixth Schedule to the Constitution,

(iii) area of village or locality

When fewer persons are displaced, or when displacement is not ‘en masse’ but dispersed in time and space, or when the amended LAA permits 70 per cent acquisition through market purchases, or when the lands involved are outside the village or locality, the RRB will not come into operation. The definition of agricultural land too is flawed, as it does not include fallows, wasteland, culturable wasteland and land under agro-silvi-pastoral plants and agro-forestry. The exclusion of ‘land used for cutting of wood only’ is inexplicable.

Suggestion: “Affected Area” must include all areas of displacement irrespective of the cause, extent and frequency. The requirement of number of affected families for notification of affected areas is too high. This should be reduced to… families in case of plain areas and …families in case of tribal or hilly areas. All Blocks covered by the Drought Prone Areas Programme should be included.

g. There is only a top-down procedure for identification and verification of Project Affected Persons (PAPs). At the moment, the Administrator is required to conduct a Survey to identify PAPs, and allows for objections after completion of Survey.

Suggestion: There must instead be a procedure for application and verification of claims by people who claim to be affected. The verification process must involve the Gram Sabha. There must be a proper appeals process against faulty exclusion. The information of likely displacement in the declaration should be served as a notice on all ‘interested persons’ under Sec 4 of the LAA. In the case of land situated in or around a village, the declaration should be displayed on the notice board at the office of the panchayat within whose jurisdiction the land lies, and a notice board specially erected for this purpose on the land to be acquired. Affected areas must also include commons, habitats and forests.

4. Social Impact Assessment (SIA)

The provision for a Social Impact Assessment is welcome. But the process needs to be further strengthened in terms of scope, institutions and methodology.

Suggestion: SIA should be done by an Expert Committee comprising official, elected representatives, representatives of affected persons and non-official experts. It should be done in all cases of displacement involving… or more families. It should cover all categories of land acquisition permitted under the LAA either directly or as an adjunct. There should be no exemptions, in the name of defence or national security. It should examine the Project proposal on the basis of (i) public purpose, (ii) least displacing option (iii) costs and benefits. The SIA must cover any rights / activities covered by The Scheduled Tribes and Other Traditional Forest Dwellers Recognition of Forest Rights) Act, 2006. The Rehabilitation and Resettlement requirements too must form a part of the consultations and requirements and expectations must be discussed. There must be consultations with the persons likely to be affected, the gram sabha (if the entire or substantial part of a gram panchayat is affected) or assembly of affected persons (if a small part of a gram panchayat is affected) after proactively providing relevant information. The SIA and the clearance must apply to the project as a whole and piecemeal clearance of applications should not be permitted.

The present R&R Bill also proposes to include a representative of the requiring body (i.e. the entity causing displacement) on the SIA expert group. This is an obvious conflict of interest, since they end up assessing their own project, and should therefore be removed.

5. Rehabilitation and Resettlement Authorities

The role and functions of the National Monitoring Committee proposed in the R&R Bill are in violation of the federal principles and structure. There are far too many Committees – seven from Project to Centre - which are needlessly dominated by officials and give a consultative role to the requiring body. This is undesirable. It is not at all clear who the Ombudsman is: an official or a non-official?

Suggestion: The R&R committees at various levels must not be dominated by officials and there must be a strong presence of elected representatives and of the affected families. The ‘formulation, execution and monitoring of the rehabilitation and resettlement Plan’ must be done in consultation with the affected persons and the final package must have their prior informed consent. Affected persons must be clearly informed about the extent to which the costs of R&R shall be realized from their compensation package under the LAA. The post-implementation social audits must be carried out by the gram sabha (if the entire or substantial part of a gram panchayat is affected) or assembly of affected persons (if a small part of a gram panchayat is affected).

6. R&R Package

The present R&R package does not ensure livelihood security for the displaced persons. The emphasis on lump sum cash compensation rather than sharing the benefits of the development process by creating sustainable and decent livelihood opportunities is disappointing. There are all kinds of numerical restrictions for the applicability of its provisions, which must be removed. It actually gives far less than what several Awards and state government policies have given in the past. Moreover, the provisions remain mostly recommendatory in nature rather than being binding.

Suggestions: (i) Employment for the displaced persons in the projects has been linked to the “availability of vacancies and suitability of the affected person for the employment”. If employment for displaced persons cannot be provided in a project, the affected persons must be provided guaranteed employment for 200 days each year at the statutory minimum wages for unskilled rural/urban labour. (ii) The provision which provides for rehabilitation of affected families displaced by linear acquisitions, says that they would only be provided if they become “landless or is reduced to the status of a ‘small’ or ‘marginal’ farmer”, failing which only ex-gratia payment which is not less than Rs 20,000 will be given. This is unduly restrictive and should be removed. (iii) References at several points to limiting certain types of compensation to only those below the poverty line (BPL) should be removed. (iv) Complete and not ‘adequate’ rehabilitation must precede displacement. (v) Fishing rights must be provided to PAPs in case of reservoirs. (vi) All assets/compensation must be in the joint name of spouses. (vii) The provision of land in irrigation projects should be compulsory. (viii) The option of lump sum payment in lieu of all entitlements must be deleted since it is effectively a nullifying clause.

7. Grievance Redressal

Besides banning access to Courts, the R&R Bill does very little by way of addressing grievances. The same officials who are acquiring the land and carrying out R&R are supposed to hear appeals against themselves. The R&R administration is all-powerful, with civil courts barred from admitting suits on matters that are the responsibility of the R&R administration, which include (1) Identification of “affected families”, (2) the resettlement plan and (3) the implementation of the plan. Thus, right-holders and their benefits are determined solely by the Government except if the process is violated.

Suggestion: The designated judicial bench that hears appeals in the LAA Bill must also have jurisdiction over the R&R Bill.

AIKS on the Land Acquisition (Amendment) Bill, 2007

(Land acquisition for non-agricultural development is inevitable in the course of economic growth and development. The real issues herein are about the fairness of the process, the purposes for which such acquisition is done, its democratic character,  its transparency and appropriate relief and rehabilitation measures for all affected by acquisition. The Government of India has come out with two draft bills in this regard. One is the Land Acquisition Amendment Bill (LAA Bill) and the other is the Rehabilitation and Resettlement Bill 2007 (R and R Bill). The AIKS has put forward a number of suggestions on both Bills to eliminate the anti-people provisions and strengthen pro-people aspects. Here we present the position of the AIKS on the Land Acquisition Amendment Bill. In the next post in the blog, we shall present AIKS’ position on the Rehabilitation and Resettlement Bill.)

Introduction

At the moment, the legal framework for land acquisition for public purpose is provided by the Land Acquisition Act, 1894 (LAA), last amended in 1984. The main purpose of the LAA under the British colonial administration was to acquire land in a quick, cheap and easy manner with little concern for adequate compensation and rehabilitation of landowners. Public purpose was essentially an administrative decision with opaque and authoritarian procedures with token avenues for appeal or objection. The 1984 amendments essentially did little more than bring Companies within the purview of the Act.

Over the years, judicial exposition has highlighted its numerous lacunae, as has the ground experience of its adverse impact on the livelihood of those giving up land and being displaced. The All India Kisan Sabha therefore believes that the Land Acquisition Act should be comprehensively amended to ensure that while pursuing genuine public interest, it is made more democratic, transparent and accountable, safeguarding the rights and interests of displaced persons and securing their livelihoods through improved and sustainable livelihood-generation and fair compensation. The Government’s proposed amendments to the LAA unfortunately, do not address several core deficiencies and anomalies, while introducing several amendments that are examples of the cure being worse than the disease.

While there are some positive features in the present Land Acquisition (Amendment) Bill, 2007 proposed by the Government, which needs to be further strengthened, there are some provisions, which are quite objectionable. These objectionable features include:

• Redefining public purpose to include all private companies and entities and force the privatization of public services.
• Allow un-scrutinized and un-monitored market-based land acquisition, thereby undermining the State and people’s right to interrogate public purpose
• Reduce the amount of the compensation awarded by linking it to stamp value, registrations, etc.
• In the name of fast-tracking, deny interested persons access to Courts by creating a separate Authority constituted by the Government itself with a clear merger of judicial and executive roles

The Government has also introduced the Rehabilitation and Resettlement Bill, 2007 (RRB). The RRB should essentially deal with the process and components of resettlement and rehabilitation when there is displacement while the LAA should identify persons affected adversely by the land acquisition and land use change and compensate them after due process of scrutiny, consultation and appeal.

PROBLEMS WITH THE LAA 1894 AND SUGGESTIONS ON LAA BILL 2007

1. Narrow And Restricted Definition Of ‘Persons Interested’ with a Top-Down Bureaucratic Procedure for their Identification

Problem: The definition of interested persons covers only landowning peasants and tenant farmers, excluding landless agricultural labourers, collectors/users of common property resources, artisans and others servicing the farmers’ needs – persons whose livelihoods depend on the land. Additionally, the Collector is the sole Authority to identify ‘interested persons’ and there is no procedure for filing claims verifiable by the Gram Sabha and the Collector. Furthermore, the LAA deals with the landed and tenants while the RRB deals with the compensation package for the landless and other service providers through two different definitions. Finally, ambiguity in the definition of interested parties has resulted in Courts putting those who pay compensation at par with those who receive it.

Suggestion: Definition of interested persons in the LAA Bill should include the non-landed and non-cultivating persons dependent on the land and local economy for livelihoods and common property. The Act must contain a procedure for filing of claims and application for self-identification as interested person to eliminate wrong exclusion. There should be a single inclusive definition of ‘interested persons’ (LAA) and ‘affected family’ (RRB). Moreover, the rights of Objections, Appeals, etc. should only apply to those receiving compensation, not those who are acquiring the land.

2.     Exclusion of Common Property Resources from Assets and Land

Problem: The present version of the Act only estimates and compensates private property. Large-scale acquisition covers entire villages and their common property resources - tanks, grazing lands and village forests. Common property resources play a major role in supporting the livelihood of the villagers, specially the poorer ones.

Suggestion:  The loss of access to these common property resources too must be listed and compensated. They should be included in the Notification, Declaration and Compensation.

3.     Definition and Scrutiny of Public Purpose provides Sole and Absolute Prerogative of Executive/Administration without Consideration of Extent of Displacement

Problem: The “public purpose” needs to be properly defined. If the definition of “public purpose” is to remain as a purely administrative/executive prerogative, which is not subject to democratic and judicial scrutiny, the basic problem arising from the present LAA will not be addressed. Furthermore, no attempt is made to scrutinize the Project as the least displacing option in order to fulfill the stated “public purpose”. Finally, land is often acquired in the guise of a more plausible purpose and then transferred to some other use. This has not been properly addressed.

Government’s Proposed Amendment Clause 3(f)(iii).:  The proposed definition of ‘public purpose’ is made limited to the requirements of land for (i) strategic purposes relating to naval, military and Air force works or other work vital to the State, (ii) Land for infrastructure projects (including mining) and (iii) to the extent of 30% for the companies where they have already procured 70 per cent for a vague and all-inclusive “any other purpose useful to the general public”.

Critique of Government’s Proposed Amendment: (1) This severely restricts the scope of the State to fulfill pro-poor public purpose since it can no longer acquire land for inter alia, the schemes for planned development of villages and towns or for providing housing for landless and poor or for carrying out any educational, housing or health or land distribution schemes, leaving these services to the private sector; (2) Denies the 70 per cent whose lands are bought in the ‘market’ their due legal rights to compensation under the LAA and relief under the RRB, since they are outside the definition of ‘interested persons’ in the former and ‘affected family’ in the latter (since it is treated as voluntary dispossession and/or displacement through ‘free’ market contract); (3)Allows a free play of market forces resulting in large scale and cheap land alienation and dispossession in a context of acute rural distress through deceitful and forced land purchases by private entities and real estate speculators; (4) Reduces the Government to a formal rubber stamp with the ‘public purpose’ becoming a fait accompli, with the Project and its purpose effectively outside government examination thus pre-empting any a priori scrutiny of the proposed project as the least displacing one or as contributing to ‘public purpose’; (5) All-inclusive and vague nature of “any purpose useful to the general public” ensures that virtually any possible economic and non-economic activity can fit in.

Suggestion: These proposals should be completely rejected. Public purpose should be clearly and unambiguously defined and limited in the law to certain types of pro-poor, redistributive, employment-intensive and public good oriented activities, which are Government-owned to the extent of at least 50 per cent. The decision of what constitutes public purpose should be democratized and the legislature involved along with the PRIs. This should not remain in the hands of the executive alone. All project proposals should be scrutinized based on three yardsticks: (i) public purpose, (ii) least displacing and (iii) in accordance with land-use policy and plan. The mechanisms for this are: 

• Social Impact Assessment by an Expert Committee with official, non-official and elected representatives.

• State-level Project Approval Committee comprising elected representatives of all levels, experts and bureaucrats.

• Public consultation with affected Gram Sabhas or Assemblies of interested persons in case an entire village is not affected

• All transfer from one public purpose to another to require scrutiny of the new public purpose by Social Impact Assessment, Project Approval Committee and under Sec 5 to eliminate proxy acquisition.

4.     Land Acquisition through Surrogate Land Use Changes

Problem: Private companies and land speculators attempt backdoor land acquisition through benaami and other instruments and subsequently change land use, with or without post facto clearances, leaving landowners at the mercy of the market and speculators. These are usually in violation of the land use plans and laws of the relevant state, UT, Central or State governments.

Suggestion: The Act should define “major land use alteration” as a change in the purpose for which land is utilized and classified, including but not restricted to changes from agriculture (including fallows and wasteland) to non-agriculture, government-owned public land to privately leased or owned land, and forest to non-forest use, that exceeds the relevant agricultural land ceiling in the case of land use change from agriculture (including fallows, wastelands, etc.) to non-agriculture; or exceeds an area of fifty hectares in all other cases of change in land use, or violates the Land Use Plan of the relevant State or UT government or the concerned local government’s plans under 243 G. All such alterations in land use should require (1) Social Impact Study (2) prior prima facie approval subject to Sec 5 of the Act from the Project Approval Committee after SIAs and (3) MoUs to be signed with the Government. Subsequently, they should be treated as land acquisition to be brought under the provisions of the LAA, with the Government undertaking the land acquisition. Violations and un-scrutinized “major land use alterations” should invite penalties.

5.     Regulation of Private Companies to avoid Unscrupulous Land Acquisition

Problem: Part VII of the LAA Bill deals with private companies in a very limited set of cases. While the Government can, after 1984, acquire land for a Company as defined in the Act, the Companies are only required to state their ability and willingness to meet the cost of acquisition. There is a marked absence of the requirements and its due process in the case of such Projects. 

Government’s Proposed Amendment: The Government proposes to leave Companies entirely out of the purview of the Act and delete Part VII entirely except in cases specified under proposed Clause 3(f)(iii).

Critique of Government’s Proposed Amendment: The Government has basically allowed a free run to Companies and market-based land acquisition by bringing them under the definition of public purpose itself provided that at least 70 per cent of the land is acquired by them. Having done that, the Government too becomes free from its obligations to protect the interests of the peasantry and other land-dependents and common property users on the one hand and regulate land use and public purpose, on the other.

Suggestion: Acquisition by Companies and individuals should be brought strictly under the purview of the Act. Companies should first approach the Government with their proposals, and only after the public purpose and displacement is examined through Social Impact Assessment and the Project Approval Committee and given prima facie approval subject to Sec 5 of the Act, and a MoU signed, should the Government acquire the land for Companies through the provisions of the LAA.

6.  Compensation : Basis, Scope and Profit Sharing

Problem: The Act keeps acquisition costs low by an unfair and arbitrary method of evaluating the price of land and restrictive coverage of persons and assets resulting in very low compensation. This is achieved through five devices: (1) basing the valuation on past sale deeds that are officially recorded; the land prices in these deeds are often under-reported in order to escape taxes and duties and therefore do not reflect the operative market rates. (2) refusal to transfer any part of the gains of the higher values accruing from the proposed change in land use to the affected persons. (3) Payment of depreciated value for assets making it impossible to replace them. (4) The procurer (the Government) deciding the price, a system antithetical to a fair and democratic valuation. (5) Land-dependence through labour and services and common property resources as well as unrecorded occupancy is not compensated.

Government’s Proposed Amendment: The proposed Amendment 11B links compensation to ‘market’ value based on recorded transactions and officially determined stamp value which invariably undervalue real market rates. This results in the acquirer of land continuing to have an upper hand. The government also proposes an increase in solatium.

Critique of Government’s Proposed Amendment: This will make acquisition even cheaper and result in systematic undervaluation to underestimate project costs. It will override the entire Case Law that provides for calculation of the value on the basis of the highest exemplar amongst proximate land, where proximity is defined in terms of time, space, quality and area of the sale (and not averages). The increase in solatium is miserly and inadequate.

Suggestion: The Act must shift to a methodology in which compensation ensures livelihood security and improves living standards. The present proposal is one of market-based valuations, of which shares may be a part to a ‘fair’ valuation that is computed as the highest amongst the following:  the basis of market prices, replacement cost, augmented value and output value. This paradigm of calculating the compensation needs to change. The land prices must be determined on the basis of a Survey by an Evaluation Team which should include elected respresentatives and representatives of the ‘interested persons’ whose lands are being acquired besides the Collector and Government representatives. In addition, there must be higher solatium given the compulsory nature of the acquisition.

The affected persons should also get a share in the increased income arising from the change in land use, which is expressly prohibited in Section 24. Shares and Debentures should be given over and above the compensation, as a part of ‘profit-sharing’ and not as a portion of the compensation. For this, the State Governments should create a Corpus Fund/Depository which can manage the Shares and Debentures of the affected persons and provide them with a future stream of monthly/annual income. The award of shares and debentures should be made by the Expert Group undertaking the Social Impact. The arrangement should be such that the affected persons do not have to bear any risk of loss from the project, while they gain in case profits are being made.

Furthermore, there must be compensation for loss of livelihood and income of land-dependent workers, service providers, artisans, as well as loss of access to CPRs at four years minimum wages. All interested persons who loose their livelihood and/or land must be provided 200 days annual guaranteed employment at minimum wages as a part of their compensation and rehabilitation.

There should be reversion of unused land to original owners without recompense to the State.

7.     Timely and Comprehensive Information on Acquisition Details

Problem: Section 4 of the LAA provides for preliminary notification for proposed or likely acquisition, without the requirement of individual notice to the person concerned. However, the notices are published in the Gazette in newspapers to which people do not have access. The notices are vague and imprecise in terms of the exact land parcel involved, its categorization and description, the purpose of acquisition and the interested persons. It is therefore incapable of conveying a clear description of the land to be acquired, the very foundation on which objections can be submitted under Sec 5A of the Act. Since the Section does not require individual notices to all interested persons, there is no opportunity for the wrongly excluded to either know of their exclusion or object under section 5A.

Suggestion: The affected persons must be individually served the notification at the very beginning with complete description of land parcels and the conspicuous places in the locality too must be specified, to prevent it from becoming a mere formality. Furthermore, no notification should be made prior to the complete recognition and vesting of rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2007 if their rights are to be protected during land acquisition proceedings.

8. Objection, Appeal and Grievance Redressal

Problem: There are broadly seven deficiencies in the Act in relation to the appeals process: (1) information about the procedure and sequence, (2) locus standi or who can appeal, (3) the grounds on which appeals are permissible, (4) the time limitation within which appeals must be made (5) slow pace of dispute resolution and (6) the agency/body to which appeals can be made and (7) absence of democratic process for grievance redressal.

Government’s Proposed Amendment: The amendment proposes an Authority for the State and Centre comprising handpicked appointees of the relevant Government and brings all these matters outside the purview of Civil Courts.

Critique of Government’s Proposed Amendment: None of the existing problems except of slow pace of dispute resolution has been addressed by the proposed amendment. There are several problems with this. Firstly, the Constitution is based on a separation of functions between the legislature, executive and judiciary and it seems patently unfair and undemocratic that a body appointed by the executive will scrutinize its own decisions. It violates the basic premise of independent functioning of the judiciary. Secondly, denying access to Courts in this manner is not in keeping with the Constitution. Finally, if the Courts take too long, it is better to address that issue directly by increasing the size of the judiciary or simplifying procedures rather than bypassing the judiciary completely.

Suggestion: In the interest of justice and independence, a far better approach would be to increase the strength of the judiciary by creating a separate judicial bench for fast-tracking disputes on the Land Acquisition Act. The better option is a Designated Court presided over by a Judge appointed by the State. The Supreme Court must certainly have the authority to hear cases.

There should be procedural simplicity and fairness in the appeals and objections process and removal of unjust barriers to appeal. Time limitation should become less rigid for interested persons while requiring a time bound response from the Appellate Authority.

The Gram Sabhas should have more consultative and deliberative powers where entire villages are involved as shall assemblies of those affected where entire villages are not affected.

9. Emergency Powers

Problem: Under the ‘Emergency’ clause, land can be acquired without Enquiry and Objections or giving the interested persons an opportunity of being heard. In recent times, a lot of land has been acquired for corporate mining and infrastructure projects using this extraordinary power.

Suggestion: The Act must contain adequate safeguards against its misuse. Section 17(1) must be deleted.

10. Resettlement to Precede Displacement

Problem: Possession of land is often taken prior to rehabilitation and payment of due compensation.

Solution: The Government correctly proposes that people should not be dispossessed from their land until compensation has been paid. However, it is important to ensure that in all cases of displacement, rehabilitation and resettlement must precede the physical possession of the land by the acquirer.