Revenue Minister RV Deshpande defended the amendment stating that it did not dilute the central Act, and it was done to speed up projects.

Ktaka amends Land Acquisition Act to speed up projects activists call it dangerous
Delve Policy Tuesday, March 12, 2019 - 10:57

On February 13, amidst the war of words between the ruling JD(S)-Congress combine and the BJP regarding the audiotapes that allegedly feature Leader of Opposition BS Yeddyurappa, a crucial legislation was passed, unnoticed.  

Both houses of the Karnataka Assembly passed eight legislations in one day without any debate in the Assembly. This includes a dangerous move by the government to allocate itself more power - an amendment to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

On February 13, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Karnataka Amendment) Bill 2019 was passed by both houses of the Assembly and is currently awaiting the President’s approval.

Amendments to Chapter II and III of the existing ACT

The 2013 Land Acquisition Act heralded a step in the right direction and made the process of land acquisition more inclusive, humane and transparent, say activists. It ensured “fair compensation” and also ensured that the draconian law (1894 land acquisition act) introduced by the British Raj, was removed, replacing it with a law that empowered the communities, which would be affected by the land acquisition. The biggest opposition to the Act came from industry that argued that it would slow down projects.

The Amendment made by the state government, without any public consultation or debate in the Karnataka Assembly allegedly brings back the regressive clauses in the 1894 Act introduced by the British, which the 2013 Act did not have, activists say.

According to the 2019 amendment, “certain provisions of Chapter II and Chapter III” of the 2013 Act will not apply for certain projects.

“The state government may in the public interest, by notification in the official gazette, exempt any of the following projects from the application of the provision of Chapter II and Chapter III of this Act, namely:

  • Such projects vital to the national security or defence of India and every part thereof, including preparation for defence or defence production.
  • Infrastructure projects including educational institutions, hospitals, government or local self-government offices electrification, irrigation projects and drinking water projects and
  • Affordable housing and housing for the poor people.
  • Industrial corridors set up by the state government and its undertaking and
  • Infrastructure projects including projects under public-private partnership, where the ownership of the land continues to vest with the state government: Provided that the state government shall, before the issue of notification, ensure the extent of land for the proposed acquisition keeping in view the minimum land required for such project.
  • The government also states in the amendment that the changes are being introduced in order to “speed up the process of infrastructural development”.
  • What this essentially means is that the state government is allocating itself the power to exempt big infrastructure, especially those with public-private partnership from the purview of the 2013 Act. This means the state government does not have to follow the provisions of transparency and the lengthy process of land acquisition as mentioned in the 2013 Act, says Bengaluru-based lawyer Clifton Rosario, who has worked on land acquisition issues.  
  • Environmental activist Leo Saldanha says, "This amendment is so badly phrased that it offers no clarity as there are no specifications on what is public interest, what kind of infrastructure projects, nothing about heritage sites or forest land being acquired. The state is allocating itself a kind of power which the British Raj had and this is the very question, which we had questioned in the Bengaluru-Mysuru corridor project, in which we had said that the state does not have the power to notify a road and notify a land abetting a road as if it is the state's land.”
  • He points out, “The amendment does not mention how many meters on either side of the road the government can acquire. It can be anything and it will be valid. Basically, the state decides all the specifications according to its wishes.”
  • Furthermore, Leo adds that the amendment concentrates power in the hands of the deputy commissioner. “The power of appeal is lost. The deputy commissioner of the district becomes the king of the district. The deputy commissioner has been given the power to determine how much compensation can be given for acquiring the land. This is extremely dangerous,” he adds.

Government disregards public opinion, becomes custodian of public interest

Activists say one of the most problematic terms used in this amendment is the use of the phrase "the state government in public interest”. According to the 2013 Act, public interest in terms of land acquisition, is defined by certain laws. “For instance, in urban areas, it is the Town and Country Planning Act. It has to establish public interest, which the amendment does not. Once the state allocates itself the power to define what public interest is, then it can just issue a notification to acquire land,” Leo adds.

When commons (common resources like lakes) need to be acquired, the project needs the permission of the local gram panchayat. By introducing the exemptions to Chapters II and III, the state government is overriding a constitutional right to safeguard commons. “The gram sabha has to be consulted before any diversion of commons. By this amendment, they are nullifying it,” says Leo.

Activists allege the government has also given itself a free pass to acquire any type of land - be it irrigated agricultural land or forest land for infrastructure projects, educational institutions and hospitals.

The Supreme Court had in 2011 held that the government cannot divert commons except for the purpose of rehabilitation of the poor, or if it is for the benefit of rehabilitating Dalits and Adivasis. By introducing the exemptions, the Karnataka government had overridden a Supreme Court ruling by giving itself the power to acquire forest land required for projects like Mekedatu and Linganamakki, where hundreds of acres of forest land need to be destroyed for the sake of the project.

Voluntary acquisition of land and why it is problematic

The amendment also introduces Chapter IVA termed “voluntary acquisition of land”.

As per the amendment, “30-A Acquisition of land by the state government by entering into agreement voluntary acquisition of land: 1. Notwithstanding anything contained in this Act, or any other law, whenever it appears to the state government that the land is needed in any area for any public purpose, the state government or its authorized officer may enter into an agreement with the willing land owner to sell the land in favour of the state government for the matters specified therein in a prescribed form.”

According to Leo, the amendment is a tedious attempt by the government to cheat the public and the communities, which would have an impact on land acquisition. “This is for the benefit of the government and the benefit of the builders. There are several problematic clauses. But the most dangerous one is the Voluntary acquisition of land, which is being introduced,” he says.

Voluntary acquisition is derived from the principle of eminent domain, where the government acquires private property to convert it for public use. “Voluntary acquisition of land is a very old British-era law and was the basis of the Land Acquisition Act of 1894,” he adds.

Leo says that there is no such thing as voluntary acquisition of land. Voluntary acquisition is a power, which the state bestows upon itself on the principle of eminent domain to take over private property for "public good". This is based on the hope that the due process is fair and trustworthy.

“It is very clear that the language used is that of a non-obstante clause,” Leo says.

A non-obstante clause is a clause that is usually used in a legislation to ensure that any other law, or government order, which contradicts the said provision cannot become applicable. For instance, in the Voluntary Acquisition clause, the phrase used is “Notwithstanding anything contained in this Act, or any other law”. This ensures that the provisions in the 2013 Act, which ensure transparency, is no longer applicable. This overwrites any other progressive law.

Vague and lacks clarity

The amendment also says land acquisition can happen in "any area". This means that the government is allocating itself the power to acquire land in all of the state as there are no specifications as to which parts or what type of land can be acquired. This means that even irrigated multi-crop growing lands, forest land and heritage sites can be acquired if the state deems fit to do so.

“The law forces the property owners to accept the terms of the state as though it is a voluntary agreement and the language itself betrays the name of the clause because it is inadvertently involuntary acquisition of land. This is done by putting pressure on the property owners. For instance, the solar parks across the state, where the Rs 21,000 per acre lease is given to land owners. This is against the Land Acquisition Act. This is exactly what is happening in Amaravati where Chandrababu Naidu is forcing people to form an agreement with the state. If they don't they are threatened into signing the agreement. It defeats the purpose of the Land Acquisition Act,” Leo alleges.

The projects where landowners will lose out

For over two decades, the Bengaluru Development Authority has faced a major problem in acquiring land from farmers for the construction of the Peripheral Ring Road project in Bengaluru. One of the primary contentions of the farmers was that the BDA was refusing to grant fair compensation. In many cases, farmers had demanded that the government allocate agricultural land in other areas to compensate for the losses they would suffer. This had resulted in a stalemate between an unwilling government and farmers, who would lose their livelihood.

With the amendment, the state government now has the power to set the compensation amount as the amendment states that the state government would decide what fair compensation is.

Similarly, the government has also proposed several industrial corridors, where land acquisition has become the biggest challenge. According to a Revenue Department official, the state government has been facing problems due to multiple stay orders issued by courts.

“The people have gone to court as the government was offering less money. The new amendment says that compensation can be withheld if the case is in court. This essentially means that people will be forced to give up land for lesser price or lose it completely. The MLAs know that the amendment will be opposed but they want to drag it until they can start work on certain crucial projects ahead of elections,” the official added.

Speaking to TNM, Kurubara Shanthakumar, leader of the Farmers’ Association in Mandya, says that he has appealed to the state government to withdraw the amendment.

“These will ensure that farmers’ lands are at risk. The government can step in at any time and take away our lands. If the government does not respond positively, we will ensure that massive protests are held across the state,” he added.

Revenue Minister says law not draconian

Speaking to TNM, Karnataka Revenue Minister RV Deshpande, one of the leaders who pushed for the legislation, says that the amendments do not water down the existing law.

“Absolutely not. We are not going back on the law, which has already been enacted. It is not even diluted. What we have done is to speed up projects. For government of India projects like defence or any other projects and state government projects, where lands are owned by the government of India or the state government, we have said that social impact study could be dispensed. This is because we are finding projects getting delayed for two to three years and escalation of costs,” Minister Deshpande said.

He also stated that the issue of compensation in the amendment does not aim to change any provision related to fair compensation. “The compensation according to the original Act has remained intact. We have only made provision for consent. We have said that if anyone is willing to sell the land, then they can do so voluntarily. The person will get fair compensation as per the Act so that the acquisition process is faster,” he added.

Minister Deshpande went on to defend the amendment’s provisions related to the powers given to Deputy Commissioners by saying that Karnataka is not the only state to amend the original Act.

“No, no, no. Karnataka is not the first state to enact this there are other states which have passed amendments before we did. It is in compliance with the Central Act and this the President of India is yet to give his assent. There is not tinkering with the compensation or any other provisions. It only has to do with government of India and state government projects,” he added. 

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