Commentary on New Land Acquisition Act ( LARR),2013

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Commentary on LARR-2013 Introduction The Power of the sovereign to take individual property for public use (called in America Eminent Domain- an expression believed to have been first used by Grotius), and the resulting rights of the owner to compensation are well established. In justification of the power, two maxims are often used:

1. ―salus populi est suprema lex‖ = Public welfare is the highest law 2. ―necessitas publica major est quam privata‖ = Public necessity is greater than private necessity Land is regarded to be the Life of Indian society, and Land reforms have been major instruments for social transformation. Thus the Land and Land reforms issues are the focal point of the political and economic agenda of the country. But every concern Government neglected the social legislature on land acquisition, Land reforms have been given a feebly attempted at various times and this has proved to be a case of the remedy being worse than the disease and this was the core substance of every resistance movement in Indian history. Land and Reforms are the correlative terms in Indian History. Right from the British Raj, and till recent years (before LARR-2013), the Land Acquisition and Reforms Acts, were unbalanced, it generally look at as a forced measure, with the shadow of “Public Purpose”. Land acquisition refers to the process by which the government forcibly acquires private property for public purpose without the consent of the land owner, which is different from a market purchase of land. History – Land Acquisition Legislature in India Synopsis 1. Ancient time 2. Colonial period 3. Post independent 1. ANCIENT TIME Right from Vedic age, the principle of private property and private ownership has been recognized. At the same time, there was nothing called absolute ownership with respect to land. It is an amazing fact that land was never regarded to be the Commentary on LARR-2013

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property of any King or monarch but it was the property of the village, and the intervention of the sovereign being limited to a share of usufruct for the protection he provided in return, even in Hindu period or in Muslim period. In fact it was the common behavior of the sovereign that peasants were allowed to continue to enjoy customary rights over land they occupied, and generally could not be evicted unless they failed to pay the required land revenue (land tax) to the state. With the arrival of the East India Company in the Seventeenth Century, the agrarian structure underwent radical change. And Land became the instrument of revenue generation only, and the principle of private property and private ownership has been completely neglected. The Land Reforms Policy adopted since Independence aims at restructuring agrarian relations to achieve an democratic social structure; elimination of exploitation in land relations; realizing the age-old goal of land to the tiller; increasing agricultural productivity and production and infusing equality in local institutions. 2. COLONIAL PERIOD The ulterior desired of British Government was to maximum satisfaction of their ulterior motive of extortion of Indian resources, to execute such clandestine desired the Government, established such Laws, which Indicate only English purposes i.e. consolidate colonial commercial interests, and The Land acquisition Act, 1894 was enacted for the purpose of COMPULSORILY ACQUIRING OF LAND required for public purpose or for purpose of companies. BANGAL REGULATION I OF 1824 The first attempt of acquisition of property was made by Britisher in 1824, by Bengal Regulation I Of 1824, the Act applied throughout the whole of the provinces immediately subject to the Presidency of Fort William. The Act provided the rules for enabling the officers of Government to obtain, at a fair valuation, land or other immovable property required for Roads, Canals or other Public Purposes. Act XXVIII of 1839 In Bombay Act XXVIII of 1839 declared widening or altering any existing public road, street or other thoroughfare or drain or for making any new public road, street or other thoroughfare within the meaning of public purpose. Commentary on LARR-2013

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ACT I OF 1850 By Act I of 1850, some of the provisions of the Regulation were extended to the town of Calcutta with the object of “confirming the title to lands in Calcutta taken for public purposes. Act XLII of 1850 When Britisher establish the Railway network for their ulterior motive, it had been felt that the acquisition of land is also need for Railways, and the Act XLII of 1850, declared that Railways were public works, and the land can be acquire for the same. Act XX of 1852 In Madras Act XX of 1852, were passed for the purpose of facilitating the acquisition of land for public purpose. Act VI 1857 Act VI 1857 repealed all previous enactments relating to acquisition and its objects, as per preamble, was to make better provisions for the acquisition of land needed for public purpose within the territory of East India Company, and it also determined of the amount of compensation to be paid for the same. Under this Act the Collector was empowered to fix the amount of compensation by agreement, if possible, but if there was no such agreement, the dispute had to be referred to arbitrators, whose decision was to be final and could not be overruled except on the ground of corruption or misconduct of arbitrators. Acts II 1861, XXII 1863, Act X of 1870 But later on due to the corruption this Act was amended by the Acts II 1861 and XXII 1863 but there was no provision of appeal against the arbitrator award; hence Act X of 1870 was passed, this act first time provided a reference for a civil court if the Arbitrator could not settle the amount of compensation by agreement, it not only provided details procedure for acquisition of land but also elucidate the specific rules for accreting the compensation amount Land Acquisition Act 1894 Land Acquisition Act 1894, proved to be the mile stone in the Indian land Acquisition enactments, it was completely a self-contained act. Since then Commentary on LARR-2013

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various amendments have been made from time to time but the administrative procedures have remained same. Government of Indian Act, 1919 and Government of Indian Act 1935 Government of Indian Act, 1919 and Government of Indian Act 1935, Extended the power to the Provinces to legislate with respect to compulsory acquisition of

land. Land Acquisition Act 1923 In this Amendment act first time given the opportunity to the person interested in the land proposed to be acquired to state their objections to the acquisition and to be heard by the authority concerned in support of their objections, by amending the Section 5A of the Act. This could be possible only because the elections which enabled Indian leaders into the local administration, but it was also a surprising fact that, Government was not bound to execute such objections. 3. Post Independence Amendments in Land Acquisition Act 1894 The Land Acquisition Act of 1894 allowed the government to acquire private lands. It was the only legislation pertaining to land acquisition which, though amended several times, had failed to serve its purpose. Under the 1894 Act, displaced people were only liable for monetary compensation, which was still somewhat negligible. Many that get displaced are from the poorest sections; the majorities were tribal and fail to raise their voice against the mistreatment. The Land Acquisition (Amendment) Act, 1962 The chief object of the Act was to provide for the speedy acquisition of land for the resettlement of displaced persons. As per Act: “1. Short title. This Act may be called the Land Acquisition (Amendment) Act, 1962 . 2 to Amendments to the Land Acquisition Act, 1894 (1 of 1894 ). 1[ 2 to 6.[ Amendments to the Land Acquisition Act, 1894 (1 of 1894 ).] Not printed. 7. Validation of certain acquisitions. Notwithstanding any judgment, decree or order of any court, every acquisition of land for a Company made or purporting to have been made under Part VII of the principal Commentary on LARR-2013

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Act before the 20th day of July, 1962 , shall, in so far as such acquisition is not for any of the purposes mentioned in clause (a) or clause (b) of sub- section (1) of section 40 of the principal Act, be deemed to have been made for the purpose mentioned in clause (aa) of the said sub- section, and accordingly every such acquisition and any proceeding, order, agreement or action in connection with such acquisition shall be, and shall be deemed always to have been, as valid as if the provisions of sections 40 and 41 of the principal Act, as amended by this Act, were in force at all material times when such acquisition was made or proceeding was held or order was made or agreement was entered into or action was taken. Explanation.-- In this section" Company" has the same meaning as in clause (e) of section 3 of the principal Act, as amended by this Act. 8. Repeal and saving. (1) The Land Acquisition (Amendment) Ordinance, 1962 (3 of 1962 ), is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under this Act, as if this Act had commenced on the 20th day of July, 1962.”

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The Land Acquisition (Amendment) Bill 2002 In its, One Hundred Eighty Second Report (108), 16th Law Commission of India suo motu, recommended for removing the lacuna regarding issuing of a fresh notification for the acquisition of land for public purpose under section 4 of the Land Acquisition Act, 1894. And suggested Amendment of Section 6 of the Land Acquisition Act, 1894, and in its recommendation the commission suggested to the then Law Minister that “The Commission, therefore, considered it appropriate to examine the said lacuna and recommends amendment of section 6 of the Land Acquisition Act, 1894 with a view to subserve the public purpose, allow the land acquisition proceedings to be continued without a fresh notification under section 4(1) and render the judicial process meaningful and efficacious as also to enable the aggrieved owner to vindicate his grievances in the pending land acquisition proceedings itself.” Infect the background was prepared by Supreme Court by its judgment in

Padamsundara Rao v. State of Tamil Nadu [ JT 2002 (3)SC 1], overruling the view taken in N.Narasimhaiah v. State of Karnataka [1996 (3) SCC 88] case1, on the ground that fixing of any further period for making a fresh declaration would amount to legislation by judicial fiat. The Land Acquisition (Amendment) Bill, 2007 and 2009 Was passed by the Lok Sabha on 25th February 2009 (the last day of the session) but the bill lapsed with the dissolution of the 14th Lok Sabha.

In Narasimhaiah‘s case, it was held that where any declaration made under section 6(1) was set aside or quashed by a court, a fresh declaration could be made within one year from the date of the judgment of the court. It was this view that was not accepted in the case of Padamsundara Rao. Commentary on LARR-2013

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The Land Acquisition, Rehabilitation and Resettlement Bill, 2011 In 2011, first time an image of social legislature was seen in combine land acquisition and R&R into a single overarching legal framework. Accordingly the LARR Bill of 2011 was introduced in the Lok Sabha THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013 [NO.30 OF 2013] to ensure, in consultation with institutions of local self-government and Gram Sabhas established under the Constitution, a humane, participative, informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanisation with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic status and for matters connected therewith or incidental thereto. BE it enacted by Parliament in the Sixty-fourth Year of the Republic of India as follows:— SYNOPSIS 4. Background Of The Act 5. Reason for New Act 6. Highlight of New Act a) Retrospective effect b) Transparency in acquisition process c) Fair Compensation d) Post effect measures e) Safeguard for SC‟s/ST‟s Commentary on LARR-2013

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f) Compensation for livelihood g) Strengthen the Gram Sabha voice in land acquisition h) Consent of people whose land acquire i) Return of unutilized land j) Safe guard from income tax and stamp duty k) Share in appreciated land value 7. Title Analysis 1.

Background Of The Act During the British Raj, in the year 1824, an Act” The Land Acquisition Act, 1894‖ for land acquisition was enacted by British government. This Act empowered the government to acquire the land from privately held person for public use, at a reasonable price which government considered. Its application was throughout the whole of the Bengal provinces, and there after rest part of India, even after independence of, the Indian government adopted the 1894 Land Acquisition Act. Since then various amendments have been made from time to time but the administrative procedures have remained same.

2.

Why this New Enactment? There was a unanimous opinion that the current law (”The Land Acquisition Act, 1894”) suffers from various shortcomings, and not able to address the progressive Indian needs. Hon‟ble Apex court also observed the current act (”The Land Acquisition Act, 1894”) has “become a fraud”i on only this but many time Hon‟ble Supreme court made its observation regarding the procedure and deficiency in the current act. In consolation below are the points to give birth this new Act:  obsolete law  Supreme Court Observations  To bridge the gab for acquisition to rehabilitation and resettlement  Provide the balance between land owner whose land being acquired and facilitating the industrialization and urbanization

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8. Anatomy of the Act The soul of the act lies in three points:  Land Acquisition- For what purpose, Transparency and Consent of Local Self Government ( Panchayat)  Consent- prior consent when the government acquires the land for private companies, the consent of at least 80% of the project affected families shall be obtained through a previous informed process before government uses its power under the Act to acquire the remaining land for public good, and in case of a public-private project at least 70% of the affected families should consent to the acquisition process  Compensation- Just and Fair compensation not only for those who displaced by acquisition, but other affected sections by acquisition to level the social and economic crisis  R&R – Balancing post acquisition affects 4.

Highlight of New Act

a) Retrospective effect The magnificent feature of this act, is an effort to address the historical injustice, the Act applies retrospectively in following cases:a) Where No Award Made: Where no award under Section11 of the 1894 Act has been, made, the new law will apply with regard to compensation:b) Where an award has been made: Where an award has been made but the affected individuals have not accepted compensation or have not yet given up possession, and the proceedings have been pending for 5 years or more, provisions of the new law will apply.

b) Transparency in acquisition process This act also project the transparency to the process of acquisition of land, all documents such as summary of SIA2 notified along with draft Notification are made available in public domain and on the website for public scrutiny, and Gram Sabha also be consulted before acquire any land. 2

The social Impact Assessment

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c) Just and Fair Compensation The act not only recognized the compensation but fair compensation, the compensation is no more the arbitrary wish of the government as was under the old Act (”The Land Acquisition Act, 1894”), the minimum compensation for land is being decided at the market value as pr The First Schedule of this Act.

d) Post effect measures This Act addressed the social legislature, which make the obligatory provisions for R&R3 for social and economic status of those displaced by acquisition, and livelihood losers who are dependent on the land

e) Safeguard for SC s/STs There are specific provisions are being made in this act apart from rehabilitation and resettlement SCs and STs Families will be entitle for Land even in the case of irrigation projects, one time financial assistance with the tune of Rupees. Fifty Thousand per family, an additional 25% R&R benefits if families settled outside the district, 1/3 payment of the compensation amount at very outset etc.

f) Compensation for livelihood Provisions for compensation other than whose land acquire, who are dependent of land being acquired for their livelihood

g) Strengthen the Gram Sabha voice in land acquisition The role of Gram Sabha is being enhanced by this act, no land cab acquired in Scheduled Areas without the consent of the Gram Sabhas (Panchayats), provisions of representation of Chairperson of Gram Sabha in Rehabilitation and Resettlement committee is also being made

h) Consent of people whose land acquire The Act makes the provisions of prior consent of not less than 70 % and 80% of people whose land is sought to be in the event of PPP projects or private companies respectively

i) Return of unutilized land In case land remains unutilized after acquisition , the new Act empowers States to return the land either to the owner or to the State Land Bank 3

Rehabilitation and Resettlement

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j) Safe guard from income tax and stamp duty With the tune of fair compensation all amounts accruing under this act have been exempted from Income tax and from Stamp duty

k) Share in appreciated land value If the land is being sold to the third party at a higher price then 40% of the appreciated land value or profit will be shared with the original owners l)

Compact Law It is being observed that making the provision for land owner not level the social and economic justice, only providing compensation without the provision of Rehabilitation and Resettlement, is against the aim of social state, and as Rehabilitation and Resettlement, is considered to be the two side of one coin, this act is the approached to balance this situation

m)

Balance between Land Acquisition and Development This act is an effort to balance the issue of farmers during and after acquisition of land and for industrialization, development of essential infrastructural facilities and urbanization with the least disturbance to the owners of the land and other affected families

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4. Title Analysis The RIGHT to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 PRE REQUISITES RIGHT Obligations

Entitlement

FAIR COMPENSATION

TRANSPARENCY Process

At Market Price

Government

Affected Family

LAND ACQUISITION

POST EFFECT Obligation of Government

Social Legislature

Lot

of

emphasis

Rehabilitation

Balance

on and

It emphasizes both on monetary as

payments

as

Resettlement (R&R) and

well

extends the applicability of

benefits as a part of R&R

non-monetary

R&R

and also covers the loss of livelihood rather than only the loss of land.

CHAPTER I Title Analysis The tile of the act is very significant the title started with ―RIGHT‖ the words „right‟ have, of course, a variety of meanings, according to the connection or context in which they are used. Their definition, are given by standard lexicographers, include ‗that which one has a legal claim to do‖. The word “Right” in the title of the act establishes the legal claim for Fair Compensation and Transparency in Land Acquisition, for affected families. The Commentary on LARR-2013

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word “Right” not only establishes the legal claim for affected families but also establish the legal duty or obligation to the concern Government for establishing the fair compensation and transparency in the acquisition process. The act not declared the compensation but fair compensation, and what is fair compensation. It was to be considered (before LARR-13), the Land Acquisition Act, is the reflection of colonial commercial interests, as there was no social legislature essence in it. But it is a balancing approach between Monitory and Social aspect for the affective families, which work in twofold, pre and post of land acquisition. Each and every aspect of social life is being taken care in the Act. Social Impact Study (SIS) inserted as a comprehensive process to understand the impact of land acquisition on social aspect, and the Land Acquisition considered being the last resort. Environmental protection is also be the part of SIS, alternative study is also make the part of SIS, sustainable diversify impact study also being carried in it. PRELIMINARY 1. (1) This Act may be called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2011. (2) It extends to the whole of India except the State of Jammu and Kashmir (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint: Provided that the Central Government shall appoint such date within three months from the date on which the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Bill, 2013 receives the assent of the President. SYNOPSIS

a. Short Title b. Extent c. Commencement Short Title This Act may be called the right to fair compensation and transparency in land acquisition, rehabilitation and Resettlement act, 2013 Extent Commentary on LARR-2013

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It extends to the whole of India except the State of Jammu and Kashmir. The scope of the Act includes all land acquisition whether it is done by the Central Government of India, or any State Government of India, except the state of Jammu & Kashmir. Commencement The bill was introduced in Lok Sabha in India on 7 September 2011. The Act was passed on 29 August 2013 in the Lok Sabha and on 4 September 2013 in Rajya Sabha. The bill received the ascent of the President of India, on 27 September 2013. The Act came into force from 1 January 2014. Retrospective effect The magnificent feature of this act, is an effort to address the historical injustice, the Act applies retrospectively in following cases:a) Where No Award Made: Where no award under Section11 of the 1894 Act has been, made, the new law will apply with regard to compensation, 5. Where an award has been made: Where an award has been made but the affected individuals have not accepted compensation or have not yet given up possession, and the proceedings have been pending for 5 years or more, provisions of the new law will apply

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Application of Act Application of Act

U/s 2(1) Land acquisition Compensation R&R

U/s 2(2) Land acquisition Consent Compensation R&R

U/s 2(3) Rehabilitation And Resettlement

In PPP Own Use, Hold & Control

PSU

Public Purpose

For private company for public purpose

When private company purchases land equal to or more than specified limit by appropriate government

Strategic Purposes Infa Projects

Projects for Affected Families

Project for Housing or other income groups

Projects for improvement and development of village and urban areas Projects for residential purposes for poor and landless persons

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Application of the Act Provisions of this Act have been segmented in three major categories, when the appropriate government4 acquires land i.e. 1. under sub section (1) of Section 2- Land acquisition, Compensation and R&R For the following purposes:  its own use, hold and control, including land for Public sector undertakings and Public purpose5  For PPP6  When private companies purchases land, equal to or more than such limits in rural areas or urban areas as my be defined by appropriate government Provisions relating to acquisition, compensation, rehabilitation and resettlement shall apply when its own use, hold and control, including land for Public sector undertakings and Public purpose, apart from this other purpose is also specified in the section, such as Strategic purposes, which relating to navel, military, air force and armed forces of the Union, and central paramilitary forces or which is require for national security or defense of India or the State Police last but not the lease the safety of the people. For Infrastructure Project such as all items or activities mentioned in the notification of the GOI7 in Department of Economic Affairs (Infrastructure Section) number 13/6/2009-INF dated 27.3.2012, but it excluded private hospitals, private educational institutions and private hotels. Projects involving agro-processing, for the activities like supply of inputs to agriculture, warehousing, cold storage facilities, marketing, infrastructure, for agriculture and allied activities, like dairy, fisheries, and meat processing, set up or owned by appropriate government or by farmers‟ cooperative or by an institution under statue

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Defined u/s 3(e) of this Act Defined u/s 3(2a) and 2(1) 6 Public Private Partnership 7 Govt. Of India 5

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Projects for industrial corridors or mining activities, national investment and manufacturing zones, as drafted in the National Manufacturing Policy Projects for water harvesting, conservation and sanitation Projects for educational, research schemes or institutions, administered or aided by government Projects for sports, health, tourism, transportation or space programme Projects for Affected families, plan development or improvement of village sites or any other site in urban area, provisions for land for residential purposes for the weaker sections in rural and urban areas and also for poor or landless or to persons residing in areas affected by natural calamities etc. 2. Under Sub Section (2) of Section 2 - Land acquisition, Consent Compensation and R&R When the appropriate government acquires land for Public Private Partnership Projects, when the ownership of the land continues to vest with the government. Under this provision the appropriate government can not acquire the land unless the mandatory provisions attached with the section accomplished: Prior Consent: when the government acquires the land for private companies, the consent of at least 80% of the project affected families shall be obtained through a previous informed process before government uses its power under the Act to acquire the remaining land for public good, and in case of a public-private project at least 70% of the affected families should consent to the acquisition process SIA study also be carried out during the process of obtaining the consent If the acquisition is contravene any law prevailing in Scheduled area (including any order or judgment of a court which has become final) no land shall be transfer by way of acquisition in Scheduled Areas Commentary on LARR-2013

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3.

under sub section (3) of Section 2- Rehabilitation and Resettlement In case Private Company purchases land, equal to or more than the specified limit, by the appropriate government, in rural area or in urban area. In case of partial acquisition of land by the appropriate government, on request, of private company for public purpose, the rehabilitation entitlement shall be for the entire area.

It indicates that both LA and R&R Provisions will apply when:  Government acquires land for its own use, hold and control  Government acquires land with the final purpose to transfer it for the use of private companies for stated public purpose  Government acquires land for PPP

CHAPTER III SPECTAL PROVRSTON TO SAFEGUARD FOOD SECURTRY 10. (/) Save as otherwise provided in sub-section (2), no irrigated multi-cropped land Shall be acquired under this Act. (2) Such land may be acquired subject to the condition that it is being done under Exceptional circumstances, as a demonstrable last resort, where the acquisition of the land refened to in sub-section (/) shall, in aggregate for all projects in a district or State. in no case exceed such limits as may be notified by the appropriate Government considering the relevant State specific factors and circumstances. (3) Whenever multi-crop irrigated land is acquired under sub-section (2), an equivalent

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area of cultivable wasteland shall be developed for agricultural purposes or an amount equivalent to the value of the land acquired shall be deposited with the appropriate Government for investment in agriculture for enhancing foodsecurity. (4) In a case not falling under sub-section ( /). the acquisition of the agricultural land in aggregate for all projects in a district or State, shall in no case exceed such limits of the total net sown area of that district or State, as may be notified by the appropriate Government: Provided that the provisions of this section shall not apply in the case of projects that are linear in nature such as those relating to railways, highways. major district roads. Irrigation canals. power lines and the like.

Synopsis

1. 2. 3. 4.

Nature Food Security Limit on acquisition Exception

Nature The section prohibitory in nature, which establishes the mandatory prohibition using the world “shall”. The Act forbids land acquisition when such acquisition would include multi-crop irrigated area. However such acquisition may be permitted on demonstrable last resort, which will be subjected to an aggregated upper limit for all the projects in a District or State as notified by the State Government. Intend of the section to safe guard the multi-crop irrigated. Food Security The section imposes an obligation on the appropriate government, in the event when multi-crop irrigated land is acquired an equivalent area of cultivable wasteland shall be developed for agricultural purposes (or an amount equivalent to the value of the

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land acquired shall be deposited with the appropriate Government for investment in agriculture for enhancing food-security). Limit on acquisition States are also required to set a limit on the area of agricultural land that can be acquired in any given district. Exception These limits shall not apply to linear a project which includes projects for railways, highways, major district roads, power lines, and irrigation canals Cont…….

NAVEEN KUMAR SHELAR M.B.A, M.A, R.T.M, LL.B, DIP’- MKET, CIR’ – ENG , No. 1, Ansari Road, Darya Ganj, New Delhi – 110002 | +91 85.86.97.26.36 | replyshelar@yahoo.com

ADVOCATE ~ SOCIAL ENTREPRENEUR ~ AUTHOR Founder -The law Office www.thelawoffice.co.in Member / Partner - Trust Law Connect www.trust.org Founder & Secretary General - Nayaya A Voice for Justice www.nayay.co.in http://www.linkedin.com/in/thelawoffice http://www.knowledgecrust.blogsopt.com/

REFERENCES i

Reports of Law Commission of India on Law of Acquisition and Requisitioning of land

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