LAND ACQUISITION, EMINENT DOMAIN AND THE 2011 BILL
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International Environmental
Law Research Centre
LAND ACQUISITION, EMINENT
DOMAIN AND THE 2011 BILL
Usha Ramanathan
Published in: 46/44-45 Economic and Political Weekly (2011), p. 10-14.
This paper can be downloaded in PDF format from IELRC’s website at
http://www.ielrc.org/content/a1103.pdf
International Environmental Law Research Centre
International Environment House
Chemin de Balexert 7, 1219 Châtelaine
Geneva, Switzerland
info@ielrc.org
www.ielrc.orgCOMMENTARY
Land Acquisition, Eminent that facilitates the transfer of land to com
panies in their pursuit of projects and
Domain and the 2011 Bill profits. This has been the second, domi
nant, challenge to the legitimacy of invol
untary acquisition. In 1984, when the LAA
1894 went through elaborate amendment,
Usha Ramanathan the role that the State had taken on in
acquiring land for companies was re
I
The displaced and their advocates n its 117 years of existence, the Land inforced. The neo-liberal agenda, or the
have been campaigning for a Acquisition Act 1894 (LAA 1894) has reforms agenda as some term it, forged a
influenced the expansion of the power partnership between the state and compa
law that will limit the coercive
of the State to acquire and take over land. nies. The state casts itself in the role of a
power of the State in taking It has helped institutionalise involuntary facilitator; as the “public” in public-private
over land. The Land Acquisition acquisition. Premised on the doctrine of partnerships (PPP); as party to contracts
Rehabilitation and Resettlement eminent domain, it presumes a priority to with corporations where it guarantees
the requirements of the State which, by certain conditions and terms that would
Bill 2011 adopts some of the
definition, is for the general good of the make projects friction free while guaran
language and concerns from public, over the interests of landowners teeing profits; as agents in procuring land
the sites of conflict. But by and users. The doctrine of eminent and providing clearances; as disinvestors,
beginning with the premise that domain invests power in the state to through which process the transfer of
acquire private land for public purpose on assets would occur. The alignment of state
acquisition is inevitable and that
payment of compensation. interest with corporate interest, which has
industrialisation, urbanisation The language of “public purpose” has the state acquiring and transferring land
and infrastructure will have lent a touch of public morality to invol to corporations, has had dispossessed and
lexical priority, the LARR Bill 2011 untary acquisition and dispossession displaced persons and communities seeing
which, especially since the 1980s has the state as adversarial to their interest.
may have gained few friends
been facing serious challenge. Mass dis In 1984, the Statement of Objects and
among those whom involuntary placement posed an early threat to the Reasons (SoR) of the Amendment Act
acquisition has displaced, and legitimacy of the project of development. referred to the “sacrifices” of the affected
those for whom rehabilitation has This phenomenon defied the logic of emi population. “The individuals and institu
nent domain in demonstrating that the tions who are unavoidably to be deprived
been about promises that have
link between “public purpose” and acqui of their property rights in land need to be
seldom been kept. sition was incapable of acknowledging the adequately compensated for the loss
thousands, and hundreds of thousands, keeping in view the sacrifice they have to
who would stand to lose their livelihood, make for the larger interests of the com
security, support structures when land was munity”, the SoR read. The widening rift
acquired and whole communities uproot in the meaning accorded to “the larger
ed. The LAA, 1894 was trained to acknowl interests of the community”, and the
edge a “person interested” in the land who determination not to become “sacrifices”
could, therefore, become a “claimant”. in the interests of the corporatisation of
Even this limited right did not vest in the resources has become the theme song of
wider multitude who would face the con the past decade and a half.
sequent forcible eviction. A model of development that requires
extraordinary sacrifices, that is ecologi
Unresolved Question cally and in socio-economic terms of ques
An unresolved question has hung in the tionable repute and which is linked with
air since the early years after Independ such phenomena as marginalisation,
ence when laws were passed to dispossess exclusion and impoverishment has not
zamindars: What is the relationship of the been able to cross the credibility barrier to
state with land? Is it a landlord? A super convince those who are sometimes
landlord? An owner? A trustee? A holder referred to as “victims of development”.
Usha Ramanathan (uramanathan@ielrc.org) of land? A manager? Even as this remains Macroeconomic projections of growth and
is an independent law researcher working on in the realm of debate, the state has, prosperity have not succeeded in convinc
the jurisprudence of law, poverty and rights.
among other roles, emerged as an agency ing the project affected that their sacrifice
10 november 5, 2011 vol xlvI nos 44 & 45 EPW Economic & Political WeeklyCOMMENTARY
has value that they must respect; and this Lexical Priority r eason of the implementation of any
is in evidence in the many sites of pitched There is a problem even at the outset. A scheme undertaken by government...”
conflict and resistance where projects “Foreword” to the draft bill that Union (Section 3(f)(v)). There was no procedure
venture. A challenge to the development Minister for Rural Development Jairam prescribed, and no entitlements created. It
paradigm has in addition emerged from Ramesh displayed on the ministry’s web was among the purposes for which the
concerns that the avidity with which site on 27 July 2011 begins with these state had the power, under the Act, to
choice land is being handed over to cor words: “Infrastructure across the country acquire land.
porations to be diverted from its desig must expand rapidly. Industrialisation,
nated use would compromise food secu especially based on manufacture, has also Beyond the 1894 Act
rity, with agricultural land disappearing to accelerate. Urbanisation is inevitable. The LARR 2011 has had to move beyond
into domains of non-agricultural uses. Land is an essential requirement for all the perimeters of the LAA 1894. Since the
these processes.” Having set these out as mid-1990s, the demand has been for any
Laws and Policies priorities which the law is to adopt, it is law of acquisition to include within it pro
The decades since the development then said: “In every case, land acquisition visions that ensure rehabilitation. That
project got underway in the 1950s has must take place in a manner that fully pro explains the move from a “Land Acquisi
caused “development-induced displace tects the interests of landowners and also tion Act” to a “Land Acquisition, Rehabili
ment”. Laws and policies that dealt with those whose livelihoods depend on the tation and Resettlement Bill”. The applica
rehabilitation have been around since the land being acquired”. This sets up a lexical bility of the law accordingly extends to
1960s and 1970s. The T N Singh formula priority for industry, urbanisation and situations where land is acquired for
of a job to each family displaced to make infrastructure, and introduces pragma purposes connected with the government
way for public sector mines and industries tism into issues of displacement and reha and private companies including public-
is of 1967 vintage.1 Since 1976, Mahara bilitation. This approach runs through the private partnership projects. The notion of
shtra has had a law on rehabilitation entire LARR 2011. In the bill introduced in the “affected family” (Clause 3(c)) has
which in its current form is the Mahara the Lok Sabha, the preamble uses adjec been introduced, and this is distinct from
shtra Project Affected Persons Rehabilita tives such as “humane”, “participatory”, the “person interested” who was, and
tion Act. The most discussed is the 1993 “informed”, “consultative”, “transparent”, continues in this bill to be the person enti
draft policy put together by the Ministry but the juggernaut of “development” is not tled to compensation. “Affected family”
of Rural Development.2 States and public to be slowed down; the process of dealing includes agricultural labourers, tenants,
enterprises have sporadically produced with its wake may be modified. sharecroppers, artisans, those working
policies. It was not till February 2004 that The attempt to reconcile conflicting in the affected area for three years prior
a National Policy on Resettlement and interests has, however, produced some to the acquisition, “whose primary
Rehabilitation 2003 was notified, to be interesting elements. So, source of livelihood stands affected by the
replaced in 2007 by the National Rehabili • the idea of “legitimate and bona fide acquisition of land” as also the person
tation Policy 2006. The prescriptions in public purpose for the proposed acqui who loses land.
policy, the possibility of performance, sition which necessitates acquisition of the It includes those whose primary source
and sanctions for non-performance are land identified” (Clause 8(2)(a)); of livelihood for three years prior to the
at the heart of the problem. “Retrospecti • that “only the minimum area of land acquisition was “dependent on forests or
vity”, which acknowledges displacement required for the project” can be sought to water bodies and includes gatherers of
through decades past, has been a crucial be acquired (Clause 8(3)); forest produce, hunters, fisherfolk and
element in the validation, or unaccept • that “minimum displacement of people, boatmen and (those whose) livelihood is
ability, of law and policy. minimum disturbance to the infrastruc affected due to acquisition of land”. It
There has been an escalating demand to ture, ecology and minimum adverse im includes too families to whom land has
replace the LAA, 1894 with a law that recog pact on the individuals affected” should been assigned under any government
nises the perils of mass displacement, acc be ensured (Clause 8(3)). scheme and which land is to be acquired.
ounts for those who have been dislodged These capture some of the causes of dis In urban areas, it would include a family
and dispossessed through the decades, content. Yet, these are not justiciable residing on the land for the preceding
restrains companies from benefiting from standards but indicators to be used by an three years, or where their livelihood is
involuntary acquisition and forced evic expert committee in its appraisal of the linked with it. This expanded idea of the
tion, and reconsiders a model of deve social impact assessment which is to be affected family could, if the law is seri
lopment that could demote agriculture carried out as a prelude to acquisition. ously implemented, work to prevent indis
and, consequently, threaten food security. The LAA 1894 was concerned exclusively criminate and wanton dispossession. The
The Land Acquisition Rehabilitation and with acquisition; it was innocent of the inclusion of “tribals and other traditional
Resettlement Bill (77 of 2011) (LARR 2011) need for rehabilitation. In 1984, “public forest dwellers who have lost any of their
introduced in the Lok Sabha on 7 Septem purpose” was redefined to include the pro traditional rights recognised under the
ber 2011 will have to be tested to see if it vision of land for residential purposes Scheduled Tribes and Other Traditional
meets these expectations. “...to persons displaced or affected by Forest Dwellers (Recognition of Forest
Economic & Political Weekly EPW november 5, 2011 vol xlvI nos 44 & 45 11COMMENTARY
Rights) Act 2006 due to acquisition of in scheduled areas shall be followed. The There are provisions that have been
land” (Clause 3(c) (iii)), however, should weakness of this protection is revealed introduced in the LARR 2011 which have
bring us to a screeching halt if we are oth when we consider that the transfer of land drawn on the debates and disputes around
erwise finding room for optimism. from a tribal to non-tribal in scheduled ar displacement. Change of public purpose –
eas is generally overseen by a collector, or where acquisition is based on one purpose
Diluting Forest Rights Act some agent of the state, whose job it is to but it is used for another purpose – has
The Forest Rights Act 2006 was an out ensure that the interests of the tribal is pro been among the practices that brought co
come of concerns about the increasing tected. If the state is itself to be acquiring ercive acquisition into disrepute. It
insecurity of tribals, forest dwellers, and the land, then the protection is diminished revealed a casualness about state power.
forest dependent communities. The threat to that degree. If the state is legally permit The LARR 2011 reads: “No change from the
of eviction, or alienation, from the forest ted to acquire the land to be handed over purpose or related purposes for which the
was looming in the early years of the first to a private company, that dilutes the pro land is originally sought to be acquired
decade of this century. That tribals and for tection further. shall be allowed” (Clause 93). “Or related
est dwellers had no legally ascribed rights, Bringing forest areas, and Fifth and purposes” does allow for some leeway, but
and this was making them vulnerable to Sixth Schedule areas, within the law of it still becomes a qualified power. Trans
exclusion from their habitat. The Forest involuntary acquisition does not conform acting on land and on projects between
Rights Act 2006 was not about vesting to the hard-fought norms recognised in corporations has raised questions which,
property rights in the individual; it was the Samatha judgment.3 The idea of in part, is addressed in clause 94: “No
about protecting the interests of the tribals recognising rights so that they can be change of ownership without specific per
and forest dwellers in relation to their hab monetised and taken over could be mission from the appropriate government
itat. It was not about creating rights; it was viewed as amounting to a fraud on the shall be allowed”. Importantly: “No land
about recognising rights. In including the tribals and forest dwellers. If land has to use change shall be permitted if rehabili
rights created under the 2006 Act among be diverted for the purposes of industry tation and resettlement is not complied
those that may be “acquired” through or infrastructure in scheduled areas and with in full” (Clause 42(4)). There is no
what, at its root, is a coercive law, it reduc in areas in the Fifth and Sixth Schedules, clarity on what would constitute such
es the Act to merely creating transactable some route other than the coercive power compliance, and setting that out would be
property rights. The LARR 2011 does carry a under the land acquisition law will have necessary prerequisite to this provision
caveat: that the law relating to land transfer to be found. acquiring meaning.
12 november 5, 2011 vol xlvI nos 44 & 45 EPW Economic & Political WeeklyCOMMENTARY
A government, embarrassed at being Rs 500 or both. This provision, which was not clear if this refers to officials, affected
seen as an agent for corporations, has a carry-over from LAA 1894 (Section 46) families or any others; or whether it will
stepped aside and is seen to be encour fortunately finds no place in LARR 2011. In cover such acts as “overacquisition”. Con
aging corporations to buy land from another context, the 27 July draft had pro sidering the serious consequences of
landowners, with the State stepping in vided for the “return of unutilised land” involuntary acquisition and forced evic
when a substantial portion – LARR 2011 and this seems to have quietly slipped out tion, “offences” are a component that can
sets it at 80% – has been bought. The of the LARR 2011. This is a significant usefully have a place in this law; but it
rehabilitation aspect of LARR 2011 would omission, which has been replaced by the clearly needs inputs assisted by imagina
apply where the State steps in, and also idea of a “Land Bank” (Clause 95). The tion and experience. A special mention of
where a project exceeds 100 acres in rural perception of the state as a rightful holder the diversion of land from multi-cropping
areas and 50 acres in urban areas, whether of land is in evidence not only in this no to other uses employs the language of
or not the state has had a role in the tion of the land bank. Clause 2(1) (a) rec “exceptional circumstances” and “demon
purchase of land. ognises an interest in the government to strable last resort” when such diversion is
acquire land “for its own use, hold and to occur, and percentages prescribed for
Few Rights control” – each of these terms recognise the maximum extent that may be allowed
For years now, “market value” as a basis an extraordinary interest, and power, in (Clause 10).
for compensation has been sought to be relation to land which conflicts around
replaced by “replacement value”. LARR this power have sought to tame. The LARR Land Titling Bill
2011 falls far short of considering that 2011, in reinforcing this broad sweep of There is another bill which must be seen
standard, even as it provides the calculus power and interest, keeps the conflicts in conjunction with the LARR 2011. The
that will increase the total amount alive. Fuelling the conflicts further is the Land Titling Bill 2011 which has been
received as compensation. The possibi expansion of this law to give priority to released by the Ministry of Rural Develop
lity of other forms of compensation, such “use of private companies for public pur ment in draft form, connected law. That
as shares in the enterprise for which the pose (including public-private partnership bill is an attempt at commoditisation of
land is being acquired, is built into this projects)...”, and acquisition “on the re land, making it tradable in the land mar
bill. But land for land, jobs in the enter quest of private companies for immediate ket. The long title says that the law is to
prise, annuities, fishing rights are alter and declared use by such companies of create a “conclusive property titling sys
natives only as the rehabilitation autho land for public purposes” (Clause 2(1) (b) tem”. It is to “prepare a record of all
rity deems practical. There are few rights and (c)). The prioritising of infrastructure immovable properties”. It shifts the onus
and entitlements in this construction projects, which is then defined to include from the state to the individual to keep the
of the law. “educational, sports, healthcare” and even records updated on pain of punishment,
The retention of the “urgency” clause “tourism” are unlikely to lull the fears of and even loss of acknowledgement of title
is inexplicable. It is true that there is a those who anticipate large-scale transfer to the land or interest in the land (Chap
significant contraction in the LARR 2011 of land to follow if this bill were to ter VI, “Compulsory Intimations to Land
of the reasons that can provoke the use of become law. More bluntly stated, these Titling Authority”). Clause 36(3) cautions:
the urgency power. Unlike the LAA 1894 are likely to draw the lines of conflict “All persons are deemed to have notice of
which vests vast discretion in what is more sharply still. every entry in the Register of Titles”.
considered urgent, and which has result There is an interesting departure from Indicating that the purpose of the bill is
ed in indiscriminate use of this power, 4 the LAA 1894 in Chapter XII which atte simplifying transactions on land, it says:
the LARR Bill 2011 restricts it “to the mpts to set out “offences and penalties”. “Any title recorded in the Register of
minimum area required for the defence Producing a false document, making a Titles in accordance with the provisions
of India or national security or for any false claim for rehabilitation are made of the Act, shall be considered as evi
emergencies arising out of natural ca punishable. In a departure from common dence of the marketable title of the
lamities”. These situations may require practice, the LARR 2011 suggests that “dis landholder” (Clause 41).
immediate possession, but the perma ciplinary proceedings” may be drawn up Indemnification in transactions on land
nent severance of the relationship bet against a government servant who “if is an idea that is undertaken by insurance
ween the land and persons interested in proved guilty of a mala fide action in companies as part of their business acti
the land is excessive. “Requisitioning” respect of any provision of this Act, shall vity: they indemnify land titles and bear
land or property,5 and taking it free of all be liable to punishment”. This, and other the cost of litigation and ancillary matters
encumbrances, are two distinct proces provisions in this chapter, though, are if they were to arise. The idea of introduc
ses. This power does not belong in a land non-specific and, so, not likely to be ing an “indemnification” clause, where
acquisition law. enforceable as they now read. Clause 79, the government indemnifies a person who
Clause 59 of the 27 July draft allowed for instance, provides a punishment “if acts on the basis of the title as it is recorded
for imposing a penalty for obstructing any person contravenes any of the provi in the Land Registry (Clause 42), is a case
acquisition of land with imprisonment sions relating to payment of compensation of the government taking over the role of
that could extend to one month or a fine of or rehabilitation and resettlement”. It is an insurance company. They indemnify
Economic & Political Weekly EPW november 5, 2011 vol xlvI nos 44 & 45 13COMMENTARY
land titles and bear the cost of litigation will limit the coercive power of the state in Notes
and ancillary matters if they were to arise. taking over land. The LARR 2011 adopts 1 Ibid. See also, Butu Prasad Kumbhar vs SAIL ,1995
Supp 2, Supreme Court Cases, 225.
The draft Land Titling Bill is not about some of the language and concerns from
2 Walter Fernandes and Vijay Paranjpye (1997), Re-
updating land records. It is not about the the sites of conflict. But, in beginning with habilitation Policy and Law in India: A Right to
accuracy of land records, but about the premise that land acquisition is inevi Livelihood, Indian Social Institute.
3 Samatha vs State of Andhra Pradesh (1997) 8,
its finality for purposes of determining table and that industrialisation, urbanisa Supreme Court Cases, 191.
encumbrances and saleability. It is about tion and infrastructure will have lexical 4 See for e g, Ashish Tripathi, “HC Quashes Acquisi
deciding on a means by which land may priority, the LARR 2011 may have gained tion of 600 Hectares of Land in Greater Noida”,
dated 19 July 2011 found at http://articles.times
be easily dealt with in the market. few friends among those whom involun ofindia.indiatimes.com/2011-07-19/noida/29790
The displaced, project affected and dis tary acquisition has displaced, and those 697_1_urgency-clause-land-acquisition-act-greater
-noida-authority.
possessed and their advocates have been for whom rehabilitation has been about 5 See, for instance, Requisitioning and Acquisition
campaigning long and hard for a law that promises that have seldom been kept. of Immovable Property Act 1952.
Paramakudi Violence: resulted in the Mudukulathur riots, a clash
between the Devendirars and Thevars that
Against Dalits, Against Politics lasted for a few weeks. Though there has
been a rivalry between Devendirars and
Thevars since Mudukulathur riots, it
cannot be reduced simply to a caste feud;
Muthukaruppan Parthasarathi rather this is rooted in the dialectics of the
Devendirars’ revolt against the domination
T
The killing of six dalits in he police killing on 11 September of of the Thevars.
police firing in Paramakudi in six dalits on the 54th memorial day From 1958 onwards the Devendirars in
of Immanuel Sekaran in Parama the Paramakudi region started gathering at
September again exposes the
kudi town of Ramanathapuram district Immanuel’s burial place to conduct a
manner in which state institutions in southern Tamil Nadu (TN) once again memorial at the taluk level. By 1969, the
work to enforce the social demonstrated the casteist nature of state memorial had started attracting a substan
dominance of certain castes. In institutions and the Government of TN. tial number of Pallar youth and students
from the Ramanathapuram district. The
the southern districts of Tamil Immanuel Memorial formation of the Thiyagi Immanuel Peravai
Nadu there is an upsurge within and Police Violence (TIP), a dalit movement for the annihilation
dalit castes, but there is also a Immanuel (1924-57) is considered to be of caste by P Chandrabose in 1988, paved
continuing complicity between the first leader to dedicate his life in the the way for a routine and larger gathering
struggle against caste oppression in post- on memorial day. The memorial also at
the dominant castes, political
Independence TN. Back from the Indian tracted the Devendirars from Sivagangai,
parties and state institutions to Army in 1952, Immanuel involved himself Virudhunagar, Tirunelveli and a few nearby
beat this back. in revolutionary activity against caste districts. The memorial gained larger
oppression and organised Pallar youth in mobilisation only after 2007, the 50th
Ramanathapuram district.1 The period anniversary of Immanuel’s death. Now it has
1952-57 in Immanuel’s life was marked by become an event in which several political
a series of militant activities against parties and organisations participate.
untouchability. During this time he also There were certain significant develop
organised a number of conferences and ments a few weeks before the day of the
public meetings against caste discrimin present Paramakudi police killings. Gene
ation. He associated himself with both the rally, there seems to be hostility and dis
Depressed Classes League and the Tamil taste among the Thevars towards the
Evangelical Lutheran Church. He became a growing popularity of the Immanuel
nightmare for the upper castes, especially memorial day. The release of John Pandian
for the Maravars of Ramanathapuram dis (jp) after 10 years of imprisonment and
trict. It is widely believed that a day after the victory of the Puthiya Tamilagam (PT)
his confrontation with Muthuramalingam party in two assembly constituencies have
Muthukaruppan Parthasarathi (sharathishar- in a peace meeting called by the district added fuel to Thevar hostility.3
athi@gmail.com) teaches cultural studies at collector over some local dispute, hit men The demand that the Immanuel Memorial
the English and Foreign Languages University, of Muthuramalingam murdered Immanuel should be conducted by the State has been
Hyderabad.
on 11 September 1957.2 Immanuel’s death pushed by dalit forces. The fact-finding
14 november 5, 2011 vol xlvI nos 44 & 45 EPW Economic & Political WeeklyYou can also read
