UTTAR PRADESH POWER CONCLAVE, 2011 1 LALITPUR POWER GEN CO. LTD. Bajaj Group of Companies 23.12.11...

UTTAR PRADESH POWER CONCLAVE, 2011

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LALITPUR POWER GEN CO. LTD.Bajaj Group of Companies

23.12.11 Dr. A V Singh

“LAND ACQUISITION AND R&R ISSUES”

About us Our contribution in Power generation

o Renewable and Conventional Emerging significant factors Site selection criteria Assessment of land acquisition for Coal Based Thermal

Power Plant Options & procedures to procure land Land acquisition & constitutional framework

a. Land Acquisition Act, 1894b. National R&R Policyc. Land Acquisition Bill 2011 (Draft)

Constraints in land acquisition in India Courts intervention Recommendations

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CONTENTS

ABOUT THE COMPANY

Founded in 1931 by Late Shri Jamnalal Bajaj, a businessman, confidante and adopted fifth son of Mahatma Gandhi.

In Sugar manufacturing & Green fuel

No. 1 in Asia Amongst the top 5 globally

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COMPANY'S VISION

To be the leader in our chosen business area, create an organization that all our constituents are proud to be associated with, set benchmarks that will become the standard for others to emulate and through ethical business practices create wealth for our stakeholders.

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COMPANY'S MISSION

To transform bajaj hindusthan ltd. into a dynamic and vibrant business entity where growth is an ethos and the long-term value creation for our stakeholders is the paramount objective.

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CONTRIBUTION OF BAJAJ GROUP IN POWER GENERATION

Biomass (Bagasse)

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CONTRIBUTION OF BAJAJ GROUP IN POWER GENERATION

Coal Based Thermal Power Projects

EMERGING SIGNIFICANT FACTORS

New Environmental Law• Involving community increasingly • Public hearing etc.

Pressures• Public Interest Litigation (PIL) & Active Courts• Growing consciousness among citizens • Active NGO• Court verdicts show a trend of favouring petitioners• Preservation of environment on priority list of Courts

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EMERGING SIGNIFICANT FACTORS

Strict Standards

• Corporate Responsibility for Environmental Protection• Zero discharge • 100% utilization of Fly ash from the IVth Year of

operation• Emission - 150 mg/NM3 : 50 mg/NM3

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a) Ecologically and/or otherwise sensitive areas: at least 25 km.

b) Coastal Areas: at least ½ km. from high tide line.

c) Flood Plain of the Riverine System: at least ½ km.

d) Transport/Communication System: at least ½ km. from highway and railway.

e) Major Settlements (3,00,000 population) : at least 25 km from the projected growth boundary of the settlement

SITING CRITERIA

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Avoidance of prime agricultural & forest land conversion

Minimum land but sufficient Green belt

Gainful usage of treated waste water

Enough space for solid waste

SITING CRITERIA

ASSESSEMENT OF LAND REQUIREMENT

FOR

COAL BASED THERMAL POWER PLANT

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COMMITTEE TO WORKOUT THE THERMAL POWER PLANT LAND REQUIREMENT

Central Electricity Authority (CEA) constituted a committee comprises of following agencies;

• NTPC (National Thermal Power Corporation)• BHEL (Bharat Heavy Electricals Ltd.)• TCE (Tata Consulting Engineers)• CEA (Central Electricity Authority)

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THE TERMS OF REFERENCE OF COMMITTEE

To work out the minimum land requirements for coal based thermal power plants having capacities of 1000 MW, 2000 MW, 3000 MW & 4000 MW.

To develop layouts for the above thermal power plants (pit-head and coastal-site).

To study layouts being followed in developed countries.

To give recommendations on the requirements of land taking into consideration of above.

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RECOMMENDATION OF COMMITTEE FOR LAND RQUIREMENT

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Pit head stations using Indian Coal

Source: CEA report on Land requirements

LAND ACQUISITION

Acquisition through Govt. under Land Acquisition Act 1894

Direct purchase from the land owners

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OPTIONS TO PROCURE LAND

LAND ACQUISITION

Private Lando Similar to Acquisition of Govt. lando Direct dealing and negotiation with land owners o Information to Govt. for recordso Permission under section 154(UP Zamindari Abolition

& Land Reform Act,1950 - Restriction on transfer by a bhumidhar)

Forest Lando Permission needed o Regional MoEF- >5 Ha and Central MoEF < 5 Ha land

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LAND ACQUISITION PROCEDURE

LAND ACQUISITION & CONSTITUTIONAL FRAMEWORK

Land acquisition refers to the process by which Govt. forcibly acquires private property for public purpose without the consent of the land owner.

Originally the wishes of owners of property were totally irrelevant but at present, the law tries to provide various provisions for objection and alternative remedies in case of inadequacy of compensation.

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English Law : “Law of compulsory Purchasing” US Law : “Power of Eminent Domain”

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The Land Acquisition Act, 1894

Addresses the process of land acquisition in India & also amended several times.

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History Background (Cont……)History of Land Acquisition Act

Regulation 1 of 1824, Bengal CodeBritish to acquire land for salt manufacture

Bombay Presidency, Act XXVIII, 1839British to acquire land to the island of Bombay and Colaba

1850 some of the provisions of regulation 1 of 1824 were extended, with a view to confirm the land titles in Calcutta that were acquired for Public purpose.

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History Background (Cont….)History of Land Acquisition Act India Act X of 1870 subsequently come into effect which

was further replaced by Land Acquisition Act 1894;• A completely self contained Act in order to purge some of the

flaws of Act X of 1870 The India Act XVIII, 1885

• Acquisition of land in British India for mines & minerals. Prior laws did not cover causes where resources were situated under the land which Govt. sought to acquire. It also include rules laid down in sections 7785 of the English Railways clauses consolidation Act.

The Land Acquisition Act of 1894 was a comprehensive law enacted in British India

“This Act of 1894 is the basis for Indian Government’s current procedures for land acquisition for “Public Purpose”

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History Background

History of Land Acquisition Act The Land Acquisition Act of 1894 – reviewed by various

committee appointed by Govt. of India.

1967 – by resolution no. 6-6/67 to study, consult and recommend principles to amend the 1894 Act.

1894 Act –Amended several times.[

After Independence Indian Govt. adopted “Land Acquisition Act – 1894” as a tool for Land Acquisition.

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Constitution of India• Provision under Article 19 (f) & Article – 31 : Right to

Property• State confronted with right to property Article 14, 19 &

Article 31 as Court struck down various acts of state as being ultra vires.

• Stoppage of development/growth etc. Constitution (First) amendment Act, 1951 was enacted. Article 31 (A) categorically states that no law which

provides for acquisition by the state of an estate can be held void as being ultra vires Article 14 or Article 19.It also provided for payment of compensation at a rate not less than market value of the property.

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Land can be acquired by the State or the Central Govt. for the purposes listed under State & Centre list respectively unless the Central Govt. delegates the task to the State Govt. under article 258(1) of the constitution.

“Constitutionality of various sections of the land Acquisition Act has been considered as being violation of Article 19 and 31 of the constitution as being confiscatory in nature and it is sought to deprive appellants of their land”.

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“Public Purpose”Article 31(2) categorically states that a land can be acquired by the State only for Public purpose.

o General interest of communityo Anything which is useful to the public purpose benefit or

conduces to same public advantage.o Public purpose: Determining factoro Consideration of hardships to the individuals can not out

weight the question of public demand.

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Section 3(f) of The Land Acquisition Act defines Public purpose.

The Power to select the land is left to reasonable discretion of the Govt. and Courts can not interfere in this regard.

The provision of village-sites, or the extension, planned development or improvement of existing village-sites.

The provision of land for town or rural planning

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Public Purpose


The provision of land for planned development of land from public funds in pursuance of any scheme or policy of Government and subsequent disposal thereof in whole or in part by lease, assignment or outright sale with the object of securing further development as planned.

The provision of land for a corporation owned or controlled by the State.

The provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by Government, any local authority or a corporation owned or controlled by the State.

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Public Purpose


The provision of land for carrying out any educational, housing, health or slum clearance scheme sponsored by Govt. or any such scheme, or with the prior approval of the appropriate Govt. by a local authority, or a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a state, or a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State.

The provision of land for any other scheme of development sponsored by Government or with the prior approval of the appropriate Government, by a local authority.

The provision of any premises or building for locating a public office, but does not include acquisition of land for companies.

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Public Purpose


It is not possible to give an exact and all-embracing definition of public purpose. Public Purpose includes the following aims;

In which general interest of the community, or a section of the community, as opposed to the particular interests of the individuals, is directly or vitally concerned.

Which would preserve or promote public health, comfort or safety of the public , or a section of it, weather or not the individual members of public may make use of the property acquired.

Which would promote public interest, or tend to develop the natural resources of the state.

Which would enable department of the government to carry on its governmental functions.

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Public Purpose


Which would serve the public, or a section of it, with some necessarily or convenience of life, which may be required by the public as such, provided that the public may enjoy such service as of right. Or

Which would enable individuals to carry on a business, in a manner in which it could not be otherwise be done, if their success will indirectly enhance public welfare, even if the acquisition is made by a private individual, and the public has no right to any service from him, or to enjoy the property acquired. Or

If the use to which the property would be put, is one of the widespread general public benefit not involving any right on the part of the general public itself, to use the property or;

Which would result in an advantage to the public; it is not necessary that the property, or the work upon it, should be available to the public as such; the acquisition may be in favour of individuals, but in furtherance of scheme of public utility, which would result in enhancement of public welfare.

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Public Purpose

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Part I : Section 1 to 3 deals with Title, extent and Commencement

Part II: Section 4 to 17 deals with AcquisitionPart III: Section 18 to 28 deals with reference to Court and

procedure thereonPart IV: Section 29 and 30 deals with compensationPart V: Section 31 to 34 deals with PaymentPart VI: Section 35 to 37 deals with Occupation of landPart VII: Section 38 to 55 deals with Acquisition of land for

companies

LAND ACQUISITION ACT 1894: Highlights

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Flow chart showing the process of Land Acquisition

• Determination of Area for land required and its location.• Filing of application to DM

• Setting of Survey team by DM• Verification and valuation of land and property.

*SLAO issues letter to deposit 10% of total land value and 10% per expenses as advance

20% needs to be deposited

Publication in news paper apart from Public notice in the villages, where

land is to be acquired80% compensation of land value

needs to be deposited

• Rehabilitation compensation to be deposited.• Submission of scheme

Section 6 Application

Approval of Rehabilitation scheme

Section – 6 Notification

Hearing of objection

Cont………

Section 4 Notification

Publication of section 6 in the news paper apart from Public

Notice

* Special Land Acquisition Officer

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Re-survey of property to find out any defects/missing properties

Objections to be received and sorted out under sec 9(1) and (3)

Meeting for rate of Compensation by DM

Crop compensation to be deposited

Proposed award to be sent by DM to commissioner for Approval

Award to be granted by Commissioner, and same is

declared by SLAO

Compensation distribution by SLAO Staff

POSSESSION

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ACQUISITON IN INDIA

Acquisition in Land for the Company in Private Sector; First Sec 4: Publication of notification.

Sec 5: Objection regarding acquisition. Objection referred to Govt.

Sec 40: Consideration of objection or further any inquiry by Govt.

Sec 41: Execution of the agreement by the Company. Sec 9: Public notice by the collector persons interested for

claiming compensation.

Sec 11: Award after considering the objection raised. Sec 16: Possession can be taken after the Award Sec 17: Not available for the company in Private Sector.

Reason: Under the definition of “Public Purpose” in sec 3(f), acquisition of land for such company is not included.

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NATIONAL R & R POLICY

Objectives:

Minimization of displacement and promotion of least-displacing alternatives

Ensuring adequate rehabilitation package and effective implementation

Active participation of affected families

Protecting the rights of the weaker sections

Treatment with sensitivity

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NATIONAL R & R POLICY

Providing better standard of living with sustainable income.

Integration of rehabilitation concerns into the development planning and implementation process.

Harmonious relationship between project proponent and affected families.

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R & R POLICY

Social Impact Assessment (SIA) of Projects

Social Impact Assessment (SIA):- 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

Consideration of impact on public and community properties, assets and infrastructure; particularly, roads, public transport, drainage, sanitation, sources of safe drinking water etc.

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R & R POLICY

Undertaking of EIA & SIA simultaneously

Availability of SIA in Public Hearing.

Mandatory SIA clearance

Compliance of SIA conditions

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R & R POLICY

Rehabilitation and Resettlement Plan

Declaration of affected area

Baseline study

Draft findings of the survey to Public

Submission of the details of survey along with recommendations to the appropriate government

Publishing of final details of survey in the official Gazette

Final publication

90 days

30 days

45 days

Preparation of the draftR&R Plan

Declaration of the resettlement areas

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Baseline survey: village-wise information of the affected families:

Members of the family who are permanently residing, engaged in any trade, business, occupation or vocation in the affected area;

Families who are likely to lose, or have lost, their house, agricultural land, employment or are alienated wholly or substantially from the main source of their trade, business, occupation or vocation;

Agricultural labourers and non-agricultural labourers;[

Families belonging to the Scheduled Caste or Scheduled Tribe categories;

R & R POLICY

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Vulnerable persons disabled, destitute, orphans, widows, unmarried girls, abandoned women, or persons above fifty years of age; who are not provided or cannot immediately be provided with alternative livelihood, and who are not otherwise covered as part of a family;

Families that are landless and below poverty line, but residing continuously for a period of not less than three years in the affected area preceding the date of declaration of the affected area; and

[

Scheduled Tribes families who are or were having possession of forest lands in the affected area prior to the 13thday of December, 2005.

R & R POLICY

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R & R scheme/plan details:

The extent- of land to be acquired for the project and the name(s) of the affected village (s);

A village-wise list of the affected persons, family-wise, and the extent and nature of land and immovable property owned or held in their possession in the affected area, and the extent and nature of such land and immovable property which they are likely to lose or have lost, indicating the survey numbers thereof;

A list of agricultural labourers in such area and the names of such persons whose livelihood depends on agricultural activities.

R & R POLICY

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A list of persons who have lost or are likely to lose their employment or livelihood or who have been or likely to be alienated wholly or substantially from their main sources of trade, business, occupation or vocation consequent to the acquisition of land for the project or involuntary displacement due to any other cause; a list of non-agricultural labourers, including artisans;

A list of affected landless families, including those, without homestead land and below poverty line families;

A list of vulnerable affected persons, A list of public utilities and government buildings which are

affected or likely to be affected; Details of public and community properties, assets and

infrastructure; A list of benefits and packages which are to be provided to

the affected families;

R & R POLICY

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Details of the extent of land available in the resettlement area for resettling and for allotment of land to the affected families;

Details of the amenities and infrastructural facilities which are to be provided for resettlement;

The time schedule for shifting and resettling the displaced persons in the resettlement area or areas; and

Such other particulars as the Administrator for Rehabilitation and Resettlement may consider necessary.

R & R POLICY

THE LAND ACQUISITION, REHABILITATION AND RESETTLEMENT BILL, 2011 (DRAFT)

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R&R Bill,2011- Introduced in the Lok Sabha on 7.09.2011

Land Acquisition refers to the forcible acquisition of land from an unwilling seller and is distinct from a land purchase from a willing seller.

Not applicable to 16 existing legislations like Atomic Energy Act, NH Act, SEZ Act, Railway Act, Land Acquisition (Mines) Act etc.

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Applicable in cases when the appropriate government acquires land

(a) for its own use and control

(b) to transfer it to private companies for public purpose, and

(c) On request of private companies for immediate use for public purpose.

R&R needed by Private Companies when purchase or acquire land, through private negotiations, equal to or more than 100 acres in rural areas and 50 acres in urban areas.

Applicability of R&R even part of area acquired by Govt. along with the land purchased previously through private negotiation.

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The term ‘public purpose’ in the Bill includes provision of land for,

a) Strategic defense purposes and national security,b) Roads, railways, highways, and ports, built by government and

public sector enterprisesc) Project affected peopled) Planned development or improvement of villages, and e) Residential purposes for the poor and landless.

Public purpose includes other government projects which benefit the public as well as provision of public goods and services by private companies or public private partnerships; these require the consent of 80 percent of project affected people. Affected families include those whose livelihood may be affected due to the acquisition and includes landless laborers and artisans.

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A maximum of five percent of irrigated multi-cropped land may be acquired in a District, with certain conditions.

Every acquisition requires a Social Impact Assessment (SIA) by an independent body followed by a preliminary notification and a final award by the District Collector.

[

In the case of urgency, the Bill proposes that the appropriate government shall acquire the land after 30 days from the date of the issue of the notification (without SIA). This clause may be used only for defence, national security, and conditions arising out of a national calamity.

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The compensation for the land acquired shall based on the higher of;

a) The minimum land value, specified in the Indian Stamp Act, 1899 for the registration of sale deeds;

b) The average sale price of the higher priced 50% of all sale deeds registered in the previous 3 years for similar type of land situated in the vicinity.

This amount is further doubled in in case of rural areas. The value of the assets (trees, plants, buildings etc) attached to the land amount will then be multiplied by two to get the final compensation amount; in case of the urgency clause, this multiplication factor will be 2.75.

Bill Proposes; 52


Authorities & Administrator- Commissioner for (R&R), R & R Committee (for acquisition of 100 acres or more of land); National Monitoring Committee for (R&R) and Land Acquisition;

R & R Authority - Adjudication all disputes, with appeal to the High Court.

If an acquired land which is transferred to a person for a consideration, is left unutilized for a period of 10 years from the date it was acquired, it shall be returned to the Land Bank or the appropriate government.

In cases where the ownership of an acquired land is sold to any person, without any development made, 20% of the profit made shall be shared among all the persons from whom the land was acquired.

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CONSTRAINTS

Very limited unused land in India.

Most of India's population is dependent on land for their livelihood and do not have skills to work in other areas of the economy. (72% of Indians live in rural areas).

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LAND ACQUISITION IN INDIA


Definition of public purpose is too vague

Land Records o Governed by registration act of 1908.

Act serves as a public record of transactions. Registrar's office is not equipped to check authenticity of

title and also does not have access to land records or maps to do so.

As a result, outdated and inaccurate records leads to litigation.

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CONSTRAINTS


o Transaction costso Stamp duty (tax 9 -10% of land value). o Leads to under reporting on transaction values.o Results in problems with determining land value.

o Non Agricultural Use Clearance (NAC)o Used to reclassify agricultural land as non-agricultural land.o Purpose of act was to benefit farmer who wished to use his land

for non-agricultural purpose, such as building a home etc.o State acquires land for industrial projects. Farmer is compensated

for value of agricultural land. NAC is issued and the land value increases substantially.

o Direct instead of bidding process o No discussion on How should NAC work? How to access fair

market value of land?

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CONSTRAINTS

o Process related to land acquisition

o Discretionary powers available to State governments -Scope for delay in land acquisition.

o Procedure for acquisition of land for private sector is more cumbersome than that for public sector.

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CONSTRAINTS

o R&R Policy for Project Affected Families-2003

o Problems - Not enough community participation in projects

o Does not provide equitable benefit sharing between displaced community and project owners.

o Recognizes only land ownership rights and not land usage rights.

o Rights of land squatters ???

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CONSTRAINTS

COMPENSATION ISSUES SETTLED BY COURT

Case – I : Konkan Railways Compensation Rate

• By acquisition authorities – Rs.4/m2

• By District Court – Rs.192/m2

• By High Court – Rs.38/m2

• By Supreme Court – Rs.250/m2 (After criticizing the High Court’s evaluation. “In our opinion the compensation awarded by the high court had no basis whatsoever and was not supported by cogent reason and it did no consider the future prospect of the development of the land in question”.

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COMPENSATION ISSUES SETTLED BY COURT

Case – II : Jhalejar Contractor Vs State of Gujarat Compensation Rate

• Demand by owners – Rs.40/ft2

• Actual compensation awarded - Rs.35 – Rs.60/m2

• Subordinate Court – Rs.200/m2

• High Court – Rs.180/m2

• Supreme Court decision – That the compensation awarded by the high court was inadequate and it modified the formula observing that “fixation of compensation under the Land Acquisition Act involves an element of rational guess work”.

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RECOMMENDATIONS

Recognize Rehabilitation & Resettlement as key issue. Need an active participation of the affected persons Provide additional benefits beyond monetary

compensation for involuntary displaced families. Emphasize assessment of plight of those who do not

have legal rights but critically dependent and subsequent care of.


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Conduct careful assessment of the economic disadvantages and social impact of displacement.

Pursue holistic efforts for improving the all around living standards of affected people.

Drive the updating of procedures, survey and standardization of land and property valuation.

Enhance the existing capacity, awareness and knowledge levels amongst the planners and implementing partners

Decentralize the decision making process

RECOMMENDATIONS


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What is Path Forward

?

?

?

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Partnering

with

Community

for Value Creation !!!

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