Unused land isn’t returned

KANCHI KOHLI

Ever since India enacted the new land acquisition law in 2013, people have been debating its clauses related to repatriation of acquired but unused land. Does land acquired for ‘public purpose’ remain in the government’s custody endlessly, or can it be restored to its original owners? What happens when compensation has been paid, but people are still tilling their land? What if only 50 percent of the land acquired is being used and the remainder has just been fenced off?

These are only a few of several scenarios that have come to light while interacting with people affected by land acquisition. These issues have also emerged because the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, enacted the possibility of the return of unused land to its original owners, perhaps for the first time in the history of land acquisition in India. The 2013 law replaced the 1894 law, a legacy of India’s colonial period.

What happens to unused land acquired under the 1894 law?

This issue is dealt with in Section 24 of the 2013 law. It envisages three scenarios for land acquired under the 1894 law. First, when the final award has been made under the 1894 law and, second, where no final award has been issued. The responsibility of issuing this ‘award’ rests with the district collector, after carrying out a complete inquiry on the cost of the land and determining compensation.

In cases where the final award has been issued, the status quo is maintained and the land remains with the government. Where the final award has not been issued, even though the collector might have calculated the amounts to be paid earlier, compensations are to be handed out using the provisions of the new 2013 law. Several people, like the farmers impacted by an SEZ on the Gujarat coast, have gone to court, seeking higher compensations as provided for in the 2013 law. A decision on this case is pending.

Where it gets interesting is in Section 24 (2). If the collector has made an award five years before the enactment of the 2013 law, but “physical possession of the land has not been taken or the compensation has not been paid”, the proceedings will lapse. If the government chooses, the process can be initiated afresh, invoking all the safeguards of the new law. This includes invoking provisions of seeking consent from land owners and carrying out Social Impact Assessments (SIA) to determine public purpose, amongst other things. There is a conditionality for the implementation of
this clause, but it still allows for reopening negotiations between people and the government.

What about land acquired under the 2013 law?

This scenario is yet to come into play, as it applies only to land acquired under the new law and remaining unutilised for five years. Section 101 of the 2013 law says that such land “shall be returned to the original owner or owners or their legal heirs”. But there is also another option provided which allows for enlisting the land into a government-prescribed ‘land bank’.

This is where a conflict with the idea of repatriation is beginning to emerge. It is rare for a state government that has once acquired land to give up its claim even if the acquisition was the result of over-estimation of the immediate requirement or the purpose for which land was taken away does not exist anymore. The case of POSCO’s steel plant and port in Odisha is an example of both scenarios. While it was in the running, the company was seeking acquisition envisaging a four-fold future expansion.

Legally, too, state governments clearly prefer the option of a land bank. The land banks “mean a governmental entity that focuses on the conversion of government-owned vacant, abandoned, unutilised acquired lands and tax-delinquent properties into productive use”. The 2013 law allows every state government to formulate rules to implement the law. The Odisha government’s 2016 rules have adopted the idea of the land bank under Section 42 of these rules with no provision for repatriation to original owners.

What would be the status of land acquired through other acquisition laws?

The 2013 legislation lists 13 other laws under which acquisition has been carried out by the government for various purposes. These include the 1957 law related to coal-bearing areas, the 1989 Railways Act and the 1956 legislation for acquiring land for national highways. There is nothing in the 2013 law which talks about return of unused land, if acquired under any of these laws.

The only possibility is revisiting compensation. For instance, if land has been acquired under the coal-bearing areas law, then people losing land and livelihoods can be paid compensation and be rehabilitated using the parameters of the 2013 law, provided it is for the better.

On a recent visit to Sundargarh district in Odisha, I came across a reference to a “ban” area, where the government sets up limited health or education facilities for people as it is ultimately going to be used for coal mining. While notices were issued to people almost 10 years ago, none of the beneficial provisions of the 2013 law can be extended to the people if one is to go strictly by the law. In future, a progressive court might decide to adjudicate on this, but till then there isn’t much that can happen.

The land acquisition question remains a wicked problem. Imagine being served a notice one fine day to give up your home, work, and comfort zone. It needs to be sparingly demanded and cautiously implemented. After all, one would never want to give back land once it’s in one’s possession.

The author is a researcher and writer; email: kanchikohli@gmail.com