Gujarat Government eases land acquisition

Gujarat Government eases land acquisition

The Gujarat Government has introduced the Righ^th August, 2016 to replace sections of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 to enhance industrial development and promote rural infrastructure. Hence, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (Gujarat State Amendment), 2016 (“the new Act”) came into place.

Earlier, the Land Acquisition Act, 1984 was in place which sought to regulate land acquisition by public companies, government and was often criticized for its industrial approach. Commenting on the issues arising from the Land Acquisition Act, the Supreme Court in the case of Bondu Ramaswamy v Bangalore Development Authority and Ors said , “There is a need to remind Development Authorities that they exist to serve the people and not vice versa. We have come across Development Authorities which resort to `developmental activities' by acquiring lands and forming layouts which is not with the goal of achieving planned development or provide plots at reasonable costs in well formed layouts.”  The Government in 2013 passed the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 on the premise to provide farmers jobs, alternate land and compensation and the old Land Acquisition Act, 1984 was repealed.

The amended Section-10A of the Act seeks to exclude the application of the 2 chapters II and III. This authorises the Government to exclude defence projects, rural infrastructure, industrial corridors set up by the Government and projects under PPP from social impact assessment and other important reliefs for such projects. Social provision to safeguard food security by exempting irrigated cultivated land is also removed in case of land acquisition under projects mentioned in Section 10A of the new Act. The new Act passed by the Gujarat Government empowers government to exempt projects under Section 10 A of the new Act from social impact assessment and other provisions of the amended 2013 Central Act. However it dilutes the intent of the Act of 2013.

The new Act gives power to the Collector to waive inquiry in case all interested parties give in writing the matters to be included in award. The new Act clarifies that two lands located in the same locality may get different compensation.

The Supreme Court in the case of Sree Balaji Nagar Residential Association v. State of Tamil Nadu held that Section 24(2) of the Act of 2013 does not exclude any period during which the land acquisition proceedings might have remained stayed on account of stay or injunction granted by any court. It also removes the adverse impact of non possession and non payment of award in regards of land acquired within 5 years where the 2013 Act gave power to restore land with original owner. This period now is extended to exclude period of stay/injunction in by court or Tribunals.

Moreover, the Act empowers State to acquire land at 50% of the Compensation amount decided by the Collection in respect of projects listed under Section 10A in case size of land acquired is less than 100 acres. While the old Act of 2013 provided for rehabilitation of original land owners by providing them government jobs and alternate land, the new Act discounts the rehabilitation reliefs granted in cases related under Section 10A of the new Act.

Land acquisition is fast tracked where urgency is required since it grants governments the power to acquire land within 30 days of publication of notice without granting award by passing directions where urgency requires. The amendment further removes liability from public servants especially Heads of Departments in case of offences and court cannot take suo moto action without permission of Government.

While the amendment has been passed to ensure fast tracked land acquisition to increase rural infrastructure, farmers have raised voices on the adverse impact on their sole assets and means of livelihood. It has left private industries out of the purview as well. The government seems to have focused on the greater good which may cost it valuable votes in the upcoming 2017 State Elections.

Ram Jethmalani Interview

RAM JETHMALANI INTERVIEW

Mr. Ram Jethmalani is one of India’s top lawyers known to be an able cross examiner, an outstanding advocate and a crusader for social justice. His biography was recently published and launched by the Hon ‘ble Chief Justice of India. He shot to fame after appearing in the K. M. Nanavati Case and was in the news for standing up against corruption in the Black Money Case. India’s flamboyant legal eagle takes time out to share his insights in a one to one interview at his Akbar Road residence.

You have been practicing since long and have constantly been fighting for your clients often at the cost of the judge’s rebuking as seen in various top cases. What does it take to be a good lawyer?

One should learn to distinguish the profession from a business. In a profession, money making is not the important object – although people sometimes make more money than they should, but that’s not the point. The point is that one has to ALWAYS have the notion that the legal profession is a method of service to the public.

How was it when you started? What do you think of the current legal system and the dearth of good lawyers?

Nobody wants your service free. If you offer free service, people will think that the man is trying to build business for themselves. And today our whole legal aid system as you call it, organized by the bar, the court or the government is a sham. They don’t give the best lawyers to a poor litigant. They are in fact, making experiments between the law and the poor people. When I was the Chairman of the Bar Council of India, I had drafted a Professional Rules of Conduct added to the existing Rules of Conduct – that it is the professional duty of every lawyer within the economic capacity to render free legal aid to those who stand in need of it and this is the professional obligation more of seniors whose assistance is required by the poor people who sometimes get in the middle of some unfair litigation where only a good lawyer can be of help.

Also, only those persons should take the law who do not regard the practice of law as a business.

What is the secret behind making money in the profession?

I have finished more than 75 years of my practice and I make a good bit of money, certainly not like a lot of top lawyers, some of whom are too business minded. I do make money but I make it from 10% of my clients while 90 % work is free work, no fees. That’s the way I serve the people.

How to be a successful advocate? You have time and again represented the Government in big cases, something law students wish to emulate you for. What is the secret?

Law is a profession, the practice of which requires tremendous industry. You must be capable when you are young to put in about 15-16 hours of work. If you are not capable of that kind of industry, then you should take to some other kind of profession or business.

What should a law student learn to start of well? Nowadays, students dedicate their time to moots, research, internships and debating. Is it the right path?

A lawyer who only knows law is a missile, what you need to be is that you should be an architect. Justice does not ultimately depend on law, it depends on facts. And the lawyer must know not only law but a smattering of everything. History, philosophy, science, logic, languages, a lawyer must realize that ultimately advocacy consists in persuading a judge with your oral argument. The more command over language you have, the more persuasive you can be and that puts you ahead of your rivals.

What is the duty of a law student? What makes an honest lawyer? You have time and again preached the importance of fidelity and morality in law. What does a law student do to be honest and righteous?

When you appear for a client, your duty is not only to the lawyer but also to the appellant. Morality consists not in obeying the law, but in carrying out that which is not enforceable by the law. In other words, for example if a lawyer promises the other lawyer that the next day I will consent to an adjournment, this promise is not capable of enforcement, but it is his duty to keep that promise – as a lawyer, as a gentleman. Observance of that which is unenforceable is the highest form of morality.

What should law students do to be the role models in society? What is an important trait to develop as a law student? You have extensively mentored law students, written weekly for the Sunday Guardian and been Professor Emeritus at Symbiosis University, Pune. Yet, you find time to pursue your passion of law. How should we start to get there? What is the secret?

In my lectures to law students and sometimes even practicing lawyers, I told them that the spiritual ancestor of the legal profession is a character in the Biblical stories, the story of Danielle and Suzzana. That’s a story located in Ancient Babylon. They say that Babylon was ruled by a council of elders like in the modern panchayat – the oldest persons were the rulers of administratio. But, there lived in ancient Babylon, a woman of almost breathtaking beauty. So, each of the old men passed a lecherous glance at her and tried to seduce her but the virtue of this woman was stronger than the solicitations of these old men. They brought a false charge against her and naturally the accusers, the complainants and the judges were all rolled into one; therefore these four old men succeeded. So no wonder the poor woman was found guilty, charged with adultery of a young man unknown. And in those days the practice used to be that the person who was sentenced to death as she was, was to be stoned to death. So, they say that a crowd had collected to see the blood of the woman flow but before the first stone was tossed there arose from the audience a young man called Danielle. Danielle said, “I don’t believe this woman is guilty” and he kicked up a row. Though the crowd was not impressed by his wisdom, they were certainly impressed by his bravado1 They said young man what do you want? He said I want to ask questions to these old men. They said, alright, ask. He was not a trained lawyer but he made some rudimentary cross examinations that please tell me where you find this adultery being committed. So each of the four men gave such highly conflicting replies. Somebody says it was in a palace, somebody says it was in a sea beach, somebody says it was moonlight, somebody says it was sunlight like that. They say that the crowd which was gathered for the blood of the woman flow was now howling for the blood of the old men. Then the poor woman was let out.

Danielle was the first lawyer of history.

So, the essence that you draw from this: he worked without a fee, he fought against the establishment, against the power – the ruling power, he fought for justice, and he did not mind what the people will think of him

What is the most important skill in criminal litigation a law student should learn? What is required to be a great lawyer like you?

Lawyers must insist on becoming good cross examiners. The art of cross examination has practically died out in the legal profession.

The article was oringinally published here

Tenancy Laws in Gujarat

Government amends Tenancy Laws to boost industrial use of land in Gujarat:

Confusion prevailing in regard to the agricultural lands reduced owing to recent amendments

In the State of Gujarat, strict law regarding agricultural land prevails for protection of farmers and the tenants, who cultivate the land. The law states that agricultural land cannot be sold to a non-agriculturist unless special permission has been obtained from the authorities. Says Richa Mehta, advocate at K. Nanavati & Gandhi Associates, “Any entrepreneur who proposes to establish an industry in Gujarat, searches for a piece of land for establishing his industry and generally contacts a land-broker for the same.  Thereafter, upon negotiation, he purchases the land after paying a price and then approaches the authority for permission; a lot of compliances need to be sought for such transactions.” Adds Pratik Gajjar, CEO of Space Management Ltd., a real estate brokerage firm, “The document under which an entrepreneur has purchased the land is not a legal transaction in view of the law if transferred for non-agricultural use without obtaining permission and if the proceedings under such law has been initiated, the result will be vesting the land in government and the person, who has purchased the land loses his land and money.” 

The Gujarat Government amended Tenancy Law in 1976, permitting non-agriculturist to purchase agricultural land for bonafide industrial use.  The entrepreneur who purchases the land for his own bonafide industrial use has to purchase it with certain conditions provided in the law and then he has to obtain necessary permissions for such use.  Pranit Nanavati, Partner at Nanavati Associates observes, “Confusion prevails in land transactions in the sense that when such land is converted for non-agricultural purpose, whether the purchaser can further sell the land.  The view prevailed that he cannot sell such land to any other party even for bonafide industrial use. Even the Supreme Court recently confirmed that such transfer i.e. to say when the land is purchased for bonafide industrial use subsequent transfer is not a legal transfer.” Adds Uttam Gandhi, Senior Solicitor at K. Nanavati Gandhi Associates, “The Government, in order to find a way out of this confusion further amended the law in December 2015, permitting the transfer of such land, which has been purchased for bonafide industrial use upon permission of the Collector and upon payment of premium price as provided by such amendment.”

Nirav Kothary, Head of Operations - Gujarat, JLL states, “The Government has allowed transfer of land to establish industrial park and a provision has been inserted to protect the interests of an agriculturist who has acquired land despite earlier transactions in respect of said land being considered void. Additionally, the penalty payable on transfer of land to non agriculturist has been increased.” Satyajeet Desai, Mulla's Hindu Law Author observes, “The new amendments focus on the changes that rapid industrialization has brought to make procedural parts simple and mitigate undue hardships on purchasers. The most important amendment is that the time limit for commencing production after land is bought has increased.”

Hence, the amendment in the tenancy act aims to achieve the aforesaid objects.