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December

13

Land Acquisition and Transfers for Private Industry


A case study in Raigarh, Chhattisgarh

Centre for Equity Studies | Working Paper

This study was undertaken by the Centre for Equity Studies in partnership with Jan Chetna in Raigarh, who continue to work tirelessly for the rights of the disadvantaged all over the district, often at a great personal cost. Without the assistance of Rajesh Tripathi, Savita Rath, Ramesh Agrawal, and others in the organization, this study would not have been possible. The paper was written by Amod Shah, Saba Sharma, and Shikha Sethia, researchers at the S. R. Sankaran Unit for Hunger and Social Exclusion. Other researchers who worked on interviews, surveys and analysis in this study include Kanchan Gandhi, Radhikha Nair and Shankhmala Sen. We are always grateful for the guidance and input of Harsh Mander, director at CES.

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1. Introduction Economic development and industrialisation has always been a contentious process in India. Industries require huge amounts of land, often resulting in the destruction of forests and large-scale displacement of local populations. In addition, most mineral rich areas in the country are heavily forested and have large tribal populations, whose livelihoods are closely linked to these forests. However, there is increasing evidence suggesting that in the single-minded focus on faster growth and development, particularly after the process of economic liberalization since the early 1990s, critical concerns around the environment, forests and the health, livelihoods and social welfare of persons impacted by this process have been brushed under the carpet. For instance, research by the Centre for Science and Environment (CSE) highlights the unprecedented rate at which projects have been granted environmental and forest clearances during the 11th five-year plan period (2007-12). Environmental clearances given to coal mining, thermal power, steel and cement projects between 2007 and 2011 were sufficient to approximately double the countrys existing production capacity in all of these sectors. By CSEs estimate, a total of 830,244 hectares of forest land were diverted for development projects over the period from 1981 to 2011, about a fourth of this between 2007 and 2011.1 The concerns extend beyond environmental damage and forest loss; CSE estimate that the total water requirement for projects cleared between 2007 and 2011 for five major sectors (cement, coal mining, mining, iron and steel, and thermal power) is sufficient to meet the daily needs of 250 million people. Moreover, since projects are cleared individually, there is no consideration for the cumulative impact on the ecology, soil, water and health of people, when many projects come up in the same area. Since resource intensive industries tend to be situated close to sources of raw materials, this has resulted in heavily industrialised and critically polluted areas, like Raigarh district of Chhattisgarh, where the present study is focused. Equally importantly, Indias record of rehabilitating its large number of development-displaced persons (DPs) is extremely poor, and even in cases where rehabilitation has happened, it has been highly inadequate, resulting in significant worsening of the economic and social condition of those being displaced. The diversion of forests and other common property resources for development projects also has severe negative impacts on the livelihood, food security and cultural heritage of affected communities, even if they are landless or have not been displaced by the project. Such project-affected persons (PAPs) are, however, deprived of even the minimal compensation and rehabilitation offered to land losers. Between 1951 and 1990, development projects in India resulted in an estimated 21.3 million displaced persons (DPs) and project
Forest and Environment Clearances: Problems for economic growth or problems for environmental protection, Centre for Science and Environment, New Delhi
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affected persons (PAPs), about 40 per cent of who were tribals.2 Only about a quarter of all such displaced persons had been rehabilitated.3 An updated estimate, for the period from 1947 to 2000, puts the total number of DPs and PAPs at more than 60 million.4 While there are no recent estimates on the number of development-displaced and project affected persons, the rapid pace of resource exploration and industrialisation in recent years would suggest a sharp increase in these numbers. A second notable feature of recent economic growth in India is the increasing withdrawal of the States participation in the processes of development and industrialisation. This is particularly apparent in the case of public purpose projects, for instance mining projects, dams, power plants, highways, ports and other vital infrastructure and industries, which serve the broader interests of society, rather than solely private aims. While in the past, government owned companies were directly responsible for setting up and running large-scale projects in the public interest, the State has increasingly found itself unable to meet the rapidly growing demand in these sectors in the post-liberalization period. In addition, the belief that the private sector can deliver these public goods and services faster and more efficiently than the government has come to be widely accepted. As a result, the government has actively supported the growing influence of private companies in the implementation of public purpose projects, with the government functioning primarily as a facilitator of such private sector participation. For instance, over the period from 2006 to 2010, the private sectors share of the total installed capacity of the power sector in India rose from 11.6 percent to 20 percent, and private companies are expected to contribute around 60 percent of the new power capacity added over the 12th Five Year Plan period, from 2012 to 2017. 5 Similarly, 74 out of the 131 coal blocks allocated by the government between 2006 and 2011 went to private companies.6 The States changing role in the context of public purpose projects raises critical questions about its ability to balance its responsibility of protecting the rights of those affected by the project and compensating affected persons for any costs that they are forced to bear in the name of development, with the pressing need
Fernandes, Walter (1998), Development-Induced Displacement in Eastern India, in S.C. Dube (ed.), Antiquity to Modernity in Tribal India, Vol 1: Continuity and Change among the Tribals, New Delhi: Inter-India Publications, pp. 217-301. 3 Ibid 4 Fernandes, Walter (2007), Singur and the Displacement Scenario, Economic and Political Weekly, 42 (no. 3, 2026 January), pp. 203-6. 5 India's installed power capacity up 37% in last five years - Economic Times 6 Minutes of the meeting held on 11.01.2012 & 12.01.2012 chaired by Additional Secretary (Coal) to review the progress of allocated coal/lignite blocks and associated end use projects, Ministry of Coal, Government of India,2 March 2012
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to create a favourable policy framework for rapid growth in sectors that promote the public good. These issues are of critical importance, since public purpose projects, despite their broader social and developmental objectives, have severe negative impacts on the environment and the lives of people affected by such projects. As the pace of growth and industrialisation has significantly accelerated, so too has the scale of such destruction and damage. While the role of private companies is being increasingly regarded by many as the most efficient way to achieve faster growth, there is great concern that private companies are motivated primarily by profit and in the pursuit of profit, the public benefit is often compromised. The State, by encouraging and actively assisting private companies implementing public purpose projects for instance, by appropriating land for their use or relaxing environmental standards for such projects- is ultimately utilising its sovereign power to further private profit. It is the States duty, in all such transactions, to ensure that the viability of the project is also evaluated on the basis of how far the benefits to the public outweigh the costs to the public, rather than project-level profitability, and the extent to which both due legal process and justice have been ensured for all persons affected by the transactions. The present study seeks to analyse the abovementioned debates specifically in relation to the procurement of land by private companies implementing public purpose projects. In the past few years, the highly contentious nature of such land transfers, often with the active support of the government, has been widely publicised due to agitations in Singur and Nandigram in West Bengal, and in Jagatsingpur and Niyamgiri in Orissa, among others. However, these are hardly isolated incidents; by one estimate, land related conflicts affect 130 of Indias 602 districts, across all states of the country, with most such incidents taking place in 2011 and 2012.7 In this study, we explore in greater detail the various mechanisms by which such transfers have occurred, as well at the States role in this process. The rest of the paper is structured as follows: Section 2 summarizes key laws and procedures related to land procurement by private companies. Section 3 details the objectives and methodology of the study, while a detailed analysis of the study findings is presented in Section 4. Lastly, section 5 discusses these findings in the context of Indias recently passed land acquisition law.

Press Release: New Research Predicts Rising Trend in Indias Violent Land Conflicts; Map Shows Massive Resource Takeover Spurs Conflict in 130 Districts , 17 December 2012, Rights and Resources Initiative, Society for Promotion of Wastelands Development, New Delhi. Available at http://www.rightsandresources.org/documents/files/doc_5644.pdf
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The process of coal allocation to private companies As per the Coal Mines (Nationalisation) Act, 1973, only the public sector was allowed access to the countrys coal reserves. However, soon public enterprises found themselves unable to cope with the increasing demand for coal to feed the countrys growing demand for coal for power, steel and cement consumption. In 1993 and 1996, amendments to the Coal Mines (Nationalisation) Act allowed for coal mining for captive consumption by private companies for power generation and cement, respectively, with other uses to be notified by the government. A previous amendment in 1976 had permitted captive mining by private companies in the iron and steel sector. The governments record in allocating blocks through a fair and transparent process has been far from satisfactory and, rather than maintaining a neutral role in the process, is accused to have been hand in glove with private industry. A draft performance audit by the CAG of allocations made by Coal India Limited reveal that, between 2004 and 2009, the government had allocated coal mines with a capacity of producing over 14 billion tonnes to private companies, at preferential rates and without following a transparent bidding process. While the scale of the allocations in this period is unprecedented, it is alleged that even allocations done between 1993 and 2004 were rife with malpractices. Allocations in both periods are currently the subject of an enquiry by the Central Board of Investigation. While captive mining was encouraged in order to help meet short and medium term coal production requirements of the country, many of the captive coal blocks allocated failed to meet production targets and some failed even to start production.
Source: "Draft Performance Audit, Allocation of Coal Blocks and Augmentation of Coal Production by Coal India Limited" Report of the Comptroller and Auditor General of India (Union Government (Commercial)), and various news articles

2. Laws and procedures for land procurement by private companies Private companies undertaking public purpose projects can rely on two avenues for the procurement of land required for such projects - direct purchase from landowners or compulsory acquisition by the government. In theory, companies and landowners are free to engage in free market transactions, resulting in the purchase of land by the company at a mutually agreed rate of compensation. However, as we highlight in the findings of our study, there generally exists a significant asymmetry of power between land (and livelihood) losers and companies, resulting in deals being concluded on terms that are unfavourable or unjust to land losers.
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Private companies may also request the government to compulsorily acquire land from landholders and transfer this to the company.8 Until recently, the primary legislation governing land acquisition by the government, on behalf of private companies implementing public purpose projects, was the Land Acquisition Act (LAA) 1894. There are separate legislations governing land acquisition and rehabilitation in certain sectors examples include the Land Acquisition (Mines) Act 1885, the Coal Bearing Areas Acquisition and Development Act 1957, the National Highways Act 1956 and the Railways Act 1989 which contain provisions to cater to specific requirements of that sector. For instance, the Coal Bearings Areas Acquisition and Development Act 1957 allows for the rapid procurement of land for coal prospecting and requires that the potential value of coal to be extracted not be considered while valuing the land.9 However, in most cases, land acquisition norms and procedures are similar to those specified in the LAA 1894. Such land acquisition legislations face a number of criticisms, mainly because they lack transparency and require very limited involvement of the affected communities. While landholders can appeal the decision at various stages of the acquisition process, including the first notification, the declaration of the intent to acquire land, and the notice of compensation, the final say on all such objections rests with the competent authority, which is often the district collector sanctioning the acquisition in the first place.10 Norms around compensation for land acquired under these legislations are vague and have generally resulted in the undervaluation of land and inadequate compensation to land losers. The LAA 1894 has also been criticised for the broad discretion it offers the government in deciding what constitutes public purpose, and in the exercise of the urgency clause, under which landowners are not allowed the opportunity to appeal the land acquisition decision. Some of these concerns around the LAA 1894 have been addressed through the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (RFCTLARR 2013), which was passed into law in September 2013. The new Act and its relevant provisions are discussed in detail in Section 5.

It is important to acknowledge that there exists a significant legal grey area around the compulsory acquisition of private land, and particularly tribal land, by the government, on behalf of private companies. For the purposes of this paper, we do not focus on these debates, but rather look at the extent to which, in the study area, the government has followed the procedures governing land acquisition, in both letter and spirit 9 Preeti Sampat (2013), Limits to Absolute Power: Eminent Domain and the Right to Land in India, Economic and Political Weekly, Vol XLVIII No 19, 11 May 2013. 10 Ibid
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How is land acquisition legislation misused to favour private companies? A recent CAG report on land acquisition by the Odisha government for private companies between 2002 and 2011 highlights that in 176 out of 208 cases (involving 3,434 hectares of private land), land was acquired based on their incorrect declaration as public purpose projects. Additionally, in 85 of these cases (involving 2,010 hectares of private land), the urgency clause was invoked to speed up the land acquisition process, even though none of these cases satisfied the conditions required for invoking this provision. The CAG report also found that the government had failed to adequately assess land requirements for industries, resulting in large amounts of acquired land being unutilised and hoarded by private companies.
Source: T N Vijaylakshmi (2012), CAG blows lid off land grab in Odisha, Down to Earth, 30 March 2012

Similarly, in an attempt to address its extremely poor record of rehabilitation and resettlement of persons affected by public purpose projects, the government introduced a National Policy on Resettlement and Rehabilitation for Projected Affected Families (NPRR) in 2003, and subsequently revised this in 2007. The stated aim of the policy is to minimise large scale displacement, and where such displacement is inevitable, to ensure the proper rehabilitation and resettlement of all project affected families, including for landless persons whose livelihoods and are negatively impacted by such projects. Unlike the LAA 1894, which only dealt with cash compensation for land losers, the NPRR adopts a more holistic view of rehabilitation and resettlement, laying out guidelines on additional assistance aimed at the restoration of livelihoods of affected persons, and where possible, the provision of land for land. The NPRR attempts to lay down basic norms for the rehabilitation and resettlement policies adopted by various States and Central government departments. For instance, the Chhattisgarh Ideal Rehabilitation Policy 2007 lays out guidelines for amount of land to be provided to resettled families, the provision of jobs and other assistance. It also specifies norms around compensation for acquired land, and for trees, houses and other improvements on the acquired land. One major concern with the NPRR is that it applies only to projects that displace 500 families or more en masse in the plains and 250 families or en masse in hilly, desert or Scheduled Areas. This has resulted in instances where land acquisition for the same project has been split into smaller bits, each displacing fewer than 500 families, so that the provisions of this policy can be sidestepped.11 In order to give the NPRR statutory backing, many of its provisions have been incorporated into the RFCTLARR 2013, which

Walter Fernandes, Rehabilitation Policy for the Displaced, Economic and Political Weekly, Vol XXXIX No 12, 20 March 2004
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now stands as a comprehensive law regulating land acquisition, as well as rehabilitation and resettlement. In tribal areas covered under Schedule V of the Indian constitution12, the Panchayats (Extension to the Scheduled Areas) (PESA) Act 1996 provides for additional safeguards to prevent tribal land alienation and unfair acquisition of tribal land. These include a requirement that land acquisition for development projects, and rehabilitation and resettlement of affected persons, be undertaken only after consultation with the Gram Sabha or the Panchayats at the appropriate level. As of March 2013, only three out of the nine states with Schedule V areas had framed state-level rules for implementation of the PESA Act. Whereas Chhattisgarh is yet to frame state-level PESA rules, the states Land Revenue Code and Land Acquisition Act have been amended to require approval of village-level Gram Sabhas in the event of land acquisition or diversion of land for industrial purposes. By requiring consent at the village level, rather than just consultation at the appropriate level, the Chattisgarh amendments appear to provide for stronger protection against unfair land acquisition than the PESA Act.

3. Overview of the study a. Study Objectives This study aims to provide a detailed examination of the processes by which land is procured by private companies undertaking public purpose projects, as well as the role of the State in these transfers. It looks at both legal and illegal mechanisms of land transfers, while acknowledging that even transactions that appear to be legitimate on paper may not be truly legal; and also there is a distinction between formal and substantive legality, and between legality and justice. Similarly, rules and regulations governing the transfer of land are often subjectively interpreted and implemented by the State and its officials, resulting in transactions that, though legal, may be severely unjust to certain stakeholders. With these objectives in mind, the study essentially aims to ask the following key questions: 1. In the studied area, what is the extent to which companies purchasing land directly from local residents follow procedures laid down by law, in both letter and spirit? If the law is subverted, how is this done? Is illegality merely an anomaly, or part of the system in the way that it is operationalised at the ground level? 2. What, ultimately, is the role of the state when it comes to issues of procurement of land by private companies? Is it merely a facilitator, and to what extent should it take responsibility for ensuring fair practices?
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Raigarh district in Chhattisgarh, where this study is focused, is a Schedule V area

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How does the States role in this instance fit into the broader debate about the nature of development, and the role of industrialization? 3. In the context of compulsory land acquisition by the government, to what extent are practices laid down in the new land acquisition law just or unjust? How does it address the issues highlighted in the study area? b. Description of the study area The study focuses on Tamnar block in the district of Raigarh, Chhattisgarh. Raigarh has experienced rapid industrialisation since the early 1990s, when the first sponge iron plant of the steel and mining giant, Jindal Steel and Power Limited, was established there. Since then, the entire state of Chhattisgarh has seen industry grow at an unprecedented rate, and Raigarh, given its dense concentration of coal, perhaps more so than other districts. Tamnar block in Raigarh is host to a variety of industrial projects, including coal mines, thermal power plants, sponge iron plants, cement plants and a large industrial park. A number of private companies currently run projects here, with the major ones being Jindal Steel and Power Limited, Jindal Power Limited, Monnet Ispat and Energy Limited, and Jayswal Neco Industries Limited. The environmental impact on such industrialisation has been enormous, resulting in massive deforestation, water and air pollution, and the consequent impact on the health of those who inhabit these places. But by far the greatest conflict is on the issue of land, and the way that land is sold and acquired in these places. Of the 533 Gram Panchayats in Raigarh, about 300 are likely to be affected by mining and industrial projects. In Tamnar block, only 6 out of 57 Gram Panchayats have not experienced land acquisition for coal mines or other industries. In about 8 of the affected villages, all of the land has been transferred for such projects, resulting in the displacement of the local population. Since the process of land procurement is far from over, such displacement is bound to increase.13 c. Study methodology The study involved visits to the study area by CES researchers, in June and October 2012, and a household survey in three villages, conducted over a twoweek period in February 2013. In two of the surveyed villages, Sarasmal and Kosampalli, large amounts of land have been procured for the Gare-Pelma IV/2 and IV/3 opencast coal mines, owned by Jindal Power Limited. The third village, Tamnar, is the largest village in Tamnar block and lies in the vicinity of a 1000 MW power plant, also built by Jindal Power Limited. In Tamnar village, the 1000 MW power plant was set up in 2004, and is used for commercial power production. The plant is now further expanding to add the capacity of another
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Interview with Jayant Paridhar, reporter at the Raigarh daily Patrika

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2400 MW, which has run into some controversy previously, first for starting construction before obtaining environmental clearances from the Ministry of Environment and Forests, and then for proposing construction on land that had already been acquired by the Chhattisgarh Mineral Development Corporation. The small size of Sarasmal and Kosampalli14 enabled a fairly comprehensive door-to-door survey by our team of four researchers, covering a total of 83 households. In Tamnar, a large village of 3,974 people organized into 10 neighbourhoods or paras based on community, we aimed to cover each neighbourhood and randomly select houses within a given neighbourhood, sueveying a total of 117 households. The survey covered questions about the amount of land purchased, acquired or illegally occupied by the company, the manner in which such transactions were conducted, the current landholding status of the household, and the compensation received (both monetary and non-monetary). In addition, the survey enquired about the perceived health and environmental impacts of the project, welfare work undertaken by the company under its corporate social responsibility programs, and awareness of procedures related to land acquisition. The survey results are supplemented by interviews with individuals and families in several villages across Tamnar block, conducted during earlier visits, and alongside the survey in February 2013. All of these villages are located in the immediate proximity of coal mines and other industries. Information from these interviews has been used to illustrate and elaborate on some of the mechanisms of land procurement highlighted in the survey data, as well as crucial issues around health, environment, and livelihood, which form an imperative part of the larger narrative of land acquisition. The report also refers to documents obtained through the Right to Information Act and from government offices in Raigarh.

4. Findings of the study Widely perceived through the analysis of the survey, as well as through interviews and meetings in affected villages, was a sense of mistrust in the companys willingness to behave fairly, and in the governments promise to protect against these injustices. In both private sales and land acquisition, there were a variety of mechanisms where the process of law had been subverted to varying degrees. In some cases, even where formal legal procedure was followed, in practice, it was not done so substantively with adherence to the spirit in which
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In 2011, the population of Sarasmal and Kosampalli villages was 508 and 279 respectively

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the law was framed. During private sales, for instance, the power imbalance between the company and the landholder puts the landholder at a considerable disadvantage, often resulting in transactions that barely compensate for the market value of the land, let alone the loss of livelihood. Companies are able to do this by intimidating through force and, and, as we heard repeatedly, threatening people with forced acquisition at even lower levels of compensation. Companies are successful in purchasing the land in this manner because it is widely assumed that regardless of whether it is through private sale or compulsory acquisition, they will eventually be in possession of the land. And finally, even when the law is formally or even substantively complied with, it often leads to unjust outcomes for vulnerable communities like tribal people, and raises questions of sustainability. Landholders felt that the government was willing to use its authority to act in the interests of the company. In cases where they resisted selling their land to the company, it was compulsorily acquired by the government. While the affected persons should be better protected when the government acquires the land parcels, this was not the case. The government appeared to have completely disregarded its duty to adequately protect the interests of landholders. For instance, appeals filed against land acquisition were not taken into consideration by the local authorities. Notifying Gram Sabhas as well as individuals of the impending acquisition and the process of appeal is an important duty of the government but we discovered that rarely were the affected persons fully informed about the procedures and most people were unaware of the timeframe within which to file an appeal. Similarly, instances of land acquisition in scheduled areas like Raigarh district require a No Objection Certificate (NOC) from the Gram Sabha, but false NOCs were issued, signed only by gram panchayat members, and accepted by the state as an adequate proof of consent. Perhaps most crucially, none of these procedural violations take into account the larger question, of whether the government should be indiscriminately acquiring tribal land for industrial purposes in the first place. It can be argued that the spirit of the law barring the sale of tribal land to non-tribals should override the governments right to indiscriminately exercise its powers of eminent domain, and should particularly apply to instances where the State functions as an intermediary in the process of such land transfers. Direct negotiation between the company and the affected person (whether coercive or not) and acquisition by the government on behalf of private companies are not the only two ways through which companies acquire land for development projects. As evidenced in Raigarh, another practice is the illegal occupation of land by companies. As before, at a disadvantage because of their lack of agency, affected persons are often unable to regain possession of their land. In most instances, directives from the district collectors office, as well as

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orders from the high court to return the land to the owner were ignored by the company, and neither had government officials followed up on the implementation of these orders, despite the repeated requests of the landholders. There is also no official record of land being illegally occupied by the company, i.e. cases where it may still be in the name of the original landholder, but is effectively being used by the company. In tribal areas, where sale of tribal land to non-tribals is illegal, companies have developed the practice of purchasing the land parcel in the name of a tribal employee, for their own use. Even though this is formally recognised as a legal transaction between two tribals, it represent a clearly illegal subversion of laws aimed at preventing alienation of tribal land. This was a recurring practice in Raigarh, and many tribal landowners claim to have sold their land, either directly to the company or to an employee or broker of the company, and these sales had either been registered with full knowledge of the local authorities, or transferred without due procedure. It is practically impossible to determine how much tribal land has been procured by the company in this fashion, without the intervention of the government. and particularly local officials like the patwari, who is supposed to keep an annual record of changes in land use at the village level. However, it is widely acknowledged that these records are not regularly updated, if at all. In many cases, people were unable to clearly differentiate between the two main forms of land procurement, namely private sale to the company and compulsory land acquisition by the government. While this may appear to be a methodological issue, it actually speaks of a much deeper problem. It is reflective of a larger trend in which affected persons are unable to tell the company and the State apart, given that the latter tends to act almost uniformly in favour of the former. This lack of information is not just a symptom of poor awareness among the landholders but of willful neglect of the due process of acquisition on the part of companies and the State alike. A number of people reported that the compensation for both land acquisition and private sale was received as one lump sum, and were therefore unable to tell whether the rates of compensation for these transactions were different for the two. Moreover, some of the landholders covered in the survey were unable to specify whether their land had been transferred to the company through a private sale, or land acquisition, or a combination of both. Irrespective of the nature of the transaction - whether through direct sale, compulsory acquisition, or illegal occupation - ignorance about proper procedures was a key reason for affected persons going undercompensated or being unable to effectively appeal at the appropriate level. Adding to this was the commonly shared perception that the government had accepted a bribe from the

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company and will thus act in its favour, which left landholders with little choice but to take what was offered quietly, without protesting. The absence of the State in checking the subversion of laws and procedures by the company was not restricted to just private land transfers, but extended to other issues, such as the illegal occupation of forest and common land by the company and a complete disregard for a projects impact on the health, environment, livelihoods and social conditions of the local population. The findings of the study are divided into five sections the first is an enquiry into the procedure of land transfer, in which we identify how much land was procured through various mechanisms, and how many people were rendered landless as a result. The second area of enquiry is compensation and rehabilitation, in which we examine the differing rates of compensation and also issues such as the provision of jobs and other rehabilitation measures, which are meant to compensate for the loss of livelihoods and security. The third section is about awareness and consent, where we assess how well informed people were about the process of land acquisition and sale, and whether companies and governments are following the correct procedures when land is acquired or sold. More than anything, this section aims to highlight the importance of information and awareness of law in the land acquisition process.15 We then address the effect of the development project on livelihoods, on health and environment as well as the social impact. Finally, we look at what CSR initiatives have been undertaken by the company in the vicinity of the project. i. Procedure Based on the survey, of a total of 682.07 acres of land that is in possession of the company in Sarasmal and Kosampalli, 47 percent was sold to the company directly, 38 percent was procured through government acquisition and about 1 percent was illegally occupied by the company, without the consent of the landholder and in most cases, without paying them any compensation. In Tamnar, of a total of 390.43 acres in the companys possession, 61 percent of the land was sold directly to the company, 29 percent was acquired by the government, while another 7 percent was illegally occupied by the company. In Sarasmal and Kosampalli, owners of the remaining 14 per cent of land (the majority of which belonged to tribals) were unable to clearly identify whether their land was acquired by the government or sold directly to the company. In Tamnar this figure was 2 percent acres, somewhat lower. In some cases we were
A methodological clarification many households in Sarasmal and Kosampalli, while being distinct in themselves, have joint land holdings such as between two or three brothers, or between a father and his sons. When we speak of households in the survey, we speak of the family representing the same land holding, even where this concerns two or three families. Where, however, the family members have already split the titles among themselves, we speak of them separately. This is to avoid repeating entries in the data.
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able to resolve the confusion by looking at acquisition or registration documents, but in others this proved to be not possible. We have excluded these respondents from the following data analysis, so as not to misrepresent the results. Chart 4.1 Breakdown of land in possession of the company (percentage of total)
61% 47% Sarasmal & Kosampalli Tamnar 38% 29% 7% 14% 2% Nature of land transaction unclear

1% Land sold directly Land acquired by to the company the government on behalf of the company

Land illegally occupied by the company

Since Tamnar block in Raigharh district has a significant tribal population, and transfer of tribal land is a particularly contentious issue, it is important to highlight here that of all the households surveyed in Sarasmal and Kosampalli, 68 percent of land belonged to tribals. In Tamnar, which has a much more diverse population, 20 percent of surveyed land belonged to tribals, 36 percent to OBCs, and 44 percent to the General category. A breakdown for the groups is shown in the following table, as are the types of transactions through which the land transfer took place. Table 4.1 Details of surveyed households
Sarasmal & Kosampalli Number Landholding households of which SC ST OBC General Landless households 75 1 59 14 1 8 Land (in acres) 682 4 467 202 9 Land (% of total) 100% 1% 68% 30% 1% Number 111 1 26 58 26 6 Tamnar Land (in acres) 390 1 77 142 170 Land (% of total) 100% 0% 20% 36% 44% -

While the transfer of land occurred through private sale, government acquisition or illegal occupation, even within these categories there is a spectrum, with varying degrees of compliance with due process.

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Chart 4.2 Nature of land transactions (percentage of total)


44% 34% 30% 17% 10% 14% 16% 9% 2% Non-tribal Land acquired Non-tribal land sold by the land sold freely to the government through company intimidation 2% 7% Sarasmal & Kosampalli Tamnar

15%

Tribal land Tribal land Land illegally sold freely to sold through occupied by the company intimidation the company

In some instances, transactions were conducted willingly between companies and landowners, with minimum infringement of the law, at least on paper. In the surveyed villages of Sarasmal and Kosampalli, sale of non-tribal land conducted willingly accounted for 15 percent of the total land sold, acquired or illegally occupied by the company, and in Tamnar, it accounted for 34 percent. However, even here, there are discrepancies between the compensation received. In all of the surveyed villages, companies typically first approach the biggest landholders in a village with offers to buy their land. They often also went on to become intimidators and agents of the company in helping the company to purchase land from other residents of the village. These landholders tended to be upper-caste and wealthy and, given their status as keys to purchasing land in the rest of the village, were able to negotiate better prices and compensation deals for themselves. With tribal land, even less can willing sales be accepted at face value. Provisions aimed at preventing tribal land alienation in Schedule V areas of the country prohibit the direct sale of tribal land to non-tribals or companies. However, a fairly common practice revealed during our surveys involved selling land to tribal employees at the company, or a tribal broker, thus making the actual sale legal (since it is still a transaction between two tribals). The use of this land by the company, nonetheless, remains illegal, and obtaining this land via its employees is a clear violation of these rules. This is rarely ever investigated, since tribal employees and brokers do not file complaints against the company, and there is no other way to say how the land is being used. Of the total land sold, acquired or illegally occupied by the company, 14 percent in Sarasmal and Kosampalli, and 9 percent in Tamnar was tribal land that was reportedly sold willingly to the company.

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Worryingly, many instances of private sale took place under duress, where companies threatened or intimidated landholders into selling. Intimidation can take several forms, and is rarely reported formally to the police or other authorities. It often involves threats from company agents or other members of the village community (such as large landowners, persons from higher castes, etc.) who become dalals for the company. People have reported being threatened with reduced or no compensation, or forced acquisition if they fail to sell, and in some cases also with violence. Other kinds of intimidation include dumping materials on the persons land, blocking access to their fields, cutting down trees, and in other cases forcibly digging up the land. Intimidation during land transfers Intimidation and threats from the company during land transfers are widely reported. Krishna Saos (see below) is certainly one case, where even the police, his former employers, were used to harass and intimidate him into giving up his land. In Ragunaths case, his land in Salihabhanta, was forcibly occupied by JPL after they dumped materials on his land. Despite the land still being in his name, and orders from the tehsil court ordering it to be returned to him, a cooling tower of the power plant has already been built on it, without any compensation being offered to him up to this day. Ragunath was severely beaten up at a bus stand by what he knows to be company agents, when he was on the way to a court hearing. Individual intimidation aside, companies are not afraid to attack entire gatherings either. At a jan sunvahi at Gare village in 2010, relating to a coal mine allotted to JPL, police lathi charged the crowd without provocation, and many of those present were injured, including activist Harihar Patel, who broke his nose. After the crowd was dispersed and the dissenting voices no longer there to raise issues, the company continued the jan sunvahi with its own representatives, and declared it both successful and valid, a claim later struck town by the National Green Tribunal. Intimidation is not limited to landholders alone activists in Raigarh who work with land and environment issues have frequently found themselves the target of attacks. In 2011, JPL sued activists Rajesh Tripathi, Ramesh Agrawal and Harihar Patel for defamation, charges that were later struck down as false by the high court. Before that, however, Agrawal and Patel spent three months in prison, while Tripathi was on the run. In July 2012, assailants shot Ramesh Agrawal in the leg, leaving him unable to walk for over a year. While the culprits have been identified as part of the security team of JPL, no further charges have been brought against the company, and the case continues to hang in limbo.

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In Sarasmal and Kosampalli, we found that 26 percent of the total land sold, acquired or illegally occupied by the company involved such forms of intimidation, and in Tamnar this was 19 percent of the total land. Whereas in Sarasmal and Kosampalli, the primary form of intimidation was threats by the company and its agents, in Tamnar, most households who were intimidated reported that their land was dug up, earth and building materials were dumped on it, or that access to their fields was severely restricted due to the companys activities. Many who claimed not to have been intimidated nonetheless wished they had not sold their land, and worried about future livelihood security, or of feeling cheated because of inadequate compensation. Often when companies are unable to acquire land themselves from villagers or are not allowed to purchase land directly from tribals, they approach the block or district administration with a request for the acquisition of the required land. Land acquisition of tribal and non-tribal land through the government usually happens over several rounds, depending on the requirements of the company at various stages of the project. In Sarasmal and Kosampalli, 44 percent of the total land transferred to the company was acquired through the government, and in Tamnar this figure accounted for 30 percent of total land. While acquisition is considered to be the states prerogative,16 people report that they feel the acquisition was unjustified, or that their consent was not properly sought before the process began. Many came to know of their lands being acquired very late into the process, and there is some evidence that the government did not make enough of an effort in informing people well in advance, as they are required to. There are also cases of illegal occupation of private land by the company, where little or no compensation is paid. In a few cases, landholders were forced to sell after companies had already occupied the land and begun work on it. As land ownership had been transferred to the company, this appears legal on paper, although our interviews suggested otherwise. Such illegal occupation of land by the company accounts for 2 percent of all land procured by the company in Sarasmal and Kosampalli, and 7 percent in Tamnar.

This is no longer the case, since the recently passed land acquisition act requires a minimum level of consent if land is being acquired for private companies
16

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Illegal occupation of land Krishna Sao, a resident of Tamnar, found that 2 acres of land had been illegally occupied by JPL in 2002, and digging began on it without his consent. He was offered 2 lakh rupees per acre (at the time, legal transactions were usually settled at 50,000 rupees per acre), but he refused, and took his case first to the Sub District Magistrate (SDM) court, and then to the High Court in Bilaspur. In 2006 the court ordered that his land be returned, but he was unable to get this order implemented. In 2007, he approached JPL to provide him compensation for the crops that he lost, which was refused. In addition to facing harassment by the company when he filed a case, he was also harassed and pressured at his workplace, forcing him to resign the police service. Krishna Sao is an exception, and most others, even if they do file a case, do not pursue it after they are intimidated, either by the company or others in the village. In the case of Haripriya Bai Patel, 6 acres of her land was illegally occupied by Jindal Power Limited, and without any money or documents changing hands, construction of a residential complex for its employees began on the land. Haripriya Bai went to the district collector with this complaint, who ordered that the land be immediately returned to her, in its original form. When this did not happen, she took her case to the high court in Bilaspur, who ordered the same thing, most recently in November 2013, when it gave the company 15 days in which to return the land. As with Krishna Sao, however, this order has not been implemented, and cannot be done without the proactive involvement of the district administration, in particular the collector. Occupation of forestland and government land In addition to private land, companies also utilize common lands and forests in and around villages, sometimes illegally. In Sarasmal and Kosampali, discussions revealed that the company had occupied at least 13.5 hectares (33.7 acres) of village common land, without approval from the Gram Sabha, and mining has continued on this land despite Gram Sabha resolutions calling for it to be ceased. In the case of forestland, documents obtained through the RTI indicate that no diversion of forestland for mining and industrial purposes had occurred in Sarasmal and Kosampalli. This is at odds with information obtained through the survey, during which villagers reported that forestland surrounding the village was also being used by the company. Additionally, at least 10 villagers who were given title or pattas to forestland under the Forest Rights Act 2006 have had their land forcibly occupied, without any compensation, by the company. In some of these cases, the company claimed that this land had been allocated to them by the government.

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In Tamnar village, there is very little forest and common land in the area of the companys operations, and official documents indicate the diversion of such land for the companys use. However, a related issue that came to light in Tamnar was the transfer of common land used by village kotwals to the company. Kotwals are government employees who undertake a number to important activities in the village, and in return are entitled to common land for cultivation of crops. However, in Tamnar as well as other surrounding villages, land in their possession was transferred to the company, without any form of compensation or alternative provision of land. ii. Compensation and Rehabilitation Compensation was among the most complex issues uncovered in the field visits and surveys, both due to the time having passed since the first round of acquisition and sale in Tamnar block took place in the early 2000s and because of a lack of clarity among landholders as to the exact rates promised, and what had been paid. Some of the surveyed households were unable to tell whether their lands were transferred under private sale or government acquisition. Similarly, a number of respondents whose land had been transferred through both processes were also unable to distinguish between what amount of compensation came from the government, and what from the company, most often citing that they received a lump sum for all the land that they lost. Equally, there was confusion about the rates and values of compensation for trees on the land that had to be cut down, and whether this was included in the compensation package, or not.17 In many cases people said that they had been compensated for fewer trees than were actually present on the land, and in a few cases not at all. The uncertainty around the compensation value made it difficult to extract precise findings for the survey, but certain trends have emerged which demand a much more detailed study. For instance, while the government rates for compensation after land acquisition are fixed, the company can negotiate with the sellers. Typically, the largest landowners are the first to sell, and at far better prices, than the smaller landowners that follow. Given existing social hierarchies, the smaller landowners tend to be those from the lower castes, and tribals. There are, of course, large landowners among the tribals as well. While larger landowners were able to argue for compensation to the tune of 10 lakh Rupees per acre, most smaller landowners ended up selling their land at around 2 lakh Rupees per acre (more if they were among the larger landowners in the ST community). The government tries to set a precedent through setting compensation rates at what it assesses to be market value, but since land
As per the Chhattisgarh Ideal Rehabilitation Policy 2007, in the case of compulsory land acquisition, it is mandatory for the government to provide compensation for trees, houses and other improvements on the acquired land.
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acquisition typically happens after the company has bought up whatever land it can beforehand, this is of little use. In any case, the government has set the bar too low to adequately account for the loss of livelihoods associated with land; until very recently, when compensation amounts were raised substantially, persons losing land due to government acquisition were paid less than Rs. 1 lakh per acre. In addition to setting the rates in a discriminatory fashion, companies will sometimes refuse to pay or delay payment as punishment for filing a case against them or resisting the acquisition and sale. Even the government is not entirely neutral in this process. In a letter from the residents of villages Sarasmal, Kosampalli, Kondkel, Dongamahua and Libra (all in the Gram Panchayat of Sarasmal) to the District Collector, the residents allege that 17 landholders from these villages (all of which have been affected by the JPL IV/2 and IV/3 coal mines) have not received any compensation for their lands, which were all transferred through government acquisition.18 The letter further lists each applicants name, land holding, and whether they have cases pending in a district or high court on the matter. Out of 17, only two have cases in the high court, while one is in the SDMs court. There are also those among the surveyed households who have not collected compensation for land acquisition in protest, opposing either the acquisition itself, or the extremely low values of compensation. As part of the rehabilitation process, the company is obliged to offer at least one job to each family whose land is acquired for industrial or mining-related projects. In Sarasmal and Kosampalli, 63 percent of the landowning households were offered a job by the company19 but strikingly, only 25 percent of the total landowning families have received jobs for a family member. Tamnar does not fare much better, although the gap is slightly narrower 55 percent of landowning households were offered jobs, and 32 percent received them. The outcome is similar, with less than a third of landowning families actually receiving jobs as part of compensation. People also complained that the jobs offered were mostly for low-paying contractual work, which usually paid between 4,000 rupees to 5,000 rupees per month. These jobs provide neither sustainability nor significant compensation for loss of livelihood. Several of those who received jobs, and others who wanted to but did not, reported that it often takes several trips and repeated requests to the company before even a contractual job is provided, let alone a permanent one. Others
A copy of the letter is available at the Sarasmal Gram Panchayat. It is undated. This includes both cases of land acquisition, and instances where jobs were promised to landholders, as an incentive to sell their land to the company.
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claimed that jobs were promised to each shareholder of a common patta (such as family-owned land, where three or four brothers jointly hold the title of the land), but ultimately provided only to one shareholder. Some respondents also reported that during the sale or acquisition, the company offered to sponsor the education of the children of the landholders, a promise that they have failed to fulfill across the board. iii. Awareness and Consent One of the most remarkable and, we believe, important findings of the study is the awareness of procedures related to sale and acquisition of land. Many people were unaware of the requirements from the government and company, and others pointed out that both had deliberately flouted these procedures. During instances of land acquisition, the government is obliged to provide a public notification of the acquisition, with the option for affected landholders to appeal against the decision within 30 days. In Sarasmal and Kosampalli, we found that only 12 percent of total landholders whose land was acquired were informed about it well in time, either through newspapers or through a notification at the Panchayat office. Another 46 percent found out after the notification period, but before the process of land acquisition had been completed. Similarly, in Tamnar, only 22 percent claim to have been informed in time about the land acquisition process, and 46 percent found out after the notification period. Results also show that 19 percent in Sarasmal and Kosampalli, and 22 percent in Tamnar found out about the acquisition not only after the stipulated period, but indeed after work had already begun on the land. In several cases, people reported that the first they heard of the acquisition was when they were asked to pick up their cheques at the Sub-District Magistrates office. Chart 4.3 Notification about compulsory land acquisition by government
Sarasmal & Kosampalli
46% 46%

Tamnar

22% 12%

19%

22%

24% 10%

Before the end of After notification After procedure the notification period but before was completed period completion

No response

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The low levels of awareness about notification and appeal explain why despite a lot of opposition, only 3 households in Sarasmal and Kosampalli, and in Tamnar, whose land was acquired by the government reported filing an official appeal against this land acquisition with the relevant authorities. Many reported being unaware that appeal was possible, while others were reluctant because of intimidation by company agents or after seeing the fruitlessness of others efforts. All those that have appealed have reported a lack of response and no positive outcomes for their case. Misinformation and Land Transfers It is not uncommon to hear of people discovering after the fact that their land had either been sold or acquired without their knowledge. In what might sound like the plot of an especially absurd film, Bharat Raj Sidar, from Milu Para, found that not only was his 1.8 Hectares of land sold without his knowledge and consent to a person whom he had never met nor seen, but also that it had been sold on his behalf by a woman impersonating his wife. The situation took another bizarre twist when upon filing a case in the high court, the revenue department claimed to have lost all documentation pertaining to his case. This case, filed in 2001, continues to be fought in the high court, and in the last 12 years Bharat has received several lucrative offers from Monet Ispat Limited (the company in question) in exchange for dropping the case, all of which he has refused. The former General Manager of the company has already been jailed for forging the signature of the buyer. Perhaps the biggest fraud perpetuated by companies has been in obtaining false No Objection Certificates (NOCs). Under the provisions of the PESA Act, land acquisition in Schedule V areas is only possible with the consent of the Gram Sabha,20 but in Sarasmal and Kosampalli, as well as Tamnar, NOCs have been taken from the Gram Panchayat instead (who are sometimes beneficiaries of the ensuing process, one dissenting gram panchayat member in Tamnar informed us), which is illegal.21 In Sarasmal and Kosampalli, only 31 percent of the respondents were aware that NOC procedures had not been followed or that a false NOC had been issued, while another 59 percent said that they were unaware about NOC procedures, or did not attend the Gram Sabha regularly and were thus not aware. In Tamnar, these numbers were 46 percent and 34 percent
As discussed earlier, private land sales from tribals to non-tribals are illegal in all instances, irrespective of the consent of the Gram SabhaG 21 Residents of Sarasmal filed an objection stating that on the date on which the false NOC is issued, there was no meeting of the Gram Sabha in the village. As a result, there are now two official documents, one that claims to have granted the NOC, and another which declares that there was no such meeting on this date, the latter filed in response to the former. See also Debarshi Dasgupta, Where the Ore Sinks the Earth, Outlook, 24 September 2012.
20

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respectively. In both cases, only 1 percent thought that the procedures had been carried out legally. In at least four other villages22 in Tamnar block, false NOCs had been taken from Gram Panchayats for projects being implemented in their vicinity. Despite this, there has been no attempt by the local authorities to investigate the issue and take appropriate action. Chart 4.4 Knowledge about Gram Sabha NOC
59% Sarasmal & Kosampalli 46% 34% 31% Tamnar

19%
8% 1% 1% Unaware/do not No NOC/false NOC Legal NOC attend Gram issued issued/procedures Sabha were followed No response

iv. Impact of the project Impact on Livelihood Security The question of livelihoods is a crucial one in the debate on land acquisition. Most of the respondents were concerned that without land, their traditional occupation of agriculture and related activities like livestock rearing and collection of forest produce were under threat. Thus, an important learning from the survey has been the proportion of people that have been rendered completely landless by the acquisition, and how many remain with land on which to farm. 64 percent of the total landholding households surveyed in Sarasmal and Kosampalli, and 44 percent of those in Tamnar had become completely landless as a direct result of the project i.e. all of their existing land holdings were bought by the company and its intermediaries, or compulsorily acquired by the government.23 A few of these people have bought land elsewhere with the compensation money received. 9 percent of landholding households in Sarasmal and Kosampalli, and 15 percent of those in Tamnar had less than 2 acres of land remaining, meaning they are engaged in some form of subsistence farming. Food security was a particularly important concern, with most people having previously grown and consumed their own food, and sold the surplus for additional expenditures. As a result of becoming landless, people were concerned that their expenditures would increase because of having to now buy food from the market, or from the Public Distribution System, and that this was
Gare, Kharsiya, Saraitola and Jhikabahal This is separate from the number of people that were already landless at the beginning of the survey
22 23

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not properly offset in the rehabilitation and compensation offered to them by the company. Eight of the respondents that were surveyed in Sarasmal and Kosampalli, and 6 respondents in Tamnar, were initially landless, and thus not eligible for any compensation or rehabilitation. However, the presence of the mines has negatively impacted their livelihoods, as they worked as agricultural labourers on other peoples lands. Additionally, any earnings that they made from common lands or minor forest product are also compromised. However, this section of affected people has not been addressed by the company or the government, and they continue to struggle to make ends meet without any external help. Chart 4.6 Current Farming Status of Landholders
64% Sarasmal & Kosampalli 44% 27% 9% 15% Tamnar

41%

Landless

Subsistence farming (<2 acres)

Still farming

Impact on Health and Environment In general, regulations on environment are clearer than those on land acquisition, with clear guidelines in place for each step. The company must apply for an environmental clearance from the Ministry of Environment and Forests (MoEF) at the central level, as well as seek approval from the State Pollution Control Board at the state level, after which it is obliged to submit an Environmental Impact Assessment (EIA) report from an independent agency. The submission of the EIAs must be followed by a public hearing or jan sunvahi, to be announced in at least 2 local newspapers, and must include all affected persons within a 10 kms radius. After the jan sunvahi, the company is expected to submit a report of its compliance with various local environmental issues, and once the MoEF has satisfactorily reviewed the jan sunvahi proceedings and other submissions, the company is granted a clearance. Local activists in Raigarh have argued that companies writing the EIAs are not as independent as they may appear, and are paid by companies to write favourable reports. A second complaint, by activists and villagers alike, is that these 400-

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page reports, as well as their 20-page executive summaries are almost always in English, and are hardly ever circulated widely, thus making affected persons unable to comment effectively on their contents. While the jan sunvahi is supposed to be about environmental issues, it often becomes a forum for discussion about social and land-related impacts as well, since there is no other platform to voice these concerns publicly. Reports of misconduct at jan sunvahis are not common, and one in Gare in 2008, a hearing of the IV/6 coal mine allocated to Jindal Steel and Power Limited, was lathi-charged.24 Activists also report that jan sunvahis are usually held in remote and difficult to access villages, in order to limit local participation, and that company supporters from other areas are brought in to speak on behalf of the company. Despite such violations, the flouting of environmental norms is increasingly being more carefully monitored. The National Green Tribunal (NGT), for instance, invalidated the January 2008 public hearing at Gare, and directed the company to hold another. On other issues relating to the expansion of the 2400MW plant, the NGT had also ordered expansion to be stopped until environmental clearances are properly obtained. It is easier to successfully appeal the stay or reversal of an industrial project on environmental grounds, particularly with the establishment of independent agencies like the NGT at the centre, than it is on grounds of unfairness in the land acquisition process. However, closer monitoring of environmental standards has nonetheless not eased the negative effects on the environment at the village level. In essence, once the applications are cleared and work has begun, there is no follow-up or monitoring of the extent to which environmental standards with regards to pollution and health impacts are being met. In Sarasmal and Kosampalli, which are both now situated on the edge of the JPL coal mine, the primary source of concern is coal dust, which settles on everything in and around the village from trees, crops, clothes, etc. Coal dust, dirty water and other waste from the mines seeps into the nearby rivers and ponds, making this water unfit to drink. Some people also reported getting skin infections from bathing or washing their clothes in the water. The presence of the coal mine also means a significant increase in the air pollution, and noise pollution. Twice a day, there are blasts to dig deeper for coal, and this results in violent shaking. In some instances, rocks and debris from the mines fly out due to the blast, and land on the roofs and houses of the inhabitants, often causing serious damage to the structures. In addition, the vast amount of deforestation has meant a significant

An alternative jan sunvahi was conducted in September 2013. See Alok Gupta, 'Public Hearing for Jindal coal projects held amid protests', Down to Earth, 27 September 2013. Available at http://www.downtoearth.org.in/content/public-hearing-jindal-coal-project-raigarh-held-amidprotests
24

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reduction in access to forest produce, and the takeover of common land by the company has meant reduced availability of fodder for livestock. In Tamnar, living right next to the power plant means constant exposure to smoke from the plant, as well as increased air pollution due to this and the presence of coal dust in the air. Villagers reported a noticeable increase in respiratory diseases, and sickness among children. Pollution is affecting the health not only of humans, but also livestock. As with Sarasmal and Kosampalli, water pollution is a major issue, particularly with regard to industrial effluents. Water is unfit for drinking or bathing in, and locals say the availability of fish in the water bodies is decreasing. Social Impacts In addition to affecting the physical environment, the presence of the company also has adverse effects on the socio-cultural life of the community. In all three villages, the presence of industry meant that many labourers were brought in from outside. This created a sense of resentment among the residents, which often manifested itself in claims about those outsiders making the area more unsafe for women, or being the cause of increased instances of crime. Others pointed out that there was increase in the number of road accidents because of the number of dumper trucks carrying coal to the plant, reportedly driving at reckless speeds. The biggest change for the affected families was the changing nature of livelihood, and of learning to cope with a new way of life that did not have agriculture at its core. Many families were accustomed to producing their own grains, fruits and vegetables. Others felt that the company was not compensating adequately for the loss of livelihood. The effect on employment overall however was ambiguous, many felt that the company had generated more employment by being established there in particular, people of lower castes in Tamnar village felt their social standing had improved, and their being landless no longer meant that they were at the mercy of the upper caste landowners of the village. Others also felt that the level of education had improved, more people were sending their children to private school than before. Even some of those who were not properly compensated said that if they had been, perhaps life would have improved, as it appeared to have for those who had been properly compensated. However, most felt that losing land meant losing their livelihood, which had not been replaced with a steady source of income from the company. It was pointed out that those who received the most generous compensation packages were those that were already powerful in the village the large landowners, who ultimately became facilitators for the company.

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v. Corporate Social Responsibility Under Corporate Social Responsibility, companies are expected to provide certain services and undertake work to fulfill the developmental needs of the villages. In the case of Tamnar, this includes the building of boundary walls for schools, building water tanks, public taps and digging bore wells to provide drinking water, building roads, setting up community halls, and sometimes putting up a medical camp and providing free medicines. Additionally, some people also reported individually receiving financial assistance, or donations for festivals. Many people responded to questions about CSR with an irritable what have they done here, even where the company had undertaken CSR efforts in the village. CSR mainly is a fraction of R&R responsibilities, but done as a kind of charity, rather than the right of affected persons. The general sense, with few exceptions, was that digging wells or putting taps in place was not adequate for the loss of land and livelihood that most people have had to suffer. Most people said they would have preferred getting a permanent job with the company instead, and some even complained that the water in the taps was not fit for drinking, which rendered their provision somewhat ineffective. Many believed that the CSR activities were tokenistic, and not necessarily in the best interests of the village. As an answer to a question in the Vidhan Sabha in 2011, Jindal Power Limited (which owns both the coal mines in Sarasmal and Kosampalli, as well as the power plant in Tamnar) reported that from 2006 to 2011, in the district of Raigarh, it had spent only Rs. 46 crores on corporate social responsibility and other activities, having promised, at the start of 2006, to spend at least Rs. 150 crores over three years.25 According to its own admission, however, it has failed to spend even a third of this amount over five years.26 Moreover, in each year, among its largest expenditures on CSR is on the development of and student welfare in the O.P. Jindal school in Raigarh.27 This, however, is a private school in the city of Raigarh, not benefitting the children of any affected people in the villages of the district (a fact that has not gone by unnoticed in the rural areas affected by industry and mining).

Information submitted in response to Vidhan Sabha question no. 767 (b), asked by MLA Mohammed Akbar in the Monsoon session of 2011. The document contains information on previous conditions fulfilled by industries in the state of Chhattisgarh. This document was obtained under the RTI act in Raigarh. 26 The figure for the first three years is even lower, just under Rs. 40 crores. 27 Expenditures on the O.P. Jindal School in each year are as follows: 1.4 crores in 2006-07 (biggest expenditure that year); 3.18 crores in 2007-08 (biggest expenditure that year); 2.16 crores in 2008-09 (third largest expenditure); 10.5 crores in 2009-10 (third largest); 38.9 lakhs in 2010-11.
25

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The District Collector of Raigarhs note on proposing a new CSR policy also notes that present CSR spending is arbitrary and ad-hoc in nature, that there is inadequate monitoring, and that people are generally skeptical of companies efforts, which the document acknowledges are often ingenuine.28 In an effort to streamline CSR with the development agenda of the district, Raigarh has set up a common fund at the DCs office, which will collect CSR money directly from companies, and set up a monitoring cell to ensure that it is used productively and for genuine development efforts.

5. Role of the State in the context of the new land acquisition law As we saw in Raigarh, although land transfer implemented by the State was accomplished through means that formally appear legal, they often involved practices that were not substantively legal and threatened the rights of the very people that the law was meant to protect. Affected families had difficulty in telling the State and the private industry apart in the land acquistion process, which suggests either that the two acted in tandem or the outcomes of the direct land transfer and compulsory acquisition by the State were not vastly different. Even if private companies alone were responsible for the disregard for law such as that observed in Raigarh, the State is complicit in the act by its very absence and inability to prevent such practices. Alternative mechanisms: The role of community mining As an alternative to big companies mining land, residents of Gare in Tamnar have launched a campaign for what they call community mining, where landholders themselves will be in charge and will directly reap the profits of coal mining. On 2 October 2012, villagers symbolically broke what they called the koyla kanoon, saying that if coal mining is essential for the development of the nation, then they can do this themselves, by setting up a company in which the villagers are shareholders, so that they have an equal stake in what becomes of their land.1 In return for this, they are willing to pay the government ten times the royalty that mining companies pay. In the case of Gare, which falls within the disputed IV/6 Gare-Pelma coal block, the mining rights for this coal block have already been allotted to JSPL in 2006. The company had until 2012 to acquire land, get environmental clearances and so forth. The only way in which the community can ask for this allotment to be revoked is if the corporation does not adhere to the timeline and the community asks for the rights instead. So far the government is silent on the issue, with matters being complicated by the fact that the JSPL has failed to acquire the requisite land and environment clearances in the stipulated time.

28

Approach Note for CSR Policy in Chhattisgarh, 31 March 2012, District Collectorate, Raigarh.

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However, with the State unable to execute public purpose at the speed and with the efficiency necessary to meet its development goals, there appears to be no viable alternative at present to the idea of private involvement in executing public purpose. Some alternatives have emerged to the development process being managed by local communities, without the involvement of the State or private companies (see box on community mining in Gare), but these are largely isolated incidents and have received little support from the State. There is little consensus at present on how the role of the State should change, to respond to the new challenges that emerge as a result of the withdrawal of the State from taking a lead role in this process. In such a situation, the land acquisition law in the country becomes an extremely important tool for setting clear guidelines for the State, as well as codifying a minimum standard for largescale private land transfers. Currently, there are at least 4 prevailing views about what the role of the State should be in land transfers between private companies and landowners, for public purposes: i. Hands-off Policy: One important view is that the state should have nothing to do with compulsory land acquisition for private companies. If private companies need land, they should negotiate with the landowners and pay them what they demand, if they choose to sell their land. If they do not, then they should not be forced to do so by the state. The willing buyer-willing seller model is said to be an efficient mechanism that allows for the two parties involved to directly negotiate a price acceptable to both and accounts for subjective preferences that could be higher than the objective rate of compensation decided by the State. However, the Raigarh experience shows us that this is far from the case. Between the acquirer and the affected person, the balance of negotiating powers is tilted in favour of the acquirer who has more resources, access to more information, more agency and is better organised than the landand livelihood-losers. Thus, the probability that coercive tactics and intimidation will be used to persuade unwilling sellers to become willing sellers at a price acceptable to the acquirers is quite high. In the case of Raigarh, common tactics used to intimidate landowners were the dumping of earth and other materials on the fields and blocking access to the fields. Another problem with this approach is that the receiving company is not obliged to undertake R&R, or offer adequate compensation. What goes in the name of CSR is no substitute whatsoever to a rights-based legally binding entitlement of R&R (which we shall see the new legislation, now in force, does address).

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ii.

The 75:25 Approach: A second approach is that the private company should be required to first purchase a certain proportion of the land themselves, say 75% or 80%, through the willing buyer-willing seller model. It should then be their right to approach the state to compulsorily acquire the remaining land for them. This option is often touted to be optimal for growth in terms of discouraging the holdout problem that often delays projects that provide a clear public benefit. When the option exists for people to claim compensation by the government by holding out, they can in theory refuse any offer that is lower. It would appear that this option leaves the affected persons best off, by encouraging private companies to provide higher compensation, but this is not so. This method also discounts the imbalance of powers between the two negotiating parties and those without agency again are vulnerable to exploitative sales. In the case of Raigarh, we saw that powerful landowners were the first to sell, and on average received better compensation than the smaller landowners, who were from the SC and ST communities. In addition, the threat of forced acquisition by the government was used to force landowners to sell their land to the company. This approach in fact benefits private parties the most as, in effect, there is no real cost to the company from the holdout, with the government guaranteeing that land will be acquired from the recalcitrant landholders. There is therefore no incentive for the company to offer compensation packages higher than that offered by the State. Furthermore, this leaves no choice with the affected person about whether their land should be acquired or not (unlike the hands off approach) and can be especially harmful when the public benefit is hard to establish, when the State sides with the private company and/or when the legal provisions for compensation and rehabilitation are insufficient.

iii.

Compulsory Acquisition Only by the State: A third view is that all land acquisition for public purpose should be done by the State, and not by private companies. This hopes to address the inequality in bargaining power between the company and the landowners, which often leads to coercive sales, putting landowners at a disadvantage. This method is meant to ensure that the acquisition is legally implemented and adheres to minimum standards for compensation, rehabilitation and resettlement, as mandated by the law. Our findings in Raigarh show that this is not necessarily true, and that the state is also susceptible to powerful influence and corruption. Grievance

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redressal was ineffective, since filing an appeal did not mean that the land was returned, neither did compensation increase. However, proponents of this view argue that it is the least unfair of all the methods. The presence of the State as the negotiator creates an accountability towards the people that private companies do not possess, whether in matters of fairness of transaction, compensation, consent, or other pertinent issues. This view argues that the state, however flawed, nonetheless has more of an incentive to act in the public interest and that this is the most equitable (or least inequitable) approach to land acquisition. iv. Choice Between Direct Purchase and Compulsory Acquisition: A fourth view is that the choice should lie with the private company; whether it wants the government to acquire land or it wishes to approach landowners directly. More so than the 75:25 approach, this method provides some incentive for companies to provide higher compensation than mandated by the government, as there is no option to ask the government to acquire the remainder of the land area in cases of holdout. However, when the company chooses to acquire the land itself, this method suffers from the same drawbacks highlighted in the hands off approach. When the government acquires land on behalf of the company, this method has similar outcomes to the one in which compulsory acquisition is permissable only by the State. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (hereafter referred to as the RFCTLARR Act, 2013) was passed in September 2013, replacing the Land Acquisition Act, 1894, which, despite its colonial legacy, had continued to be in effect for more than a half-century after Indias freedom in 1947. The earlier law was a mixed bag of various approaches but adhered most closely to the 75:25 rule, even though no such limits to how much land the company was required to purchase were set in advance. This effectively amounted to a hands-off approach by the State, until the company failed to purchase the entire parcel of land that it required for the project. The company could in this situation request the government to step in and acquire the remaining portion of the land through compulsory acquisition. Indias new RFCTLARR Act, 2013 is a variation of the last approach, which allows private companies to choose whether the government will acquire the land through the procedures laid down in the RFCTLARR law or the company will acquire the land through direct negotiation (willing buyer-willing seller). However, in situations where the company chooses to approach the government to acquire land on their behalf, they are required to get the consent of 80 percent

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of affected families (70 percent in the case of public-private partnerships). When the companies acquire the land themselves, they are also required by this law to provide compensation, rehabilitation and resettlement to affected families, in cases of large-scale acquisitions. Our dominant concern is that if the companies do choose to or are compelled to buy the land for themselves, as in Raigarh, strong-arming and intimidation tactics will continue. There is also little guidance on how compliance with the law will be monitored, for example in ensuring that affected persons were correctly identified, compensated and rehabilitated. All the methods mentioned above, except for the one in which only the State is authorised to acquire land for public purpose, require that the State be present as a neutral arbitrator and a guardian of rights for the affected person, to prevent the unjust land transfer practices observed in Raigarh. The absence of the State in this capacity has grave consequences for those affected, including, but not limited to, displacement without resettlement and rehabilitation, health problems and loss of livelihood. Only the State can hold private companies accountable for delivering large-scale public benefit without imposing a significantly larger public and environmental cost. At the same time, the law governing land acquisition by the State should also impose strict guidelines on the State for when compulsory acquisition can be exercised, what its responsibilities are and any such law should pay particular attention to recording and resolving public grievances. The RFCTLARR Act attempts to accomplish this in three ways: i. Defining Public Purpose: The Act gives us a list of public purposes for which land can be acquired under provisions of the Act. These include, among others, strategic defence and national security, permitted infrastructure projects, housing and urban development, residential housing for the poor and landless, as well as land for persons displaced or affected as a result of natural calamities or schemes implemented by entities owned or controlled by the State. In Schedule 1 of Section 2 in the RFCTLARR Act, 2013 projects for industrial corridors or mining activities, national investment and manufacturing zones, as designated in the National Manufacturing Policy are considered within the scope of public purpose. The list clearly lists the purposes for which the law applies and is, therefore, less open to interpretation than its predecessor. The list has no openended clause for other purposes that are unforeseen at the time of the drafting of the law, as is common in some other countries. However, the list of permitted infrastructure projects allows for other projects to be included within in by tabling a notice in Parliament to that effect. It must be noted here, however, that there are no constitutional provisions or guidelines regarding compulsory land acquisition and

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therefore any additions to the list can be accomplished relatively easily by amending the RFCTLARR Act, 2013. ii. Defining affected person: The Ministry of Rural Development has said, The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Billis in continuation of thecommitment to enacting rights based legislation with the objective of empowering the common man.29 Where the Act most fulfills this stated purpose is in allowing not just land losers but also livelihood losers to claim compensation, as well as tribals and traditional forest dwellers that lose their forest rights. Certainly, the move on broadening the concept of compensation to livelhood losers is a major step in the right direction, and many affected families in Raigarh would have benefitted, had this provision been active earlier. Guidelines for compensation: As regards compensation, in addition to the legal market value of the land, land losing families are entitled to a solatium of 100 per cent of the land value. They are also entitled to various benefits from the project or the future use of the land, under the rehabilitation and resettlement guidelines. In the case of urban development projects, 20 per cent of the developed land will be reserved for land losing families. In addition, projects that create jobs will provide training and employment for at least minimum wages for one member per affected family. In case this is not possible, each affected family is entitled to a one-time payment of 500,000 rupees per affected family; or an annuity of 2000 rupees per month per family for twenty years, adjusted for inflation. The enforcement of this provision would certainly increase the pressure on companies to fairly compensate loss of livelihood, in a way that is not presently acknowledged.

iii.

While a progressive piece of legislation in many respects, the RFCTLARR Act, 2013 fails to address some key issues. As confirmed through the research conducted in Raigarh, one reason why abusive and inequitable land acquisition practices have gone unchecked in the past has been information asymmetry, ignorance among affected populations about what land acquisition practices the law mandates and what the entitlements of land-losers and livelihood-losers are under the new Act. Until this is addressed, in the absence of any pressure to do otherwise, both private companies and the State will not shy away from taking advantage of the affected families lack of information and attempt to acquire land at the least possible cost to themselves. In addition, while the consent clause
29

Press Information Bureau, Government of India, Release ID :99066, 03 September 2013

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should ideally protect the interests of the affected persons, the Raigarh experience shows that malicious intent often leads to circumvention of the law and coercive practices to obtain consent, even if the language of the law dictates otherwise. The RFCTLARR Act, 2013 also inexplicably exempts some important laws from the acquisition, rehabilitation and resettlement procedures laid down in the Act for a year from the commencement of the Act. These laws include the Railways Act, the Coal Bearing Areas Act and the Land Acquisition for Mines Act, which are among those under which the largest amount of land acquisition takes place. While this schedule already includes thirteen such laws, the Centre can add to or subtract from this list by executive notification. Even though the new Act has generous entitlements for affected families (not just land losers), the States demonstrated bias towards supporting private industry at the expense of the affected persons means that private land-owners could continue to be pauperised, receiving rock-bottom rates for land, which either the state formally acquires from them, as it did for state implementation of public purpose projects in the past, or land which they voluntarily sell to private companies. Without sensitive institutions, participation of local bodies such as the Gram Sabhas and participation of the affected families themselves, it is unlikely that the experience of affected families under the RFCTLARR Act, 2013 will be vastly different from those in Raigarh.

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