DEATH PENALTY AND ITS DETERRENT EFFECT-

                                               
                                                  Ajmal Kasab's hanging has given a sense of justice and relief for many Indians for his role in Mumbai 26/11 Terror Attacks, but the other masterminds of Mumbai terror attacks are still at large in Pakistan, be it ISI and other Terror organizations.

                                              I strongly opine that homicide in return for homicide is barbaric as it resembles eye for an eye and tooth for tooth justice of medieval times and uncivilized.  France and Germany have completely done away with death penalty and reported lesser crime rates.  Many studys' conducted in US and some other countries where death penalty is still in force have proved that, it doesn';t have a deterrent effect on crime rate and more than death penalty, it's rigorous imprisonment for life that has more deterrent effect than death penalty. Incarceration for life proved to be  more effective in preventing repetition of the same or other crimes by the same convicts than that of death penalty.  In countries, where death penalty has been abolished less crime rates have been reported.

                                      Apart from incarceration for life, solitary confinement and shaming the person through social boycott etc are other options. For crimes of rape and acid attacks also, incarceration for life and the above two suggested alternatives could be considered as viable alternatives to death penalty in addition to confiscating the entire property of the criminal and paying it as compensation to their victims. 
 
                          Educating the guilty regarding the barbaric and heinous nature of their crimes and making them feel ashamed for their crimes and their crimes' lethal and traumatic impact on the  minds, limbs and lives of their victims  through reformist approach and making them truly repentant for the heinous crimes they've  committed on innocent fellow humans like Ajmal Kasab did on his victims lives would help curb the growing incidence of homicides and sexual offences including the diabolical acids attacks on innocent people.

                                                                   In India, after Kasab, the next turn awaiting death penalty is that of Afzal Guru. The Indian Supreme court  has  also recently commented that imposition of death penalty has largely remained a "Judge's Caprice and many a time it could turn out to be arbitrary".; subsequent to the punishment of hanging it came to be known that some innocents also had been hanged. For rapists and others who commit sexual offences of all kinds including pedophiles, castration is the best punishment apart from imprisonment for life in the true sense of the term. Incarceration for life shouldn't be for 14 or 20 years but throughout the person's entire  life with hard labour.

                                                              According to Jesus Christ "Hate The Sin And Not The
Sinner";  adage should be followed. Hence, we should follow this wisdom of Jesus Christ. No doubt,  Rapists, sexual offenders, acid attackers and murderers are committing heinous crimes on the lives  and limbs of innocents and are indulging in most diabolical and despicable crimes against the person and property of others thereby violating their victims precious human rights of life and limbs and other resources with impunity.

                                                         I am a champion of human rights, and stand for secularism, democracy, equality and feminism. If the convicts of  rape, other sexual offences and murdererss have lots of financial resources, it amounts to dispensing or meting out real or true Justice  to the victims of such horrendous crimes by subjecting such criminals to lifelong incarceration, castration(In case of sexual offences) in addition to compensation to victims. we should change the laws to confiscate such criminals' entire property and get it transferred to victims of such heinous crimes.. For sexual offenders, castration should be made mandatory apart from incarceration for the offenders entire life and confiscation of his entire property and disbursing it to the victims of his crimes.

                                                           Police and Prisoner's Reforms are the need of the hour.The unholy nexus between/among politician, police and criminals need to be broken at once,  and criminals however high, rich and mighty maybe should be immediately brought to book. Death penalty should be abolished forthwith,  if we really want substantial reduction in crime rates. Our men should be taught to respect women/girls  dignity and other human rights right from childhood and it should be inculcated in young boy's minds that girls or his sister etc are equal to them  and no less inferior to them. It should be rooted in the minds of boys right from childhood that girls are equal to them in all respects and they should be venerated and loved  instead of being treated as chattels and with contempt. As one loves  himself and his own life, it should be taught and firmly entrenched in young boys mindsets that others also have similar love for themselves and their lives and they shouldn't violate  fellow human beings' person be it  in the form of sexual violation or violation of dignity or life or limb of another person. Reformist approach definitely works wonders in changing the mindsets of criminals and substantial reduction in crime rates.

Ms.Nirmala P.Rao
Legal Expert and Political Analyst

www.wizard-legal25.blogspot.in 

                               

                               

CRITIQUE ON THE POWERS OF COMPTROLLER AND AUDITOR GENERAL UNDER THE INDIAN CONSTITUTION

According to BR. Ambedkar  "The Comptroller and Auditor General

of India shall be the most important officer under the Constitution

 of India. Fair he is to be the guardian of the public Purse and it is 

his duty to see that not a farthing is spent out the consolidated 

Fund of India or of State without the authority of the appropriate legislature"..

current status

                      Public Audit is a vital instrument of ensuring supremacy of Parliament over executive and enforcing public accountability. Public audit institutions developed over time to help legislatures to implement the power of the purse. This power had two essential elements: the granting of the moneys and supervision of the expenditure. State audit in its present form was introduced first time in Great Britain as an integral part of parliamentary control over national finance with the enactment of Exchequer and Audit Department Act in 1866.The Act required all departments for the first time, to produce annual accounts known as appropriation accounts. The act also established the position of Comptroller and Auditor General (C&AG) and an Exchequer and Audit department to provide the supportive staff from within the civil service. The results of C&AG's investigations were considered by a dedicated parliamentary committee called the Committee on Public Accounts thus establishing a circle of parliamentary financial control

            The system of Government accounting and auditing and the organizational structure of the Indian Audit and Accounts department (IAAD) as it exists today in our country is the legacy of British Raj and is more or less patterned on British model. The IAAD has a history dating back to 1858 when the East India Company administration was taken over by the British Government and an Auditor General of India, who looked after both audit and accounts functions, was appointed. The introduction of constitutional reforms in 1919 brought about statutory recognition to the Auditor General.. The Government of India Act 1935, gave further recognition to the importance and status of the Auditor General.                      

1.1 Constitutional and Statutory Mandate

 The Indian Constitution gave  special status to Comptroller & Auditor General (C&AG) as laid down in Articles 148 to 152. The C&AG's Act, 1971 regulate the duties,  powers and conditions of service of the Comptroller and Auditor General.

4.         Section 13, 16 and 17 of Act gives authority to C&AG to audit all expenditure from and receipt into the Consolidated fund of India and the State. Section 14, 15, and 20 of the Act authorises C&AG to audit the receipts and expenditure of bodies or authorities substantially financed by loans or grants from Union or State or Union Territory. Article 151 of the Constitution prescribes that Audit Reports on the accounts of Union and the States be submitted to Parliament /State Legislature.

1.2 Organizational Structure:

Relevant Provisions Of The Indian Constitution: Article 148(1): There shall be a Comptroller and Auditor General Of India who shall be appointed by the President by warrant under his hand and seal and shall only be removed from office i8n like manner and on the like grounds as a Judge of the Supreme Court Of India. Article 151: Audit
Reports: 1) The Reports of The Comptroller and Auditor General Of India relating to the accounts of the Union shall be submitted to the President, who shall cause them to be laid before each House Of Parliament. 2) The reports of the CAG of India relating to the accounts of a State shall be su8bmitted to the Governor of the  state, who shall cause them to be laid before the Legislature of the State.:

5.       The C&AG is the head of the Indian Audit and Accounts Department. The office of the C&AG directs, controls and monitors the activities of the various offices of the department and is responsible for development of organisational objectives and policies, auditing standards and systems, laying down policies for management of man power and final approval of the Audit report. For carrying on these responsibilities field formations exist for each specific areas of auditing and accounting.

6.         The offices of IAAD are spread throughout the country. There are 34 Union Government Audit Offices headed by Director General/ Principal Director of Audit and 60 State Accounts and Audit offices headed by Principal Accountant General and Accountant General. There are 60000 personnel in the IAAD with about 500 Group A officers belonging to the Indian Audit and Accounts Service (IA&AS).The total budget of the IAAD is around Rs 846 crs bulk of which constitutes expenditure on pay and allowances of the staff.

  \1.3 Evolution of  Audit since Independence

7.         The traditional audit conducted by the supreme audit institutions (SAI) is known as Regularity audit which implies checking upon the legality of an action taken by a public official or a person using public funds and whether the decision or its implementation is according to the law, rules or regulations governing that activity Gradually its dimension was extended to Financial audit and now to Value for Money audit. Financial Audit basically means audit of financial statement and whether they provide reasonable assurance that they present fairly the financial position, results of operations, and cash flows of an audited entity in accordance with generally accepted accounting principles. In Financial audit, State auditors do almost the same kind of job which the Chartered Accountants do while auditing a public limited company .

Value for Money or 3E's Audit: also known as Performance audit is an independent assessment of the performance of an organization, programme, project or an activity in terms of its goals and objectives- how far expected results have been achieved from the use of available resources of money, men and material. Put it differently an examination is made regarding economy, efficiency and effectiveness of public spending, which has co9me to be known  as 3E audit.l. Put it differently an examination is made regarding economy, efficiency and effectiveness of public spending, which has come to be known as 3E's audit.

q       Economy: minimising the cost of resources used or required - spending less;

q       Efficiency : the relationship between the output of goods and services and the resources to produce them- spending well;

q       Effectiveness: the relationship between the intended and actual results of public spending - spending wisely.

                  

.         The concept and technique of audit has undergone a major change during the last fifty years. Before India became independent, the government audit was mostly confined to check against provision of funds, rules and orders and competence of authority concerned to sanction expenditure. With the launching of the Five Year plans for economic and social development there has been change in the pattern of government expenditure necessitating shift in the emphasis, concept and practice of audit as scrutiny of individual transactions became inadequate as it tended to mistake wood for the tree. The Parliament and the public are more interested to know whether various development and welfare programmes are being executed efficiently and whether they were producing the expected results. This lead Audit department to enter in the area of Performance Evaluation and Value for Money Audit. Audit department is now producing a large number of performance reviews every year covering almost every facet of government's working.

9.         Audit of Revenue: C&AG after some initial resistance on the part of revenue department was able to extend its dimension to audit of revenues which includes audit of tax assessment such as Income tax, Central Excise and Customs, Sales tax etc. The audit of receipts has helped bringing considerable revenue for the government by pointing out cases of under assessment of tax, and also assisted in better functioning of tax administration machinery by pointing out lacunae or loopholes in the Act/ Rules and deficiencies in the functioning of tax administration.

10.        Audit of Commercial Enterprises: The audit of government companies was brought within the purview of C&AG’s audit at the insistence of then CAG by introducing a suitable provision in the Companies Act 1956, although there were initial attempts to exclude his jurisdiction. Thus, while Chartered Accountants are required to certify Annual Accounts of government companies, C&AG has been granted right to conduct supplementary audit.

                                   

2.  WEAKNESS OF THE EXISTING SYSTEM :

2.1 No Powers to Enforce Audit Findings - Violation of Rules

11.        One of the primary functions of audit is to see that provisions of law, rules and regulations are properly applied while incurring expenditure or collecting revenue. In order to regulate usage of money elaborate rules and regulations have been drawn by government. While audit notices systematic violation of law, rules and regulations by departmental officers it is unable to take an effective action to prevent them.

12.        The Bihar fodder scam will illustrate the point. Serious financial irregularities and misappropriation of government funds were being committed by senior government functionaries and the Treasury officials all acting together in collusion. The Accountant General (AG) Bihar could not detect the irregularity in time as Treasury officers suppressed the vouchers through which money was drawn and did not transmit them to AG thus preventing its audit. C&AG has been making mention of excess drawl over voted provision in its Audit Report presented to Bihar Legislature but Public Accounts Committee, it is said did not even met to discuss the report leave apart take preventive action. After the scam became public knowledge, C&AG has produced a well documented Audit Report but it is more a case of getting wise after the event—after crores of public money has been looted and shutting  the stable door after the steed has been stolen.

13.        The accounts keeping 

of State governments companies is in chaotic state. Out of about 900 State government companies the Annual Accounts of as about 700 companies is in arrears sometimes for periods as long as ten to twelve years. The Companies Act stipulates that the Annual Accounts of these companies should be got audited by Statutory auditors (Chartered Accountants) and C&AG within six months of the close of financial year viz. 30^th September. Should a situation where management of these companies violate with impunity the legal provision laid down in the Companies Act be allowed? Similar is the situation with large number of autonomous bodies, which receive substantial grant from government every year. Many of them do not submit their Annual Accounts in time for audit. In numerous cases, accounts when prepared do not follow the accounting standards, contain serious mistakes and when pointed out, the concerned organisations refuse to rectify the errors . And yet they continue to get government grants every year. Should not C&AG be empowered to take legal action against management of such defaulting organisations, so that tax payer is assured that no misuse and misappropriation of public funds has taken place?

                              Some of the most formidable challenges faced by CAG are enormous delays in audit and submission of Audit reports, But, the CAG had overcomne this by undertaking overseeing of preparedness for Commonwealth games on the Central Governmewnt part and carried out quick appraisal and other lapses and ultimatewly unearthged Commo Wealth Games scam worth crores of rupees.

   Secondly many states are demanding Seperate   independent Audit  Authorities for the states on the lines of "                                 Sp
State Eelction Commisions and Stater financilal Commssions. so that an effective and effcient way of conducting  audit of states' Adnministrative expenditure in view of heavy work load of CAG. This can be done by bringing in necessary constitutional amendment doing full justice of federalism enshrined in our Constitution.

                         Another critisim was Government's allegation that CAG was interfering with Government policy decisions; it flies  on the  face of accusing Government.,as CAG has Unearthed a number of scams in the recent past.such as CWG scam, 2G spectrum scam, Adarsh Housing Society scam of Maharashtra, prior to that Bofors in 80s, Fodder scam in Bihar, S band, KG basin, NRHM scam etc etc. casing loss of billions of rupees to the public exchequer.
            
                                       CAG doesn't have power to demand necessary information from the Government/executive directly. He has to submit audit reports to the Public Accounts Committee and Public Undertakings Committees., The CAG is an agent of the parliament and conducts audit of expenditure of the Governments, both central and state and oi on his behalf PAC and PUC o submit his audit repiorts to the Parliament.t. h. However in this process enormous delay occurs, which is responsible for administrative or Government apathy on account of delay and the report becoming ineffective and irrelevant due to lapse of time, thus leading to Government inaction and apathy with respect to his reports Hence the reports of the CAG should be dealt with the utmost care and urgency and appropriate action should be taken for Government Malfeasance.

2.2 Legal position 

14.        Section 13 of the Comptroller and Auditor General’s Act, lays down that it is the duty of audit: to  ascertain that the money, which has been disbursed was legally available for the service or   purpose on which it has been applied and  there is a proper authority to spend the money. What happens when a public official spends money, which is not legally available viz., it is in violation of laid down rules and regulations. The Act is silent about it – all that the last sentence of Section 13 says, “ in each case to report on the expenditure, transaction or accounts so audited by him.”  If the C&AG makes a report about the irregular usage of money to the Departments whose officials have committed the default and they contest C&AG’s decision or do not take any action, it virtually amounts to the departments sitting over judgement on C&AG’s findings and obstructing the duty he is required to perform under the law. In no other country of the world State audit finds itself in such a helpless situation.

2.3 Position in Advanced Countries

15.        Most Supreme Audit Institutions (SAI) have been vested with powers to fix responsibility on the officials who have caused loss to the exchequer and have legal power for its recovery. In New Zealand under the Public Finance Act of 1977, the Controller and Auditor General(CAG) is empowered to hold an enquiry which may require any  evidence to be given either orally or in writing and to which the provisions of Crimes Act relating to perjury  applies. The CAG has power for surcharge if he finds that there is deficiency or loss of money or store caused through fraud, mistake, default, negligence, error or improper or unauthorized use. In Japan the Board of Audit has powers to adjudicate and can order an official to indemnify the loss and direct the supervising officer to take disciplinary action against the delinquent official when it finds that the official has caused grave loss to the State either deliberately or by gross negligence. In France Cour des Comptes which functions like a court may order accounting officers to settle uncollected revenue or irregular expenses out of their own resources, if during an investigation it finds that the accounting officer has failed to provide satisfactory justification- on the ground that they have formal personal responsibility. Hindering  Cour's investigation may give rise to a monetary fine. The judgements of Cour are legally binding and can be appealed only on points of law.

.      
  In South Korea ,  the Board of Audit and Inspection (BAI) law , confers authority to the Board to examine and adjudicate whether an accounting official or any other person is liable for reparation and the manner in which recovery is to be made and execute collection by applying mutatis mutandis provisions concerning disposition of taxes in arrears in the National Tax Collection Act. In China under the State Audit Act, an audited unit violating financial and economic laws and regulations, the audit organs may confiscate or instruct them to return the illegal gain; take over the embezzled state assets; take decisions to cut off such appropriations or loans; and impose fines. In Thailand under the State Audit Act of 1979, Auditor General can summon an official to deliver accounts and registers; attach money, properties, accounts registers, documents etc. of the audited agency and summon a person to testify as witness. If a person who has the duty to keep in his custody money or property or documents etc., damages, destroys, or causes loss he is liable for imprisonment upto five years or a fine or both. The Auditor General and the competent officials while performing their duties under the State Audit Act are treated as officials under the Penal Code.

2.4 Need for Conferring Legal Powers 

17.        
The situation in our country needs to be remedied by conferring legal power to Audit Officers to enable them to implement their findings by making suitable provisions in the C&AG’s Act  on the lines enjoyed by State audit institutions of other countries. The Act should entrust Audit Officers with following powers: (a) powers to summon the concerned officers before it for evidence on oath and (b) where default is established, after giving due opportunity, they be required to make good the loss, (c) in case the official does not make good the loss and the default or neglect  is established, a report be made to the superior authority of the department where officer is working for taking disciplinary action under the Civil Services Conduct Rule, (e) where action of public official involves criminal liability, the public prosecutor be informed either by Audit official or by the Department to which he belongs for  initiating criminal action under the Penal code.  For discharging this quasi-judicial function the powers similar to those available under Commission of Enquiry Act be vested with the Accountant General / Principal Director of Audit who are heads of department  by making suitable legal provision to that effect. To make the system transparent and fair there should also be a provision of appeal with final appellate stage at the level of  Addl/Deputy Comptroller and Auditor General at the head quarters of CAG Office.
 

Boomerang on the party

"Whenever the Congress is in trouble or faces criticism, they try to weaken the institutions if they are constitutional bodies," senior BJP Leader M Venkaiah Naidu told reporters on Union Minister V Narayanasamy's remarks on CAG.

In an interview to PTI yesterday, Narayanasamy had said a former CAG's suggestion of constituting a mufti member CAG body is under the Considerations of the Central Government..

Leaving political leaders  and their comments aside, a muti member body on the lines of our election commission along with separate 'state independent Audit authority bodies should be brought by bringing an amendment to the constitution  so that it prevents the CAG for succumbing to dictatorial and authoritarian tendencies  and partisanship in discharge of his duties and he/she may overstep their authority vested in him as he is the sole Auditing Authority in India at present. He should be conferred s more teeth.

                                                  " CAG is an independent Constitutional Authority and Custodian and guardian  of Public Exchequer/ Tax Payers Money, and he is duty bound to discharge his duty most honestly to point out  breach of public officials' financial propriety, integrity and ethical practices on their part in the form of efficient and effective audit reports to the parliament through public Accounts Committees and Public Undertaking Committee." 

Ms.Nirmala P.Rao
Legal expert and Political Analyst.wizard-legal25.blogspot.in 

LAND ACQUISITION AND ADEQUATE COMPENSATION IN INDIA

                     Land Acquisition Act 1894 and Criticism in relation to it:   It  has been criticized by groups that view the act as weak and ineffective, and by groups that view the act as draconian. People who feel that act is weak argue that the procedure followed is cumbersome and costly, often resulting in inordinate delay in land acquisition. This group argues that, the determination of public purpose should be matter of executive discretion and should not be contestable at law. It has also been argued that the property valuation techniques are flawed and that the land owners get to peg the value higher than the real value, based on ‘potential value’ and ‘opportunity value’ of their property; resulting in, what is claimed as, a heavy strain on public finances and restrictions on the scale of development and redevelopment projects. There is also opposition to the additional payment of solatium to landowners over the property value.
 

                        People who argue that the act is draconian claim that a number of projects with no public purpose attached, as in the case of SEZs, usurped land from property owners, with the help of the Land Acquisition Act, at what is claimed as, well below the market value of these properties. It is argued that, even in the case of projects that are genuinely for public purposes, there is a considerable difference between the market value of the property and the value that the land acquisition officer pays the land owners. It is also argued that the relocation and rehabilitation of land owners displaced by the actions of the act, is not followed up adequately, and that this is not covered comprehensively in the framework of the act. A notable instance of opposition to land acquisition, through the land acquisition act, is the Nandigram violence incident.

I                   It is for this reason that government has proposed further amendments in the Act to strict define the purposes for which land could be acquired. If the Amendments get through, the provisions of the Act could be invoked only in limited conditions. There are some suggestion by various commission in different states, to provide rehabilitation for whom evicted from their own land. The land acquisition (kerala amendment) bill proposed by Justice V.R Krishna Iyer Committee submitted on 26 January 2009 is an example. It is in the consideration of Kerala Government until the date.

                                   If mandatory procedures are not followed, then the entire Acquisition proceedings become void procedures are not followed, then the entire acquisition proceedings would become void.

[

                                  Perhaps, the historical im­portance of land that has made the question of the rights to land a very broad and complex subject matter. 

                                  The Muslim rebellion in the Philip­pines, the Palestinians’ struggle for the return of their homeland, the Zapatista move­ment in Mexico and many other conflicts that are very much part of today’s news, involve land.  Indeed, issues of access to land and land security con­tinue to have an impact on a very significant part of the world’s population who still depend on land ac­cess and security for their subsistence and livelihood.

          
                                 "For the billions of the world’s rural poor, land security must be seen as a necessary precon­dition for the realization of other internationally protected human rights.”5 Despite this, land rights issues have rarely been addressed from an international human rights perspective.  This is in part due to the fact that land is­sues are very complex.  Land rights do not just pertain to the right of ownership. They also refer to access, use, possession and oc­cupation of land, and security of such use, possession or tenure.  Local and national landowning and land use sys­tems vary con­siderably from country to coun­try and, frequently, within countries.  As a re­sult, identi­fying and reaching agreement on princi­ples and standards that can usefully be applied across borders and systems have proved to be very difficult.

International and Regional Human Rights Law and Land Rights

                                      Article 17 of the Universal Declaration of Human Rights states:
1.   Everyone has the right to own property alone as well as in association with others.
2.   No one shall be arbitrarily deprived of his property.
The reference to property rights was altogether dropped in the two human rights Covenants adopted by the United Nations in 1966.  In addressing the right to be free from hunger, article 11 of the ICESCR makes only one indirect reference to land when it encourages states parties to develop or reform "agrarian systems in such a way as to achieve the most efficient devel­opment and utilization of natural resources.”  (See Module 12 on this point.)

                                                        The First Protocol to the European Convention on Human Rights states:
                                           "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law"
. 
                                   However, these provisions shall not "in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general in­terest or to secure the payment of taxes or other contributions or penalties.”

Article 21 of the American Convention on Human Rights states:
Everyone has the right to the use and enjoyment of his property.  The law may subor­dinate such use and enjoyment to the interest of society . . . No one shall be deprived of his property except upon payment of just compensation, for reasons of public util­ity or social interest and in the cases and according to the forms of established law.7

                               Article 14 of the African Charter on Human and Peoples’ Rights reads:
                                 "The right to property shall be guaranteed.  It may only be encroached upon in the in­terest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws"
.
                                 Article 21(2) says, "In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.” 

                                 United Nations declarations more specific to land include the Declaration on Social Progress, adopted by the General Assembly in 1969, which recognizes the social function of property, including land, and calls for forms of land ownership that ensure equal rights to property for all.

                                  Of the UN specialized agencies, the Food and Agriculture Organization (FAO) and the Inter­national Labour Organization (ILO) have given most attention to land rights concerns, in ei­ther binding conventions or nonbinding declarations.  At its World Conference on Agrar­ian Reform and Rural Development in 1979, the FAO adopted a Declaration of Principles and Programme of Action, referred to as "The Peasants Charter,” a major section of which is concerned with the reorganization of land tenure.  It advocates the imposition of land ceilings in countries where substantial reorganization of land tenure and land redistribution to land-less peasants and smallholders is needed as part of a rural development strategy and as a means to redistribution of power.  Other sections of the charter are concerned with tenancy reform, regulation of changes in customary tenure and with community control over natural resources

Land Tenure, Livelihood and the Environment In Centre for Environmental Law, WWF-I v. Union of India and others,11 the petitioners, World Wide Fund for Nature, approached the Supreme Court of India by way of a public interest petition in 1995. All over the country, state governments had issued notifications of intent under the Wildlife Protection Act, 1972, demarcating areas for wildlife sanctuaries and national parks. However, the process for assessing claims for compensation of those who would be dispossessed was not being undertaken and as a result, the final proclamation notifications under section 21 of the act were not being made. At the request of the petitioners, the court issued a blanket direction in August 1997 to all the state governments to complete the compensation procedure and issue final notifications within one year.12 The results have been catastrophic. The court did not consider that thousands of people are dependent for their livelihood on the forests and grasslands falling within the demarcated areas, and many others live there. The recording of usufruct rights over forest areas was last undertaken a hundred years ago when India was under colonial rule, and thus a large number of people who are exercising traditional usufruct rights are not able to produce documentary proof of such rights. Their claims cannot possibly be settled in a year. Nor did the court examine the current debates within activist and academic circles questioning the conservation model on which the existing law is based, which excludes rather than involves people in conservation. The state governments have used the Supreme Court's directions to advance their own agendas of evicting whole communities from these areas, often only to make way for large industrial projects. In many areas no claims for compensation were filed by the people likely to be affected as state governments short-circuited claims procedures under the guise of meeting the deadlines issued by the Supreme Court. One affected area is the Great Himalayan National Park in the Kullu district of Himachal Pradesh. The GHNP comprises mainly high altitude pastures on which more than 11,000 people depend for their survival. These rural communities have traditional grazing rights in the alpine pastures and each year an estimated 35,000 goats and sheep are taken into the pastures during the warm summer months. The people also extract medicinal herbs and plants from this area, to meet the needs of traditional medicine systems, as well as for trade. In pursuance of the Supreme Court's orders, the government of Himachal Pradesh issued a final notification on 21 May 1999 declaring the boundaries of the national park, and forbidding further exercise of traditional usufruct rights in the area. Compensation was given to only 312 families, since the state relied upon records of rights made during the British Raj 110 years ago. No independent inquiry into current rights exercise was undertaken. A further twist in the tale arises out of the Parbati Hydel project being constructed by the government in an area adjoining the park. One part of the area demarcated for the park, which formed part of the core area, was "left out" from the final notification in order to make way for a surge tunnel, which would feed the Parbati project. Thus, while the government has excluded rural communities from any participation in the conservation of this ecologically rich area, which these very communities have preserved over centuries, it has not thought twice about allowing so-called "developmental interests" to have their way. The tragedy is that the Supreme Court and the state have refused to hear the voices of these rural communities. An application by several NGOs that are working with communities dependent on these areas, seeking permission to be heard by the court, has been rejected.

                                       ILO Convention No. 117, The Social Policy (Basic Aims and Standards) Convention of 1962, covers measures to improve the standard of living for agricultural producers.  They are to include control of the alienation of land to nonagriculturalists, regard for customary land rights and the supervision of tenancy arrangements. 

                              The ILO’s Indigenous and Tribal Peoples Convention No. 169 of 1989 is a key instrument in the evolution of concepts of land rights in international law.13 That convention

• recognizes the special relationship between indigenous people and their lands;
• requires states to adopt special measures of protection on their behalf;
• provides safeguards against the arbitrary removal of indigenous people from their tradi­tional land, with procedural guarantees; and
• includes other provisions related to the transmission of land rights and respect for cus­tomary procedures.
•  

Land Rights in Domestic Law  

                                There are two basic principles that underlie most national legal systems, constitutions and domestic laws on the question of land ownership.

                                    The first is the right of private ownership.  This right includes not only the right to use and enjoyment, but also the right to exclude others.  Most systems of land ownership in domestic law seek to uphold and recognize this concept of private ownership, which gives absolute control and exclusive rights on the basis of legal, state-conferred ownership.

                                The second common and fundamental principle underlying domestic land laws is the regalian doctrine, which holds that all lands belong to the state.  A corollary of this principle is that it is only by a grant from the state that land can pass into private ownership. 

                                           One can immediately sense inevitable conflicts between the two principles just mentioned.  Much of the struggle on the domestic legal front has been to reform, if not change, these two principles of land ownership, which have their origins in most of the developing world’s co­lonial past.
There are also a number of land ownership and use patterns that form exceptions to, or miti­gate, these principles. These generally fall into three categories:

1.  Land as a resource with a "social function”

2.  "Time immemorial” concepts and ancestral land claims

3.  Collective rights to land use and/or ownership

                                The Supreme Court has expressed serious concern at the inordinate delay in payment of compensation to farmers for land, holding that it amounts to deprivation of livelihood, which is a violation of Article 21 (right to life) of the Constitution. “Even under valid acquisition proceedings, there is a legal obligation on the part of the authorities to complete the proceedings at the earliest and to make payment of requisite compensation. The appeals, etc, are required to be decided expeditiously for the sole reason that if a person is not paid compensation in time, he will be unable to purchase any land or other immovable property, said a Bench of Justices B.S. Chauhan and J.S. Khehar.

                                   Writing the judgment, Justice Chauhan said: “It is not permissible for any welfare state to uproot a person and deprive him of his fundamental/constitutional/human rights under the garb of industrial development. A welfare state governed by the rule of law cannot arrogate to itself a status beyond one that is provided by the Constitution. Statutory authorities are not only bound to pay adequate compensation but there is also a legal obligation upon them to rehabilitate such persons. The non-fulfilment of their obligations would tantamount to forcing the uprooted persons to become vagabonds or to indulge in anti-national activities as such sentiments would be born in them on account of ill-treatment without its [the state] resorting to any procedure prescribed by law, without the court realising that the enrichment of a welfare state or of its instrumentalities, at the cost of poor farmers, is not permissible, particularly when done at the behest of the state itself.”

In the instant case, “the appellant farmers in Maharashtra] belonged to a class which did not have any other vocation or any business/calling to fall back upon for earning their livelihood. Depriving them of their immovable properties was a clear violation of Article 21. The appellants have been deprived of their legitimate dues for about half a century. In such a fact situation, we fail to understand for which class of citizens the Constitution provides guarantees and rights in this regard and what is the exact percentage of the citizens of this country to whom constitutional/statutory benefits are accorded in accordance with the law. The appellants have been seriously discriminated against qua other persons, whose land was also acquired. Some of them were given the benefits of acquisition, including compensation in 1966. This kind of discrimination not only breeds corruption but also disrespect for governance as it leads to frustration and, to a certain extent, forces persons to take the law into their own hands.”

The Bench said: “The appellants were deprived of their immovable property in 1964, when Article 31 was still intact and the right to property was part of fundamental rights under Article 19. It is pertinent to note that even after the right to property ceased to be a fundamental right, taking possession of or acquiring the property of a citizen was, most certainly, tantamount to deprivation and such deprivation can take place only in accordance with the “law,” as the said word has specifically been used in Article 300-A. Such deprivation can be [done] only by resorting to a procedure prescribed by a statute. The same cannot be done by way of an executive fiat or order or administration caprice.”

                                   The Maharashtra Industrial Development Corporation sought to acquire the lands of Tukaram Kana Joshi and others without fully complying with the formalities. They were unable to get any compensation or even, for that matter, any other land. The Bombay High Court did not provide them any relief either. 

                              Disposing of their appeals, the Supreme Court directed the authorities to complete the acquisition proceedings expeditiously, declare the compensation/award at current market value and make payments to the claimants/persons interested immediately.

                           Now let us compare adequacy of Compensation issues in US, UK And some other common Law countries.

 Previopusly Acquisition had been done when land owners done when the land owners are able to appoint lawer and other professionals. Thus, the government needs to absorb the cost for those who are not capable to do so.. Now the cost is limited valuation fee only. Under the present laws of acquisition in Malasia, there is no room for land owners to challenge the validity of acquisition like like before. There were cases where acquisition was done in bad faith. In general, land acquisition in Malaysia is quite fair although the whole process is long. At least our system has compensated related parties fairly and provided platform to discuss/negotiate compensate
compensation with relevant authorities, as compared to Singapore.

LESSONS FROM OTHER COUNTRIES
A study involving comparisons of the United Kingdom, USA, Hong Kong, China, India,
Australia and New Zealand found six advantages of the systems in those countries as
compared to Malaysia. These factors are perhaps relevant for Malaysian compensation
structure in land acquisition to consider, in moving towards improving its compensation
framework. The advantages are as follows:
i) The recognition of business compensation;
UK, USA, Australia and New Zealand recognise payment for loss of goodwill as an
attribute of compensation. In Malaysia, business losses are allowed under
compensation claims as stipulated in section 2(e) of First Schedule but they do not
cover loss of goodwill and loss of earnings.
ii) Equity of disturbance payments (relocation hardships);
Disturbance payment can include a wide range of items such as professional fees for
acquiring alternative premises; costs of adapting alternative premises, including
carpets, curtains and shelving; removal costs and any other reasonably quantifiable
losses. In Malaysia, a claim under this heading is only for cost of transfer.
iii) Payment of solatium/premium over and above the total compensation;
344 Pacific Rim Property Research Journal, Vol 12, No 3
Solatium is an additional sum in respect of the owner injured feelings or the insult
due to the unilateral action of the acquiring authority in arbitrarily expropriating the
land. A solatium may be awarded as a percentage of the compensation or it may be an
amount calculated without reference to any percentage. This payment has been the
practices in many countries but Malaysia has yet to adopt it.
 

Benefits and Effects of the BillThe 2011 LARR Bill, if enacted into law,  is  is expected to affect rural families in India whose primary livelihood is derived from farms. The Bill will also affect urban households in India whose land or property is acquired.

Per an April 2010 report,^[10] over 50% of Indian population (about 600 million people) derived its livelihood from farm lands. With an average rural household size of 5.5,^[11] LARR Bill 2011 R&R entitlement benefits may apply to about 109 million rural households in India.

According to Government of India, the contribution of agriculture to Indian economy's gross domestic product has been steadily dropping with every decade since its independence. As of 2009, about 15.7% of India's GDP is derived from agriculture. LARR Bill 2011 will mandate higher payments for land as well as guaranteed entitlements from India's non-agriculture-derived GDP to the people supported by agriculture-derived GDP. It is expected that the Bill will directly affect 132 million hectares (326 million acres) of rural land in India, over 100 million land owners, with an average land holding of about 3 acres per land owner.^[10] Families whose livelihood depends on farming land, the number of livelihood-dependent families per acre varies widely from season to season, demands of the land, and the nature of crop.

LARR Bill 2011 proposes to compensate rural households - both land owners and livelihood losers. The Bill goes beyond compensation, it mandates guaranteed series of entitlements to rural households affected. According to a July 2011 report from the Government of India, the average rural household per capita expenditure/income in 2010, was IN Rs. 928 per month (US$ 252 per year).^[12]

For a typical rural household that owns the average of 3 acres of land, the LARR 2011 Bill will replace the loss of annual average per capita income of IN Rs. 11,136 for the rural household, with:^[4]

• four times the market value of the land, and
• an upfront payment of IN Rs. 1,36,000 (US$ 3,000) for subsistence, transportation and resettlement allowances, and
• an additional entitlement of a job to the family member, or a payment of IN Rs. 5,00,000 (US$ 11,000) up front, or a monthly annuity totaling IN Rs. 24,000 (US$ 550) per year for 20 years with adjustment for inflation - the option from these three choices shall be the legal right of the affected land owner family, not the land acquirer, and
• a house with no less than 50 square meters in plinth area, and
• additional benefits may apply if the land is resold without development, used for urbanization, or if the land owner belongs to SC/ST or other protected groups per rules of the Government of India

If the affected families on the above rural land demand 100% upfront compensation from the land acquirer, and the market value of land is IN Rs. 1,00,000 per acre, the 2011 LARR Bill will mandate the land acquirer to offset the loss of an average per capita 2010 income of IN Rs. 11,136 per year created by this 3 acre of rural land, with the following:^[4]

• IN Rs. 18,36,000 (US$ 41,727) to the rural land owner; which is the total of R&R allowances of IN Rs. 6,36,000 plus IN Rs. 12,00,000 - which is four times the market value of the land, plus
• a house with no less than 50 square meters in plinth area and benefits from Schedule III-VI as applicable to the rural land owner, plus
• additional payments of IN Rs. 6,36,000 each to any additional families claiming to have lost its livelihood because of the acquisition, even if they do not own the land

The effects of LARR Bill 2011, in certain cases, will apply retroactively to pending and incomplete projects. The Bill exempts land acquisition for all linear projects such as highways, irrigation canals, railways, ports and others. 

Criticism of the Bill

The proposed Bill, LARR 2011, is being criticized on a number of fronts:

• It is heavily loaded in favour of land owners and ignores the needs of poor Indians who need affordable housing, impoverished families who need affordable hospitals, schools, employment opportunities and infrastructure. For example, ASSOCHAM, the Indian organization that represents the interests of trade and commerce in India, with over 200,000 small business and large corporate members, claims that LARR 2011 in its current version, prevents a conducive environment for economic growth. ^[13]
• Economists who have studied LARR 2011 as tabled in India's parliament suggest it as well intentioned but seriously flawed. Its principal defect is that it attaches an arbitrary mark-up to the historical market price to determine compensation amounts, along with its numerous entitlements to potentially unlimited number of claimants. Such a Bill, some claim, will guarantee neither social justice nor the efficient use of resources. For example, Ghatak of London School of Economics and Ghosh of Delhi School of Economics,claim that the Bill places unnecessary and severe conditions on land acquisition which will stifle the pace of India's development without promoting the interests of farmers. They suggest that the Bill should be amended to allow free market dynamism, such as competitive land auction. These economists claim that India's greatest challenge in enacting laws and opening up to international markets is to balance the needs of economic growth, equitable distribution and human rights, while rescuing complex and sometimes conflicting objectives from the demagoguery of single issue advocates and political opportunists. The current Bill, they claim, fails to do so.
• LARR 2011 as proposed mandates that compensation and rehabilitation payments to land owners and livelihood losers be upfront. This misaligns the interests of land acquirer and those affected. Once the payment is made, one or more of the affected families may seek to delay the progress of the project to extract additional compensation, thereby adversely affecting those who chose long term employment in the affected families. The Bill, these economists suggest, should link compensation and entitlements to the progress and success of the project, such as through partial compensation in form of land bonds. These success-linked infrastructure bonds may also help poor states reduce the upfront cost of land acquisition for essential public projects such as hospitals, schools, universities, affordable housing, clean drinking water treatment plants, electricity power generation plants, sewage treatment plants, flood control reservoirs, and highways necessary to bring relief to affected public during fires, epidemics, earthquakes, floods and other natural disasters. The state of Kerala has decided to pursue the use of infrastructure bonds as a form of payment to land owners. 
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• LARR 2011 places no limit on total compensation or number of claimants; nor does it place any statute of limitations on claims or claimants.^[16] The beneficiaries of the Bill, with guaranteed jobs for 26 years, will have no incentive to be productive. The Bill should place a limit on total value of entitlement benefits that can be annually claimed per acre, this entitlement pool should then be divided between the affected families, and the government should run this program if it is considered to be fair.
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• LARR 2011 as proposed severely curtails free market transactions between willing sellers and willing buyers. For example, DLF Limited - India's largest real estate developer - claims that the current bill may limit private companies such as DLF from developing affordable housing for millions of Indians. DLF suggests that direct land transactions with owners on a willing voluntary basis, at market-determined rate, should be kept out of the purview of the bill.^[17] There should be no conditions imposed on free market transactions between willing sellers and willing buyers.
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•      Amartya Sen, the India-born Nobel Laureate in economics, claims prohibiting the use of fertile agricultural land for industries is ultimately self-defeating.^[18] Sen claims industry is based near cities, rivers, coast lines, expressways and other places for logistical necessities, quality of life for workers, cost of operations, and various reasons.
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• Sen, further suggests that even though the land may be very fertile, industrial production generates many times more than the value of the product produced by agriculture. History of industrialization and global distribution of industry hubs, Sen claims, show that the locations of great industry, be it Manchester, London, Munich, Paris, Pittsburgh, Shanghai or Lancashire, these were all on heavily fertile land. Industry always competes with agriculture, Sen claims, because the shared land was convenient for industry for trade and transportation. 
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• Amartya Sen further argues that in countries like Australia, the US or Canada, where agriculture has prospered, only a very tiny population is involved in agriculture. Agriculture prospers by increasing productivity and efficiency. Most people move out to industry. Industry has to be convenient, has to be absorbing. When people move out of agriculture, total production does not go down; rather, per capita income increases. For the prosperity of industry, agriculture and the economy, India needs industrialization. Those in India, who in effect prevent industrialization, either by politically making it impossible for entrepreneurs to feel comfortable in starting a business or by making it difficult to buy land for industry, doesn't serve the interest of the poor well, claims Sen. 

Aboriginal Land Claim in South Africa::

             

                            As early as 1999 Legal Resource Centre of South Africa was litigation in aboriginal land claim on behalf of the Richtersveld community. The community of of 3000 used to be nomadic and pastorialist people who traditionally occupied the Richtersveld.. The lands claim was held by the state owned diamond mine Alexkor which was in the process of privatization. The LRC was negotiating for a customary equity share  in the mine.

and to secure the land rights of the community. It was also working on an integrated development plan which would provide that • the residential land at Alexkor should be formalized as a town; • the irrigation land should be transferred to an equity, which will operate for the benefit of and include participation of the Richtersveld and Namaqualand communities; • the grazing land should be transferred to the Richtersveld community as part of the settlement of the land claim; and • the mining land be retained by Alexkor. Land Rights of Women Special attention should be paid to the right of women to land.  In many cultures and socie­ties, women are excluded from owning property, including land, or they do not enjoy the same rights as the men.  In marriage and family relations, women’s right to property is often subject to the authority of the husband or father.  Ensuring equal rights to property translates into economic empowerment and has a direct bearing on the status of women.  Denial of and/or limitations on rights to land and discrimination against women can be seen, for in­stance, in laws that exclude women from inheriting land. Even though women play a very substantial role in agriculture in most countries around the world, land ownership and/or land tenure systems, whether customary or statutory, have his­torically very often discriminated against women.  The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) recognizes women’s land rights.  Article 14 of CEDAW obliges states parties to take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on the basis of equality of men and women, that they partici­pate in and benefit from rural development and, in particular . . . ensure to such women the right:  . . . (d) to obtain all types of training and education, formal and non-formal, including that relating to functional literacy, as well as the benefit of all com­munity and extension services, inter alia, in order to increase their technical proficiency;  . . . (g) to have access to agricultural credit and loans, marketing facilities, ap­propriate tech­nology and equal treatment in land and agrarian reform as well as in land resettlement schemes

of land or more.Forrr ccontext, POSCO India seeks about 4000 acres for its US$ 12 billion proposed steel manufacturing plant in the Indian state of Orissa. In most cases, even small companies planning US$10-US$300 million investment, seeking 100 or more acres will be affected by the compensation plus rehabilitation effort and expenses of LARR 2011. The WSJ article further claims that the proposed LARR 2011 bill doesn’t actually define the word “acquisition,” and leaves open a loophole that could allow government agencies to continue banking land indefinitely.

• The Observer Research Foundation's Sahoo argues that the bill fails to adequately define "public purpose"^] The current definition, he claims, can be interpreted vaguely. In leaving public purpose too vague and porous, it would ensure that land acquisition will remain hostage to politics and all kinds of disputes. More clarity is needed, perhaps with the option that each state have the right to hold a referendum, whereby the voters in the state can vote to approve or disapprove proposed public purpose land acquisitions through the referendum, as is done through local elections in the United States for certain public acquisition of private or agricultural land.
• The Confederation of Real Estate Developers' Association of India claims that the proposed LARR 2011 bill is kind of one-sided, its ill-thought-out entitlements may sound very altruistic and pro-poor, but these are unsustainable and will kill the goose that lays the golden egg.^] This group further claims that the bill, if passed, will increase the cost of acquisition of land to unrealistic level. It will be almost impossible to acquire 50-acre or 100-acre land at one place for planned development. They suggest that if India does not facilitate urbanization in an organized manner, all the incremental population will be housed in disorganized housing developments such as slums with dire consequences for Indian economy. In the long run, even farmers will suffer as fringe development of urban centres will largely be in the form of unauthorized developments and they will not realize the true economic potential of their lands.
• The bill inflates the cost of land to help a small minority of Indians at the cost of the vast majority of Indian citizens, as less than 10% of Indian population owns rural or urban land.^[10],^[22] The LARR Bill 2011 favors a privileged minority of land owners as the Bill mandates above market prices for their land plus an expensive rehabilitation package. The Bill does not mandate a process by which the time involved in land acquisition is reduced from current levels of years. Nor does the Bill consider the effect of excessive costs upfront, and expensive rehabilitation mandate over time, on the financial feasibility of large-scale, socially necessary infrastructure projects needed by 90%+ of Indians who are not landowners. In an editorial, Vidya Bala writes that the most important weakness in the Bill is bringing non-government transactions too under its purview. Private players buying 50+ acres of urban land tracts or 100+ acres of rural areas would be required to comply with the R&R package stated in the Bill^]
• LARR 2011 Bill's sections 97, 98 and 99 are incongruous with other laws of India in details and intent. Section 98, for example, says that the provisions of the Bill shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule of the Bill. According to Indian Legal Code, the Fourth Schedule referred to by LARR 2011 Bill, consists of 16 bills, including the ancient monuments and archaeological sites and remains Act, 1958, the atomic energy Act, 1962, the special economic zones Act, 2005, the cantonments Act, 2006, the railways Act, 1989 amongst others. Laws can not be in conflict with each other. LARR Bill carve outs through Sections 97, 98 and 99 add confusion, offering a means for numerous citizen petitions, law suits and judicial activism. 
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•                                The LARR 2011 Bill thus fails to deliver on the goals motivating My Recommendations in respect of Land Acquisition Bill woulde if we take on the whole, the biull protects farmers itersts. b
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LARR Bill 2011 forbids land acquisition when such acquisition would:^[5]

• cumulatively exceed 5% of multi-crop irrigated area in any district in any state of India, or
• cumulatively exceed 10% of single-crop net sown area in any district in any state of India, if the net sown area in that district was less than 50% of the total area of the district

Even below these threshold, LARR 2011 requires that wherever multi crop irrigated land is acquired an equivalent area of culturable wasteland shall be developed by the state for agricultural purposes.
These limits shall not apply to linear projects. LARR 2011 illustrates linear projects with examples such as railways, highways, major district roads, power lines, and irrigation canals.

         MY RECOMMENDATIONS IN RESPECT OF THE LAND ACQUISITION BILL 2011:                          
                                             In view of the above ceiling on land acquisition shouldn't exceed 5% of mufti crop irrigated area in  any District in any State or if it's a single crop  net sown area in any district in any State in India, it shouldn't exceed 10%, if the proposed acquisition ius less than 50% o9f the  total area of the District. I strongly opine that Farmers interests, who are the depressed lot in India is fully protected by this clause in the proposed amendment to Land Acquisition Act(Bill),  As stated by several Economists and Scholars Farmers need this much of protection from Government Acquisition of their precious land. Moreover Agricultural land should not be permitted to0 be acquired as by changing its use primarily from Agricultural use toi industrial or commercial use can alter the ecology and it would be flooded later as is seen in several western countries, where many  agricultural lands were later converted in to industrial land, leading to global warming and floods. Storms like Sandy which devastated Northern America  are a grim reminder of this picture.

                                 Forests should not be acquired and cut for industrial development as less greenery leads to more pollution and global warming resulting in heat waves and floods, shortage of food etc. Urbanization and the so called development by way of industrialization is responsible for the current global warming with which we are all haplessly fighting. Growth  shouldn't be at the cost of human lives and property, which these very land Acquisition and allied laws ironically seem to protect.

                                 In France and some western countries due to advanced Science and Technology and related Development, and the resultant sedentary life style((in India too), separate route/trackss for Bicycling have been created to promote exercise and keep people free from life style diseases such as Diabetes Melllitus Type II, and Hypertension  TRAFFIC jams and pollution etc. I'd recommend more forests, more greenery at the cost of industrial development.

                                        This little planet shouldn't become concrete jungles. Let us invite more Eco friendly green laws be it Land Acquisition Bills or other Environmental legislation. Let us welcome them with open arms.

Ms. Nirmala P.Rao
Legal Expert and Political Analyst 

http://www.wizard-legal25.blogspot.in

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