Tata Singur Case

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Presentation Transcript

Slide 1: 

1 By Ms.Swapnil Kumar, PGDM (Executive) 2008-09, IMT Ghaziabad Land Acquisitions in Singur

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2 Legal Aspects of Land Acquisition Facts Critical Analysis Agenda

Legal Aspects of Land Acquisition : 

3 Legal Aspects of Land Acquisition Laws Change; the land remains. -Abraham Lincoln (1809-1865), 16th U.S. President, cited in Peter Blake's God's Own Junkyard, 1964

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4 Land Acquisition Act ,1894 & Amendments SEZ Act National Rehabilitation and Resettlement Policy Land Acquirer’s Legal Aid + Legal Package

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5 In this era of globalization, most developing countries are witnessing a shift away from an import substitution based development strategy to an export promotion policy SEZ : geographical region that has economic laws more liberal than a country's typical economic laws. By offering privileged terms, SEZ attract investment and foreign exchange, spur employment and boost the development of improved technologies and infrastructure. Multiple benefits to an economy in terms of creating jobs;augmenting exports building infrastructure of international standards and inviting huge foreign investments learning effects, Human Capital Development effect, demonstration effect, Technological & Knowledge transfers and so on. SEZ-A Catalyst for the Economic Growth

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6 Introduced under Foreign Trade Policy for 2004-2009 Act defines SEZ as area of land which is owned & operated by private companies & is outside the purview of several laws of the land Minimum Wages Act;Panchayat system (SEZs have their own governing bodies) Revenue duties: sales tax, income tax, service tax, etc.) Intrastate offering exemptions Duty free enclave to be treated as foreign territory only for trade operations and duties and tariffs. No license is required for import and no routine examination is to be conducted by the custom authorities of the export/import cargo. To aid backward and forward integration of the economy, the Act provides exemptions to SEZ units and SEZ developers from all indirect taxes, including basic customs duty, education cess, and direct taxes while at the same time domestic sales are subject to full customs duty and import policy in force. The SEZ Act, 2005 & the SEZ Rules, 2006

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7 SEZs are being established in an attempt to deal with infrastructural deficiencies, procedural complexities, bureaucratic hassles and barriers raised by monetary, trade, fiscal, taxation, tariff and labour policies. Since country-wide development of the infrastructure is expensive and implementation of structural reforms would require time, ( Special Economic Zones/Export Processing Zones) are being established as industrial enclaves for expediting the process of industrialization. One of earliest and most famous SEZ founded by the government of the People's Republic of China under Deng Xiaoping in the early 1980s. Government of India in April 2000 announced the introduction of Special Economic Zones policy in the country. As of 2007, more than 500 Special Economic Zones have been proposed, 220 of which have already been created. SEZ Strategy for India

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8 Exploitation of the Real EstateWhy is there such an interest among private developers, especially property developers, to rush into the area of SEZ development? Section 5(2) of the SEZ Act, addresses the issue of land acquisition. It provides for non-industrial use of 75% of the land in the possession of an SEZ developer. This is justified by the argument that social infrastructure, which would constitute things like housing facilities and entertainment, is extremely critical. This means that many real estate companies who have no track record in manufacturing or exports have become SEZ promoters. More SEZs mean More Land Acquisitions Rush for SEZs

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9 Difficulties that come in the process of Land Acquisition in India are immense, given the population density and the type of land use in the country. This is evident from the fact that the fundamental issue in a number of top stories in the past few years has been the Process of Land Acquisition; be it Narmada Bachao Andolan or the recent Nandigram issue. Challenges of Land Acquisition

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10 Twin objectives : to amend the laws relating to land acquisition for public purpose and for companies to determine the compensation, which is required to be made in cases of land acquisition Colonial Origin : Enacted by the British government and by virtue of The Indian independence (Adaptation of Central Acts and Ordinances) Order, 1948 continues to exist as the law of land acquisition in India. Land in Concurrent List :Given the fact that Land Acquisition falls under the concurrent list both the State Government and the Central Government have amended the law, evolving it with time and according to the local needs. Govt’s word is final :Land can be acquired either by the state or the central government for the purposes listed under state and central list respectively unless the central government delegates the task to the state government under article 258(1) of the Constitution. The Land Acquisition Act, 1894

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11 Intention :To legalise the taking up, for public purposes, or for a company, of land which is private property of individuals the owners and occupiers, and pay equitable compensation therefore calculated at market value of land acquired, plus an additional sum on account of compulsory character of acquisition . sections 1 to 3 : short title, object and reasons and the important definitions. Sections 4 to 17 deals with the process of acquisition. sections 18 to 28 which describes the reference to court and procedure thereupon in the off chance of a conflict with respect to compensation. Sections 29 and 30 deal with Apportionment in case of more than one individuals interested section 31 to 34 lay down the payment of compensation. Sections 35 to 38 deal with temporary acquisition of land sections 38 to 44 deal with the acquisition of land for companies. Brief Outline of the Act

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12 Public Purpose Article 31(2) categorically states that a land can be acquired by the state only for Public Purpose. general interest of the community, work from which public in general would derive benefit or be benefited. public purpose is determining factor on the question wether or not a particular land should be acquired, and the considerations of hardships to the individuals cannot outweigh the question of public demand . Section 3(f) of The Land Acquisition Act delineates various possible types of public purpose; Not exhaustive Wide meaning to encompass any kind of benefit for public in general Legal maxim :salus propuli est suprema lex, meaning welfare of the people is paramount in law underlining principle of Land Acquisition, Power of Eminent Domain or the Law of Compulsory Acquisition whatever it may be called Public Purpose

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13 Originally the Constitution of India consisted of provisions under Article 19(f) and Article 31 which constituted Right to Property. Right to property, Articles 14, Articles 19 and Article 31 read in tandem by the Courts proved to be anti developmental, as the courts struck down various acts of the state. In a number of cases the courts declared the reforms initiated by the state as being ultra vires, which hampered the development by means of growth of infrastructure which was essential for development soon after the independence. Led to the the Constitution (First) Amendment Act, 1951 was enacted and the Right to Property was done away with. Article 31(A) which was enacted categorically states that no law which provides for acquisition by the state of an estate can be held void as being ultra vires Article 14 or Article 19. It also provided for payment of compensation at a rate not less than market value of the property The Constitutional Framework

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14 Land Acquisition Officer : proceedings are carried on by an officer appointed by the government known Notification When a government intends to occupy a land in any locality is has to issue a notification under Section 4 in the official gazette, newspaper and give a public notice which entitles anyone on behalf of the government to enter the land for the purposes of digging, taking level, set out boundaries etc. Govt Word is Final :Under Section 5(a) any person interested in land which is notified under section 4 (who is entitled to claim an interest in compensation) can raise an objection, in writing and in person. The collector after making inquiry to such objections has to forward the report to the government whose decision in this respect would be final. After considering such report made by the collector under section 5(a) the government may issue a declaration within one year of the notification under section 4 to acquire land for public purposes or company, this declaration is a mandatory requirement of the acquisition. Steps for Acquisition

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15 After the declaration under Section 6, collector has to take order from the appropriate government weather state or central for the acquisition of land under section 7. An important process that takes place under this section is demarcation which consists of marking out boundaries of land to be acquired, either by cutting trenches or fixing marks as posts. Object is to facilitate measurement and preparation of acquisition plan, but also let the private persons know what land is being taken. Obstruction under Section 8 and Section 4 are offence punishable with an imprisonment not exceeding one year and with fine not exceeding fifty rupees. Section 9 requires the collector to cause a public notice at convenient places expressing government’s intention to take possession of the land and requiring all persons interested in the land to appear before him personally and make claims for compensation before him. Steps for Acquisition

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16 The Final set of collector’s proceedings an enquiry by the collector into the objections made by the interested persons regarding the proceedings under section 8 and 9 and making an award to persons claiming compensation as to the value of land on the date of notification under section 4. The enquiry involves hearing parties who appear with respect to the notices, investigate their claims, consider the objections and take all the information necessary for ascertain the value of the land, and such an enquiry can be adjourned from time to time as the collector thinks fit and award is to be made at the end of the enquiry. The award made must be under the following three heads:• Correct area of land• Amount of compensation he thinks should be given• Apportionment of compensation Steps for Acquisition

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17 Section 11 makes it obligatory on the part of the collector to safeguard the interests of all persons interested, even though they might not have appeared before him. In awarding compensation the Land Acquisition Collector should look into estimate value of land, give due considerations to the other specific factors. Value of the property in the neighborhood can be used as a criteria . The award should be made within 2 years . Sections related to Compensation

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18 Prior to 1984, the Land Acquisition Act, 1894 was not applicable to the States of Jammu and Kashmir and Rajasthan, Kerala and Nagaland which had their own self-contained Land Acquisition Acts It made the Land Acquisition Act,1894 applicable to the whole of India except Jammu and Kashmir which enjoys a special position under the Constitution and still continues to be governed by the States (Jammu and Kashmir) Land Acquisition Act, 1990 (1930 A.D.) Amendment in 1984

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19 Replaces Earlier National Policy on Resettlement & Rehabilitation for Project-Affected Families 2003. a “just and humane” rehabilitation policy for those involuntarily displaced by development projects, including Special Economic Zones (SEZs) Benefits under the new policy would be available to all affected persons and their families whose land, property or livelihood had been adversely affected by land acquisition or by involuntary displacement of a permanent nature for any other reason, such as a natural calamity; &policy would be applicable to all these cases, irrespective of their number. The stated intention of “backing policy with law” is praiseworthy lays down the principle of ‘minimising displacement’ Rehabilitation & Resettlement Bill, 2007

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20

Facts : 

21 Facts "The land belongs to the future." - Willa Cather

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22

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23 Tata’s dream —Roll out Rs 1-lakh car Buddhadeb Bhattacharjee’s vision of an industrialised state Marginal Farmers of Singur- Rehabilitation and Resettlement Industry, Government and Agriculture come at crossroads Ensuing Turmoil feeds political agitations spearheaded by Mamta Bannerjee adding fuel to fire Situation gone Awry

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24 CPI wins election for the seventh consecutive time in 2006 CM Buddhadeb Bhattacharjee Has a vision to industrialize the state and create jobs for youth Wants to take all possible steps to help industrialists’ entry into the state Ratan Tata promises the nation a 1 Lakh car for the common man Accepts a lucrative proposal by WB Govt to set up plant in WB which will significantly help lower its cost of production and help make car at lower cost WB Government & Tata Motors

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25 In Hooghly district, 45 kilometers from Kolkata Fertile Farmlands According to a govt. Statistical Handbook on Singur block, 83%of the land is irrigated and the crop density is 220%. Landholdings in Singur are small with very few owners having more than 2 bighas (0.66 acres). More than 11,000 land holdings. Of a total of 6,000 families that will be affected, about 3500 farming households work on their own fields and can be called poor or subsistence farmers. According to them there are about 1200 unregistered sharecropping Bargadars. A large number of migrant workforces. Majority of non-farming households in Singur are employed in agriculture-related occupations. Small Farmers of Singur

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26 May 18, 2006 { Business day 1} Announcement of Singur Development by West Bengal Chief Minister - Tata Joint Press Conference in Kolkata. Ratan Tata announces roll out of Rs. 1 lakh car in 2 years time frame and decides to locate the project at Singur in Hooghly district. The project was to be spread over 700 acres with another 300 kept aside for ancillary production; will create 10,000 direct and indirect jobs. Statements: “Bengal is the most investor-friendly state in the country. Someone had to turn that belief into reality. The investment is a reflection that the Tata group has faith in the investment climate and the government of Bengal,” Beginning

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27 Jun 19th – 24th :Ignoring the people's voice the Government issued 13 notices under Section 9 (1) of the Land Acquisition Act of 1894 to the affected farmers. The only official document publicly available on the project, the Gazette notification under sec 4(1) of the Land Acquisition Act 1894 between 19th and 24th July states that :- “land as mentioned in the schedule below is likely to be needed to be taken by the Govt/Govt undertakings/ Development Authorities, at the public expense for a public purpose viz., employment generation and the socio economic development of the area by setting up a Tata Small Car project”. Notification

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28 July 27’2006: State Government sets 6 month deadline to acquire land. August 28’2006: Land acquisition in Singur is challenged in the Kolkata High Court September 25, 2006: The first lot of compensation cheques begin to be handed out from the Singur Block Development Office. About 10,000 people protest against land acquisition while about 256 of the 354 people to be awarded compensation got their cheques. September 26, 2006: Section 144 of the Criminal Procedure Code imposed in Singur making it illegal for five or more persons to assemble together 30 November’2006: State wide violence began once section 144 clamped on the area for one month was subsequently extended for indefinite period 4 December’2006:The WB government claimed that 920 acres of land has been voluntarily handed over by the landowners and compensation has been accepted for 658 acres of land.The Singur agitation intensified today with Miss Mamata Banerjee going on an indefinite hunger-strike. WB Govt clamps down

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29 22 January’07: 1000-member security squad was engaged for guarding Tata Motors plant site at Singur in the wake of protest during “bhoomi pujan” on 21st January. 24 January’07: Intellectuals, academicians and students today joined the protests against the state government’s policy of land acquisition in Singur and Nandigram with a sit-in demonstration at Esplanade. Mounting Protests

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30 14 February’07: Hon’ble High Court at Calcutta quashed the prohibitory order issued under Section 144 CrPC at Singur on 4 February observed that it was an abuse of power and an act of executive highhandedness unreasonably restricting the petitioners’ right guaranteed by the Constitution. Hon'ble HC intervenes

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31 23 February’07: Acting Chief Justice Bhaskar Bhattacharya asked the government to file an affidavit within April 13 furnishing all the details justifying the legality of the acquisition. Questioning whether land acquisition can be done at a place simultaneously under two different sections of Land Acquisition Act 1894, the bench directed the government to state the total number of farmers who had received the compensation from the government. Hon'ble HC asks WB Govt to file affidavit

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32 9 March’07: Tata Motors finally got possession of land for its small-car factory in Singur on today. The state government today signed an agreement with Tata Motors for the controversial small-car factory at Singur, leasing out 949.5 acres of land to the company for 90 years. Tata Motors kickstarts project

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33 27 March’07: In a significant development, the West Bengal government admitted that its advocate general made an "erroneous submission" to the Calcutta High Court on the compensation for farmers whose land was acquired for the Tata Motors' car plant in Singur. Retracting its earlier submission that land had been acquired and awards passed for compensation for the project under two sections of the Land Acquisition Act of 1894,the state government said in an affidavit that all awards were passed under one section of the act and there was no question as such of violating any law. States that only 30% of the landowners of Singur who own 287.5 acres of land had given consent in writing (That means, around 21 65% who have even collected cheques still against this forcible land acquisition). Govt Responds to HC Notice

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34 7 June’07: The state government has admitted before Calcutta High Court that it has not been able to reach an agreement with farmers over the acquisition of around 300 acres of land in Singur. The government, in an affidavit, has stated that till April 25,2007, Rs 90.35 crore has been disbursed to 10,021 people for 671 acres. The state has so far acquired 997.11 acres for the Tata small car project. It had allotted a total of Rs 118.95 crore to pay the rayats (as compensation) and Rs 0.58 crore for the bargadars. The affidavit, however, does not make it clear whether landowners yet to accept the award are not satisfied with the compensation or do not wish to part with their land. It only mentions that of the 3,124 persons who opted for agreements under Section 11(2) of the Land Acquisition Act,only 2,414 have agreed to hand over their 287.52 acres and accept the compensation fixed by the collector. Compensation issues surface in Hon'ble HC

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35 10 Jan,2008: Ratan Tata unveiled the Nano in Delhi's Pragati Maidan. The West Bengal government (state Industry Minister Nirupam Sen) today expressed happiness over Tata Motors unveiling its much-awaited people's car 'Nano', and said the Singur project, where it would be manufactured, will be completed in time. Minister said Nano was a pride for the state. "Many people had doubts about the car. The car, as promised, is priced at Rs 1 lakh, and it's a matter of pride that it'll roll out from Singur. Nano showcased in New Delhi

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36 18 January,2008: In a major boost to the Buddhadeb Bhattacharjee government, Calcutta High Court today put its seal on the state's land acquisition in Singur, paving way for Tata Motors' Nano to roll out from there. A division bench comprising Hon’ble Chief Justice S S Nijjar and Justice Pinaki Chandra Ghosh dismissed all the 11 petitions against land acquisition in Singur. The bench observed there was no malafide intention on the part of the state in acquiring land there Hollow Victory

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37 July 3, 2008: About 500 people who had been hired by Tata Motors were not paid for several months and were released for work. A large no. of them being CPI(M) supporters, the CPI(M) joins the protest to secure permanent employment for them & see to it that the salaries due are paid. August 22, 2008: Ratan Tata says that the Nano project may be moved outside Singur if disturbances continue Oct 3,2008 :Tata has closed shop at Singur;Worried about safety of Managers & their families at Singur And Finally…

Critical Analysis : 

38 Critical Analysis “The only compensation for land is land.” Winona LaDuke, Speech: “Land Tenure and Native American People,” UW-Madison, 6 Jun 01

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39 Disgruntled Farmers Antiquated Land Laws Fair Compensation Political Will Government as Intermediary Critical Issues in Land Acquisition at Singur

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40 Though not officially been notified as an SEZ by the government, the Tata Motors area has been functioning as an SEZ. Whereas in China, the SEZs were built on wastelands, in India and especially in West Bengal, rich farmland like those in Singur and Nandigram have been targeted. Singur SEZ

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41 Small farmers: 635 acres owned by 9020 farmers Three groups support land transfer: Absentee landowners Registered share-croppers Those losing a part of their land Three groups oppose land transfer: Unregistered share-croppers Daily wage earners associated Project Affected Persons

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42 Allegations about use of state machinery to evict farmers Attack on peaceful protesters Use of Govt Machinery for Land Eviction

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43 Hailed as Trade secret Enormous One-sidedness -:Every concrete detail in the agreement refers to what the West Bengal government will do for TML; there is no mention of what TML will do in return West Bengal government decided to offer everything in it’s power to return that favor. The favors offered to TML come in four concrete forms: (a) subsidized land for setting up the manufacturing plant, (b) loans in the form of tax holidays, (c) soft loans to get started, and (d) subsidized electricity. Can be read as the state government’s eagerness to “take appropriate steps for rapid industrialization in West Bengal”. Secret Agreement : WBIDC & TML

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44 Dec 6 ,2007 : Amendment bill on land acquisition act put up in Lok Sabha; seeking to suitably define the phrase “public purpose”. This move to complement NPRR policy with legislation is commendable. Though the attempt at redefining “public purpose” actually favours private interest and big companies over the poor and marginalised who, under the principle of “greater good” are still asked to bear the cost of development. To enhance compensation for the land. The bill is targeted to ensuring that a fair compensation at market value be provided to those whose site is acquired. provides for timely dispute resolution and stops any misuse of acquired land. Land Acquisition (Amendment) Bill introduced

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45 Replaces Earlier National Policy on Resettlement & Rehabilitation for Project-Affected Families 2003. a “just and humane” rehabilitation policy for those involuntarily displaced by development projects, including Special Economic Zones (SEZs) Benefits under the new policy would be available to all affected persons and their families whose land, property or livelihood had been adversely affected by land acquisition or by involuntary displacement of a permanent nature for any other reason, such as a natural calamity; &policy would be applicable to all these cases, irrespective of their number. The stated intention of “backing policy with law” is praiseworthy lays down the principle of ‘minimising displacement’ Rehabilitation & Resettlement Bill, 2007

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46 The Rehabilitation and Resettlement Bill, 2007 provides for Benefits and compensation to people displaced by land acquisition. Creates project-specific, state and national authorities to formulate, implement, and monitor the rehabilitation and resettlement process.    Mandates government to conduct a social impact assessment for any large scale displacement. It also mandates to shall appoint an Administrator for Rehabilitation, Resettlement and monitoring.  Outlines minimum benefits for displaced families and the criteria for eligibility. Benefits may include land, house, monetary compensation, skills training and preference for jobs. Establishes the post of Ombudsman to address any grievances from the rehabilitation and resettlement process. Civil courts are barred from entertaining any suits related to this matte Rehabilitation & Resettlement Bill, 2007

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47 Although the 2007 National Policy for Rehabilitation and Resettlement lays down the principle of ‘minimising displacement’ there have been no visible attempts to implement it. The policy fails to examine the process of displacement, which is taken for granted. The draft makes no attempt to question the need for displacement in the first place, or to seek out and actively promote non-displacing or least-displacing alternatives Land Acquisition Act by suitably defining the phrase “public purpose”. This move to complement policy with legislation is commendable. But the attempt at redefining “public purpose” actually favours private interest now simpler for corporates as, along with land required for strategic and public infrastructure projects, provided it is “useful for general public” This determination, however, is limited to those cases where the developers of SEZs/industrial projects have already purchased 70% of the land, and allows the state to buy the remaining 30% to give the developers “crucial contiguity”. Final Word