Projects and land

Infrastructure and project work spans the full life of a project: the land it is built on, the regulatory approvals it needs, and the contracts under which it is financed and constructed. It touches public law as often as private commercial law.

Land and regulatory clearance

A project's land base has to be acquired. Where the State does the acquiring, that happens under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which replaced the Land Acquisition Act, 1894. The 2013 Act carries its own process for compensation, rehabilitation and resettlement, and its own timetable. Zoning and development permission disputes arise where a proposed use does not align with sanctioned plans, and are contested before planning authorities and, where necessary, the courts. Environmental clearance and continuing compliance run through the National Green Tribunal and pollution control boards, which handle both the grant of clearances and enforcement action for non-compliance.

What the 2013 Act does not allow

The conditions below are not procedural niceties. Where one of them is missed, the acquisition itself is open to challenge.

Land cannot be acquired for a private company's project without the prior written consent of 80 per cent of the affected families. Where the project is a public-private partnership and ownership of the land stays with the government, the figure is 70 per cent. Consent comes before the award, not after it.

Acquisition cannot begin without a social impact assessment and a public hearing in the affected area. The urgency provision in section 40 and the exemptions in section 105 are the narrow exceptions, and an assessment run as a formality once the decision is already made is not the assessment the Act asks for.

Possession cannot be taken until compensation has been paid or tendered. Section 38 sets the order of events and the months within which payment has to be made.

Irrigated multi-cropped land is protected. It may be acquired only as a last resort, and the state government has to fix a limit on how much of it can go.

Land acquired and then left unused for five years, or for the period set for the project if that is longer, does not simply stay with the acquiring body. Section 101 returns it to the owner or puts it in the state land bank.

Challenging government action

Where a government authority's decision (a clearance refused, a licence withheld, a tender process conducted improperly) is arbitrary or exceeds its statutory power, the remedy lies in a writ petition before the High Courts under their constitutional writ jurisdiction. This is a distinct track from ordinary civil litigation, addressed specifically to the legality of governmental or statutory action, and it extends to representation before sector regulators and licensing authorities in both advisory and contested settings.

Structuring the transaction

Project transactions, including public-private partnerships and project financing arrangements, are structured across their own lifecycle: feasibility and regulatory planning, transaction structuring, procurement and bid management, and financial closure. Procurement for such projects involves tender conditions and bid documentation specific to the sector and the funding structure, and the concession or project agreement that follows has to allocate risk (construction risk, demand risk, regulatory risk) between the public authority and the private party in terms that hold up over the project's operating life, which for infrastructure assets can run for decades. What a developer or a public authority has to decide, at the structuring stage, is how that risk allocation is set, since reopening it after construction has begun is considerably harder than settling it in the concession agreement.