Section 104: Option of Appropriate Government to Lease Land
Section 104 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 gives the appropriate Government an alternative to compulsory acquisition: wherever possible, it may take land on lease for a public purpose covered by Section 2(1).
Section 104 - Option of Appropriate Government to Lease
Notwithstanding anything contained in this Act, the appropriate Government shall, wherever possible, be free to exercise the option of taking the land on lease, instead of acquisition, for any public purpose referred to in sub-section (1) of section 2.
Meaning of Section 104
Section 104 recognises leasing as a statutory alternative to acquisition. Instead of permanently acquiring ownership of land, the appropriate Government may, wherever possible, obtain the land on lease when it is required for a public purpose falling within Section 2(1).
The provision does not state that every project must use a lease. Its wording gives the appropriate Government an option and qualifies that option with the expression wherever possible. Whether leasing is suitable will therefore depend on the public purpose, the nature and duration of the project, the land required and the applicable legal and administrative framework.
Meaning of the Non-Obstante Clause
The opening words Notwithstanding anything contained in this Act constitute a non-obstante clause. Within the scope of Section 104, they allow the leasing option to operate despite provisions of the Act that otherwise contemplate acquisition. The clause does not itself define the terms of a lease or displace other applicable laws governing the lease transaction.
What Is the Appropriate Government?
Section 3(e) defines appropriate Government for purposes of the Act. Broadly, the Central Government is the appropriate Government in relation to acquisition for Union purposes and specified Union Territories, while the State Government is the appropriate Government in relation to acquisition for State purposes within its territory, subject to the detailed statutory definition.
Public Purpose Under Section 2(1)
Section 104 expressly links the leasing option to the public purposes referred to in Section 2(1). That provision covers acquisition by the appropriate Government for its own use, holding and control, including for public sector undertakings, and for specified public purposes identified by the Act.
- Strategic purposes relating to the armed forces, national security, defence and specified security-related projects.
- Infrastructure projects falling within the statutory categories and exclusions.
- Projects for project-affected families.
- Housing or income-group projects specified by the Act.
- Planned development, village sites and related public purposes covered by Section 2(1).
- Residential purposes for weaker sections and other categories specified in the provision.
Lease Compared with Acquisition
A lease ordinarily grants a right to possess or use land for an agreed period and on agreed or legally prescribed terms, while acquisition transfers rights through the compulsory acquisition framework. Section 104 therefore provides a mechanism by which the Government may meet an eligible public need without necessarily acquiring the land permanently.
The precise lease period, rent, renewal, possession, termination and other terms are not set out in Section 104 itself. They must be determined under the applicable lease arrangement, rules, Government policy and other laws.
Relationship with Other Provisions
Section 104 follows Sections 102 and 103, dealing respectively with sharing appreciated land value and the Act's operation in addition to existing laws. It is followed by Section 105, which addresses the application of the Act to enactments specified in the Fourth Schedule.
Practical Points
- The power belongs to the appropriate Government as defined by the Act.
- The land must be required for a public purpose referred to in Section 2(1).
- Leasing is an alternative to acquisition where the Government considers the option possible.
- Section 104 does not itself prescribe rent, duration or other contractual terms of the lease.
- Applicable State law, rules, policies and project-specific requirements should also be checked.
Official Legal Resources
The current Central legislation and amendments can be checked through the India Code portal. The Department of Land Resources administers the RFCTLARR Act at the Union level and publishes official Acts, rules and related materials. Its Acts, Rules and Policies section provides official RFCTLARR materials.