The contents of this document are confidential LEGAL ISSUES IN LAND ACQUISITION FOR LARGE SCALE SOLAR PROJECTS 1 USAID | India Consultation Workshop: Accelerating Solar Energy Deployment in Public Sector Undertakings 15 September 2015

2 LONG TERM CAPACITY TARGETS BY 2022 Total renewable energy capacity - ~ 175 GW Solar energy capacity - ~ 100 GW Roof top solar capacity - ~ 40 GW LONG TERM CAPACITY TARGETS BY 2022 Total renewable energy capacity - ~ 175 GW Solar energy capacity - ~ 100 GW Roof top solar capacity - ~ 40 GW 12 th FIVE YEAR PLAN TARGETS Total renewable energy capacity - ~ 32 GW Solar energy capacity – ~ 12 GW Off-grid Solar – ~1 GW 12 th FIVE YEAR PLAN TARGETS Total renewable energy capacity - ~ 32 GW Solar energy capacity – ~ 12 GW Off-grid Solar – ~1 GW STATE POLICY TARGETS Solar energy capacity – Targets of ~5 GW in next 5 years under most state policies Roof top solar capacity – Individual state targets between ~ 2-5 GW STATE POLICY TARGETS Solar energy capacity – Targets of ~5 GW in next 5 years under most state policies Roof top solar capacity – Individual state targets between ~ 2-5 GW SOLAR ENERGY TARGETS SOLAR PARKS AND SOLAR SMART CITIES 25 solar parks to be developed for total solar capacity of ~ 20 GW 50 solar smart cities announced SOLAR PARKS AND SOLAR SMART CITIES 25 solar parks to be developed for total solar capacity of ~ 20 GW 50 solar smart cities announced

3 “Land acquisition problems dog solar power plants.” – The Times of India “Land Acquisition Bill row delays solar policy nod in Maharashtra.” - DNA “if the Indian government could make land available, we might consider manufacturing the solar panels in India instead of importing them.” – CEO, Japan’s SoftBank (during press meet to announce a joint venture with India’s Bharti Enterprises and Taiwan’s Foxconn Technology Group) CHALLENGES “Telangana solar power developers seek clarity on land.” – Business Standard

4 Land Acquisition Act 2013 Acquisition of private holdings under Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (Land Acquisition Act 2013) Consent of 70% land owners required for PPP projects and 80% for other private projects Mandatory Social Impact Assessment (SIA) Timelines prescribed for SIA, preliminary notice for acquisition, award of compensation and taking possession of acquired land R&R – employment to a member of affected family Ceiling on acquisition of irrigated multi-cropped land Return of unutilised land Land Acquisition, Rehabilitation and Resettlement Authority Retrospective application Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (second Amendment) Bill 2015  Exempts five types of projects from consent and SIA requirements  Compensation in consonance with 13 other laws  Change from ‘private company’ to ‘private entity’  Reduction of overall timelines from 50 to 42 months LEGAL REGIME FOR LAND ALLOTMENT

5 Agricultural Land Allotment and usage governed by State land laws Deemed conversion of usage of land acquired for renewable energy projects Land ceiling Sale or lease of land permitted LEGAL REGIME FOR LAND ALLOTMENT Government Revenue Land Most state policies provide for allotment of government revenue land and waste land for solar projects Allotment and usage governed by State land laws Land banks created specifically for land allotments to solar projects Allocation by State designated Nodal Agencies and State Industrial Corporations Leases usually executed for operational life of projects Forest Land Diversion of land reserved as government forest land under India Forest Act 1927 and Forest (Conservation) Act 1980 Stage-I Clearance – In-principle approval Stage-II Clearance – Final approval Execution of principal lease deed; transfer of principal lease deed Statutorily prescribed timelines

6 Availability of Land Large scale solar power projects are land intensive 1 MW of solar PV and thermal installations require ~5 acres of land Non-availability of suitable land holdings Uncertainty over provisions of Land Acquisition Act 2013 LEGAL ISSUES IN LAND ALLOTMENT Ownership Issues Defects in title and poor land record management Multiple-owners and sub-division of parcels of land Purchase of agricultural land using foreign monies Land ceiling Restrictions on purchase of certain types of land; Conversion of usage Rights of constitutionally protected minorities ‘One-time’ transfer restrictions Right of Way and Easement Rights Required for constructing approach roads and laying of transmission lines No standard form contracts Ownership issues Determination of adequate compensation Time consuming and controversial

7 LEGAL ISSUES IN LAND ALLOTMENT Compensation Issues Adequacy of compensation questionable ‘Market value’ for determination of compensation prescribed by Government Risk of post-acquisition litigation Compulsory employment for members of affected families Statutory Timelines Extremely long drawn process - Land Acquisition Act 2013 prescribes 50 months Most State land laws do not prescribe any timelines No provisions on deemed approval Financing Issues Absence of clear title impedes security creation in favour of lenders Lenders’ rights subordinate to government’s right over revenue land Standard form lease agreements rarely recognise lenders’ step-in rights States like Gujarat specify financial institutions in whose favour government land can be mortgaged Exercise of step-in rights subject to prior government approval

8 QUESTIONS?

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