[Land Acquisition] Section 24 Should Be Given It's Plain And Literal Construction:Shyam Divan Tells Constitution Bench

On Tuesday, Senior Advocate Shyam Diwan, appearing for a farmers' association, propounded the legal propositions upheld by the Supreme Court between 2014 and February, 2018 which have held the field for so far.

"100s of cases have followed these judgments in this court and in the High Courts in these 4 years. All contentions have been dealt with and all issues grappled with...", he insisted.

Enumerating these propositions, he submitted, "Section 24 should be given its plain and literal construction. 'Paid' in 24(2) would also include deposit in the reference court as in section 31(2) (of the old Act)...however, deposit in the treasury under standing orders is not compliance of 31(2), as the court held in Pune municipal Corporation. Where power is given to do a certain thing in a certain way, it should be done in that way or not at all...'physical possession' of land means dominion and control over the land...on whether the period of stay/injunction is to be excluded for the purpose of computing the 5 years in 24(2), Actus curiae has no application...the 'or' in 24(2) is not to be read as 'and'...the vesting under the 1894 Act takes place only after the award is made and the deposit is made in compliance with 31 before possession is taken under 16. Payment is sine qua non before taking possession! You are depriving someone of their livelihood, their asset! 16 envisages 100% payment, while even in the case of an emergency, 80% is expected!...finally, when the legislature has the full power to vest in you the land under 16, it also has the full power to divest you of it under the deeming provision which is 24"

"No novel points have been made before Your Lordships. All this has been urged before smaller benches of this court only!", argued Mr. Diwan.

"The reference (to a larger bench) was made by Justice (Ranjan) Gogoi in Yogesh Neema in 2016. Was it fair to have gone on deciding cases then? If something is pending and they continue deciding, could the law be said to have been settled? Stare decisis? Can you say that it is decided? Would fait accompli apply then?", questioned Justice Arun Mishra.

Earlier, Mr. Diwan had relied on the DMRC (2018) and Virender Lal Bahri (2019) judgments to contend that the proviso in section 24 is to be read with section 24(1)(b) and not 24(2).

"no issue was comprehensively considered in DMRC. If 'and' and 'or' is considered first, only then it is worthwhile. There was no 'and' and 'or' in DMRC- it was not argued, not germane...we don't know what the conclusion is but it must be considered in one go. You can't take (1)(b) in isolation and then go to the Proviso", observed Justice Mishra.

Next, the Senior Counsel proceeded to discuss the judgments that discussed "the infirmities in the old law, the way injustice was being done, that was finally noted by the Legislature"

He relied on the March, 2011decision in Dev Sharan where this court had observed that, "Even though right to property is no longer fundamental and was never a natural right, it has to be accepted that without right to some property, other rights become illusory...This Court is of the opinion that the concept of public purpose in land acquisition has to be  viewed from an angle which is consistent with the concept of a welfare State...Any attempt by the State to acquire land by promoting a public purpose to benefit a particular group of people or to serve any particular interest at the cost of the interest of a large section of people especially of the common people defeats the very concept of public purpose."

"Large tracts of land have been acquired in rural parts of the country in the name of development and transferred to private entrepreneurs, who have utilized the same for construction of multi-storied complexes, commercial centers and for setting up industrial units...the land owners, who were doing agricultural operations and other ancillary activities in rural areas, have been deprived of the only source of their livelihood...They reconcile with deprivation of land by accepting the amount of compensation offered by the Government and by thinking that it is their fate and destiny determined by God...", he quoted from Radhey Shyam (April, 2011).

Ramji Veerji case of November 2011, where the top court observed that the law has become outdated, was also cited.

"There was misuse of 17 (of the old Act, on special powers in case of urgency). There is no doubt...4 and 6 were also misused. Notification was issued for 1600 acres and only 15 were acquired in Haryana. Notification without possession or rehabilitation. All the big builders were involved in it. There has been no compliance so far. Even the CBI is not doing anything...", noted Justice Mishra.

Further, Mr. Diwan canvassed the evolution of section 24 from the Land Acquisition, Rehabilitation and Resettlement Bill, 2011 to the Bill of 2013 to The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

"At the preliminary stage, there is lapsing both in cases of no award as well as no possession. Even if the award is made, but possession is not taken, the acquisition lapses. There is no notion of 5 years, no notion of compensation- only lapsing, no proviso", he advanced.

"There is nothing about payment...although possession was there earlier also, now it is qualified by two riders and the proviso", remarked Justice Mishra.

Mr. Diwan agreed the earlier provision is of limited utility.

"It makes a clear-cut statement. If award is not made, it is deemed to have lapsed. If there is no award, there can be no possession. Without award, there is no possession. It means compensation is also not paid... Possession presupposes 24(2)", commented Justice Ravindra Bhat.

"At the intermediate stage, there is both lapse and compensation...besides compensation, there is mention of rehabilitation and resettlement...grace period of 5 years comes in for the first time...the proviso comes in...'physical' is added to possession...now apart from physical possession not being taken, non-payment of compensation also leads to lapse..", explains Mr. Diwan.

"What was the meaning of possession earlier?", Justice Mishra wanted to know. The Senior Counsel said he would reply later.

"At the third and the final stage, 24(1) speaks of determination of compensation alone, and rehabilitation and resettlement have been done away with [the bench observed it has been narrowed down]...'not been accepted' has now become 'not been deposited in the accounts of the beneficiaries'...", continued Mr. Diwan.

In as much as the subsequent ordinances and an amendment bill sought to exclude from the 5 year period in section 24(2) the duration of stay or the duration where after the possession was taken the amount of compensation lay deposited in the court or in any other designated account, he stressed that the ordinances as well as the amendment bill had lapsed.

"Should we be guided by the legislature in our interpretation? Just like we can't legislate, we cannot even wait for a legislation for the purpose of our interpretation...it is not our job to wait for what they are doing or what they are not doing...they may or may not amend it...", reflected Justice Mishra.

"Why should we be guided by their process? That process is different and ours is different...how do we instruct the High Courts? There is a hold-up today. This court has said something in so many orders. And now there is a five-judge reference. And it has been two years since then also...", added Justice Bhat.

"We adhere to the long line of decisions that have held the fort since 2014. Let's not upset settled law. The legislature is alive to the problem and should to wish to change the law, it shall. As it has in the case of 4 states! The message to the High Courts should be that we are affirming our earlier view!", responded Mr. Diwan.

Indicating, an RTI reply in connection with the acquisition by the Indore Development Authority, Mr. Diwan narrated, "the Award was made in 1988. The area acquired is 127 acres. The Collector rights in 2015 that out of 2.03 crores only 87 lakhs have been deposited,1.16 is outstanding. He hasn't even received it........It has been 31 years now! You haven't even paid. Where is the question of possession, of vesting?"

"You want us to interpret that if the payment has not been received by the Collector, it should go? We are not examining the reasons for not depositing whether it is stay or not having the money. But the way you are suggesting that we should move only on this and quash the notification is not correct", said Justice Mishra.

"We do not know if the possession has been taken. In that case, only interest would be payable", stated Justice Bhat.

"It can't be seen in isolation. Whatever the reason- interim injunction or whatever- we are not interested. We are only interpreting the provision......You are arguing conversely. It is not the way to take the bull by the horns..... come to the issue. Don't beat the around the bush. You don't have to sensitise us, that it is an archaic law, a colonial law. We are with you on it" added Justice Mishra.

"The Legislature, which has the knowledge of the circumstances across the country, is saying, '5 years. And lapse'. You don't know the reason whether there was a stay or the acquiring authority does not have the money" countered Mr. Diwan.