Can Lapse Of Acquisition After Taking Possession Of Land Be The Legislative Intent? SC In Indore Development Authority Case

The Constitution Bench of the Supreme Court on Thursday continued the hearing in the Indore Development Authority case on the interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013. 

"Possession is taken, compensation not paid, but development has been carried out. Then the acquisition should go? A project of 1000 acres may go? What will happen if we accept this? Is this mischief of construction permissible in the law?", exclaimed Justice Arun Mishra on Thursday.

"1000 acres have been acquired. A superstructure, say a bridge, has come up. You are the owner of 1 acre. You are not paid but possession has been taken. So the entire bridge should go?"

On Wednesday, Senior Advocate Shyam Diwan had submitted that :

"The benchmark indications in 24(2) are physical possession not taken or payment not made. They are not qua the entire section 4 notification, the whole tract of land, but as to that specific area...limited lapse is a possibility...". Again, on Thursday, it was suggested by another advocate that the indices of physical possession and compensation are individualistic and have to examined on a claimant-to-claimant basis- "'Have you been paid?' or 'Has your physical possession been taken?' is the catchment of 24(2)...so qua me, it will lapse even if I am in the centre of the project. If I am in the centre of the bridge, please begin the acquisition proceedings afresh!"

To the suggestion on the part of the respondents of a limited lapse qua the landowner who has not been paid, Justice Indira Bannerjee commented, "So Part of the bridge should be dismantled?"

"If there is a bridge there, how will possession be restored to you? Something must be practicable!", remarked Justice M. R. Shah.

"Where physical possession has been taken, it cannot be the legislative intention that acquisition lapse! There may be some provision for higher compensation", added Justice Bannerjee.

"If we go on the individual basis, then whether possession is not taken or compensation is not paid, there will be a lapse! The proviso will never be functional! There will be no opportunity to check (if the compensation has been deposited the accounts of the majority)!", noted Justice Ravindra Bhat.

"24(1)(b) is a self-contained code. If we take the proviso, with its non-obstante clause, to (1)(b), then we will destroy (1)(b)! If the award is made in December, 2013, then when should the deposit be made?...(2) is the exception. The proviso is the proviso to a proviso, which ensures that where the majority have not been paid, everybody gets the benefit of a higher compensation!", remarked Justice Mishra.

"If we read (1)(b) with the proviso, then we come to (1)(a) situation...Also, if we are to read 'or' as 'and', only then does the proviso fit in. But if we are to lift it to place it after (1)(b), then even where the possession has been taken, they won't get the benefit of higher compensation", continued the judge.

Justice Mishra noted that it is a settled proposition that the proviso cannot be bodily-lifted unless there is an absurdity or the meaning go the provision remains unclear. The bench reiterated Solicitor General Tushar Mehta's argument the while sub-section (2) of section 24 is followed by a colon, sub-section (1)(b) ends with a full stop.

As to where the bench may draw the line, considering that sub-section (2) envisages a lapse open-endedly in cases where the award was made before January 1, 2009, it was submitted on Thursday that the more anterior the acquisition goes, the worse it is for the landowners.

"So even acquisitions from years ago can be challenged? Even where they refused the compensation, they should be able to get the benefit of their refusal?", said Justice Mishra.

"The award has been passed. Possession is taken. You have not accepted the compensation. You are fighting. You have lost till the Supreme Court....does [(2)] apply to pending proceedings or the concluded ones as well?", asked the judge.

When it was replied that it would apply to the concluded proceedings too, the judge remarked, "So the entire infrastructure should go?" 

The hearing will continue next week.