[Land Acquisition] Indore Development Authority Judgment Is Per incuriam: Sidharth Luthra Tells SC [Read Written Submissions]

On Thursday, Senior Advocate Siddharth Luthra raised, before the five-judge bench to which the interpretation of section 24 of the 2013 Land Acquisition Act has been entrusted, the issue of a three-judge bench in its 2018 ruling in Indore Development Authority regarding as per incuriam another three-judge decision in Pune Municipal Corporation (2014).

"A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench. There can be no scintilla of doubt that an earlier decision of co-equal Bench binds the Bench of same strength", Mr. Luthra quoted an earlier constitution bench.

Another five-judge bench's opinion in the Dawoodi Bohra Community case was also cited-

"It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted"

"Given that the correctness of the law laid down in judgments referred to in the previous paragraph is open to challenge before this Hon'ble Court, it is respectfully submitted that the Indore judgment was passed without appreciating the law laid down by this Hon'ble Court, and in contravention to the provisions of the 1894 Act and the 2013 Act".

It was Mr. Luthra's case that the finding of per incuriam in the Indore judgment is based on the non-consideration of the proviso to section 24(2) of the new Act and section 34 of the 1894 Act in the Pune judgment. It is contended that these observations are factually not borne out from a reading of the latter, which has held that "the deposit of compensation amount in the Government treasury is of no avail and cannot be held to be equivalent to compensation paid to the landowners/persons interested"

On Thursday, it was submitted that Under Section 55 of the 1894 Act, rules can be framed which are not inconsistent with the 1894 Act and by exercising this power, States have issued Standing Orders. Further, Paragraph 75 (v) of the Standing Order clarifies that a treasury deposit shall only be applicable to a situation where the persons interested do not appear before the concerned officer and do not apply for a reference to the Civil Court under Section 18 of the 1894 Act.

Relying on Sukhbir Singh (which in turn follows the Pune judgment), it is deciphered that a deposit in the treasury can be made with reference to Section 31(1) of the 1894 Act, but under Section 31(2), where persons interested have filed a reference under Section 18, a deposit in the treasury cannot replace a deposit in Court. Further, if the amount is not deposited in Court under Section 31(2), the effect would be that the Land Acquisition Collector deprives the beneficiaries of their rights under Sections 32 and 33 of the 1894 Act.

Under Section 32, persons not competent to alienate the land are entitled to move an application to invest the awarded compensation to purchase other lands under the like title as before.

Given that under the 1894 Act, the Collector was to Award the true market value of the land and 30% solatium over and above the same, Section 32 of the 1894 Act enables and entitle the beneficiaries to enjoy 1.3 times larger land. If so, the market value of such land would be comparable, if not more, than the circle rate of the acquired land that the 2013 Act provides for.

"Thus, it is clear that extending benefits under the 2013 Act would not be drastic at all. This benefit is distinct from the curable liability of payment of interest under Section 34 of 1894 Act, which is in any case related to the date of possession of the land. It is submitted that in cases where possession is taken decades after the passing of the Award, Section 34 offers no relief and in no manner can compensate or match the benefits under Section 32 of the 1894 Act as observed in the last sentence of para 69 of the Indore case. It would in no way compensate for the loss of benefits under Sections 32", it is argued.

Read the Written Submissions Here