Day 13: 4 December 2019
On day 13 of the oral arguments, Senior Advocates Dushyant Dave and Prashant Bhushan concluded their submissions. While a number of arguments in relation to interpretation of Section 24 were made, a common theme which emerged was their request to the Bench to keep the intention of the Parliament in mind while interpreting the legislation.
2013 Act is meant to benefit the land owners
Sr.Adv. Dave pointed out that land acquisition is governed by the principle that “no person shall be deprived of his property save by authority of law”. Therefore, the Government had to satisfy the rigors of the 2013 Act at each stage before it could acquire the land. Moreover, the onus of establishing that the requirements of the legislation were satisfied lay with the Government and not the land owners, added Sr.Adv.Dave. Thus, the Parliament intended to protect the land owners and benefit them in cases where their lands were being acquired. Nevertheless, the Union’s arguments were antithetical to such intention of the Parliament, submitted Sr.Adv.Dave.
In the afternoon session, similar arguments were adduced by Sr.Adv.Bhushan. Specifically, he pointed to the unfairness of the predecessor legislation – the 1894 Land Acquisition Act - and how the new legislation had brought in specific measures like Social Impact Assessment, rehabilitation and enhanced compensation in order to serve the interests of the land owners. Additionally, he noted how the 2013 Act was aimed at making sure that the costs (social, environmental etc.) of the acquisition were not greater than the benefits that it sought to serve.
Physical and not symbolic possession to be taken
On the question of what taking possession under Section 24 meant, Sr.Adv.Dave argued that the government had to take “physical possession” and not merely symbolic possession. This, he noted, was meant to avoid cases where possession was taken in a bogus way.
Similar arguments were advanced by Sr.Adv.Bhushan who submitted that the possession as stated in the Act could not mean symbolic possession and that a due process for the same was required to be followed in order to consider it a physical possession under the Act.
“Or” to be interpreted according to the context
On the interpretation of “or” appearing in Section 24(2), Sr.Adv.Dave took a markedly different approach from that of other counsels who argued before him and echoed the arguments of Sr.Adv.Dwivedi. He argued that the meaning given to it should depend on the context. Thus, as long as it was interpreted in line with constitutional principles and to the benefit of citizens, the same would be acceptable irrespective of whether it was read as “or”/ “and”.
Lastly, he submitted that the Parliament used the expression “payment” in Section 24 to either signify a deposit in the court or in the account of the landowner.
Sr.Adv.Bhushan though took an approach different to that of Sr.Adv.Dave on the interpretation of “or”. He argued that “or” must be interpreted as “or” itself so that the acquisition proceedings shall lapse even if one of the two conditions is not satisfied, i.e., either the physical possession is not taken or the compensation is not paid.
Proviso applicable to entire provision and not just to Section 24(2)
On the applicability of the proviso, Sr.Adv.Bhushan argued that if the majority of the land holders remained unpaid on the date of coming into effect of the Act, then irrespective of whether 5 years had elapsed, all such land holders shall be eligible for higher compensation. Thus, he suggested that the proviso be read as proviso to Section 24(1)(b) and not just to Section 24(2). Such an interpretive exercise, he submitted, was important to effectuate the intention of the Parliament.
On excluding the period of stay while calculating the time elapsed from the date of award to taking physical possession, he suggested that in the absence of an express provision excluding it, the Parliament had intentionally omitted it. Thus, if physical possession was not possible due to a stay, the proceedings should be deemed to lapse.
De-tagging of Civil Appeal Nos. 19532-19533 of 2017
Sr.Adv. Jaideep Gupta again brought up the issue of de-tagging certain matters(he had submitted on the same issue yesterday). As per him, the facts in Civil Appeal Nos. 19532-19533 of 2017 required the Bench to look into the interpretation of Section 24(1)(a) in case award was not passed due to impediments such as an injunction order. He submitted that in light of this, land holders in such cases will be entitled to higher compensation.
The Bench noted that this was a new issue which had not been brought up earlier and that they had to deliberate on whether at this stage they should add the issue or simply de-tag the matter.
After a short deliberation, the Bench directed that the concerned matters be de-tagged from the present batch of matters.
The bench finally rose for the day at 3.50 pm.
(Court reporting by Sanya Talwar)