Day 15: 10 December 2019
Today, Solicitor General Tushar Mehta (SG) began and shortly thereafter finished his rejoinder submissions. Either side of his rejoinder submissions, Sr.Adv. Gopal Sankaranarayanan completed his arguments on behalf of some of the respondents and a number of other counsels made their brief rejoinder submissions.
Both the SG and Sr.Adv.Sankaranarayanan primarily laid focus on the meaning of ‘paid’ and ‘physical possession’ appearing in Section 24 of the 2013 Land Acquisition Act.
Meaning of ‘paid’ and ‘physical possession’
Sr.Adv. Sankaranarayanan started the proceedings for the day by submitting that S.24 consciously uses word ‘paid’ and no ‘tender payment’ (as used in Section 31 of the 1894 Land Acquisition Act). Such a conscious effort to use different terminology points to the intention of the Parliament to differentiate between the two, argued Sr. Adv.Sankaranarayanan.
He then argued that Standing Orders (SOs) of State Governments cannot be relied on to allow any other method of payment. In this regard, he contended that SOs are subordinate legislation and the same cannot be used to interpret Parliamentary legislation.
On the meaning of physical possession, as used in S.24, he submitted that the Parliament was aware of the different types of possession and since it has specifically used the expression ‘physical possession’, it has to mean actual physical possession. He then relied on certain judgments on interpretation of term possession. He reiterated that Parliament has consciously used the words physical possession knowing that another type of possession i.e. symbolic possession exists.
Acquisition proceedings to lapse if land unused for more than 5 years
Throughout the course of the hearing, one of the major concerns of the Bench has been the fate of development projects that have been ongoing on acquired lands. On this issue, Sr.Adv. Sankaranarayanan argued that both S.24 and 101 of the new Act provide for return of unused land to the land owner if it was not used for 5 years. Therefore, 5 years seemed to be the outer limit for envisaged under the Act within which the physical possession had to be taken, submitted Sr.Adv.Sankaranarayanan.
At this point, Justice Banerjee observed that certain earlier judgments under the 1894 Act seemed to suggest that symbolic possession cannot be taken and possession has to be physical. Additionally, Justice Mishra enquired about situations where construction is done on some part of the land and other parts remained unutilized. Even in such cases, Sr.Adv. Sankaranarayanan argued that 5 years is the outer limit for the entire plot of land acquired. Government can at least fence the land and keep it, added Sr.Adv. Sankaranarayanan. If it takes no action at all, then proceedings have to lapse.
Furthermore, Sr.Adv. Sankaranarayanan argued that his alternative argument was that even if construction was not done on entire land, the acquirer must in some way show physical possession and a mere panchnama was not adequate for this.
He concluded his submissions by submitting that the use of the word 'but' in S.24(2) indicates that there is negligence on the part of the state. To read 'or' as 'and' in such a case would be to reward such negligence. Moreover, if proviso is to be read as a proviso to S.24(2), it has to then necessarily be a proviso to S.24(1)(b) as well as since S.24(2) overrides 24(1)(b). He then envisaged two scenarios under the proviso - if compensation not paid for majority, then higher compensation under new Act. If deposit made for majority, but not all, then it has to lapse.
Rejoinder submissions by the SG
SG commenced his rejoinder by placing certain judgments to support his argument that 'or' appearing in S.24(2) should be read as 'and'. He then went on to submit that since thousands of infrastructure projects are going on, the intention of the Parliament was to minimize lapsing.
At this point, Mishra J. intervened and asked as to whether 5 years was not sufficient to take steps in these infrastructure projects to pay compensation and take possession.
Physical possession: Thereafter, SG handed over another compilation of judgments on the issue of whether possession without payment is unlawful possession. In this regard, he also referred to S.31 and 34 of the 1894 Act and argued that S.34 recognizes taking possession without payment. Therefore one can't argue that taking possession without payment is illegal, submitted the SG.
On the use of the expression 'physical possession', he argued that a transitory provision (S.24) cannot impose a new condition on an earlier legislation where possession other than physical possession was recognized. Law governing old transactions has to prevail for those transactions, added the SG.
Excluding periods of stay: SG reiterated that periods of stay granted by courts should be excluded while calculating the 5 year period mentioned in S.24(2). This is essential as courts' actions cannot prejudice anyone, submitted the SG. Specifically, he relied on the Supreme Court judgment in Essar Steel India Limited which had held that time taken for legal proceedings would be excluded from the statutory time period under the Insolvency and Bankruptcy Code, 2016.
With this, the SG concluded his rejoinder.
A few other counsels too made their rejoinder submissions after the SG. Advocate Vikas Mehta, appearing for one of the petitioners, argued that use of words ‘tender payment’ in S.31 of the 1894 Act only amounts to offer of payment and not actual payment. He also emphasized that there was a difference between deposit in treasury directly and deposit in court even though the latter too involves deposit in treasury with court as custodian.
On Standing Orders, he submitted that they contemplate a mode of payment not envisaged under the statute and therefore, can't be relied on.
Furthermore, in cases where construction was already carried out and compensation not paid, he argued that the proceedings cannot lapse. Instead, he suggested that the court can mould reliefs, perhaps in the form of higher compensation.
Similar arguments in relation to lapsing of ongoing/completed projects were echoed by Adv. Gopal Jain. He argued that there must be legal certainty for infrastructure projects and lapsing would break that legal certainty.
Thereafter, Senior Counsel for the State of Tamil Nadu made submissions. On the purpose of the proviso, he argued that it has nothing to do with lapsing and was meant to only provide for enhanced compensation. He further submitted that the proviso cannot be read as an exception to S.24(1)(b). Specifically, he highlighted an example where an award was made 4 days prior to coming into force of the 2013 Act. He argued how in such cases it would be impossible to pay everyone in 4 days. Therefore only purpose of proviso was higher compensation.
Following this, the counsel for the Delhi Development Authority made brief submissions and will continue tomorrow.
(Court reporting by Avinash Amarnath)