Day 5: 7 November 2019
In another full day hearing, the Constitution Bench heard Solicitor General Tushar Mehta (SG) continue his submissions on the interpretation of Section 24 of the 2013 Land Acquisition Act. SG’s submissions were interspersed with observations from the Bench, which also raised numerous questions to the SG.
SG reiterates arguments on Section 24
Although the SG led day long arguments on the interpretation and scope of s.24, they were in essence a reiteration of his arguments from yesterday. As may be recalled, he had argued yesterday that the payment under s.24(2) is completed upon the government making the compensation unconditionally available to the landowners. In case of refusal to accept compensation, the obligation under the provision is fulfilled if the government deposits the compensation in the state treasury.
SG tried to add further teeth to his submissions from yesterday by citing judgments as well as illustrations. For instance, he submitted that there are a number of decisions in the field of labour law which have held that tendering of wages is sufficient to constitute payment of wages. Drawing an analogy from these decisions, he submitted that tendering compensation (as opposed to actually paying it to the account of the landowner) is sufficient to constitute payment.
Another interpretive device used by the SG was the language used in the 1894 Act. Specifically, he referred to s.31 of the 1894 Act, which, among other things, provides for eventualities in case compensation is refused by the landowners. He submitted that chapter under which s.31 appears is titled ‘payment’. Therefore, he submitted that s.24 refers back to old Act and would have to be read in that context.
At this point, the Bench observed that SG’s submissions were not coherent and appeared to be detrimental to the government’s case. If the SG’s submissions were to be accepted, it would lead to all land acquisition proceedings lapsing, observed the Bench. Elaborating on this, Bench noted that if ‘paid’ and ‘deposit’ were held to be synonymous, that would mean that non-deposit in the court would also have to be taken as non-payment. This is in line with the decision of Pune Municipal Corporation and thus detrimental to the government’s case.
SG though clarified that he did not mean to equate both and wanted to only point out the anomalies that may arise from insisting on depositing compensation to the beneficiaries’ accounts.
With this, the arguments for the morning session came to an end.
(The bench re-assembled after lunch at 2:09 pm)
Mode of payment is only directory
In the post-lunch session, SG asserted that s.24 does not mandate a certain mode of payment. Relying on English case laws, he submitted that when an obligation is provided under a provision of law, only the obligation is mandatory. In other terms, the mode of carrying out the obligation is only directory as long as the obligation itself is carried out.
In order to buttress his point on mode of payment, SG pointed out the variation in the modes of payment prescribed by various state governments. To this, Justice Mishra responded that these rules were framed under the 1894 Act and they may not be relevant to the interpretation of the 2013 Act.
SG then went on to submit that no prejudice is caused to the landowners if the compensation is deposited in the state treasury. In fact, they will earn interest on such deposit, argued the SG.
Interpretation of ‘or’ in s.24(2)
The last part of today’s hearing revolved around the issue of whether the word ‘or’ appearing in s.24(2) has to be read as ‘and’. In this regard, SG submitted that lapsing of acquisition proceedings should be limited to situations when both possession and payment are not completed. Thus, he argued that ‘or’ should be construed as ‘and’. Justice Bhat though noted an anomaly in this submission. He pointed out that such an interpretation would lead to certain proceedings - where compensation gets paid to the landowner without the government taking possession – never lapsing. Similarly, Justice Mishra pointed out how this may affect the interpretation of the proviso.
With this, the hearing for the day came to a close. The matter will now be taken up for hearing on 19 November.
(Court reporting by Avinash Amarnath)