Day 9: 26 November 2019
Today, Sr. Adv. Shyam Divan continued his submissions on behalf of the respondents. He primarily addressed three broad issues: (a) the nature of the 2013 Act and how it is different from its predeessor legislation, (b) scope of the proviso, and (c) scope of S.24.
Nature of the 2013 Act and comparison with the Old Act
Sr. Adv. Divan continued to place emphasis on how the 2013 Act was a radical departure from the 1894 one in terms of its objectives. He pointed out that that 2013 Act was meant to be more humane, participative, transparent and one that ensures adequate compensation for all. To substantiate this, he argued that the preamble of the Act itself captures this spirit of the legislation.
He also sought to highlight the flaws in the 1894 Act by placing reliance on a number of judgments which have pointed out the misuse of its provisions. Particularly, these judgments have held that the earlier Act lacked any provisions for rehabilitation and that the provisions related to compensation and urgency were misused by the governments.
In order to contrast the nature of the new Act with that of the old one, Sr. Adv. Divan took the Court through its legislative history. In this regard, he pointed out the rationale behind the provisions on taking possession, payment of compensation and the 5-year time period for the lapsing of proceedings, among other things.
Placement of the proviso
As to the scope of the proviso appearing in Section 24, he referred to a judgment of Justice RF Nariman which had held that the proviso applies only to Section 24(1)(b) and not to Section 24(2). In order to establish this, he pointed out how Section 24(2) lays down a time period of 5 years while no such duration is specified in the proviso. Given this, he argued that a harmonious construction can only be achieved if the proviso is held to apply to S.24(1)(b).
Justice Mishra though observed that the issue of proviso was not directly in issue in the judgment cited. Thus, he pointed out that such references cannot be viewed in isolation.
Section 24 and payment of compensation
Sr. Adv. Divan reiterated some of the arguments advanced from the previous days’ arguments as regards Section 24. Primarily, he submitted the following:
On the issue of payment of compensation, Justice Mishra observed that if the expression ‘paid’ has to be read as paid in account, several pending proceedings where payment is yet to be made will lapse. Nevertheless, Sr.Adv. Divan argued that scheme has always been that payment is indispensable for taking physical possession. Even under the Old Act, even in emergency, 80% of the compensation had to be paid or deposited, submitted Sr. Adv. Divan. In this regard, he also urged the Court to consider how depriving someone of their property without first paying the compensation would be a gross violation of their right to property.
With this, the oral arguments for the day came to an end. The Bench then directed Sr. Adv. Divan to address the court on the meaning of payment.
(Court reporting by Avinash Amarnath)