Day 3 Hearings

Day 3: October 23rd 2019

Today’s hearing was split into two sessions – the morning session during which the Bench rejected the application for Justice Arun Mishra’s recusal and the afternoon session when it framed the questions of law to be decided.

Bench rejects application for recusal

Pronouncing its order in open court, the Bench rejected the application for Justice Mishra’s recusal. While Justice Mishra wrote the lead opinion, a concurring opinion was delivered by the four other judges on the Bench. After pronouncing its order on recusal, the Bench prorogued the petitions to 2 pm for the framing of issues on the merits of the matter.

Read our plain english summary of the recusal order here.

Parties propose questions of law

When the matter was taken up for hearing in the afternoon, Solicitor General Tushar Mehta (‘SG’) proposed six issues for the consideration of the Bench:

• Issue 1:  Whether the word “or” in Section 24(2) of the 2013 Land Acquisition Act (‘New Act’) has to be construed as “and”?
• Issue 2:  Whether the proviso appearing after sub-section (2) of Section 24 is limited to sub-section (2) or is applicable to both sub-sections (1) and (2) of Section 24?
• Issue 3:  What is the true meaning of the expression “deposited in the account of the beneficiaries” in the proviso?
• Issue 4: Whether the time period of proceedings before the reference court should be excluded for the purposes of calculating five years provided in Section 24(2)?
• Issue 5: What is the true meaning of the expression “physical possession of the land has not been taken” appearing in Section 24 (2)?
• Issue 6: Whether the decisions following Pune Municipal Corporation are open to review?

Although Sr. Adv. Shyam Divan, appearing for some of the Respondents, agreed with the first five issues proposed by the SG, he suggested the following modifications to issue 6:

• Whether it is open for a co-ordinate bench to declare a prior decision of another co-ordinate bench as per incuriam (invalid in law)?
• Whether either of the decisions in Pune Municipal Corporation or Indore Development Authority is per incuriam?

To this suggestion, Justice Mishra indicated that the Bench was open to it if the parties insisted. Sr. Adv.Divan responded that he was merely recommending it and not insisting on it being framed as one of the issues.

Thereafter, Sr. Adv. Dinesh Dwivedi, also for the Respondents, submitted that the effect of Section 31(2) of the 1894 Land Acquisition Act (‘Old Act’), too had to be examined for settling the issues before the Bench. The provision lays down the procedure to be followed by the government if the land owners refuse to accept compensation. Justices M.R.Shah and Vineet Saran agreed that this too would have to be considered for a conclusive determination.

At this point, Adv. Dhruv Mehta, submitted that other than the already suggested issues, the Bench also needed to examine whether Section 24(2) creates a fresh right of challenge for the land owners. Thus, he prayed the court to examine whether a land owner who had unsuccessfully challenged the award of compensation under the Old Act could mount a fresh challenge under Section 24 (2) of the New Act.

Court frames the issues

Upon these submissions, Justice Mishra began framing the issues with the caveat that they can always be corrected at a later stage.

The Bench combined issues 1 and 3 suggested by the SG to give shape to the first issue. Thus, it will examine the meaning of the words ‘paid’, ‘tender’ provided in Section 24 of the New Act and Section 31 of the Old Act. Connected to this, the Bench will also examine if a failure to deposit compensation in the reference court will lead to a lapse of acquisition, as provided for in Section 24 of the New Act.

SG’s suggestions for issues 2 and 4 were also accepted by the Court, with issue 4 being re-numbered as issue 3. Similarly, issue 5 too was accepted, forming issue 4 for the court.

Taking into account the suggestions of Sr. Adv. Shyam Divan, the court will examine, as the fifth issue, the question of whether a co-ordinate bench can declare a decision of another co-ordinate bench as per incuriam.

With the issues framed, Justice Mishra suggested that the hearing be commenced from 24 October. Nevertheless, upon a request by the counsels, the matter was adjourned to November 6.

(Court reporting by Siddhartha Iyer)