Day 17 Arguments

December 11th 2019

The rejoinder submissions in the matter came to an end today and with it, the Bench reserved its judgment. Senior Advocate Anup George Chaudhari and Additional Solicitor General Pinky Anand were the last ones to make the rejoinder submissions.

Acquisitions not to lapse if physical possession taken before the Act came into force

In the course of his rejoinder, Sr. Adv. Anup George Chaudhari primarily addressed the Bench on a) lapsing of acquisition proceedings under the 2013 Act, b) partial versus complete lapsing, and c) exclusion of stay in calculating the five year period.

Lapsing of acquisition proceedings:  He submitted that the consequences of allowing acquisition proceedings to lapse are grave, especially when development projects have already commenced on the land. To substantiate his point, he gave the example of land acquired for a dam. If a dam is already built on such land, it would already be submerged, pointed out Sr. Adv. Chaudhary. In such cases, he wondered how the land can be returned if the proceedings were to lapse.

Thereafter, he referred to s 4, 7 and 8 of the 2013 Act, which provide for a social impact assessment before issuing a notification for acquisition. Sr. Adv. Chaudhary argued that it would be impossible to apply these provisions to partially completed or pending projects. He further argued that these provisions can only apply to completely unused land lying vacant or acquired before January 1st 2014.

Acquisition not to lapse for entire proceedings: Thereafter, Justice Shah asked whether application of s 24(2) would lead to lapsing of proceedings only qua the specific land owner who had not been paid or the entire proceedings. To this, Sr. Adv. Chaudhary responded that it should only lapse qua particular land owners. He argued that the proviso to s 24(2) also refers to majority of land holdings, which implied that the law recognizes multiple proceedings with respect to the same project.

Exclusion of court stay period: Justice Mishra then enquired about situations where there is a court stay and a land owner continues to cultivate on such land even after January 1st 2014. To thus, Sr. Adv. Chaudhary argued that there can’t be a lapse in such a situation. He elaborated that in such cases, the land owner can continue to cultivate till stay is lifted but then if the compensation is paid, acquisition should not lapse.

Compensation not a pre-condition under the 1894 Act

Additional Solicitor General Pinky Anand’s (ASG) submissions focused on the scheme provided under the 1894 Act in so far as payment of compensation was concerned. The ASG argued that payment of compensation was not a pre-condition to acquisition under the Old Act. Instead, acquiring possession was fundamental to the scheme of the said Act, submitted the ASG.

Furthermore, she submitted that certain modes of payment for specified eventualities were provided under s 31(2) of the Old Act. In case of any other eventualities, Standing Orders issued by the State Governments provided the mode. To this, Justice Shah observed that even under the Standing Orders, after deposit in the treasury, notice had to be given to person concerned. Such person would then have a right to approach the treasury for payment. Justices Saran and Bhat too observed as to how Standing Orders may provide contrary instructions to the 1894 Act, which clearly provided that payment had to be deposited in court.

Just before the conclusion of the oral arguments, Justice Mishra raised the issue of stare decisis (context: the decision in Indore Development Authority was argued by some of the respondents to be contrary to the decision in Pune Municipal Corporation and thus against the principle of Benches having to follow prior decisions of Benches of equal strength).  When this question was raised, the Solicitor General interrupted and argued that stare decisis can only apply where a view was consistently upheld by court. In the matters before the Bench, he contended that there were conflicting views. Upon this submission, Justice Mishra asked SG to submit judgments on this issue. Separately, Justice Bhat observed that argument of SG may apply in relation to interpretation of Constitution and not to interpretation of a statute.

With this, the 16 day long oral arguments in the matter came to a conclusion.

(Court reporting by Avinash Amarnath)