The two different interpretations of Section 24 of Land Acquisition Act 2013 by two three-judge benches of the Hon’ble Supreme Court have courted controversial discussions. In the midst of this entire judicial debate, the clouds of confusion surrounding land acquisition continue to exist.
Before Senior Advocate Mukul Rohtagi raised the issue –a ‘recipe for disaster’ –before the Bench of Justices MB Lokur, Kurian Joseph and Deepak Gupta on February 21, the Supreme Court bench of Justice Kurian Joseph and Justice Mohan Shantanagoudar on February 16 granted a stay on the land acquisition process by Madhya Pradesh Government for its Diamond Park Project in Rau on a petition by farmers challenging the order by High Court’s division bench. Apart from arguing that MP Government have not taken physical possession of land from the farmers as panchnamas do not have their signatures, the petitioners also referred to the two conflicting Supreme Court judgments of three-judge benches causing confusion over the matters of land acquisitions which are under litigation.
The petitioners said that the recent Judgement in Indore Development Authority passed by a three-bench of Supreme Court holding per incuriam another order passed by a Supreme Court bench of three judges in 2014 in the case of Pune Municipal Corporation has led to establishing two separate SC guidelines over one issue causing great deal of confusion among the public.
The real issue pertains to interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 in relation to which the order passed on February 8 by a bench comprising Justices Arun Mishra, AK Goel and MM Shantanagoudar in a 2:1 majority overruled a 2014 judgment delivered by Justices RM Lodha, Madan Lokur and Kurian Joseph.
The advocate representing the farmers of Rau told the media they have sought for hearing of this matter by a larger bench, since it is not clear as to which one of the Supreme Court guidelines (both given by three judge benches) will be applicable for the current case. As the issue of land acquisition for many decades has been marred by controversy over compensation and ‘colourable exercise of public purpose’, the present judicial wrangle has added a new dimension to it. Expressing disquiet at this new development over the matter involving conflicting judgments by two Supreme Court benches, another three-judge bench lashed out at the ‘breach of judicial discipline’.
The three-judge bench headed by Justice M B Lokur on February 21 while hearing the matter related to land acquisition observed that if ‘judicial discipline’ and propriety
I don't want to remain silent on this issue. There are certain principles which cannot be deviated from. The system exists on these holy principles. This court should function as one institution.
were not maintained, the institution will ‘go forever’. Justice Joseph in a scathing remark said: “I don’t want to remain silent on this issue. There are certain principles which cannot be deviated from. The system exists on these holy principles. This court should function as one institution.” The bench was hearing an appeal filed by Haryana Government against the June 29, 2016 judgment of the Punjab and Haryana High Court in the case of M/s G D Goenka Tourism Corporation Limited & Anr v State of Haryana and Others.
The bench said that perhaps there has been a tinkering with judicial discipline in arriving at a conclusion in the February 8 verdict as the issue should have been referred to a larger bench in case of difference of opinion.
Then the bench held: “Taking all this into consideration, we are of the opinion that it would be appropriate if in the interim and pending a final decision on making a reference (if at all) to a larger bench, the High Courts be requested not to deal with any cases relating to the interpretation of or concerning Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.” The bench posted the matter for hearing on a later date (March 7).
However, on February 22, in another matter on the land acquisition, a two-judge bench headed by justice Arun Mishra referred the case to the Chief Justice of India (CJI) for constituting an “appropriate bench” to deal with the “piquant” situation that has arisen after the above February 21 order by the Supreme Court bench headed by Justice Lokur.
Therefore, in order to settle this dispute and judicial quagmire, a five-judge Constitution Bench has been set up by Chief Justice Dipak Misra and includes besides CJI, Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan.
Let’s now look at the two judgments by the Supreme Court which have led to the legal wrangle in the hallowed corridors of judicator.
The question in this judgement related to true meaning of the expression ‘compensation has not been paid’ mentioned in Section 24(2) of the 2013 Act. In the 18 appeals by special leave, it was argued on behalf of the respondentslandowners that in view of Section 24(2) of the 2013 Act, which has come into effect on 01.01.2014, the subject land acquisition proceedings initiated under 1894 Act have lapsed. This was based on their contention that the award under Section 11 of the 1894 Act was made more than five years prior to the commencement of 2013 Act and no compensation was paid to the owners nor the amount of compensation was deposited in the court by the Special Land Acquisition Officer.
On the other hand, the Collector argued that the award was made by the Special Land Acquisition Officer on 31.01.2008 strictly in terms of 1894 Act and on the very day the landowners were informed regarding the quantum of compensation for their respective lands. Notices were also issued to the landowners to reach the office of the Special Land Acquisition Officer and receive the amount of compensation and since they neither received the compensation nor any request came from them to make reference to the District Court under Section 18, the compensation amounting to Rs.27 crores was deposited in the government treasury. So, the Collector argued that there was no default on the part of the Special Land Acquisition Officer or the government and, hence, the acquisition proceedings didn’t lapse. But, the three-judge bench comprising Justices R.M. Lodha, Madan B. Lokur and Kurian Joseph upheld the HC order which had held that the proceedings had lapsed in view of the judgment passed by the Supreme Court in the Pune Municipal Corporation & Anr v Harakchand Misirimal Solanki & Anr on January 24 that year under which land acquisition proceedings initiated under the Land Acquisition Act, 1894 are deemed to have lapsed where the award has been made five years or more prior to the commencement of 2013 Act, and possession of the land is not taken or compensation has not been paid.
The judgment also settled the law that the compensation amount deposited in the government treasury can’t be held to be equivalent to compensation paid to the land owners. The compensation unless paid into the account of the land owner, couldn’t effectively be taken as payment made to him.
In this case, a bench of Justices Arun Mishra, A K Goel and M M Shantanagoudar said land owners should not be allowed to take the benefit of Section 24 (2) of the Land Acquisition Act to reclaim land on the ground that they were not paid compensation within the stipulated time as payment was delayed because of litigation.
The Bench held: “Once the amount of compensation has been unconditionally tendered and it is refused, that would amount to payment and the obligation under the Act stands discharged and that amounts to discharge of obligation of payment under section 24(2) of the Act of 2013 also, and it is not open to the person who has refused to accept compensation to urge that since it has not been deposited in court, acquisition has lapsed. Claimants/land owners after refusal cannot take advantage of their own wrong and seek protection under the provisions of Section 24(2).”
This judgement was made on an appeal filed by Indore Development Authority (IDA), over land acquisition proceedings pertaining to land acquired for the purpose of constructing a link road on the outskirts of Indore city. The IDA had deposited the compensation with the Land Acquisition Collector. The landowners were asked to collect it, but they had refused — and did not, therefore, receive the compensation. On November 3, 2014, the Madhya Pradesh High Court had held that the proceedings had lapsed in view of the judgment passed by the Supreme Court in the Pune Municipal Corporation & Anr v Harakchand Misirimal Solanki & Anr on January 24 that year. According to Jayram Ramesh, the interpretation of the bench in Indore Development stands in contrast to a majority of the Supreme Court’s earlier judgments that upheld the Section and applied it expansively in favour of the land owner.
When India became independent it adopted Land Acquisition Act, 1894. The Act being vague remained a controversial piece of legislation. The Act was grossly misused and abused. In the name of public purpose, the State exercised its ‘colourable exercise of power’ and created great deal of mistrust. In many instances, it robbed its citizens of their land and livelihood. According to experts, two key issues with land acquisition in India stood out across most of the cases. First, very little meaningful negotiation was undertaken, very little attempt was made to involve stakeholders in a consultative discussion in order to understand their concerns about land ownership and to decide upon an equitable and mutually acceptable compensation package. So, the clamour for change in the legislation started early on. The issue got intensified after the opening of the economy started by the Narasimmah government. Protests by the farmers took place all across West Bengal, Orissa, UP, Madhya Pradesh and elsewhere in India.
The Congress-led UPA then brought a new Act in 2013 which became effective from 1.1.2014. The provisions of this Act related to land acquisition, compensation, rehabilitation and resettlement when Government acquires land for its own use, hold and control, including for public sector undertakings and for public purpose.
Section 24: Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases
Section 25. Period within which an award shall be made
–The Collector shall make an award within a period of twelve months from the date of publication of the declaration under section 19 and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse: Provided that the appropriate Government shall have the power to extend the period of twelve months if in its opinion, circumstances exist justifying the same: Provided further that any such decision to extend the period shall be recorded in writing and the same shall be notified and be uploaded on the website of the authority concerned.
The Act of 2013 was brought to ensure a humane, participative, informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanisation with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families. The complex and tardy process of land acquisition was supposed to be simplified with the introduction of the new Act reducing the heart burn caused by the old Act of 1894.
But it seems the situation is far from over. Now the legal angle of one bench of equal strength making the judgment of another bench of equal strength per incuriam has caused more confusion and its validity will be looked by the Supreme Court. Faizan Mustafa writes in Indian Express, the doctrine of per incuriam evolved in British courts as an exception to stare decisis. It means a lack of care and often, per ignorantiam, i.e., ignorance of the law. Lord Godard, CJ, observed in Huddersfield Police Authority vs Watson (1947) that per incuriam signifies that a court has acted in ignorance of a House of Lords decision, or when a decision is given in ignorance of the terms of a statute or rule having statutory force.
The Constitution bench formed by the Chief Justice which has to now sit and find out the solution of the legal wrangle on March 6 said: “We think it appropriate to state, this Bench shall consider all the aspects including the correctness of the decision rendered in Pune Municipal Corporation and the other judgments following the said decision as well as the judgment rendered in Indore Development Authority.” The matter has been fixed for hearing in July. In this period all the decisions taken by the Courts on the basis of February 8 judgment will be in limbo leading to more delay and suffering for the people of India.
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