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In a significant judgment delivered yesterday, the Supreme Court has held by a majority of 2:1 that the decision in Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki is per incuriam.
A Bench of Justices Arun Mishra, AK Goel and Mohan M Shantanagoudar also answered five questions in relation to Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and Land Acquisition Act, 1894.
The main issue that arose for consideration was the interpretation of Section 24 of the 2013 Act and Section 31 of the 1894 Act.
The following five questions were considered and determined by the court.
The Court then proceeded to answer the five questions.
Answering the first question, the Court held that the word ‘paid’ in Section 24 of the 2013 Act has the same meaning as ‘tender of payment’ in section 31(1) of the 1894 Act.
“They carry the same meaning and the expression ‘deposited’ in section 31(2) is not included in the expressions ‘paid’ in section 24 of the Act of 2013 or in ‘tender of payment’ used in section 31(1) of the Act of 1894. The words ‘paid’/tender’ and ‘deposited’ are different expressions and carry different meanings within their fold.”
Further, it held that in section 24(2) of the 2013 Act, in the expression ‘paid’, it is not necessary that the amount should be deposited in court as provided in section 31(2) of the 1894 Act. Non-deposit of compensation in court under section 31(2) of the 1894 Act does not result in a lapse of acquisition under section 24(2) of the 2013 Act. The only consequence at the most in appropriate cases may be of a higher rate of interest on compensation as envisaged under section 34 of the 1894 Act and not lapse of acquisition.
The Court also ruled that once the amount of compensation has been unconditionally tendered and it is refused, it would amount to payment and obligation under section 31(1) stands discharged which would amount to discharge of obligation of payment under section 24(2) of the Act also.
“…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/landowners after refusal, cannot take advantage of their own wrong and seek protection under the provisions of section 24(2).”
The Court ruled that the normal mode of taking physical possession under the land acquisition cases is drawing of Panchnama.
The judgment in Banda Development Authy, Banda vs Moti Lal Agarwal & Ors was cited by the bench to detail the aspect of taking possession.
“In Banda Development Authority (supra), this Court has held that if land was vacant, going to the spot and preparing a panchnama by a state authority would ordinarily be treated as sufficient to constitute the taking of possession. If crop is standing, notice was required to be given to the occupier of building or structure and thereafter taking possession in presence of independent witnesses and in spite of refusal by the owner did not mean that possession of the has not been taken. If acquisition is of a large tract of land, it would not be possible to take physical possession of each and every parcel of such land. Taking ‘symbolic’ possession, by preparing an appropriate document, in presence of independent witnesses, was sufficient. Where urgency clause was invoked and substantial portion of land was acquired or utilized in furtherance of the particular public purpose, taking of possession was presumed. Utilization of a major portion of acquired land for public purpose was itself sufficient to prove taking over possession.”
The Court also overruled the judgment in Velaxan Kumar versus Union of India in relation to this.
The Court made it clear that the provisions of section 24 of the 2013 Act do not revive barred or stale claims and such claims cannot be entertained.
“when we ponder as to the instant case, qua the re-opening of stale claims under section 24 of the 2013 Act, no ‘Johnny come lately’ can be permitted to assert that he is in possession (claiming that physical possession has not been taken away from him), when such assertion has not been made for decades together. Such claims would not be revived after the person has slept over them; the courts must not condone sudden wakefulness from such slumber, especially in relation to claims over open pieces of land, and even houses/structures, when the person may have illegally reentered into the possession or may have committed trespass. Thus, for the aforesaid reasons, such claims cannot be entertained or adjudicated under section 24 of the 2013 Act.”
Further, the Court held that Section 24 is not intended to come to the aid of those who first deliberately refuse to accept compensation, then indulge in ill-advised litigation, and often ill-motivated dilatory tactics. Stating the intent of the Section, the Court noted,
“…the section is intended to help those who have not been offered or paid the compensation despite it being the legal obligation of the acquiring body so to do, and/or who have been illegally deprived of their possession for five years or more; in both the scenarios, fault/cause not being attributable to the landowners/claimants.”
The Court, therefore, held that stale or dead claims cannot be the subject-matter of judicial probing under Section 24 of the Act of 2013.
Provisions of Section 24(2) do not intend to cover the period spent during litigation and when the authorities have been disabled to act under section 24(2) due to the final or interim order of a court or otherwise, such period has to be excluded from the period of five years as provided in section 24(2) of the Act of 2013. There is no conscious omission in section 24(2) for the exclusion of a period of the interim order. There was no necessity to insert such a provision. The omission does not make any substantial difference as to legal position.
The principle of actus curiae neminem gravabit is applicable including the other common law principles for determining the questions under Section 24 of the 2013 Act. The period covered by the final/ interim order by which the authorities have been deprived of taking possession has to be excluded. Section 24(2) has no application where Court has quashed acquisition.
Correctness of Pune Municipal Corporation
The Court then proceeded to consider the correctness of the judgment in Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki.
It held that after giving deep thought to whether to refer this issue to a larger Bench, it was considered not necessary as it was of the opinion that the decision was ‘per incuriam’.
The Court also adduced eleven reasons for arriving at the said conclusion including,
Interestingly, though questions 1 to 5 were decided unanimously, Justice Mohan M Shantanagoudar dissented with respect to the question of correctness of Pune Municipal Corporation.
Read the judgment below.