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Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013: Legislative history of the Act of 2013 – Purpose of its enactment – Salient features – Departure from old Land Acquisition Act in 2013 Act relating to Social Impact Assessment, Rehabilitation and Resettlement Scheme – Discussed .Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013: s.24(2) – Twin requirement for the lapse – Firstly, physical possession has not been taken and secondly compensation has not been paid – Whether the conditions are cumulative i.e. both are to be fulfilled for lapsing of acquisition proceedings or the conditions are in alternative (“either/or”) – Held: s.24(2) of the Act of 2013 deals with a situation only where the award has been made five years or more before the commencement of the Act, but physical possession of the land has not been taken, nor compensation has been paid – As regards the collation of the words used in s.24(2), two negative conditions have been prescribed – General rule of statutory interpretation of positive and negative conditions are that positive conditions separated by ‘or’ are read in the alternative but negative conditions connected by ‘or’ are construed as cumulative and ‘or’ is read as ‘nor’ or ‘and’ i.e. the expression ‘or’ has to be read as conjunctive and conditions of both the clauses must be fulfilled – Thus, the word ‘or’ used in s.24(2) between possession and compensation has to be read as ‘nor’ or as ‘and’ – This would mean that the deemed lapse of land acquisition proceedings under s.24(2) takes place where due to inaction of authorities for five years or more prior to commencement of the Act of 2013, the possession of land has not been taken nor compensation has been paid – Thus, even if one condition is satisfied, there is no lapse – Interpretation of statutes.Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013: s.24(2) – Interpreting “or” under s.24(2) of the Act of 2013 disjunctively – Effect of – Held: It would result in an anomalous situation, because, once compensation has been paid to the landowner, there is no provision for its refund – In case physical possession is with the landowner; and compensation has been paid, there is no provision in the Act for disgorging out the benefit of compensation – In the absence of any provision for refund in the Act of 2013, the State cannot recover compensation paid – The landowner would be unjustly enriched – This could never have been the legislative intent of enacting s.24(2) of the Act of 2013 – The principle of restitution, unless provided in the Act, cannot be resorted to by the authorities on their own – Absence of provision for refund in the Act of 2013 reinforces conclusion that the word “or” has to be read as conjunctively and has to be read as “and” – Doctrine of unjust enrichment and principle of restitution.Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013: s.24(2) – Purpose of – Held: To punish acquiring authority for its lethargy in not taking physical possession nor paying compensation after making award five years or more before commencement of Act of 2013 in pending proceedings providing they would lapse.Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013: s.24 – Vested right under – Held: s.24 of the Act of 2013 does not intend to take away vested rights – This is because there is no specific provision taking away or divesting title to the land, which had originally vested with the State, or divesting the title or interest of beneficiaries or third-party transferees of such land which they had lawfully acquired, through sales or transfers.Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013: proviso to s.24(2) – Whether proviso is part of s.24(2) or s.24(1)(b) – Held: The proviso is part of the scheme of s.24(2) – The entire provision of s.24(2), including the proviso, operates when there is inaction for a period of five years or more, as contemplated therein.Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013: s.24(2) – Applicability to pending proceedings – Held: s.24(2) shall apply to the proceeding which is pending as on the date on which the Act of 2013, has been brought into force and it does not apply to the concluded proceedings – s.24(2) is not a tool to revive concluded proceedings and to question the validity of acquisition proceedings due to which possession were taken decades ago, or to question the manner of deposit of amount in the treasury – The Act of 2013 never intended revival of such claims – s.24(2) only contemplates lethargy/inaction of the authorities to act for five years or more.Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013: s.24(2) – Whether gives rise to fresh cause of action – Held: s.24(2) of the Act of 2013 does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition – s.24 does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013: s.24(2) – Exclusion of period of interim order(s) – Held: Any court’s interim order cannot be said to be inaction of the authorities or agencies; thus, time period is not to be included for counting the 5 years period as envisaged in s.24(2).Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013: s.24(2) and its proviso – The expression ‘paid’ in the main part of s.24(2) does not include a deposit of compensation in court – The consequence of non-deposit is provided in proviso to s.24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (landowners) as on the date of notification for land acquisition under s.4 of the Act of 1894 shall be entitled to compensation in accordance with the provisions of the Act of 2013 – In case the obligation under s.31 of the Act of 1894 has not been fulfilled, interest under s.34 of the said Act can be granted – Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings – In case of non- deposit with respect to the majority of holdings for five years or more, compensation under the Act of 2013 has to be paid to the “landowners” as on the date of notification for land acquisition under s.4 of the Act of 1894.Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013: s.24(2) – When compensation, tendered, as provided in s.31(1) of the Act of 1894, but not paid/deposited in court – Whether acquisition lapse – Held: In case a person has been tendered the compensation as provided under s.31(1) of the Act of 1894, it is not open to him to claim that acquisition has lapsed under s.24(2) due to non-payment or non-deposit of compensation in court – The obligation to pay is complete by tendering the amount under s.31(1) – Land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under s.24(2) of the Act of 2013 – Land Acquisition Act, 1894 – s.31(1).Land Acquisition: Mode of taking possession – When possession of large area of land is to be taken, then it is permissible to take possession by drawing Panchnama – Possession.Possession: Concept of possession – Held: Possession comprises the right to possess and to exclude others, essential is animus possidendi – Possession depends upon the character of the thing which is possessed – If the land is not capable of any use, mere non-user of it does not lead to the inference that the owner is not in possession – The established principle is that the possession follows title – Possession comprises of the control over the property – The element of possession is the physical control or the power over the object and intention or will to exercise the power – Corpus and animus are both necessary and have to co-exist.Delay/laches: In matters of land acquisition, delay is fatal in questioning the land acquisition proceedings – In case possession has not been taken in accordance with law and vesting is not in accordance with s.16, proceedings before courts are to be initiated within reasonable time, not after the lapse of several decades – Land Acquisition Act, 1894 – s.16.Interpretation of Statutes: Addition or substraction of word(s) in a statute – Power of Courts – Held: While interpreting the statutory provisions, addition or subtraction in the legislation is not permissible – It is not open to the court to either add or subtract a word – There cannot be any departure from the words of law, as observed in legal maxim “A Verbis Legis Non Est Recedendum” – Legal maxim. Interpretation of Statutes: When two different expressions are used in the same provision of a statute, there is a presumption that they are not used in the same sense. Interpretation of statutes: Proviso to a provision – The function of the proviso is to explain or widen the scope – The proviso cannot travel beyond the provision to which it is attached. Interpretation of Statutes: Colon (punctuation mark) – Significance of its use – The use of the colon is to introduce a subclause that follows logically from the text before it – Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 – s.24(2). Judicial Notice: Judicial notice is taken of the fact that in no other Government security, rate of interest is higher on the amount being invested under ss.32 and 33 of the Act of 1894 – Higher rate of interest is available under s.34 to the advantage of landowners – Land Acquisition Act, 1894. Repeal: Applicability of the General Clauses Act – Held: When repeal is followed by a fresh enactment on the same subject, the provisions of the General Clauses Act would undoubtedly require an examination of the language of the new enactment if it expresses an intent different from the earlier repealed Act – The enquiry would necessitate the examination if the old rights and liabilities are kept alive or whether the new Act manifests an intention to do away with or destroy them – If the new Act manifests different intentions, the application of the General Clauses Act will stand excluded – General Clauses Act.Words and phrases: Word ‘paid’, tender’, ‘vesting’ – Meaning of, discussed. Words and phrases: Word ‘paid’ and ‘deposited’ – Distinction between – Dictionary meaning and meaning in the context of s.24(2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. |
