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Friday, July 03, 2020

A case of judicial law making

A recent SC ruling has diluted the pro-citizen objectives of the 2013 land act

Written by Aadil Singh Boparai | Published: May 31, 2020 8:28:50 am
Himachal PPE Scam, corruption cases, health official suspended, Himachal news, Indian express news The Supreme Court has whittled down the scope of the beneficial legislation by embarking upon a path of judicial lawmaking.

The repealed Land Acquisition Act, 1894 was an oppressive legal regime that held the field on compulsory acquisition of land for the public purpose for well over a century. It conferred unbridled powers to the state to exercise its power of eminent domain without discharging its concurrent responsibilities. This asymmetric power matrix between the state and the citizens resulted in compensation being withheld for decades and physical possession vesting with the landowners.

The Right to Fair Compensation and Transparency in the Land Acquisition, Rehabilitation and Resettlement Act, 2013 Act was a tectonic shift in restoring the equilibrium between the state and its citizens in the arena of involuntary acquisition of land. It provided for the lapsing of the acquisition and gave an option to the appropriate government to initiate the acquisition process afresh at the market rate.

The intention of Parliament at the time of the enactment of the 2013 Act was clearly spelt out in the statement of objects and reasons. The raison d’etre behind the enactment of a pro-farmer legislation was to provide for just and fair compensation and make adequate provisions for the rehabilitation and resettlement of the affected persons and their families. It was reiterated that the benefits under the new law would be available in all the cases of land acquisition under the Land Acquisition Act, 1894, where award had not been made “or” possession of land had not been taken.

The Supreme Court, through its judgment in the recently delivered Indore Development Authority, has diluted the true meaning of the expressions consciously used by the legislature in the 2013 Act. The judgment raises vital questions with respect to the process of interpretation that has been adopted, thereby giving an inverse meaning to words and expression that are otherwise clear and unambiguous. This interpretation has rendered the ameliorative approach, which positioned the individual citizen at the heart of its legislative scheme, nugatory.

The conscious use of the conjunction “or” in the statement of objects and reasons (supra) leaves no manner of doubt that the intention of Parliament was that in the event of the “award not been made” or “possession” not being taken, the benefits to the landowners would accrue under the provisions of the 2013 Act. The golden rule of interpretation is that the words in a statute must be given its literal and ordinary meaning.

In this context, it is important to examine Section 24(2) of the 2013 Act, which sought to provide for benefits in the event that “possession” had not been taken. The said provision is prefaced with a “non-obstante” clause stating therein that where an award by the collector has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken “or” the compensation has not been paid, the said proceedings shall be deemed to have lapsed and the appropriate government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act. As a corollary to the true intention of Parliament, borne from statement of objects and reasons, in the eventuality that “possession” is not taken, the acquisition lapses. However, an option has been accorded to enable the appropriate government to initiate the acquisition proceedings afresh in accordance with the beneficial provisions under the 2013 Act.

Notwithstanding the plain meaning of the statutory provision and the legislative antecedents, the Supreme Court in its wisdom in Indore Development Authority vs. Manohar Lal & Ors” has held to the contrary. The Supreme Court has interpreted the expression “or” as “and” or “nor”, which in effect means that the benefits of lapsing and higher compensation will not be available to landowners unless the twin conditions of “possession not taken” and “compensation not paid” are satisfied. Henceforth, in order to invoke Section 24(2) of the 2013 Act, which came as a panacea against bureaucratic highhandedness and state excess, the landowners will have to demonstrate that neither has possession been taken nor compensation been paid. The revenue authorities in our country are adept at taking “possession” on paper even though the actual “physical possession” vests with the landowners. This runs counter to the ordinary meaning of the provisions and militates the rationale behind the enactment of the 2013 Act. This interpretation has rendered a series of judgments “per incuriam” that were holding the field and provided the much needed relief to hapless landowners against administrative callousness and lethargy. This assumes significance, as the right to property is a constitutional right under the Constitution.

The aforesaid interpretation defeats the beneficial objectives of the 2013 Act and will make it onerous for landowners who are victims of delay and governmental inertia from holding the state accountable for its lapses. The Supreme Court has held in Census Commissioner and Others vs. R. Krishnamurthy that, “It is not within the domain of the Court to legislate. The Courts do interpret the law and in such interpretation certain creative process is involved. The Courts have the jurisdiction to declare law unconstitutional. That too, where called for. But the Courts are not to plunge into policy making by adding something to the policy by issuing a writ of mandamus”.

The Supreme Court has whittled down the scope of the beneficial legislation by embarking upon a path of judicial lawmaking. It would be apposite that a larger bench of the SC reconsiders this novel process of statutory interpretation that defeats the objects of a rights-based legislation.

The writer is a lawyer

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