Adopt The Same Approach Towards The New Land Acquisition Act That Has Made IBC Workable: Shyam Diwan Tells SC

A Five Judge Constitution Bench headed by Justice Arun Mishra on Thursday continued the hearing the matters relating to the interpretation of Section 24 of the new Land Acquisition Act."The 2013 Act is a radical departure from the old scheme. It is a Welfare State law bringing in new entitlements which were missing in the old regime. The colonial law (the Act of 1894) was witnessing resistance from the citizens, who were engaging in multiple rounds of litigation, and that is why the new Act was brought in", began Senior Advocate Shyam Diwan appearing for a framer association.He urged the five-judge constitution bench headed by the justice Arun Mishra to adopt the same approach towards the new Land Acquisition Act that has made workable the IBC (under section 7 of which the old management is shown out, as held by the court time and again, most recently in the SBI case) and the 1996 Arbitration Act (which replied its 1940 predecessor)."Any statistics as to how many acquisitions have taken place since the coming into force of the 2013 Act?", asked Justice Vineet Saran. Mr. Diwan replied that he would find out.In reference to section 101 of the new Act, which stipulates that any land acquired, if remaining un-utilised for five years post the taking over of possession, shall be returned to the original owner or to the Land Bank of the appropriate government, Justice Ravindra Bhat asked, "You acquire the land, pay the higher compensation, undertake the rehabilitation, and if you can't use it, it goes back to the owner. Is there any provision as to refund by the owner?""There is an implied restitution. As per my understanding of section 24, there can be no unjust enrichment", answered Mr. Diwan.On the responsibility for rehabilitation of the divested owners being incorporated in the scheme of the Act, Justice Indira Bannerjee opined that it had its roots in the Singur Tata Nano controversy, while Justice Mishra expressed that Justice Patnaik was the pioneer in this direction, with the several judgments on rehabilitation, more specifically the Narmada Bachao Andolan case.On the enhanced quantum of compensation, Justice Bhat remarked, "When the threshold is kept so high, dubious practices tend to creep in"."Private parties won't play by the 6 times value. They will enter into negotiations and people will jump to sell even if they are offered 3 or 4 times. The idea is wholesome and salutary but in the end, dubious practices creep in...the land owners are not getting the benefit. They are being ousted and then being left remediless. This is blatant fraud...", agreed Justice Mishra. "This is why I asked how many acquisitions have taken place since then", commented Justice Saran.On Pune Municipal Corporation (2014)"The PMC said the Bombay High Court decision is wrong. This court said that if they take a view on section 24(2), they would not have to go into the merits of that case", advanced Mr. Diwan."Once the High Court has quashed the acquisition, there is no question of the applicability of 24. How could the state acquire possession and pay compensation after that?", noted Justice Mishra."Even if there was a stay, and we don't see a stay, there was no question of payment. There could be no acquisition until this court set aside that judgment. How could any acquiring authority be expected to pay pr take possession?", added Justice Bhat.Asserting that the compensation was to be made over or deposited in accordance with section 31, he submitted, "2 petitions were filed before the award and 7 after the award. It was said that 24(2) does not apply because 27 crores had been deposited in the treasury as there had been no reference""Let us tell you that a recall application is pending in this very case. Compensation was accepted and collected by several land owners...was there any occasion to offer compensation after 2008? Is there any finding as to whether possession was taken or not? They just went by the treasury, without looking at possession", inquired Justice Mishra."The judgment could have been set aside, but they, without looking at the merits, got into 24...it was no appeal, only a petition. It could have been simply rejected", said Justice Bhat."Because the amount is not in a reference court, 24(2) applies and the acquisition lapses!", insisted Mr. Diwan."The award was made in Januray, 2008. There was period in between to make the payment. The acquisition was quashed in December, 2008. There was no occasion to pay then. The 5 years period doesn't matter. The PMC didn't have the foresight that the new Act would be passed. And there is nothing in the old Act to pay (upfront)", observed Justice Bhat."The acquisition was not restored. Where is the occasion for this court to decide the application (under section 24) of the landowners? The new Act was not in question in PMC", agreed Justice Saran."It was not moot! The application was made and the argument was pressed! 24 was extremely relevant and they needn't have...

Adopt The Same Approach Towards The New Land Acquisition Act That Has Made IBC Workable: Shyam Diwan Tells SC

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