- At one level it is a legal issue over the interpretation of a provision in the new land acquisition law of 2013. At another, it is a question of possible judicial bias warranting the withdrawal of a judge from the proceedings
Main Features of the 2013 Act
- Consent: For government projects, no consent is required while consent of 70 per cent of landowners is required for Public-Private Partnership (PPP) projects and 80 per cent for private projects.
- Social Impact Assessment: In the case of a land acquisition (irrespective of the ownership of project), Social Impact Assessment is necessary unless and until there is an urgency. If the project is for irrigation, then Environmental Impact Assessment is required.
- Irrigated multi-cropped land: In case the land in question is irrigated multi-cropped, it cannot be acquired beyond a limit specified by the state government.
- Safeguards: State Governments have to set up dispute settlement Chairman and he should be a district judge or practising as a lawyer for 7 years. The Act also has provision for the establishment of Land Acquisition, Rehabilitation and Resettlement Authority for speedy disposal of disputes.
- Return of land: If the project doesn’t start in 5 years, the land acquired under the Act has to be returned to the original owner or the land bank.
- The provisions of this Bill shall not apply to acquisitions under 16 existing legislations including the Special Economic Zones Act, 2005, the Atomic Energy Act, 1962, the Railways Act, 1989, etc.
- Compensation varies with the market rates. In the case of rural area, it is four times the market rate and for an urban area, it is two times. Affected artisans, small traders, fisherman etc. by the land acquisition are given one-time payment even if they do not own any land.
- There is also provision for rehabilitation and resettlement award which includes employment to one member of an affected family.
- If Government acquires the lands for a private company, the said private company will be responsible for relief and rehabilitation of the affected people along with an additional rehabilitation package for SC/ST owners.
- If such fertile land is acquired, the Government will have to develop an equal size of wasteland for agriculture purpose.
- In case someone is not satisfied with an award under the Act, they can approach the Land Acquisition, Rehabilitation and Resettlement (LARR) Authority.
About Section 24 (2)
- Under Section 24(2), land acquisition made under the old law of 1894 lapses if the award of compensation had been made five years before the new Act came into force, but has not been paid.
- In such cases, the process will have to be gone through afresh under the new Act, which mandates higher compensation.
- There are cases in which farmers and other land-owners have refused the compensation, leading to delay in the government taking possession.
- In this situation, the compensation amount is deposited in the government treasury.
- According to one interpretation, if this is done, the acquisition process is saved. Then again, others contend that such cases will fall under the new Act because compensation has not been paid to the land-owners, and the lapsing clause in Section 24 should be applied.
Supreme Court Judgement in previous cases
- In 2014, a three-judge Bench, comprising Justices R.M. Lodha, Madan B. Lokur and Kurian Joseph, in Pune Municipal Corporation vs. Harakchand M. Solanki, ruled that the acquisition of a piece of land had “lapsed” because the compensation awarded had neither been paid to the landowners/persons interested nor deposited in the court.
- The same question arose in Indore Development Authority vs. Shailendra. Another three-judge Bench, comprising Justice Arun Mishra, A.K. Goel and M.M. Shantanagoudar, did not accept the earlier Bench’s view. The majority, consisting of the first two judges, ruled that the acquisition would not lapse merely because the compensation amount was not deposited in court, but was instead deposited in the treasury. It ruled that the past practice of more than a century, under which the amount was deposited in the treasury, was not taken into account by the earlier Bench. Some provisions and orders that allowed this practice were not placed before that Bench. Further, the land acquisition in that particular case had been quashed by a High Court in 2008. Since it was not a subsisting process, the question under Section 24(2), whether the acquisition lapsed because of non-payment of compensation or non-deposit in the court, did not arise at all. On these grounds, Justice Mishra and Justice Goel overruled the earlier judgment
- Later, when another case came up before a Bench on which Justices Lokur and Joseph were members, the fact that their earlier judgment had been overruled was brought to their notice. Lawyers appearing before them argued that Justice Mishra’s Bench, being of the same size of the one that rendered the earlier verdict, was bound by it, and ought not to have overruled it. In case, it disagreed with the earlier view, it could have referred the matter to a larger Bench.
- The court, then, put on hold all hearings involving Section 24(2). Later, the question was referred to a larger Bench for an authoritative judgment.
Advantages to Project Proponents and Land owners
- A ruling that old acquisitions lapse for non-deposit of compensation will be more beneficial to land-owners and farmers as they stand to get higher compensation and rehabilitation and resettlement measures.
- On the other hand, project proponents feel such an interpretation would mean that those who refused to take compensation, even after it had been fixed and the money deposited in the government treasury, would be taking advantage of their own wrong.
- Current five-member Bench is headed by Justice Mishra.
- Some lawyers and parties commented that it was improper for the judge to hear this matter because he had already taken a firm view in favour of one interpretation.
- Senior lawyer Shyam Divan demanded Justice Mishra’s recusal in open court, invoking the principle that even the apprehension of bias on the part of a judge was enough to ask for his withdrawal from a case.
- The judge, however, rejected the idea categorically, contending that a “lobby” was against his hearing the case.
- In oral observations, he said there was nothing to suggest that he would be unwilling to be persuaded by new arguments to take a fresh view of the legal questions. Also, he said this question has arisen in many cases, and many judges now in the Supreme Court would have dealt with it as High Court judges.
- However, arguments on the issue of bias and the principles of recusal went on for two weeks, and the court has reserved its order on this question.
Recusal of a Judge
- The Constitution vests a lot of power and certain amount of immunity in judges. Fairness and impartiality are the fundamental qualities to be possessed by a judge. In India, for the vast majority of cases, there are no reports of having been heard by a partial and unfair judge but there are instances where the contrary happens.
- Once it appears to the judge that he cannot deliver justice in an impartial manner, ethically he is expected to recuse.
- The right to recuse is given to the discretion of the judges.
- In one of the landmark cases, Ashok Kumar Yadav v. State of Haryana, the Supreme Court tried to explain the reasons behind recusal. Rather than leaving it to the absolute discretion of the judges, the likelihood of bias was focused on. If there is a reasonable chance for the judge to be biased, the judge is supposed to recuse himself. This stems up from the principle laid down by Lord Hewart CJ in the case of R v Sussex Justices, ex parte McCarthy “Not only must Justice be done; it must also be seen to be done”. In general, the Indian judiciary has followed this principle and even in case of recusal, the judiciary has recommended itself to follow this.
Source: The Hindu