Land acquisition Act - Award passed -Award stands cancelled as possession not taken - stay not bars - New Act applies - Apex court held that there is no dispute that physical possession of the lands belonging to the appellants under consideration in these appeals has not been taken by the State or any other authority on its behalf and more than five years have elapsed since the making of the award dated 30.11.2006 and 01.01.2014 when the 2013 Act came into force. Therefore, the conditions mentioned in Section 24(2) of the 2013 Act are satisfied for allowing the plea of the appellants that the land acquisition proceedings must be deemed to have lapsed in terms of Section 24(2) of the 2013 Act. The appeals are disposed of accordingly. It goes without saying that the Government of Tamil Nadu shall be free, if it so chooses to initiate proceedings of such land acquisition afresh in accordance with the provisions of 2013 Act. In the facts and circumstances of the case there shall be no order as to costs.=
Whereas in Civil Appeal No.8700 of 2013, filed by an Association of
Residents of a particular locality, the challenge is to the order of
Government of Tamil Nadu bearing G.O. No.122 dated 14.07.1998 containing a
scheme for development of a proposed canal by name Madhavaram Left Flank
Water Surplus Course, on the ground that the scheme is misconceived and
technically flawed which shall lead to unnecessary acquisition of land and
building belonging to the residents of the affected area, the other Civil
Appeals contain specific challenge to proceedings initiated under the Land
Acquisition Act, 1894 (hereinafter referred to as, ‘the Act’) undertaken by
the Tamil Nadu State Government for the purpose of implementation of the
said scheme covered by G.O. No.122 relating to the proposed canal
improvement works.
The actual land acquisition proceedings commenced with
issuance of Notification under Section 4(1) of the Act on 02.02.2005,
insofar as the lands under dispute are concerned.
The Award was made on
30.11.2006 but in the meantime as appears from the facts stated in C.A.
No.8700 of 2013, upon a challenge made to the Notification under Section
4(1) of the Act, the High Court stayed dispossession of the concerned land
holders by order dated 17.2.2005
but ultimately the writ petitions and other tagged matters were dismissed on 27.4.2007. =
The parties have been heard only on this narrow legal aspect to find out
whether the appellants’ prayer noted above deserves to be allowed in view
of Section 24(2) of 2013 Act or not.
In view of the order proposed, we
find it futile to refer to and discuss the facts involved in different
civil appeals.
Section 24 of 2013 Act is as follows :
“24. (1) Notwithstanding anything contained in this Act, in any case of
land acquisition proceedings initiated under the Land Acquisition Act,
1894, -
(a) where no award under section 11 of the said Land Acquisition Act
has been made, then, all provisions of this Act relating to the
determination of compensation shall apply; or
(b) where an award under said section 11 has been made, then such
proceedings shall continue under the provisions of the said Land
Acquisition Act, as if the said Act has not been repealed.
(2) Notwithstanding anything contained in sub-section (1), in case of land
acquisition proceedings initiated under the Land Acquisition Act, 1894,
where an award under the said section 11 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:
Provided that where an award has been made and compensation in respect of a
majority of land holdings has not been deposited in the account of the
beneficiaries, then, all beneficiaries specified in the notification for
acquisition under section 4 of the said Land Acquisition Act, shall be
entitled to compensation in accordance with the provisions of this Act.” =
2014 -Sept. Month - http://judis.nic.in/supremecourt/filename=41900
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8700 OF 2013
Sree Balaji Nagar Residential Association …..Appellant
Versus
State of Tamil Nadu & Ors. …..Respondents
W I T H
CIVIL APPEAL NOS.8701 OF 2013; 8702 OF 2013;
8703 OF 2013; AND 8704 OF 2013
J U D G M E N T
SHIVA KIRTI SINGH, J.
These civil appeals have been heard together because they involve common
questions of law and fact and, therefore, they are being disposed of by
this common judgment and order.
Whereas in Civil Appeal No.8700 of 2013, filed by an Association of
Residents of a particular locality, the challenge is to the order of
Government of Tamil Nadu bearing G.O. No.122 dated 14.07.1998 containing a
scheme for development of a proposed canal by name Madhavaram Left Flank
Water Surplus Course, on the ground that the scheme is misconceived and
technically flawed which shall lead to unnecessary acquisition of land and
building belonging to the residents of the affected area, the other Civil
Appeals contain specific challenge to proceedings initiated under the Land
Acquisition Act, 1894 (hereinafter referred to as, ‘the Act’) undertaken by
the Tamil Nadu State Government for the purpose of implementation of the
said scheme covered by G.O. No.122 relating to the proposed canal
improvement works. The actual land acquisition proceedings commenced with
issuance of Notification under Section 4(1) of the Act on 02.02.2005,
insofar as the lands under dispute are concerned. The Award was made on
30.11.2006 but in the meantime as appears from the facts stated in C.A.
No.8700 of 2013, upon a challenge made to the Notification under Section
4(1) of the Act, the High Court stayed dispossession of the concerned land
holders by order dated 17.2.2005 but ultimately the writ petitions and
other tagged matters were dismissed on 27.4.2007. The matter reached this
Court and as a result of an interim order passed by this Court on
18.05.2007 in C.A.No.8701 of 2013 [arising out of S.L.P.(C)No.9492 of 2007]
the land holders have remained protected from being dispossessed from their
lands in question.
The various orders passed by this Court in these cases reveal that the
matter was taken up in a much wider perspective in the light of larger
issues raised in public interest that alternative scheme be also devised
and taken into account to prevent unnecessary displacement of large number
of residents and with a view to protect likely pollution of some lakes on
account of flood waters entering into such lakes and thereby affecting the
cleanliness of possible sources for supply of drinking water. This Court,
long back on 10.02.2010 felt the need for and hence directed the
respondents to submit a revised comprehensive plan of the area showing
location of various water bodies, the construction of canal which had
already taken place and the natural flow of water from Ambattur tank to
Korattur tank and from Korattur tank to Capt. Cotton Canal. On 31.03.2010,
learned senior counsel for the State of Tamil Nadu referred to and
submitted a final report by Mott MacDonald, an expert appointed by the
Government of Tamil Nadu to study the entire scheme and prepare Storm Water
Drainage Master Plan for Madras City and Pre-feasibility Study for Madras
Metropolitan Area. On going through the relevant portions of that Report,
this Court decided to appoint an expert body to study the environmental
aspect of the scheme under challenge because the expert appointed by the
State Government had suggested further study/monitoring of ground water
outside the Chennai Metropolitan area. By order dated 09.04.2010, this
Court appointed a Committee of several experts under the Chairmanship of
Hon’ble Mr. Justice Doraiswamy Raju, a former Judge of this Court. The
terms of reference included eight points and the Committee was requested to
submit its report within three months. The Committee’s report was made
available to this Court, belatedly and for one reason or the other, the
matter could not be heard finally for a long period. At the stage of
hearing, on 10.07.2014, the State of Tamil Nadu expressed its willingness
to explore the possibility of arriving at some consensus. This course was
adopted in view of relevant map and materials which showed that as a part
of Chennai City Waterways Alignment of Surplus Course Package IV,
considerable part of the proposed canal had already been constructed but
the balance part remained incomplete only on account of present proceedings
against acquisition of lands for the purpose. However, the High Level
Committee meeting under Chairmanship of the Chief Secretary of the State
involving the petitioners in public interest litigation as well as
representatives of the land owners’ Association could not prove fruitful.
In the meanwhile, on account of a subsequent legislation – The Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (for brevity, ‘2013 Act’) coming into effect from
01.01.2014, through I.A. No.3 filed in Civil Appeal No.8701 of 2013, a plea
was raised on behalf of the appellants that the appeals be allowed in terms
of Section 24(2) of the 2013 Act by holding that the acquisition proceeding
initiated under the Act has lapsed.
The parties have been heard only on this narrow legal aspect to find out
whether the appellants’ prayer noted above deserves to be allowed in view
of Section 24(2) of 2013 Act or not. In view of the order proposed, we
find it futile to refer to and discuss the facts involved in different
civil appeals. Section 24 of 2013 Act is as follows :
“24. (1) Notwithstanding anything contained in this Act, in any case of
land acquisition proceedings initiated under the Land Acquisition Act,
1894, -
(a) where no award under section 11 of the said Land Acquisition Act
has been made, then, all provisions of this Act relating to the
determination of compensation shall apply; or
(b) where an award under said section 11 has been made, then such
proceedings shall continue under the provisions of the said Land
Acquisition Act, as if the said Act has not been repealed.
(2) Notwithstanding anything contained in sub-section (1), in case of land
acquisition proceedings initiated under the Land Acquisition Act, 1894,
where an award under the said section 11 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:
Provided that where an award has been made and compensation in respect of a
majority of land holdings has not been deposited in the account of the
beneficiaries, then, all beneficiaries specified in the notification for
acquisition under section 4 of the said Land Acquisition Act, shall be
entitled to compensation in accordance with the provisions of this Act.”
It has been contended by learned senior counsel appearing for the
appellants that in view of the non obstante clause in sub-section (2) of
Section 24, notwithstanding an award passed under Section 11 of the Act in
respect of acquisition proceedings under challenge, such proceedings cannot
continue under the provisions of the Act because the award was made on
30.11.2006, i.e., more than five years earlier and undisputedly physical
possession of the land of the concerned appellants has not been taken as
yet. It has further been contended that proceedings have lapsed because in
several cases the alleged payment is only by way of deposit in treasury on
30.03.2007 and not by deposit in Court, as required by law. Reliance has
been placed upon a judgment of this Court in the case of Pune Municipal
Corporation & Anr. v. Harakchand Misirimal Solanki & Ors. (2014) 3 SCC 183
in support of the contention that compensation cannot be said to have been
paid only by its deposit with the Revenue authorities such as the
Government treasury, it can be accepted to have been paid only if it is
actually paid to the land owner or is deposited in the Court as per
requirement of Section 31 of the Act. For showing that at least in the
case of some land holders, the compensation was simply deposited in the
Revenue Deposit Account in the sub-treasury and not in the concerned Court,
a letter of Spl. Thasildar (LA), Chennai Corporation Waterways Project,
Ambattur, Chennai, dated 30.03.2007 has been annexed with I.A. No.3 of 2014
in C.A.No.8701 of 2013.
In reply Mr. Subramonium Prasad, AAG for the State of Tamil Nadu has
produced some charts and documents to submit that compensation has been
deposited in several cases with the concerned Civil Court also and in some
cases the payments have been accepted by the land owners. However, even as
per the chart containing details of award and payments for 3.31 hectares of
land involved in the case of Vishwanathan & Ors. in C.A. No.8701 of 2013
[arising out of S.L.P.(C) No.9492 of 2007] an amount of Rs.26,73,851/- is
shown to be lying in Revenue deposit whereas only for a small portion of
land an amount of Rs.5,50,056/- is in Civil Court deposit. However, this
issue need not be pursued any further because admittedly physical
possession of the land involved in these appeals has not been taken over by
the State and on that account alone, the land acquisition proceeding under
challenge will have to be treated or declared as lapsed unless we find
merit in the contention raised on behalf of State that this plea cannot be
used against the State because it was prevented from taking physical
possession of the lands on account of interim orders passed by the High
Court and this Court.
There is no dispute that writ petitions were filed even before the making
of award and interim orders have operated against the State of Tamil Nadu
and, therefore, the State was not at fault in not taking physical
possession of the concerned lands under acquisition. But the intention of
the Legislature in enacting Section 24(2) of the 2013 Act will have to be
culled out from its wordings and on the basis of other relevant provisions
of this Act and the relevant case law for deciding whether the period of
stay/injunction is required to be excluded in computing the five years’
period or not.
From a plain reading of Section 24 of the 2013 Act it is clear that
Section 24(2) of the 2013 Act does not exclude any period during which the
land acquisition proceeding might have remained stayed on account of stay
or injunction granted by any court. In the same Act, proviso to Section
19(7) in the context of limitation for publication of declaration under
Section 19(1) and the Explanation to Section 69(2) for working out the
market value of the land in the context of delay between preliminary
notification under Section 11 and the date of the award, specifically
provide that the period or periods during which the acquisition proceedings
were held up on account of any stay or injunction by the order of any court
be excluded in computing the relevant period. In that view of the matter
it can be safely concluded that the Legislature has consciously omitted to
extend the period of five years indicated in Section 24(2) even if the
proceedings had been delayed on account of an order of stay or injunction
granted by a court of law or for any reason. Such casus omissus cannot be
supplied by the court in view of law on the subject elaborately discussed
by this Court in the case of Padma Sundara Rao (Dead) & Ors. v. State of
T.N. & Ors. (2002) 3 SCC 533.
Even in the Land Acquisition Act of 1894, the Legislature had brought about
amendment in Section 6 through an Amendment Act of 1984 to add Explanation
1 for the purpose of excluding the period when the proceeding suffered stay
by an order of the court, in the context of limitation provided for
publishing the declaration under Section 6(1) of the Act. To a similar
effect was Explanation to Section 11A which was added by Amendment Act 68
of 1984. Clearly the Legislature has, in its wisdom, made the period of
five years under Section 24(2) of the 2013 Act absolute and unaffected by
any delay in the proceedings on account of any order of stay by a court.
The plain wordings used by the Legislature are clear and do not create any
ambiguity or conflict. In such a situation, the court is not required to
depart from the literal rule of interpretation.
It was faintly suggested by Mr. Subramonium Prasad, learned AAG for the
State of Tamil Nadu that the proviso may come to the rescue of the State
and save the proceedings from suffering lapse if it is held that since
there was an award leading to payment of compensation in respect of some of
the land holdings only, therefore all the beneficiaries may now be entitled
to compensation in accordance with the provisions of the 2013 Act. This
contention could have been considered with some more seriousness if
physical possession of the land had been taken but since that has not been
done, the proviso dealing only with compensation cannot be of any help to
the State. Therefore, we are not required to go deeper into the effect and
implications of the proviso which prima facie appears to be for the benefit
of all the land holders in a case where the award is subsisting because the
proceedings have not lapsed and compensation in respect of majority of land
holdings has not been deposited in the account of the beneficiaries. There
is nothing in the language of the proviso to restrict the meaning of the
words used in Section 24(2) mandating that the proceedings shall be deemed
to have lapsed if the award is five years or more than five years’ old but
the physical possession of the land has not been taken over or the
compensation has not been paid. The law is trite that when the main
enactment is clear and unambiguous, a proviso can have no effect so as to
exclude from the main enactment by implication what clearly falls within
its express terms, as held by Privy Council in the case of Madras and
Southern Mahratta Railway Co. Ltd. v. Bezwada Municipality AIR 1944 PC 71
and by this Court in the case of C.I.T. v. Indo Mercantile Bank Ltd. AIR
1959 SC 713.
The judgment of three Judges’ Bench in the case of Harakchand Misirimal
(supra) has been followed by another Bench of three Judges in the case of
Union of India & Ors. etc. v. Shivraj & Ors. etc. (2014) 6 SCC 564. In
paragraphs 25 and 26 of that judgment, this Court took notice of a
clarification issued by the Government of India, Ministry of Urban
Development, Delhi Division dated 14.03.2014. Part of the circular
extracted in that case clearly shows that the period of five years or more
in Section 24(2) of the 2013 Act has been prescribed with a view to benefit
the land-losers and the period spent in litigation due to challenge to the
award or the land acquisition proceedings cannot be excluded.
From the discussions made above, it is amply clear that though there is
lack of clarity on the issue whether compensation has been paid for
majority of land holdings under acquisition or not, there is no dispute
that physical possession of the lands belonging to the appellants under
consideration in these appeals has not been taken by the State or any other
authority on its behalf and more than five years have elapsed since the
making of the award dated 30.11.2006 and 01.01.2014 when the 2013 Act came
into force. Therefore, the conditions mentioned in Section 24(2) of the
2013 Act are satisfied for allowing the plea of the appellants that the
land acquisition proceedings must be deemed to have lapsed in terms of
Section 24(2) of the 2013 Act. The appeals are disposed of accordingly.
It goes without saying that the Government of Tamil Nadu shall be free, if
it so chooses to initiate proceedings of such land acquisition afresh in
accordance with the provisions of 2013 Act. In the facts and circumstances
of the case there shall be no order as to costs.
..…………………………………………………….J.
[FAKKIR MOHAMED IBRAHIM KALIFULLA]
……………………………………………………..J.
[SHIVA KIRTI SINGH]
New Delhi.
September 10, 2014.
-----------------------
12
Whereas in Civil Appeal No.8700 of 2013, filed by an Association of
Residents of a particular locality, the challenge is to the order of
Government of Tamil Nadu bearing G.O. No.122 dated 14.07.1998 containing a
scheme for development of a proposed canal by name Madhavaram Left Flank
Water Surplus Course, on the ground that the scheme is misconceived and
technically flawed which shall lead to unnecessary acquisition of land and
building belonging to the residents of the affected area, the other Civil
Appeals contain specific challenge to proceedings initiated under the Land
Acquisition Act, 1894 (hereinafter referred to as, ‘the Act’) undertaken by
the Tamil Nadu State Government for the purpose of implementation of the
said scheme covered by G.O. No.122 relating to the proposed canal
improvement works.
The actual land acquisition proceedings commenced with
issuance of Notification under Section 4(1) of the Act on 02.02.2005,
insofar as the lands under dispute are concerned.
The Award was made on
30.11.2006 but in the meantime as appears from the facts stated in C.A.
No.8700 of 2013, upon a challenge made to the Notification under Section
4(1) of the Act, the High Court stayed dispossession of the concerned land
holders by order dated 17.2.2005
but ultimately the writ petitions and other tagged matters were dismissed on 27.4.2007. =
The parties have been heard only on this narrow legal aspect to find out
whether the appellants’ prayer noted above deserves to be allowed in view
of Section 24(2) of 2013 Act or not.
In view of the order proposed, we
find it futile to refer to and discuss the facts involved in different
civil appeals.
Section 24 of 2013 Act is as follows :
“24. (1) Notwithstanding anything contained in this Act, in any case of
land acquisition proceedings initiated under the Land Acquisition Act,
1894, -
(a) where no award under section 11 of the said Land Acquisition Act
has been made, then, all provisions of this Act relating to the
determination of compensation shall apply; or
(b) where an award under said section 11 has been made, then such
proceedings shall continue under the provisions of the said Land
Acquisition Act, as if the said Act has not been repealed.
(2) Notwithstanding anything contained in sub-section (1), in case of land
acquisition proceedings initiated under the Land Acquisition Act, 1894,
where an award under the said section 11 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:
Provided that where an award has been made and compensation in respect of a
majority of land holdings has not been deposited in the account of the
beneficiaries, then, all beneficiaries specified in the notification for
acquisition under section 4 of the said Land Acquisition Act, shall be
entitled to compensation in accordance with the provisions of this Act.” =
whether compensation has been paid for
majority of land holdings under acquisition or not, there is no dispute
that physical possession of the lands belonging to the appellants under
consideration in these appeals has not been taken by the State or any other
authority on its behalf and more than five years have elapsed since the
making of the award dated 30.11.2006 and 01.01.2014 when the 2013 Act came
into force. Therefore, the conditions mentioned in Section 24(2) of the
2013 Act are satisfied for allowing the plea of the appellants that the
land acquisition proceedings must be deemed to have lapsed in terms of
Section 24(2) of the 2013 Act. The appeals are disposed of accordingly.
It goes without saying that the Government of Tamil Nadu shall be free, if
it so chooses to initiate proceedings of such land acquisition afresh in
accordance with the provisions of 2013 Act. In the facts and circumstances
of the case there shall be no order as to costs.
majority of land holdings under acquisition or not, there is no dispute
that physical possession of the lands belonging to the appellants under
consideration in these appeals has not been taken by the State or any other
authority on its behalf and more than five years have elapsed since the
making of the award dated 30.11.2006 and 01.01.2014 when the 2013 Act came
into force. Therefore, the conditions mentioned in Section 24(2) of the
2013 Act are satisfied for allowing the plea of the appellants that the
land acquisition proceedings must be deemed to have lapsed in terms of
Section 24(2) of the 2013 Act. The appeals are disposed of accordingly.
It goes without saying that the Government of Tamil Nadu shall be free, if
it so chooses to initiate proceedings of such land acquisition afresh in
accordance with the provisions of 2013 Act. In the facts and circumstances
of the case there shall be no order as to costs.
2014 -Sept. Month - http://judis.nic.in/supremecourt/filename=41900
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8700 OF 2013
Sree Balaji Nagar Residential Association …..Appellant
Versus
State of Tamil Nadu & Ors. …..Respondents
W I T H
CIVIL APPEAL NOS.8701 OF 2013; 8702 OF 2013;
8703 OF 2013; AND 8704 OF 2013
J U D G M E N T
SHIVA KIRTI SINGH, J.
These civil appeals have been heard together because they involve common
questions of law and fact and, therefore, they are being disposed of by
this common judgment and order.
Whereas in Civil Appeal No.8700 of 2013, filed by an Association of
Residents of a particular locality, the challenge is to the order of
Government of Tamil Nadu bearing G.O. No.122 dated 14.07.1998 containing a
scheme for development of a proposed canal by name Madhavaram Left Flank
Water Surplus Course, on the ground that the scheme is misconceived and
technically flawed which shall lead to unnecessary acquisition of land and
building belonging to the residents of the affected area, the other Civil
Appeals contain specific challenge to proceedings initiated under the Land
Acquisition Act, 1894 (hereinafter referred to as, ‘the Act’) undertaken by
the Tamil Nadu State Government for the purpose of implementation of the
said scheme covered by G.O. No.122 relating to the proposed canal
improvement works. The actual land acquisition proceedings commenced with
issuance of Notification under Section 4(1) of the Act on 02.02.2005,
insofar as the lands under dispute are concerned. The Award was made on
30.11.2006 but in the meantime as appears from the facts stated in C.A.
No.8700 of 2013, upon a challenge made to the Notification under Section
4(1) of the Act, the High Court stayed dispossession of the concerned land
holders by order dated 17.2.2005 but ultimately the writ petitions and
other tagged matters were dismissed on 27.4.2007. The matter reached this
Court and as a result of an interim order passed by this Court on
18.05.2007 in C.A.No.8701 of 2013 [arising out of S.L.P.(C)No.9492 of 2007]
the land holders have remained protected from being dispossessed from their
lands in question.
The various orders passed by this Court in these cases reveal that the
matter was taken up in a much wider perspective in the light of larger
issues raised in public interest that alternative scheme be also devised
and taken into account to prevent unnecessary displacement of large number
of residents and with a view to protect likely pollution of some lakes on
account of flood waters entering into such lakes and thereby affecting the
cleanliness of possible sources for supply of drinking water. This Court,
long back on 10.02.2010 felt the need for and hence directed the
respondents to submit a revised comprehensive plan of the area showing
location of various water bodies, the construction of canal which had
already taken place and the natural flow of water from Ambattur tank to
Korattur tank and from Korattur tank to Capt. Cotton Canal. On 31.03.2010,
learned senior counsel for the State of Tamil Nadu referred to and
submitted a final report by Mott MacDonald, an expert appointed by the
Government of Tamil Nadu to study the entire scheme and prepare Storm Water
Drainage Master Plan for Madras City and Pre-feasibility Study for Madras
Metropolitan Area. On going through the relevant portions of that Report,
this Court decided to appoint an expert body to study the environmental
aspect of the scheme under challenge because the expert appointed by the
State Government had suggested further study/monitoring of ground water
outside the Chennai Metropolitan area. By order dated 09.04.2010, this
Court appointed a Committee of several experts under the Chairmanship of
Hon’ble Mr. Justice Doraiswamy Raju, a former Judge of this Court. The
terms of reference included eight points and the Committee was requested to
submit its report within three months. The Committee’s report was made
available to this Court, belatedly and for one reason or the other, the
matter could not be heard finally for a long period. At the stage of
hearing, on 10.07.2014, the State of Tamil Nadu expressed its willingness
to explore the possibility of arriving at some consensus. This course was
adopted in view of relevant map and materials which showed that as a part
of Chennai City Waterways Alignment of Surplus Course Package IV,
considerable part of the proposed canal had already been constructed but
the balance part remained incomplete only on account of present proceedings
against acquisition of lands for the purpose. However, the High Level
Committee meeting under Chairmanship of the Chief Secretary of the State
involving the petitioners in public interest litigation as well as
representatives of the land owners’ Association could not prove fruitful.
In the meanwhile, on account of a subsequent legislation – The Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (for brevity, ‘2013 Act’) coming into effect from
01.01.2014, through I.A. No.3 filed in Civil Appeal No.8701 of 2013, a plea
was raised on behalf of the appellants that the appeals be allowed in terms
of Section 24(2) of the 2013 Act by holding that the acquisition proceeding
initiated under the Act has lapsed.
The parties have been heard only on this narrow legal aspect to find out
whether the appellants’ prayer noted above deserves to be allowed in view
of Section 24(2) of 2013 Act or not. In view of the order proposed, we
find it futile to refer to and discuss the facts involved in different
civil appeals. Section 24 of 2013 Act is as follows :
“24. (1) Notwithstanding anything contained in this Act, in any case of
land acquisition proceedings initiated under the Land Acquisition Act,
1894, -
(a) where no award under section 11 of the said Land Acquisition Act
has been made, then, all provisions of this Act relating to the
determination of compensation shall apply; or
(b) where an award under said section 11 has been made, then such
proceedings shall continue under the provisions of the said Land
Acquisition Act, as if the said Act has not been repealed.
(2) Notwithstanding anything contained in sub-section (1), in case of land
acquisition proceedings initiated under the Land Acquisition Act, 1894,
where an award under the said section 11 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:
Provided that where an award has been made and compensation in respect of a
majority of land holdings has not been deposited in the account of the
beneficiaries, then, all beneficiaries specified in the notification for
acquisition under section 4 of the said Land Acquisition Act, shall be
entitled to compensation in accordance with the provisions of this Act.”
It has been contended by learned senior counsel appearing for the
appellants that in view of the non obstante clause in sub-section (2) of
Section 24, notwithstanding an award passed under Section 11 of the Act in
respect of acquisition proceedings under challenge, such proceedings cannot
continue under the provisions of the Act because the award was made on
30.11.2006, i.e., more than five years earlier and undisputedly physical
possession of the land of the concerned appellants has not been taken as
yet. It has further been contended that proceedings have lapsed because in
several cases the alleged payment is only by way of deposit in treasury on
30.03.2007 and not by deposit in Court, as required by law. Reliance has
been placed upon a judgment of this Court in the case of Pune Municipal
Corporation & Anr. v. Harakchand Misirimal Solanki & Ors. (2014) 3 SCC 183
in support of the contention that compensation cannot be said to have been
paid only by its deposit with the Revenue authorities such as the
Government treasury, it can be accepted to have been paid only if it is
actually paid to the land owner or is deposited in the Court as per
requirement of Section 31 of the Act. For showing that at least in the
case of some land holders, the compensation was simply deposited in the
Revenue Deposit Account in the sub-treasury and not in the concerned Court,
a letter of Spl. Thasildar (LA), Chennai Corporation Waterways Project,
Ambattur, Chennai, dated 30.03.2007 has been annexed with I.A. No.3 of 2014
in C.A.No.8701 of 2013.
In reply Mr. Subramonium Prasad, AAG for the State of Tamil Nadu has
produced some charts and documents to submit that compensation has been
deposited in several cases with the concerned Civil Court also and in some
cases the payments have been accepted by the land owners. However, even as
per the chart containing details of award and payments for 3.31 hectares of
land involved in the case of Vishwanathan & Ors. in C.A. No.8701 of 2013
[arising out of S.L.P.(C) No.9492 of 2007] an amount of Rs.26,73,851/- is
shown to be lying in Revenue deposit whereas only for a small portion of
land an amount of Rs.5,50,056/- is in Civil Court deposit. However, this
issue need not be pursued any further because admittedly physical
possession of the land involved in these appeals has not been taken over by
the State and on that account alone, the land acquisition proceeding under
challenge will have to be treated or declared as lapsed unless we find
merit in the contention raised on behalf of State that this plea cannot be
used against the State because it was prevented from taking physical
possession of the lands on account of interim orders passed by the High
Court and this Court.
There is no dispute that writ petitions were filed even before the making
of award and interim orders have operated against the State of Tamil Nadu
and, therefore, the State was not at fault in not taking physical
possession of the concerned lands under acquisition. But the intention of
the Legislature in enacting Section 24(2) of the 2013 Act will have to be
culled out from its wordings and on the basis of other relevant provisions
of this Act and the relevant case law for deciding whether the period of
stay/injunction is required to be excluded in computing the five years’
period or not.
From a plain reading of Section 24 of the 2013 Act it is clear that
Section 24(2) of the 2013 Act does not exclude any period during which the
land acquisition proceeding might have remained stayed on account of stay
or injunction granted by any court. In the same Act, proviso to Section
19(7) in the context of limitation for publication of declaration under
Section 19(1) and the Explanation to Section 69(2) for working out the
market value of the land in the context of delay between preliminary
notification under Section 11 and the date of the award, specifically
provide that the period or periods during which the acquisition proceedings
were held up on account of any stay or injunction by the order of any court
be excluded in computing the relevant period. In that view of the matter
it can be safely concluded that the Legislature has consciously omitted to
extend the period of five years indicated in Section 24(2) even if the
proceedings had been delayed on account of an order of stay or injunction
granted by a court of law or for any reason. Such casus omissus cannot be
supplied by the court in view of law on the subject elaborately discussed
by this Court in the case of Padma Sundara Rao (Dead) & Ors. v. State of
T.N. & Ors. (2002) 3 SCC 533.
Even in the Land Acquisition Act of 1894, the Legislature had brought about
amendment in Section 6 through an Amendment Act of 1984 to add Explanation
1 for the purpose of excluding the period when the proceeding suffered stay
by an order of the court, in the context of limitation provided for
publishing the declaration under Section 6(1) of the Act. To a similar
effect was Explanation to Section 11A which was added by Amendment Act 68
of 1984. Clearly the Legislature has, in its wisdom, made the period of
five years under Section 24(2) of the 2013 Act absolute and unaffected by
any delay in the proceedings on account of any order of stay by a court.
The plain wordings used by the Legislature are clear and do not create any
ambiguity or conflict. In such a situation, the court is not required to
depart from the literal rule of interpretation.
It was faintly suggested by Mr. Subramonium Prasad, learned AAG for the
State of Tamil Nadu that the proviso may come to the rescue of the State
and save the proceedings from suffering lapse if it is held that since
there was an award leading to payment of compensation in respect of some of
the land holdings only, therefore all the beneficiaries may now be entitled
to compensation in accordance with the provisions of the 2013 Act. This
contention could have been considered with some more seriousness if
physical possession of the land had been taken but since that has not been
done, the proviso dealing only with compensation cannot be of any help to
the State. Therefore, we are not required to go deeper into the effect and
implications of the proviso which prima facie appears to be for the benefit
of all the land holders in a case where the award is subsisting because the
proceedings have not lapsed and compensation in respect of majority of land
holdings has not been deposited in the account of the beneficiaries. There
is nothing in the language of the proviso to restrict the meaning of the
words used in Section 24(2) mandating that the proceedings shall be deemed
to have lapsed if the award is five years or more than five years’ old but
the physical possession of the land has not been taken over or the
compensation has not been paid. The law is trite that when the main
enactment is clear and unambiguous, a proviso can have no effect so as to
exclude from the main enactment by implication what clearly falls within
its express terms, as held by Privy Council in the case of Madras and
Southern Mahratta Railway Co. Ltd. v. Bezwada Municipality AIR 1944 PC 71
and by this Court in the case of C.I.T. v. Indo Mercantile Bank Ltd. AIR
1959 SC 713.
The judgment of three Judges’ Bench in the case of Harakchand Misirimal
(supra) has been followed by another Bench of three Judges in the case of
Union of India & Ors. etc. v. Shivraj & Ors. etc. (2014) 6 SCC 564. In
paragraphs 25 and 26 of that judgment, this Court took notice of a
clarification issued by the Government of India, Ministry of Urban
Development, Delhi Division dated 14.03.2014. Part of the circular
extracted in that case clearly shows that the period of five years or more
in Section 24(2) of the 2013 Act has been prescribed with a view to benefit
the land-losers and the period spent in litigation due to challenge to the
award or the land acquisition proceedings cannot be excluded.
From the discussions made above, it is amply clear that though there is
lack of clarity on the issue whether compensation has been paid for
majority of land holdings under acquisition or not, there is no dispute
that physical possession of the lands belonging to the appellants under
consideration in these appeals has not been taken by the State or any other
authority on its behalf and more than five years have elapsed since the
making of the award dated 30.11.2006 and 01.01.2014 when the 2013 Act came
into force. Therefore, the conditions mentioned in Section 24(2) of the
2013 Act are satisfied for allowing the plea of the appellants that the
land acquisition proceedings must be deemed to have lapsed in terms of
Section 24(2) of the 2013 Act. The appeals are disposed of accordingly.
It goes without saying that the Government of Tamil Nadu shall be free, if
it so chooses to initiate proceedings of such land acquisition afresh in
accordance with the provisions of 2013 Act. In the facts and circumstances
of the case there shall be no order as to costs.
..…………………………………………………….J.
[FAKKIR MOHAMED IBRAHIM KALIFULLA]
……………………………………………………..J.
[SHIVA KIRTI SINGH]
New Delhi.
September 10, 2014.
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