REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.20982 OF 2017
INDORE DEVELOPMENT AUTHORITY ...APPELLANT (S)
VERSUS
SHAILENDRA (DEAD)
THROUGH LRS.& ORS. ...RESPONDENT (S)
WITH
SPECIAL LEAVE PETITION (C) No.10742 OF 2008
YOGESH KUMAR & ORS. ...PETITIONER (S)
VERSUS
STATE OF MADHYA PRADESH & ORS. ...RESPONDENT (S)
WITH
SPECIAL LEAVE PETITION (C) No.20920 OF 2011
SPECIAL LEAVE PETITION (C)Nos.26574-26575 OF 2011
SPECIAL LEAVE PETITION (C)No.28993 OF 2011
SPECIAL LEAVE PETITION (C)No.30198 OF 2015
SPECIAL LEAVE PETITION (C)No.30192 OF 2015
SPECIAL LEAVE PETITION (C)No.30142 OF 2015
1
SPECIAL LEAVE PETITION (C)No.30128 OF 2015
SPECIAL LEAVE PETITION (C)No.30203 OF 2015
CIVIL APPEAL No.4835 OF 2015
SPECIAL LEAVE PETITION (C)No.25289 OF 2015
SPECIAL LEAVE PETITION (C)………………CC No.9842 OF 2016
SPECIAL LEAVE PETITION (C) No.22356 OF 2015
SPECIAL LEAVE PETITION (C) No.31678 OF 2015
CIVIL APPEAL NO.4836 OF 2015
SPECIAL LEAVE PETITION (C) No.22527 OF 2015
SPECIAL LEAVE PETITION (C) No.4705 OF 2016
SPECIAL LEAVE PETITION (C) No.30577-30580 OF 2015
SPECIAL LEAVE PETITION (C) No.27389 OF 2015
SPECIAL LEAVE PETITION (C) No.27383 OF 2015
SPECIAL LEAVE PETITION (C) No.34787 OF 2015
SPECIAL LEAVE PETITION (C) No.10190-10200 OF 2017
SPECIAL LEAVE PETITION (C) No.38290 OF 2016
SPECIAL LEAVE PETITION (C) No.9571 OF 2016
SPECIAL LEAVE PETITION (C) No.15127 OF 2016
SPECIAL LEAVE PETITION (C) No.15144 OF 2016
SPECIAL LEAVE PETITION (C) No.15131 OF 2016
2
SPECIAL LEAVE PETITION (C) No.15139 OF 2016
SPECIAL LEAVE PETITION (C) No.16425 OF 2016
SPECIAL LEAVE PETITION (C) No.15117 OF 2016
SPECIAL LEAVE PETITION (C) No.15140 OF 2016
SPECIAL LEAVE PETITION (C) No.9570 OF 2016
SPECIAL LEAVE PETITION (C) No.15113 OF 2016
SPECIAL LEAVE PETITION (C) No.16438 OF 2016
SPECIAL LEAVE PETITION (C) No.15119 OF 2016
SPECIAL LEAVE PETITION (C) No.15126 OF 2016
SPECIAL LEAVE PETITION (C) No.15125 OF 2016
SPECIAL LEAVE PETITION (C) No.15118 OF 2016
SPECIAL LEAVE PETITION (C) No.15124 OF 2016
SPECIAL LEAVE PETITION (C) No.15112 OF 2016
SPECIAL LEAVE PETITION (C) No.11824 OF 2016
SPECIAL LEAVE PETITION (C) No.15143 OF 2016
SPECIAL LEAVE PETITION (C) No.15141 OF 2016
SPECIAL LEAVE PETITION (C) No.15142 OF 2016
SPECIAL LEAVE PETITION (C) No.15213-15217 OF 2017
SPECIAL LEAVE PETITION (C) No.17324 OF 2016
SPECIAL LEAVE PETITION (C) No.38368 OF 2016
3
SPECIAL LEAVE PETITION (C) No.5182-5184 OF 2017
SPECIAL LEAVE PETITION (C) No.23846 OF 2016
SPECIAL LEAVE PETITION (C) No.23097 OF 2016
SPECIAL LEAVE PETITION (C) No.19804-19805 OF 2016
SPECIAL LEAVE PETITION (C) No.22127-22128 OF 2016
SPECIAL LEAVE PETITION (C) No.21997-21998 OF 2016
W.P.(C) No.602 OF 2017
SPECIAL LEAVE PETITION (C) ..Diary No.24901 OF 2017
J U D G M E N T
ARUN MISHRA, J.
1. In Indore Development Authority v. Shailendra (Dead) through
LRs. & Others [C.A No.20982 of 2017] correctness of the decision of
Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki
[2014 (3) SCC 183] has been doubted. The main issue is
interpretation of section 24 of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 (for short, ‘the Act of 2013’) and section 31 of the Land
Acquisition Act, 1894 (for short, ‘the Act of 1894’).
2. In Yogesh Neema & Ors. v. State of M.P. & Ors. [S.L.P. [C]
No.10742 of 2008] vide order of 12.1.2016, observing that other
4
question, that may arise undoubtedly to be considered question
Nos. IV and V have been referred.
Following questions arises for consideration:
I. What is the meaning of the expression ‘paid'/ ‘tender' in
Section 24 of the Act of 2013 and section 31 of the Act of
1894? Whether non-deposit of compensation in court under
section 31(2) of the Act of 1894 results into a lapse of
acquisition under section 24(2) of the Act of 2013. What are
the consequences of non-deposit in Court especially when
compensation has been tendered and refused under section
31(1) of the Act of 1894 and section 24(2) of the Act of 2013?
Whether such persons after refusal can take advantage of
their wrong/conduct?
II. Mode of taking physical possession as contemplated under
section 24(2) of the Act of 1894.
III. Whether section 24 of Act of 2013 revives barred and stale
claims?
IV. Whether the conscious omission referred to in paragraph 11 of
the judgment in Shree Balaji Nagar Residential Association v.
State of Tamil Nadu [(2015) 3 SCC 353] makes any substantial
5
difference to the legal position with regard to the exclusion or
inclusion of the period covered by an interim order of the
Court for the purpose of determination of the applicability of
Section 24(2) of the 2013 Act?
V. Whether the principle of “actus curiae neminem gravabit”,
namely act of the Court should not prejudice any parties
would be applicable in the present case to exclude the period
covered by an interim order for the purpose of determining the
question with regard to taking of possession as contemplated
in Section 24(2) of the 2013 Act?
In Re: Question No.1
3. Question that has been referred in as to meaning of the
expression ‘paid' used in section 24 of Act of 2013 and expression
‘tender' used in section 31(1) of Act of 1894 when deposit under
section 31(2) of Act of 1894 is necessary, effect of refusal to accept
compensation and whether deposit in treasury is permissible and
effect of non-deposit of compensation in Court.
4. In order to appreciate the various questions to be answered, it
is appropriate to first consider the provisions contained in the Act of
1894 with respect to the passing of the award, together with its
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communication and payment; the following then is a ‘bird’s eye
view’ of the same.
SCHEME OF ACT & RELEVANT PROVISIONS :
5. After notification under section 4 and declaration under
section 6 have been issued under the Act of 1894, the Collector is
required to proceed to pass an award under section 11. Section 12
requires the Collector to give immediate notice of the award to such
persons interested as are not present personally or by their
representatives when the award is made. Section 16 deals with the
power of the Collector to take possession of the land after an award
has been made under section 11. It is open to the Collector to take
possession of the land, which shall, thereupon, vest absolutely in
the Government. Section 16 is extracted hereunder:
“16. Power to take possession – When the Collector has made
an award under section 11, he may take possession of the land,
which shall thereupon vest absolutely in the Government, free
from all encumbrances. (emphasis supplied)
6. Section 17 deals with special powers in cases of urgency. The
same authorizes the Collector to take possession before passing of
the award as provided in section 17(1) of the Act of 1894, and on
taking possession of any land, such land shall thereupon vest
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absolutely in the Government, free from all encumbrances. Section
17 is extracted hereunder:
“17. Special powers in case of urgency – (1) In cases of
urgency whenever the [appropriate Government], so directs,
the Collector, though no such award has been made, may, on
the expiration of fifteen days from the publication of the notice
mentioned in section 9, subsection 1). [take possession of any
land needed for a public purpose]. Such land shall thereupon
[vest absolutely in the [Government], free from all
encumbrances.
(2) Whenever owing to any sudden change in the channel of
any navigable river or other unforeseen emergency, it becomes
necessary for any Railway Administration to acquire the
immediate possession of any land for the maintenance of their
traffic or for the purpose of making thereon a river-side or ghat
station, or of providing convenient connection with or accesses
to any such station, [or the appropriate Government considers
it necessary to acquire the immediate possession of any land
for the purpose of maintaining any structure or system
pertaining to irrigation, water supply, drainage, road
communication or electricity,] the Collector may immediately
after the publication of the notice mentioned in sub-section (1)
and with the previous sanction of the [appropriate
Government], enter upon and take possession of such land,
which shall thereupon [vest absolutely in the [Government]]
free from all encumbrances : Provided that the Collector shall
not take possession of any building or part of a building under
this sub-section without giving to the occupier thereof at least
forty-eight hours notice of his intention so to do, or such
longer notice as may be reasonably sufficient to enable such
occupier to remove his movable property from such building
without unnecessary inconvenience.
(3) In every case under either of the preceding sub-sections the
Collector shall at that time of taking possession offer to the
persons interested compensation for the standing crops and
trees (if any) on such land and from any other damage
sustained by them caused by such sudden dispossession and
not excepted in section 24; and, in case such offer is not
accepted, the value of such crops and trees and the amount of
such other damage shall be allowed for in awarding
compensation for the land under the provisions herein
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contained.
3[(3A) Before taking possession of any land under sub-section
(1) or sub-section (2), the Collector shall, without prejudice to
the provisions of sub-section (3)- (a) tender payment of eighty
per centum of the compensation for such land as estimated by
him to the person interested entitled thereto, and (b) pay it to
them, unless prevented by some one or more of the
contingencies mentioned in section 31, sub-section (2), and
where the Collector is so prevented, the provisions of section
31, sub-section (2), (except the second proviso thereto), shall
apply as they apply to the payment of compensation under that
section.
(3B) The amount paid or deposited under section (3A), shall
be taken into account for determining the amount of
compensation required to be tendered under section 31, and
where the amount so paid or deposited exceeds the
compensation awarded by the Collector under section 11, the
excess may, unless refunded within three months from the date
of Collector's award, be recovered as an arrear of land
revenue]. [(4) In the case of any land to which, in the opinion
of the [appropriate Government], the provisions of sub-section
(1) or sub-section (2) are applicable, the [appropriate
Government] may direct that the provisions of section 5A shall
not apply, and, if it does so direct, a declaration may be made
under section 6 in respect of the land at any time [after the date
of the publication of the notification] under section 4,
sub-section (1).” (emphasis
supplied)
Before taking possession of the land, it is necessary under
Section 17(3A) to tender payment of 80% compensation unless
prevented by some one or more of the contingencies mentioned in
sub-section (2) of section 31, and where the Collector is so
prevented, the provisions of section 31(2), except the second
proviso, shall apply as they apply to the payment of compensation
9
under that section. As required under section 17(3A) and section
17(3B), the amount paid or deposited under sub-section (3A) shall
be taken into account for determining the amount of compensation
to be tendered under section 31. Section 18 of the Act of 1894
provides that any person interested, who has not accepted the
award, may ask for a reference to be made to the court with respect
to (1) measurement of the land; (2) the amount of compensation (3)
the persons to whom it is payable or (4) the apportionment of the
compensation among the persons interested. Under section 30,
there can be a reference to the court; its scope is confined to any
dispute arising as to the apportionment of the amount of
compensation or any part thereof, or as to the persons to whom the
same or any part thereof is payable. In a reference under section 30,
measurement of land and quantum of compensation cannot be
questioned. There is a limitation for reference under section 18(2);
whereas, the limitation is not prescribed in the Act of 1894 for
seeking reference under section 30.
7. There is yet another reference under the Act of 1894, i.e. under
section 28A. The provisions of section 28A aim at removal of the
disparity in the matter of payment of compensation which provides
10
for re-determination of the amount of compensation, on the basis of
the award of the court, in respect of a person who had not sought
reference, and had accepted the Collector’s award; such a person
can seek re-determination of compensation within three months
from the date of the award of the court. In case a person is not
satisfied with the re-determination so made under section 28A(2),
he can seek a reference to court under section 28A(3).
8. The payment of compensation and deposit of it in Court is
dealt with in Part V of the Act of 1894, in section 31. Section 31 is
extracted hereunder:
“31. Payment of compensation or deposit of same in Court. -
(1) On making an award under section 11, the Collector shall
tender payment of the compensation awarded by him to the
persons interested entitled thereto according to the award and
shall pay it to them unless prevented by some one or more of
the contingencies mentioned in the next sub-section.
(2) If they shall not consent to receive it, or if there be no
person competent to alienate the land, or if there be any
dispute as to the title to receive the compensation or as to the
apportionment of it, the Collector shall deposit the amount of
the compensation in the Court to which a reference under
section 18 would be submitted: Provided that any person
admitted to be interested may receive such payment under
protest as to the sufficiency of the amount: Provided also that
no person who has received the amount otherwise than under
protest shall be entitled to make any application under section
18: Provided also that nothing herein contained shall affect the
liability of any person, who may receive the whole or any part
of any compensation awarded under this Act, to pay the same
to the person lawfully entitled thereto.
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(3) Notwithstanding anything in this section the Collector may,
with the sanction of the [appropriate Government] instead of
awarding a money compensation in respect of any land, make
any arrangement with a person having a limited interest in
such land, either by the grant of other lands in exchange, the
remission of land-revenue on other lands held under the same
title, or in such other way as may be equitable having regard to
the interests of the parties concerned.
(4) Nothing in the last foregoing sub-section shall be construed
to interfere with or limit the power of the Collector to enter
into any arrangement with any person interested in the land
and competent to contract in respect thereof.”
9. The provision of section 31(2) makes it clear that only in the
exigencies as provided in section 31(2), the amount has to be
deposited in reference court, not in all exigencies. As discussed
hereinafter rules framed under section 55 provide that in case a
person seeks no reference and he refuses to accept the
compensation it has to be deposited in the treasury. An attempt
has to be made to harmonize the Act and the rules. The expression
used in section 31(2) is that on refusal amount to be deposited in
Court where reference would be submitted. When no reference is
sought there is no question of it being submitted to the Court.
Hence, Reference Court does not come into picture then the deposit
is to be obviously made in treasury as provided in Rules/ Order
discussed hereinafter.
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10. Sub-section (1) of section 31 deals with "payment", whereas,
sub-section (2) of section 31 deals with "deposit" of the amount of
compensation in court in certain contingencies. "Payment" of
compensation is differently dealt with in section 31(1), and "deposit"
is separately dealt with in section 31(2) of the Act of 1894. Section
31(1) provides tender of the amount to be the mode to pay. The
provisions of sub-section (1) deal with payment, and sub-section (2)
of section 31 deals with deposit in the Court “where reference would
be submitted”, only in the contingencies mentioned, i.e. (1) if the
person interested shall not consent to receive it, and has sought
reference to Court or (2) if there be no person competent to alienate
the land, or (3) if there be any dispute as to the entitlement to
receive the compensation, or (4) if there be any dispute as to the
apportionment of compensation between the interested persons.
The Collector is required to deposit the amount of the compensation
in the Court to which a reference under section 18 would be
submitted. It is also provided in section 31(2) that no person who
has received the amount otherwise than under protest shall be
entitled to make an application for seeking reference under section
18. It is open to a person, under the first proviso to section 31(2), to
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receive payment of compensation under protest as to the sufficiency
of the amount, and such person is also entitled to maintain a
reference. The third proviso to section 31(2) makes it clear that any
person who has received the whole or any part of compensation
awarded under the Act, shall still be liable to pay the same to a
person who is lawfully entitled thereto. It is with the purpose as
provided in section 31 when the amount is tendered it can be
accepted under protest and still a reference can be maintained. In
case awarded amount has been accepted without protest, reference
cannot be maintained under section 18.
11. In case of incompetency of a person to alienate the land in
question, amount has to be deposited in the reference court under
section 31(2), and when money of such person is deposited in
Court, court may order the money to be invested in the purchase of
another land to be held under the like title and conditions of
ownership, as the land, in respect of which, such money shall have
been deposited, was held, or if such purchase cannot be effected
forthwith, money can be invested in Government or other approved
securities as the court shall think fit and has to be dealt with in
accordance with the provisions contained in section 32. Section 33
14
deals with an investment of money deposited in other cases.
12. In case money is deposited in court otherwise than as provided
under section 32, any party interested can apply to the court for
investing the same in Government or other approved securities, is
the purpose of deposit. The provisions of sections 32 and 33 of the
Act of 1894 are extracted hereunder:
“32. Investment of money deposited in respect of lands
belonging to persons incompetent to alienate. -
(1) If any money shall be deposited in Court under
sub-section (2) of the last preceding section and it
appears that the land in respect whereof the same was
awarded belonged to any person who had no power to
alienate the same, the Court shall(a)
order the money to be invested in the purchase of
other lands to be held under the like title and conditions
of ownership as the land in respect of which such
money shall have been deposited was held, or
(b) if such purchase cannot be effected forthwith, then
in such Government of other approved securities as the
Court shall think fit;
and shall direct the payment of the interest or other
proceeds arising from such investment to the person or
persons who would, for the time being, have been
entitled to the possession of the said land, and such
moneys shall remain so deposited and invested until the
same be applied(i)in
the purchase of such other lands as
aforesaid; or
(ii) in payment to any person or persons
becoming absolutely entitled thereto.
(2) In all cases of money deposited to which this
section applies the Court shall order the costs of the
following matters, including therein all reasonable
15
charge and expenses incident thereon, to be paid by the
Collector, namely: -
(a) the costs of such investments as aforesaid; (b) the
costs of the orders for the payment of the interest or
other proceeds of the securities upon which such
moneys are for the time being invested, and for the
payment out of Court of the principal of such moneys,
and of all proceedings relating thereto, except such as
may be occasioned by litigation between adverse
claimants.
33. Investment of money deposited in other cases - When any
money shall have been deposited in Court under this Act for
any cause other than mentioned in the last proceeding section,
the court may, on the application of any party interested or
claiming an interest in such money, order the same to be
invested in such Government or other approved securities as it
may think proper, and paid in such manner as it may consider
will give the parties interested therein the same benefit the
reform as they might have had from the land in respect
whereof such money shall have been deposited or as near
thereto as may be.”
13. The provisions contained in section 34 deals with the
exigencies where the amount of compensation is not paid or
deposited on or before taking possession of the land. The Collector
shall pay the amount awarded with interest thereon @ 9% from the
time of so taking possession until it shall have been so paid or
deposited; and if such compensation or any part thereof is not paid
or deposited within one year from the date on which possession is
taken, interest @ 15% per annum shall follow. Section 34 of 1894
Act is extracted hereunder:
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“34. Payment of interest - When the amount of such
compensation is not paid or deposited on or before taking
possession of the land, the Collector shall pay the amount
awarded with interest thereon at the rate of (nine per centum)
per annum from the time of so taking possession until it shall
have been so paid or deposited:
[Provided that if such compensation or any part thereof is not
paid or deposited within a period of one year from the date on
which possession is taken, interest at the rate of fifteen per
centum per annum shall be payable from the date or expiry of
the said period of one year on the amount of compensation or
part thereof which has not been paid or deposited before the
date of such expiry.”
14. The expression “paid”/“tender” and the expression “deposited”
have both been used separately in section 31, as well as in section
34, of the Act of 1894; so also in Section 24(2) of the Act of 2013.
They carry different meanings, and different consequences flow from
them. Significantly, it is clear under Section 16 of the Act of 1894,
that once award has been passed and possession has been taken,
land absolutely vests in the State, and in the case of contingencies
as provided in section 17(1) when possession is taken in the case of
urgency, even before passing of the award, land vests absolutely in
the State under section 17(3A), 80% amount is required to be
tendered before taking possession under sections 17(1) and 17(2);
and, the same is to be paid in the mode as provided for under
section 31(1) and, in case of refusal, incompetency etc. to alienate
17
and other such cases as provided under section 31(2), it has to be
deposited in the court and in case it is not so deposited,
consequences, as prescribed under section 34, shall follow i.e. from
the date of taking possession 9% interest for the first year and after
1 year, 15% interest has to be paid on the amount not so paid or
deposited. Under the provisions of the Act of 1894, there is no
divesting of the land which has vested absolutely in the State; and,
the consequences of non-payment, or of non-tendering of
compensation, or of non-depositing of the same in court, would only
be that of the additional liability of interest as provided in section
34. The provision with respect to the payment of 15% interest has
been inserted via the proviso to section 34, w.e.f. 24.9.1984, vide
Amendment Act No.68/1984.
15. When we consider the provisions of the Act of 2013, vis-à-vis
those of the Act of 1894, it becomes apparent that Section 11 of the
Act of 2013 is akin to section 4 of the Act of 1894. Section 19 deals
with publication of declaration and summary of Rehabilitation and
Settlement, it is equivalent to section 6 of the Act of 1894. Section
23 deals with matters to be considered while determining
18
compensation by the Collector.
16. Section 24 of the Act of 2013 deals with land acquisition
process initiated under the Act of 1894, which shall be deemed to
have lapsed in certain cases. With respect to acquisition, when
award, under the Act of 1894, has not been passed, then, as per
Section 24(1)(a) of the Act of 2013, all the provisions of the Act of
2013 relating to the determination of compensation shall apply;
where, however, an award under section 11 of the act of 1894 has
been made, then such proceedings shall continue,as per section
24(1)(b), under the Act of 1894, as if the said Act has not been
repealed.
17. Section 24(2) begins with a non-obstante clause — as
notwithstanding anything contained in sub-section (1). The
provisions of sub-section (2) of section 24 shall, under the
exigencies provided therein, have the overriding effect, i.e. in case of
award, under Act of 1894, has been made five years or more prior to
the commencement of the Act of 2013, but either the physical
possession has not been taken, or compensation has not been paid,
the said proceedings shall be deemed to have lapsed. The proviso to
section 24(2) lays down when the award has been made and
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compensation in respect of majority of holdings has not been
deposited in the account of the beneficiaries, the acquisition would
not lapse; however, all the beneficiaries shall be entitled to
compensation in accordance with the provisions of the Act of 2013.
18. When we consider the scheme of the Act of 2013 also with
respect to the mode of payment of compensation, we find provisions
of section 77 are almost akin to those of section 31. The provisions
of section 77 of the Act of 2013 are extracted hereunder:
“77. Payment of compensation or deposit of same in Authority. –(1)
On making an award under section 30, the Collector shall tender
payment of the compensation awarded by him to the persons
interested entitled thereto according to the award and shall pay it to
them by depositing the amount in their bank accounts unless
prevented by someone or more of the contingencies mentioned in
sub-section (2).
(2) If the person entitled to compensation shall not consent to receive
it, or if there be no person competent to alienate the land, or if there
be any dispute as to the title to receive the compensation or as to the
apportionment of it, the Collector shall deposit the amount of the
compensation in the Authority to which a reference under section 64
would be submitted:
Provided that any person admitted to be interested may receive
such payment under protest as to the sufficiency of the amount:
Provided further that no person who has received the
amount otherwise than under protest shall be entitled to make any
application under sub-section (1) of section 64:
Provided also that nothing herein contained shall affect the
liability of any person, who may receive the whole or any part of any
compensation awarded under this Act, to pay the same to the person
lawfully entitled thereto."
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19. Section 80 of the Act of 2013, is equivalent to section 34 of the
Act of 1894, the same is extracted hereunder:
"80. Payment of interest. –When the amount of such compensation is
not paid or deposited on or before taking possession of the land, the
Collector shall pay the amount awarded with interest thereon at the
rate of nine percent. per annum from the time of so taking possession
until it shall have been so paid or deposited:
Provided that if such compensation or any part thereof is not
paid or deposited within a period of one year from the date on which
possession is taken, interest at the rate of fifteen percent. per annum
shall be payable from the date or expiry of the said period of one
year on the amount of compensation or part thereof which has not
been paid or deposited before the date of such expiry.”
20. It is apparent, from the provisions contained in section 77 of
the Act of 2013, that, the expression used in section 77 that the
Collector shall “tender” payment of the compensation to
landowners/interested persons, and the obligation is to pay it to
them by depositing the amount in their bank accounts unless
prevented by exigencies provided in section 77(2), are akin to
section 31(2) of the Act of 1894.
21. In proviso to section 24(2), expression used is compensation
has not been “deposited” in the account of the beneficiaries, which
may be deposited separately in treasury also; whereas, in section
77, of the Act of 2013 the deposit is required, in the “bank” account
of beneficiaries, unless refused. The expression “bank-account” has
21
not been used in section 31 of the Act of 1894 or in section 24(2) of
Act of 2013. In proviso to section 24(2), the expression used
“deposited in account” would mean deposited only in Treasury or
with the Land Acquisition collector for payment.
22. It is pertinent to mention that section 80 of the Act of 2013
also imposes a liability of interest, akin to Section 34 of the Act of
1894, upon amount not being deposited; i.e. 9% for the first year
and, thereafter, 15% per annum. The Act of 2013 does not envisage
the consequence of lapse of the acquisition on non-deposit of
compensation in court, and neither was it so provided for in section
31 of the Act of 1894. The provision of section 24 thus does not
contemplate deposit of amount in Court. In our opinion, the
expression "paid" and "deposited" are separately used in both
enactments, and they both carry a different meaning. The aforesaid
provisions deal with tender and deposit; and, consequences are
similar.
INTERPRETATION OF SECTION 24
23. Section 24 of the Act of 2013 is extracted hereunder:-
“24. Land acquisition process under Act No. 1 of 1894 shall
be deemed to have lapsed in certain cases.–(1)
Notwithstanding anything contained in this Act, in any case of
22
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 (1 of 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.”
24. When we consider the provisions of section 24 of the 2013 Act,
it is clear that in case of the award has not been passed then as per
section 24(1)(a), compensation has to be determined under the Act
of 2013. It is also clear that section 24(1)(b) provides that where an
award under section 11 of the 1894 Act has been made, then such
proceedings shall continue under the provisions of the said Act of
1894 as if it has not been repealed. However, in case physical
23
possession of the land has not been taken, or the compensation has
not been paid, the proceedings shall be deemed to have lapsed; and,
in case of compensation with respect to a majority of landholdings
has not been deposited in the account of the beneficiaries, then, all
beneficiaries i.e. landowners shall be entitled to compensation in
accordance with the provisions of the Act of 2013.
25. In section 24(2), the expression that has been employed is
"compensation has not been paid". The expression "deposited",
which occurs in the proviso to sub-section (2), has not been used in
the main section 24(2). Its proviso uses the expression "deposited in
the account of the beneficiaries", meaning thereby, in the case with
respect to the majority of land holdings amount has not been
deposited in the account of beneficiaries, though the acquisition
would not lapse, all beneficiaries would get benefit of the
compensation under the Act of 2013. Thus, the consequence of
non-deposit of the amount, with respect to the majority of land
holdings, in the account of the beneficiaries, is that the acquisition
would not lapse, and only compensation under the new Act would
be payable. Whereas, under the main part of section 24(2), it is
apparent that, the expression "compensation has not been paid"
24
has been used. The word "deposited" is missing from main part of
section 24(2), and it is only used in the proviso. Thus it is crystal
clear that the Legislature has used two different expressions to
carry, respectively different meanings; and, the proviso operates in a
different field, where the acquisition would not lapse. The object is
that a body or State Government, for whose benefit land has been
acquired, must have possessed the requisite funds for payment to
the landowners. The proviso is not attracted where compensation
has been paid.
26. The proviso to section 24(2) does not provide that amount of
compensation has to be deposited in the court. It obviously refers to
a payment deposited with LAO or in treasury.
27. The different expression “paid”, used in section 24(2) of the
2013 Act, thus, cannot carry same meaning and include in it the
deposit to be made in Court under section 31(2) of the Act of 1894;
it only reflects the mode of payment as envisaged under section
31(1) of the Act of 1894 i.e. “tender”.
28. The expression used in section 31 of Act of 1894 and Section
77(1) of Act of 2013 is to “tender payment”. Once there is tender,
then in case of refusal to accept the same,the obligation to pay
25
under section 31(1) is complete by tender, and that tantamount to
making the payment; and, that is precisely what is intended by the
word “paid” in section 24(2) of 2013 Act.
29. In Section 31(2) of the 1894 Act, the word ‘deposited in Court’
is used. The deposit in Court is not payment to the beneficiaries. It
is only after their refusal to accept the compensation tendered
under section 31(1) of the Act of 1894 it is to be deposited in Court.
It is further provided in the rules that in case of reference is sought,
the amount is to be deposited in court where reference would be
submitted otherwise it is to be deposited in the treasury.If the
expression “deposited”, used in the proviso to section 24(2), and
expression “paid” used in main section 24(2), are both taken as
contained in expression “paid” i.e. the tender; and, on refusal it is
deposited in court to make the “payment” complete; if expression
“deposited” is included in expression ‘payment’ under Section 24(2),
inconsistency and repugnancy would be caused as between the
proviso and the main sub-section; which has to be eschewed. The
Court cannot add the word "deposited" to the expression “paid”/
“tender” in Section 31 of Act 1894 or Section 24(2) of Act of 2013.
26
30. The proviso to section 24(2) of the 2013 Act deals with ‘deposit'
of compensation in treasury or with Land Acquisition Collector with
respect to the majority of holding it does obviously contemplate that
amount has not been ‘paid' to landowners/ beneficiaries/ interested
persons. Thus, when Scheme of entire section 24 is considered, the
concept of ‘paid' in the main section 24(2) is different than the
deposit. If the deposit is included in word paid the proviso to section
24(2), which has the different consequence of no lapse, but only
higher compensation would be otiose and become redundant and
repugnancy would occur.
31. It is clear that expression ‘paid’ in section 24 is different than
‘deposit’ which is provided in its proviso. The word ‘deposit’ is
included in section 24 in word ‘paid’. Same is the position even
under section 31(1) and 31(2). The provisions of section 24 cannot
be rendered wholly unworkable by the inclusion of ‘deposit' in
‘paid'.
MEANING OF “PAID” IN SECTION 31 OF THE ACT OF 1894 AND
SECTION 24(2) OF THE ACT OF 2013 :
27
32. The question arises what is the meaning of the expression ‘paid'
in section 24 and ‘tender' in section 31(2) of the Act of 1894.
Whether the tender of compensation amount to discharge of
obligations to make payment. The meaning of expression “tender”:
is when a person has tendered the amount and made it
unconditionally available and the landowner has refused to receive
it, the person who has tendered the amount cannot be saddled with
the liability, which is to be visited for non-payment of the amount.
"Tender" has been defined in Black's Law Dictionary thus:
“tender, n. (16c) 1. A valid and sufficient offer of
performance; specific, an unconditional offer of money or
performance to satisfy a debt or obligation a tender of
delivery.The tender may save the tendering party from a
penalty for non-payment or non-performance or may, if the
other party unjustifiably refuses the tender, place the other
party in default. Cf. OFFER OR PERFORMANCE;
CONSIGNATION.”
It is apparent from aforesaid that "tender" may save the
tendering party from the penalty for non-payment or
non-performance or penalty if another party unjustifiably refusing
the tender, places the other party in default. A formal offer duly
made by one party to another especially an offer of money in
discharge of liability fulfills the terms of the law and of the liability.
Tender is to offer of money in satisfaction of a debt, by producing
28
and showing the amount to a creditor or party claiming and
expressing verbally, willingness to pay it. The expression "tender"
has been used in section 31.The concept of deposited in court is
different from tender and “paid”.
33. This Court in the Straw Board Manufacturing Co. Ltd.,
Saharanpur v. Gobind, AIR 1962 SC 1500 has held in the context of
section 33 of the Industrial Disputes Act where payment of one
month's wages was necessary. It was held that the payment of
one-month wages can always mean that the employer has tendered
his wages and that would amount to payment for otherwise a
workman could always make the section unworkable by refusing to
take wages. The Court observed thus:
"8. Let us now turn to the words of the proviso in the
background of what we have said above. The proviso lays
down that no workman shall be discharged or dismissed
unless he has been paid wages for one month and an
application has been made by the employer to the authority
before which the proceeding is pending for approval of the
action taken by the employer. It will be clear that two kinds of
punishment are subject to the conditions of the proviso,
namely, discharge or dismissal. Any other kind of punishment
is not within the proviso. Further, the proviso lays down two
conditions, namely (i) payment of wages for one month and
(ii) making of an application by the employer to the authority
before which the proceeding is pending for approval of the
action taken. It is not disputed before us that when the proviso
lays down the condition as to payment of one month's wages,
all that the employer is required to do in order to carry out
that condition is to tender the wages to the employee. But if
29
the employee chooses not to accept the wages, he cannot
come forward and say that there has been no payment of
wages to him by the employer. Therefore, though s. 33 speaks
of payment of one month's wages it can only mean that the
employer has tendered the wages and that would amount, for
payment, for otherwise, a workman could always make the
section unworkable by refusing to take the wages. So far as
the second condition about the making of the application is
concerned." (emphasis supplied)
34. In The Management of Delhi Transport Undertaking v. The
Industrial Tribunal, Delhi &Anr. AIR 1965 SC 1503, a 3-Judge Bench
of this Court considered the question of payment of wages under
the proviso to section 33(3) of Industrial Disputes Act and has
taken a similar view and observed:
“The proviso does not mean that the wages for one month
should have been actually paid because in many cases the
employer can only tender the amount before the dismissal but
cannot force the employee to receive the payment before
dismissal becomes effective. In this case, the tender was
definitely made before the order of dismissal became
effective and the wages would certainly have been paid if
Hari Chand had asked for them. There was no failure to
comply with the provision in this respect.”
35. This Court in Indian Oxygen Ltd. v. Narayan Bhoumik (1968) 1
PLJR 94 has discussed the concept of ‘paid’ and has observed:
“4. The proviso to Section 33(2)(b) lays down that no
workman shall be discharged or dismissed unless he has been
paid wages for one month and an application has been made
by the employer to the authority before which the proceeding
is pending for approval of the action taken by him. Though
the word used in the proviso is 'paid', the proviso does not
mean that the employer must actually hand over or pay to the
30
workman dismissed or discharged his one month's wages. In
(1962) 3 Suppl. S.C.R. 618] Strawboard Manufacturing Co. v.
Gobind this Court while construing this proviso, observed
that when it lays down the condition as to payment of one
month's wages all that the employer is required to do to carry
out that condition is to tender the wages to the employee. But
if the employee chooses not to accept them, he cannot come
forward and say that there has been no payment of wages to
him by the employer, Therefore, though Section 33 speaks of
payment of one month's wages, it can only mean that the
employer has tendered the wages and that would amount to
payment, for otherwise, a workman could always make the
section unworkable by refusing to take the wages. In (1964) 2
SCR 104, 109 P.H. Kalyani v. M/s. Air France, the employer
had offered one month's wages to the workman before the
order of dismissal against him came into force. The offer was
held to be sufficient compliance of the said condition laid
down in the proviso, [(1955) 1 SCR 998] Management of
Delhi Transport Undertaking v. Industrial Tribunal, Delhi was
a case where the wages were remitted by money order but the
workman purposely refused to receive them. It was held that
the employer could not be said not to have complied with the
condition laid down by the proviso. It is thus clear that the
condition as to payment in the proviso does not mean that the
wages have to be actually paid but if wages are tendered or
offered, such a tender or offer would be sufficient compliance
for the purposes of Section 33(2)(b) proviso.”
36. The word "paid" means applied, settled or satisfied. The
concept of paid has also been considered by this Court in The
Benares State Bank Ltd. v. The Commissioner of Income Tax,
Lucknow, (1969) 2 SCC 316, in the context of section 14(2)(c) of
Income Tax Act, 1922. This Court observed that the expression
"paid" in section 16(2) does not contemplate actual receipt of the
dividend by the members of the community; in general, the dividend
31
may be said to be paid when company discharges its liability and
makes the amount of dividend unconditionally available to the
member entitled thereto. The Court has observed:
“5. …..This Court observed in J. Dalmia v. Commissioner of
Income-tax, Delhi 53 ITR 83 that the expression "paid" in
Section 16(2) does not contemplate actual receipt of the
dividend by the member : in general, dividend may be said to
be paid within the meaning of Section 16(2) when the
Company discharges its liability and makes the amount of
dividend unconditionally available to the member entitled
thereto…….” (emphasis supplied)
37. In N.B. Sanjana, Assistant Collector of Central Excise, Bombay
& Ors. v. The Elphinstone Spinning & Weaving Mills Co. Ltd. (1971) 1
SCC 337, the court observed that literal meaning of the word "paid"
need not be adopted.
38. In J.Dalmia v. Commissioner of Income Tax, New Delhi, AIR
1964 SC 1866 at 1869, this Court has observed that the expression
“paid” does not contemplate actual receipt of the dividend by the
member. The dividend may be said to be paid within the meaning of
section 16(2) when the company discharges its liability and makes
amount unconditionally available the members entitled thereto.
“The expression "paid" in s. 16(2) it is true does not
contemplate actual receipt of the dividend by the member. In
general, dividend may be said to be paid within the meaning of
s. 16(2) when the company discharges its liability and makes
32
the amount of dividend unconditionally available to the
member entitled thereto.
(emphasis supplied)
39. The expression “paid” would mean in section 31(1) of Act 1894
and section 24(2) of Act of 2013 as soon as it is offered and made
unconditionally available. Merely, if a landowner refuses to accept
it, it cannot be said that it has not been paid. Once amount has
been tendered that would amount to payment. Thus, word “paid”
does not mean actual payment to be made but whatever is possible
for an incumbent to make the payment is only contemplated.
“Paid” does not mean receipt or deposited in Court. There may be
refusal to receive an amount in spite of its tender. Thus, in view of
the decisions of this court in CIT Kerala (supra), N.B. Sanjana
(supra) and J. Dalmia (supra), the provisions of section 24(2) have to
be construed to mean tender of amount would mean payment as
envisaged.
40. It is settled that a Court cannot add or subtract a word; the
expression “compensation has not been paid” is used in section
24(2); it is not open to the court to add to these words, or to
substitute the said expression with any further expression, such as
‘deposit’. In the “Principles of Statutory Interpretation” by G.P. Singh
33
(14th edition), it has been observed that court has to avoid addition
or substitution of the words. Thus, when the word “paid” is there, it
is not open to adding "deposited", particularly when the scheme of
the Act of 1894 also contains different provisions in section 31(1)
with respect to tender is payment, while section 31(2)deals with
deposit in the court; on non-deposit consequence in section 34,
later is not a payment made to the landowner. The deposit is only in
certain exigencies with a view to wiping off the liability of making
payment of interest as provided in section 34.
41(a). While interpreting a statutory provision, no addition to, or
subtraction from, the Act is permissible. It is not open to Court to
either add or subtract, a word. The legal maxim “A Verbis Legis
Non Est Recedendum” means: from the words of law, there must
be no departure. The learned author in Interpretation of Statutes
has referred to the Privy Council decision in Crawford v. Spooner,
(1846) 6 Moore PC 1 and Lord Howard de Walden v. IRC, (1948) 2
AER 825 and other decisions of the Court and observed:
“…….(a) Avoiding addition or substitution of words
As stated by the Privy Council: “We cannot aid the
Legislature’s defective phrasing of an Act, we cannot add or
mend and, by construction makeup deficiencies which are left
there". "It is contrary to all rules of construction to read words
34
into an Act unless it is absolutely necessary to do so."
Similarly, it is wrong and dangerous to proceed by substituting
some other words for words of the statute. Speaking briefly the
court cannot reframe the legislation for the very good reason
that it has no power to legislate.
x xxxx
While interpreting section 621-A(1) of the Companies Act,
1956, the Supreme Court held that the Court must avoid
rejection or addition of words and resort to that only in
exceptional circumstances to achieve the purpose of the Act or
to give a purposeful meaning to the section. Section 621-A
provides for compounding, by the Company Law Board, of
any offence punishable under the Act, not being an offence
punishable with imprisonment only, or with imprisonment and
also with fine, either before or after the institution of any
prosecution. It was held that the Company Law Board has the
power to compound such offences without the permission of
the Court. Since the Legislature, in its wisdom, has not put the
rider of prior permission in the section, addition of the words
‘with the prior permission of the court’ to the provision is not
permissible.
Section 2(2) of the Arbitration and Conciliation Act, 1996,
which is in Part I of the Act, provides that ‘This Part shall
apply where the place of arbitration is in India. In Bharat
Aluminium Company v. Kaiser Aluminium Technical Services
Inc., a Constitution Bench of the Supreme Court rejected the
contention that Part I of the Act was also applicable to
arbitrations seated in foreign countries on the ground that in
such a case certain words would have to be added to section
2(2), which would then have to provide that ‘this part shall
apply where the place of arbitration is in India and to
arbitrations having its place out of India’. This would amount
to a drastic and unwarranted rewriting or alteration of the
language of section 2(2), and it is not permissible for the Court
to reconstruct a statutory provision. In this case, the
Constitution Bench prospectively overruled the decision of a
three-Judge Bench of the Supreme Court in Bhatia
International v. Bulk Trading SA, which had held that
provisions of Part I would apply to international commercial
arbitrations held outside India unless the parties, by agreement,
express or implied, exclude all or any of its provisions.
35
x xxxx
And, in construing section 14(f) of the U.P. Town Areas Act,
1914, which reads ‘A tax on persons assessed according to
their circumstances and property not exceeding such rate and
subject to such limitations and restrictions as may be
prescribed’, the Supreme Court refused to read residence
within the town area as a necessary part of the condition for
imposition of the said tax. S.K. DAS, J. said, “To do so will be
to read in clause (f) words which do not occur there”.
Further, in interpreting section 6(a) and section 43 of the
Transfer of Property Act, 1882, the Supreme Court refused to
read a further exception in section 43 excluding its operation in
cases of transfer of spessuccessionis. VENKATARAMA
AIYER, J. quoted with approval the observations of LORD
LOREBURN, L.C., “We are not entitled to read words into an
Act of Parliament unless clear reason for it is to be found
within the four corners of the Act itself”.
x xxxx
0n the same principle the House of Lords refused to read the
word ‘satisfied’ in section 4 of the Matrimonial Causes Act,
1950 to mean ‘satisfied beyond reasonable doubt’.
X xxxx
Sections 12(5) and 15(5) of the Right to Information Act,
2005, while providing that the Chief Information
Commissioner and Information Commissioners shall be
persons of eminence in public life, with wide knowledge and
experience in law, science, and technology, social science,
management, journalism, mass media or administration and
governance, do not further prescribe any basic qualification
which such persons must have in the respective fields in which
they work. As a result, the Court cannot read into the
provisions of sections 12(5) and 15(5) of the Act the words
that such persons must have a basic degree in their respective
fields.'”
(emphasis supplied)
41(b). This Court in Nali Nalinakhya Bysack v. Shyamsunder
36
Halder, AIR 1953 SC 148 at 152, State of Madhya Pradesh v. G.S.
Dall and Flour Mills, AIR 1991 SC 772, State of Gujarat and Others v.
Dilipbhai Nathjibhai Patel and Another (1998) 3 SCC 234,
Competition Commission of India v. Steel Authority of India Ltd.
(2010) 10 SCC 744, Assessing Authority cum-Excise and Taxation
Officer v. East India Cotton Mfg. Co. Ltd. (1981) 3 SCC 531, Paul
Enterprises & Ors. v. Rajib Chatterjee & Co. & Ors., AIR 2009 SC
187, Sakshi v. Union of India (2004) 5 SCC 518, Commissioner of
Income Tax, Kerala v. Tata Agencies (2007) 6 SCC 429, Ram Narain
Medhi v. State of Bombay AIR 1959 SC 459, S.P. Gupta v. President
of India AIR 1982 SC 149, Dadi Jagannadham v. Jammulu Ramulu
(2001) 7 SCC 71, P.K. Unni v. Nirmala Industries AIR 1990 SC 933,
Crawford v. Spooner (1846) 6 Moore PC 1, Royal Trust Company v.
Minister of Finance AIR 1921 PC 184, Padma Sundara Rao (dead) &
Ors. v. State of T. N. & Ors. (2002) 3 SCC 533 has observed that
what legislation wanted has been stated in the provision. The court
cannot give extended meaning to the expression. It is not open to
the Court to aid defective phrasing of the Act or to make up for the
deficiencies. It is not open to the Court to recast, rewrite, or
reframe the provision. The court cannot assume omission and add
37
or amend words. Plain and unambiguous construction has to be
given without addition and substitution of the words. The
temptation of substituting words by explaining what it thought
legislation is endeavoring is to be discouraged. Court has to
consider what has been said and what has not been said. It is
wrong and dangerous to proceed by substituting some other words
for the words of the statute. When literal reading produces an
intelligible result it is not open to read words or add words to
statute. Making any generous addition to the language of the Act
would not be a construction of the statutory provision; rather,
would be an amendment thereof. While interpreting the provision
the Court only interprets the law. The intention of the legislation
must be found by the words used by the legislature itself. The
legislative casus omissus cannot be supplied by judicial
interpretative process. When language of the provision is clear,
there is no scope for reading something into it. The scenario that
thus emerges in relation to an interpretationof a statute can be
explained as follows. It is a salutary principle that it is not open to
the Court to add or substitute some words in place of the words of
the statute. The court cannot reframe the legislation. The court
38
cannot add to, or amend, the provisions; neither can the
expressions used in the statute be treated as fungible.
We need not add any word when Section 24(2) uses the
expression “compensation has not been paid”. To complete the
payment, we cannot read words into it to the effectthat deposit of
payment in the court is payment to the landowners. It is clear that
unless it is absolutely necessary to do so, it is not open to read the
word "deposited" in court as part of ‘paid' when payment is
contemplated to the landowners. The consequence of nondeposit is
culled out in proviso to section 24(2). It is not that section 31(2)
would become meaningless. Hence, deposit cannot and need not be
added to expressions paid/ tender. In case the legislature wanted
the ‘deposit in Court’ to be included in ‘paid/ tender’, it could have
easily said so. But it has used expressions differently, with different
consequences.
42. What follows from the aforesaid enunciation is that the
legislature has consciously omitted the expression “deposited” in
main section 24(2), whereas, it is used in the proviso; both have
different objectives. When the legislature has used different
39
expressions with respect to past events — the word “paid” is used in
a discernibly distinctive sense than the sense conveyed by the word
“deposited” occurring in the proviso — both are required to be given
different meanings. There is casus omissus, i.e. conscious omission
made by the Legislature in main Section 24(2) when the expression
“deposited” has not been used in the expression “has been paid”,
and it is only after amount tendered is declined, it is to be deposited
in Court that too in certain exigencies as per section 31(2).
43. The word “paid”, in view of the different consequences of paid
and deposited, has to be given different meaning from “deposited”.
Otherwise, if it were the case that ‘deposit’ is included in the
‘payment’, then there would have been no necessity of using two
different expressions, in different provisions, carrying different
consequences. Deposit made in the court cannot be said to be
payment made to the landowner i.e. persons
interested/beneficiaries. Thus, in case of deposit is directly made in
the court without tender, it could not be said that it was tendered
or paid. ‘Deposit in court’ simply is the discharge of Collector’s
liability of making payment of interest as envisaged under section
34 of the 1894 Act, and no more; deposit in Court is not tender to
40
landowner. Once the amount has been tendered and not accepted,
obligation to pay is discharged, as envisaged under section 31(1); no
penal consequences can follow and, the person who has refused to
accept cannot be permitted to take an advantage of his own wrong,
or in case his conduct is of filing litigations, delaying the passing of
the award or obtaining stay of the proceedings; such action would
tantamount to refusal to accept compensation, and the person then
may not even be entitled to higher rate of interest as envisaged
under section 34.
44. While making statutory interpretation, inconsistency and
repugnancy is to be avoided and harmonious construction has to be
adopted. The construction to be adopted should be such, as would
make the statute as a whole, a consistent enactment. Such a
construction would have the merit of avoiding any inconsistency or
repugnancy, either within a given section or as between a particular
section on the one hand and other parts of the statute on the other.
It is the duty of the courts to avoid "a head-on clash", as held in Raj
Krushna v. Binod Kanungo, AIR 1954 SC 202, at 203; Sultana
Begum v. Premchand Jain, AIR 1997 SC 1006, at page 1109;
Kailash Chandra v. Mukundi Lal, (2002) 2 SCC 67; and, CIT v.
41
Hindustan Bulk Carriers, (2003) 3 SCC 57, at p.74.
45. When we apply the rule of harmonious construction to the
provisions of section 24(2) of the Act of 2013, i.e. as between the
main part of the section and its proviso, the word “paid” occurring
in the main part, has to be construed differently (with a different
meaning being given to it) from the word “deposited” occurring in
the proviso; otherwise, inconsistency and repugnancy would be the
result of the provision contained in section 24 (2) as a whole; and,
that is what has to be avoided. As discussed, the provisions would
be irreconcilable, and an anomalous result would be occasioned.
46. This Court, in Balasinor Nagrik Cooperative Bank Limited vs.
Babubhai Shankerlal Pandya, (1987) 1 SCC 606, held that a section
is to be interpreted by reading all its parts altogether, and it is not
permissible to omit any part thereof. Thus, in the instant case,
proviso to Section 24(2) cannot be ignored while interpreting the
main subsection.
47. The proviso is enacted as part of section 24(2); it is not an
independent provision and applies to an acquisition made five years
or before, in which amount, with respect to majority of holdings,
has not been deposited in court. There has to be harmonized
42
construction of provision of section 24(2).
48. Since there is no ambiguity of drafting in the provisions
contained in section 24(2) of the Act of 2013, so also none is there
in those contained in sections 31(1) and 31(2) of the Act of 1894.
Thus, in discharging its interpretative function, to exercise the
power to correct obvious drafting errors that can be done only in
suitable cases where there is error of drafting. Before adding the
word or omitting a word the court has to consider 3 matters : (1) the
intended purpose of the statute or the provision in question, (2) that
by inadvertence the draftsman and Parliament failed to give effect to
that purpose in the provision in question, and (3) substance of the
provision Parliament would have made, although not necessarily
the precise words Parliament would have used, had the error in the
Bill been noticed. As observed in Inco Europe Ltd. v. First Choice
Distribution (a firm) by the House of Lords in (2000) 2 All ER 109 at
115. There is no accidental omission as to the concept of payment
in section 24(2) or section 31(1) of the aforesaid Acts. Thus, it is not
permissible to supply the word “deposited” to include in the
expression “payment”.
43
49(a). Rule of literal construction lays down that words of a statute
are first understood in their natural, ordinary or popular sense and
phrases, and sentences are construed according to their
grammatical meaning. The learned author G.P. Singh, in “Principles
of Statutory Interpretation” (14th edition), at Page 91 onwards, has
observed:
“……..Natural and grammatical meaning. The words of a
statute are first understood in their natural, ordinary or popular
sense and phrases and sentences are construed according to
their grammatical meaning, unless that leads to some absurdity
or unless there is something in the context, or in the object of
the statute to suggest the contrary.“ “The true way”, according
to LORD BROUGHAM is, “to take the words as the
Legislature have given them, and to take the meaning which
the words given naturally imply, unless where the construction
of those Words is, either by the preamble or by the context of
the words in question, controlled or alter ”; and in the words of
VISCOUNT HALDANE, L.C., if the language used "has a
natural meaning we cannot depart from that meaning unless
reading the statute as a whole, the context directs us to do so.
In an oft-quoted passage, LORD WENSLEYDALE stated the
rule thus: "In construing wills and indeed statutes and all
written instruments, the grammatical and ordinary sense of the
word is adhered to, unless that would lead to some absurdity,
or some repugnance or inconsistency with the rest of the
instrument in which case the grammatical and ordinary sense
of the words may be modified, so as to avoid that absurdity,
and inconsistency, but no further". And stated LORD
ATKINSON: "In the construction of statutes, their words must
be interpreted in their ordinary grammatical sense unless there
be something in the context, or in the object of the statute in
which they occur or in the circumstances in which they are
used, to show that they were used in a special sense different
from their ordinary grammatical sense”.28 VISCOUNT
SIMON, L.C., said: “The golden rule is that the words of a
statute must prima facie be given their ordinary meaning”.
Natural and ordinary meaning of words should not be departed
44
from "unless it can be shown that the legal context in which
the words are used requires a different meaning". Such a
meaning cannot be departed from by the judges "in the light of
their own views as to policy" although they can "adopt a
purposive interpretation if they can find in the statute read as a
whole or in material to which they are permitted by law to
refer as aids to interpretation an expression of Parliament's
purpose or policy". For a modern statement of the rule, one
may refer to the speech of LORD SIMON OF GLAISDALE in
a case where he said: "Parliament is prima facie to be credited
with meaning what is said in an Act of Parliament. The
drafting of statutes, so important to a people who hope to live
under the rule of law, will never be satisfactory unless courts
seek whenever possible to apply ‘the golden rule’ of
construction, that is to read the statutory language,
grammatically and terminologically, in the ordinary and
primary sense which it bears in its context, without omission
or addition. Of course, Parliament is to be credited with good
sense; so that when such an approach produces injustice,
absurdity, contradiction or stultification of statutory objective
the language may be modified sufficiently to avoid such
disadvantage, though no further”. The rules stated above have
been quoted with approval by the Supreme Court…….”
(emphasis supplied)
49(b). This Court, in Harbhajan Singh v. Press Council of India, AIR
2002 SC 1351, at 1354 has observed thus :
“Legislature does not waste its words. Ordinary, grammatical
and full meaning is to be assigned to the words used while
interpreting a provision to honour the rule -- Legislature
chooses appropriate words to express what it intends, and
therefore, must be attributed with such intention as is conveyed
by the words employed so long as this does not result in
absurdity or anomaly or unless material -- intrinsic or external
-- is available to permit a departure from the rule.” (emphasis
supplied)
50. Thus, in the instant case, when we give the plain, natural and
grammatical meaning to the word ‘paid’/ ‘tender’, which has been
45
used in contradistinction to the words “deposited in court”, it is
clear that tendering payment would not include deposit in court, in
that it is only when payment is refused, that the same is deposited
in court; obligation to pay is over as soon as amount is tendered
and refused.
51(a) When two different expressions have been used in the
same provision of a statute, there is a presumption that they are
not used in the same sense. In this regard, G.P. Singh, in his
treatise Interpretation of Statutes (14th Edition) at page 395, has
observed thus:
“…….When in relation to the same subject matter, different
words are used in the same statute, there is a presumption that
they are not used in the same sense.
In construing the words ‘distinct matters’ occurring in
section 5 of the Stamp Act, 1899, and in concluding that these
words have not the same meaning as the words ‘two or more
of the descriptions in Schedule I’ occurring in section 6,
VENKATARAMA AIYAR, J., observed: “When two words of
different import are used in a statute in two consecutive
provisions, it would be difficult to maintain that they are used
in the same sense.” Similarly, while construing the word ‘gain’
under Section 3(ff) of the Bombay Municipal Corporation Act,
1888, which used the words ‘profit or gain’, the Supreme
Court relied on the dictionary meanings of the words to hold
that the word ‘gain’ is not synonymous with the word ‘profit’
as it is not restricted to pecuniary or commercial profits, and
that any advantage or benefit acquired or value addition made
by some activities would amount to ‘gain’…….”
***14.Brighton Parish Guardians v. Strand Union Guardians,
46
(1891) 2 QB 156, p. 167 (CA); Member, Board of Revenue v.
Arthur Paul Benthall, AIR 1956 SC 35, p. 38: 1955 (2) SCR
842; CIT v. East West Import & Export (P.) Ltd., Jaipur, AIR
1989 SC 836, p.838 : (1989) 1 SCC 760; B.R. Enterprises v.
State of U.P., AIR 1999 SC 1867, p.1902 : (1999) 9 SCC 700
(‘trade and business' in Article 298 have different meaning
from ‘trade and commerce' in Article 301); ShriIshal Alloy
Steels Ltd. v. JayaswalasNeco Ltd., JT 2001 (3) SC 114, p. 119
: (2001) 3 SCC 609 : AIR 2001 SC 1161 (The words ‘a bank’
and ‘the bank’ in section 138 N.I. Act, 1881 do not have the
same meaning); The Oriental Insurance Co. Ltd. v.
Hansrajbhai v. Kodala, AIR 2001 SC 1832, p. 1842 : (2001) 5
SCC 175; KailashNathAgarwal v. PradeshiyaIndust and Inv.
Corp. of U.P., 2003 AIR SCW 1358, p. 1365 : (2003) 4 SCC
305, p. 313. (The words ‘proceeding’ and ‘suit’ used in the
same section construed differently); But in Paramjeet Singh
Pathak v. ICDS Ltd, (2006) 13 SCC 322 : AIR 2007 SC 168
different view was taken therefore in Zenith Steel Tubes v.
Sicom Ltd, (2008) 1 SCC 533 : AIR 2008 SC 451 case referred
to a larger Bench; D.L.F. Qutab Enclave Complex Educational
Charitable Trust v. State of Haryana, 2003 AIR SCW 1046, p.
1057: AIR 2003 SC 1648: (2003) 5 SCC 622 (The expressions
‘at his own cost’ and ‘at its cost’, used in one section given
different meanings)” (emphasis supplied)
51(b). The author has referred to the decisions in Brighton
Parish Guardians v. Strand Union Guardians, 1891 QB 156, Member,
Board of Revenue v. Arthur Paul Benthall, AIR 1956 SC 35 at p.38,
and CIT v. East West Import & Export (P) Ltd., Jaipur, (1989) 1 SCC
760, in that case this Court has observed :
"7. The Explanation has reference to the point of time at two
places: the first one has been stated as "at the end of the
previous year" and the second, which is in issue, is "in the
course of such previous year". Counsel for the Revenue has
emphasised upon the feature that in the same Explanation
reference to time has been expressed differently and if the
legislative intention was not to distinguish and while stating
47
"in the course of such previous year" it was intended the
convey the idea of the last day of the previous year, there
would have been no necessity of expressing the position
differently. There is abundant authority to support the stand of
the counsel for the Revenue that when the situation has been
differently expressed the legislature must be taken to have
intended to express a different intention.”
(emphasis supplied)”
51(c). In Kailash Nath Agarwal v. Pradeshiya Industries and
Investment Corporation of Uttar Pradesh, (2003) 4 SCC 305,
Tejmohammed Hussainkhan Pathan v. V.J. Raghuvanshi, 1993 supp.
(2) SCC 493, D.L.F. Qutab Enclave Complex Educational Charitable
Trust v. State of Haryana, (2003) 5 SCC 622, Pallawi Resources Ltd.
v. Protos Engineering Company Pvt. Ltd., (2010) 5 SCC 196, Grasim
Industries Ltd. v. Collector of Customs, Bombay, (2002) 4 SCC 297,
B.R. Enterprises v. State of U.P., AIR 1999 SC 1867, ShriIshar Alloy
Steels Ltd. v. Jayaswals Neco Ltd., (2001) 3 SCC 609, Labour
Commissioner, Madhya Pradesh vs. Burhanpur Tapti Mills and Ors.
AIR 1964 SC 1687 this Court has observed that as a general rule
when two different words are used by statute prima facie one has to
construe different words as carrying different meanings. Rule of
'purposive constructions' would be resorted to only when the
statute to observe or when read literally it leads to manifest
injustice or absurdity. The Court has to keep in mind that the
48
provision enacted by the legislature in a certain manner as had
intended. Different words are used in different senses.
51(d) The aforesaid principles of statutory construction,
different words to be given different meaning as also the binding
precedents of this Court, indicate that the expression ‘deposited’
cannot be added to ‘tender’ / ‘paid’, both carry different
consequences under section 24, tender on lapse of
acquisition/non-deposit higher interest under section 34 of the Act
of 1894.
51(e). It is a settled proposition of law that when two different
expressions have been used in section 24(2) of the Act of 2013, as
well as in section 31 of the Act of 1894, i.e. "paid to the
landowners" and "deposited in the court", they both carry different
meanings, and have to be interpreted as used in the respective
contexts. It is not the expression used that deposit in the court is
payment to landowners, neither it is used that amount deposited in
the treasury is the payment to the landowners. The payment
indicates the obligation to pay; and, deposit is made in the court or
revenue treasury only upon happening of various exigencies as
provided in Section 31, and there can be several other exigencies
49
which are not covered under section 31(2) of the Act of 1894 and in
the statutory rules/orders.
52. In section 24 of the Act of 2013, brooks no lethargy on the
part of authorities, the expression “possession of the land has not
been taken” indicates a failure on the part of authorities to take for
five years or more.
53. When we consider the intendment of the beneficial provisions
of the Act of 2013, it addresses the concern of farmers and of those
whose livelihood is dependent upon the land being acquired, while
at the same time facilitating land acquisition for myriad reasons,
including urbanization, rural electrification et al., in a timely and
transparent manner. The legislature has not brook the delay of five
years or more on part of authorities in completing the acquisition.
When it says ‘timely’,it would mean without delay on the part of
authorities, not delay due to dilatory tactics and conduct of land
owners/interested persons.
EFFECT OF RULES FRAMED UNDER SECTION 55 OF 1894 ACT
AND ORDERS ISSUED BY STATE GOVERNMENTS
50
54. There are various State rules framed under section 55 of the
Act of 1894 by various State Governments as well as there are
instructions issued with respect to dealing with Government money
as provided in Article 283 of the Constitution of India, and when it
is the Government money it has to be dealt with in accordance with
the instructions issued by the State Government from time to time.
There are other Financial Codes/Rules/orders issued time to time
by various State Governments with respect to dealing with
Government money. The Land Acquisition (Bihar and Orissa) Rules
were framed under the Act of 1894 and Rule 10 thereof provided
thus :
“10. In giving notice of the award under section 12(2) and
tendering payment under section 31(1), to such of the persons
interested as were not present personally or by their
representatives when the award was made, the officer shall
require them to appear personally or by representatives by a
certain date to receive payment of the compensation awarded
to them, intimating also that no interest will be allowed to
them if they fail to appear. If they do not appear, and do not
apply for reference to the Civil Court under section 18, the
officer shall after any further endeavour to secure their
attendance that may seem desirable, cause the amounts due to
be paid into the Treasury as Revenue deposits payable to the
persons to whom they are respectively due and vouched for in
the accompanying form (marked E). The officer shall also
give notice to the payees of such deposits, the Treasury in
which the deposits specifying have been made. When the
payees ultimately claim payment of sums placed in deposit,
the amounts will be paid to them in the same manner as
ordinary revenue deposits. The officer should, as far as
possible, arrange to make the payments due in or near the
51
village to which the payees belong, in order that the number
of undisbursed sums to be placed in deposit on account of
non-attendance may be reduced to a minimum. Whenever
payment is claimed through a representative whether before
or after deposit of the amount awarded, such representative,
must show legal authority for receiving the compensation on
behalf of his principal."
(emphasis supplied)
55. The Karnataka Land Acquisition Rules 1965 were also framed
under section 55 of the Land Acquisition Act, 1894. Similarly in the
State of Kerala Rule 14(2) of the Land Acquisition (Kerala) Rules,
1990 were framed under section 55 of the Act of 1894 provided that
the payment relating to an award shall be made or the amount
credited to the court or Revenue deposit (Treasury) within one
month from the date of award.
56. The state of Assam has also framed the rules dealing with
deposit in exercise of power under Section 55 of the Act of 1894.
Rule 9 whereof provides that on failure to collect the compensation
if landowner/interested person does not appear, and do not apply
for a reference to the civil court under section 18, the Collector shall
after making endeavour to secure their attendance or make
payment that may seem desirable, cause the amounts due to be
paid into the Treasury as revenue deposits payable to the persons
52
to whom they are respectively due, and vouched for in the form
prescribed or approved by Government from time to time. He shall
also give notice to the payee of such deposits, specifying the
Treasury in which the deposits have been made. When no reference
is sought for amount has to be deposited in treasury only. Rule 9 of
Assam Rules is extracted hereunder:
“9. In giving notice of the award under section 12(2) and
tendering payment under section 31(1), to such of the persons
interested as were not present personally or by their
representatives when the award was made, the Collector shall
require them to appear personally or by representatives by a
certain date, to receive payment of the compensation awarded
to them intimating also that no interest will be allowed to
them, if they fail to appear. If they do not appear and do not
apply for a reference to the Civil Court under section 18, he
shall, after any further endeavour to secure their attendance or
make payment that may seem desirable, cause the amounts
due to be paid into the WW as revenue deposits payable to the
persons to whom they are respectively due, and vouched for
in the form prescribed or approved by Government from time
to time. He shall also give notice to the payees of such
deposits, specifying the Treasury in which the deposits have
been made. When the payees ultimately claim payment of
sums placed in deposit, the amount will be paid to them in the
same manner as ordinary revenue deposits. The Collector
should, as far as possible, arrange to make the payment due in
or near the village to which the land pertains in order that the
number of undisbursed sum to be placed in deposit on
account of nonattendance may be reduced to a minimum.
Whenever payment is claimed through a representative, such
representative, must show legal authority for receiving the
compensation on behalf of the principal.”
(emphasis supplied)
53
57. Identical is the rule for Bihar and Orissa. Similar instructions
have been issued by the other State Government so as to deal with
public money. They have the force of law. The duty of the court is to
harmonize rules with provision of Act. In State of West Bengal also
similar rules had been framed under section 55 of the Act of 1894.
58. Standing Order No.28 issued in 1909 the State of Punjab is
applicable to Delhi also, provides 5 modes of payment in Para 74
and 75 based on Government of India’s orders, which are extracted
hereunder:
“74. Methods of making payments-There are five methods of
making payments:
(1) By direct payments, see paragraph 75(I) infra
(2) By order on treasury, see paragraph 75(II) infra
(3) By Money Order, see paragraph 75(III) infra
(4) By cheque, see paragraph 75(IV) infra
(5) By deposit in a treasury, see paragraph 75(V) infra
75. Direct payments
(V) By treasury deposit-In giving notice of the award Under
Section 12(2) and tendering payment Under Section 31(1) to
such of the persons interested as were not present personally
or by their representatives when the award was made, the
officer shall require them to appear personally or by
representatives by a certain date to receive payment of the
compensation awarded to them, intimating also that no
interest will be allowed to them if they fail to appear, if they
do not appear and do not apply for a reference to the civil
court Under Section 18, the officer shall after any further
endeavours to secure their attendance that may seem
desirable, cause the amounts due to be paid to the treasury as
revenue deposited payable to the persons to whom they are
respectively due and vouched for in the Form marked E
below. The officer shall also give notice to the payees of such
54
deposits, specifying the treasury in which the deposit has
been made. When then payees ultimately claim payment of
sums placed in deposit, the amounts will be paid to them in
the same manner as ordinary revenue deposit. The officer
should, as far as possible, arrange to make the payments due
in or near the village to which the payee belong in order that
the number of un-disbursed sums to be placed in deposits on
account of non-attendance may be reduced to a minimum.
Whenever payment is claimed through a representative
whether before or after deposit of the amount awarded, such
representative, must have legal authority for receiving the
compensation on behalf of his principal."
55
59. In Delhi Development Authority v. Sukhbir Singh & Ors. (2016)
16 SCC 258. This court with respect to mode under section 31(1)
has held:
“18. Para 73 makes it clear that payment may be accepted
either without protest or under protest, and Paragraph 74
makes it clear that there are five methods of making payment.
The first four methods are all methods strictly in consonance
with Section 31 of the Land Acquisition Act in that they are
all direct payments that have to be made to persons ready to
accept compensation. This is clear from a reading of
sub-paragraphs (I) to (IV) of paragraph 74. Even the second
method, which is payment by order on the treasury, is a direct
method of payment in cases where no officer is specially
deputed for acquisition of land. In such cases instead of
making a direct payment, a receipt is countersigned making it
immediately payable at the treasury to the payee. Otherwise,
in certain circumstances, payment is to be made by money
order and/or by cheque. When we come to paragraph (V), it is
clear that payment is made into the treasury only when
persons who are served notice Under Section 12(2) are not
present personally at the time the award is delivered. Even
though they may not appear at that stage, the officer shall
require them to appear personally or by representatives by a
certain date to receive payment of compensation awarded. It
is only if they fail to appear after such an intimation, and if
the officer, after further endeavours to secure their attendance,
cannot so secure their attendance, that amounts due are to be
paid to the treasury as revenue deposited payable to persons
to whom they are due. It is clear, therefore, that sub-para (V),
when read in its proper perspective, is not a separate mode of
payment by itself as is contended by learned Counsel for the
Appellants. It is a residuary mode of payment after all
necessary efforts have been made by the authorities to secure
the attendance of the persons entitled to compensation, and it
is only after all such methods have failed that, as a last resort,
the money is then to be deposited in the treasury. In any case,
such deposit in the treasury is referable only to Section 31(1)
and cannot ever be a substitute for deposit before the
reference court as provided Under Section 31(2) of the Land
Acquisition Act, which applies in the circumstances
mentioned in the aforesaid Sub-section.
56
We agree with aforesaid part of Sukhbir Singh (supra) related
to section 31(1), however, not with respect to part relating section
31(2).
60. It is apparent from rules that when no reference is sought on
refusal to accept, amount is to be deposited in treasury. Rules have
to be harmonized with the provision in the Act, thus, it would be
necessary to deposit in court when reference is sought. Thus, under
section 31(2) provision of deposit in court on refusal would be
attracted, when reference had been sought, as provided in rules.
Section 31(2) does not come in play at all in cases of refusal to
accept amount when reference has not been sought and deposit in
treasury would be valid deposit even otherwise where reference is
sought and person refuses to accept it only liability of
non-compliance of deposit in Court would be higher interest under
section 34.
61. Though as per subsection (2) of section 31 in the certain
exigencies the amount has to be deposited in court where the
reference would be made, it does not cover the entire situation
when it is not possible to disburse the compensation and deposit in
57
treasury has to be made as per rules and if not deposited in Court
at the most would be merely a procedural irregularity and the
maximum liability would be as envisaged under section 34 of Act of
1894 in case it has not been “tendered”. Due to non deposit at the
most it could be said that amount could not be invested in
Government security etc. under section 32 or 33 of Act of 1894. In
such securities the interest is not more than 15 % as such.
62. Moreover, the proviso to section 24(2) which prescribes
amount to be deposited with respect to ‘majority of holding’, in the
account of beneficiaries, it is not provided that such amount has to
be deposited in court. Section 31 of the Act of 1894 does not deal
with the deposit of the amount with respect to “the majority of
holdings” in the court in the account of landowners. Section 31(2) of
the Act of 1894 only contemplates certain exigencies i.e. (1) refusal
to accept, and reference is sought (2) incompetence to alienate the
land, (3) there is dispute as to entitlement or (4) apportionment and
authority decides not to disburse compensation in later two
exigencies. In such cases, it has to be deposited in court. It is not
necessary to make tender of amount of compensation under Section
31(1) in the 3 latter exigencies provided in section 31(2) itself. The
58
proviso to section 24(2) of the Act of 2013 does not envisage any of
the exigencies as contemplated under section 31(2) it clearly deals
with deposit of money before the Land Acquisition Collector or in
the treasury with respect to “majority of the holding” as the
State/authority who is acquiring the land or has acquired it, must
have arrangement to pay the money to the landowners and in case
such money has not been deposited with the Land Acquisition
Collector or with the treasury or in any other permissible mode
consequence enumerated in proviso to follow, regarding payment of
higher compensation under the Act of 2013 to all land holders. In
the Treasury also separate accounts are opened of the landowners
and money is kept in such separate accounts. As is apparent from
the standing order 28 of Punjab and the rules framed under section
55 of Act of 1894 by various State Governments in case the amount
has been deposited as per the proviso to section 24(2) in the
treasury or with the Land Acquisition Collector with respect to
majority of the holding the provisions contained in proviso to
section 24(2), in our opinion, would be fully complied with.
63. A perusal of Section 24(2)of the Act of 2013 shows that the
expression ‘paid’ does not include deposit in it. The expression
59
‘deposit’ would include deposit in terms of the rules also. Section
24(2) does not, in any manner, lay down that the amount cannot be
said to have been ‘deposited’ even when a deposit is made in terms
of the mandatory rules, or in accordance with the applicable
instructions. ‘Deposit-in-treasury’ is stipulated under the rules
made with reference to a constitutional provision, so also framed
under Section 55 of the 1894 Act, as well as under other statutory
or administrative powers. The deposit in treasury is not, in any
manner, invalid. If the deposit is valid, there is no reason to hold
that the said deposit has to be ignored. Government finances, after
all, have to be handled as per the applicable rules. The deposit in
treasury was as per binding procedural rules/orders issued by
Government of India and/or in exercise of the powers under Article
283 of the Constitution of India.
PRACTICAL DIFFICULTY ON REFUSAL/NON ACCEPTANCE OF
COMPENSATION BY CONDUCT, PRACTICE AND LEGAL POSITION
UNDER ACT OF 1894.
64. One mode of refusal to acceptance of compensation is when it
is tendered, it is refused. Another mode is of filing a litigation to
question the very land acquisition, filing application for an interim
60
stay and contesting it for decades reflects clear conduct of
nonacceptance of acquisition/compensation. State authorities
cannot retain the money in their own hands in such circumstances
and are bound to deposit the Government money where it is
supposed to be i.e. in the treasury as provided in rules. Thus, by
conduct also, there can be non-acceptance of compensation. Once
compensation is accepted, right to challenge acquisition would
vanish. State authorities are not expected to retain the money with
them and run after the landowners and match with their dilatory
tactics with vigil to find out that one ultimate day, the litigation
would attain finality. Once by their conduct, there is refusal to
accept the land acquisition itself, much less compensation, in such
circumstances such landowners have to inform the authorities
about the outcome of the litigation and in case they have lost, to
ask for compensation. Authorities are not supposed to be on vigil so
as to ascertain after lapse of so much time even after decades in
new generation, who has received the compensation and who has
not received the compensation. There is no such data readily
available to them. Thus once by conduct, such landowners refuse to
accept the land acquisition/compensation, so as to saddle liability
61
on authority, they have to inform the outcome/ willingness to the
concerned authorities to apply for payment and to show their
readiness to accept. Same would be the position in case amount is
deposited in court. They have to apply for its withdrawal. The
obligation of authorities is at initial stage. At subsequent stage,
unless and until there is willingness shown by
landowners/interested persons to accept the compensation,
authorities cannot presume that they would accept it and that
landowners are not going to question acquisition in the higher
forum and it is not open to the authorities to offer to them
compensation time and again, once amount is deposited in treasury
during the pendency of litigation. In case of landowner interdict,
initial offer/ tender by refusal or otherwise by questioning the land
acquisition itself would mean they do not want to accept the
compensation, is reflected by their conduct in the litigation. In case
of interim stay also authorities cannot offer the compensation as
that would tantamount to violation of court's order and after
interim stay ceases to operate, it is for the landowners to apprise
the authorities of their intention not to take the litigation further
and their willingness to accept compensation. Section 24(2) does
62
not provide cover to such litigation. The intent of 2013 Act has been
discussed in DDA v. Sukhbir Singh (supra) thus:
“13. The picture that therefore emerges on a reading of
Section 24(2) is that the State has no business to expropriate
from a citizen his property if an award has been made and the
necessary steps to complete acquisition have not been taken
for a period of five years or more. These steps include the
taking of physical possession of land and payment of
compensation. What the legislature is in effect telling the
executive is that they ought to have put their house in order
and completed the acquisition proceedings within a
reasonable time after pronouncement of award. Not having
done so even after a leeway of five years is given, would
cross the limits of legislative tolerance, after which the whole
proceeding would be deemed to have lapsed. It is important to
notice that the Section gets attracted if the acquisition
proceeding is not completed within five years after
pronouncement of the award.”
The intent is that authority to complete acquisition within five
years, the legislature frowns upon delay of more than five years.
65. In case it is held in spite of refusal to receive payment, it is
necessary to deposit in Court, most of the acquisition would lapse.
The acquisition of Raisina Hills in Lutyen’s zone of Delhi made in
1913 was questioned in said case but this Court never intended
such misuse of the provision. There is no dearth of ingenuity left in
misusing the provisions of section 24 of the 2013 Act whereas it is
meant to beneficial legislation. Its intention is to resettle the
incumbents to offer better compensation as compared to the 1894
63
Act. In the various ways, the provision has been sought to be
blatantly misused. The law never envisages such absurd results as
is being sought to be achieved. The beneficial provisions of 2013 Act
are put to misuse that tantamounts to grossest abuse of the
provisions of law to reopen such acquisitions and court has to
thwart all such attempts at threshold and not to receive such cases
even for consideration for a moment. We see development has taken
place in the area that has been acquired, there have been several
rounds of litigation which have been lost by landowners even up to
this Court; thereafter some persons are filing cases on the basis of
power of attorneys or sale deeds which are not permissible after
land has vested in the State and purchase after issuance of
notification under section 4 is illegal and void and no such right is
given to such incumbents to re-open the whole gamut of issues and
to even contend that acquisition has lapsed under the provisions of
the 2013 Act.
66. The law as prevailed under the Act of 1894 never invalidated
any land acquisition in the absence of amount being deposited in
court since the time immemorial in most cases where reference is
not sought, amount had been invariably deposited in the Treasury
64
as provided in statutory rules framed under section 55 of Act of
1894 and other standing order issued by State Governments, and
there were decisions of this Court which have simply laid down that
in case landowner is not responsible for delay in payment, at the
most he may be entitled to interest on such amount, in case it has
not been tendered/paid to him when possession has been taken.
Similar provisions are made under sections 77 and 80 of the Act of
2013. All of a sudden it would not be appropriate considering the
statutory rules which have been framed under section 55 of the Act
of 1894 and order to invalidate all such land acquisitions which
have taken place in various States in the country by laying down
that once amount has not been deposited in the court but in
treasury, acquisitions would lapse under section 24. It will be a very
harsh operation of law as old Act never provided for such a
consequence since 1894 the Act was enacted till new 2013 Act
came into force. Same is not consequence in case acquisition is
made under Act of 2013 is apparent from conjoint reading of
sections 77 and 80 thereof. When there were such anomalous
situation, the statutory rules and statutory orders issued by various
State Governments dealing how the Government money has to be
65
dealt with, it would not be appropriate to unsettle the legal position.
The 1894 Act never contemplated such result and by and large, it
was not the practice to deposit in court. Only in those cases the
amount used to be deposited in court, where reference was sought
under sections 18 or 30, as provided under rules also and there
was dispute as to person entitled to it or apportionment thereof
between the claimants. Primarily it is for the Land Acquisition
Collector to distribute the compensation and poor farmers are not
supposed to know the court and place where the reference would be
made, if it was not sought person would not know a place where it
would not be submitted to court, the question of deposit in court
would not arise. The court is not disbursing authority of
compensation when reference is not sought. Farmers/ claimants
are primarily concerned with the Land Acquisition Collector and for
more than one century this procedure of deposit in treasury was
prevailing and by and large amounts had been deposited in the
treasury only and thus it would not be appropriate to make the
operation of law to be such as to invalidate land acquisition when
deposit is made in Treasury. Such an interpretation is not
permissible as per the intendment of the Act of 2013. Though it is a
66
beneficial law to benefit the incumbents it cannot be interpreted to
be a law which would be to invalidate concluded transaction as per
prevailing law and divest the land which has vested in State,
development has taken place, possession taken, awards passed,
after litigation/several rounds of litigation lost and then land
cannot be ordered to revert back. The law does not intend that
effect, as it may be termed as arbitrary and beyond legislative
competence. We have to prevent the misuse of provisions and avoid
anomalous results.
67. The court has to be cautious and duty-bound to prevent such
misuse of the provisions of law and to make the purposive
interpretation, considering the experience and after-effect of
decisions. At the same time we have to forward the intendment and
spirit of the provisions of the Act of 2013 to benefit farmers, at the
same time, not to thwart the entire development which has taken
place or to burden the Exchequer with such liability which is not
contemplated in the Act of 2013 and invalidate acquisitions that
have taken place in 1912, 1950s and 1960s onwards and have
attained finality, as are sought to be reopened under the guise of
2013 Act taking advantage of the aforesaid technical aspect. Courts
67
are duty-bound to thwart all such attempts as the land which has
been acquired long back, it would not be possible to make payment
of compensation as of the rate as provided in the Act of 2013 to
undeserving persons at the cost of public revenue, and it would not
be appropriate to interpret the provisions in such a manner to
entertain stale and dead claims and to revive them on the ground of
technical and procedural defaults, if any, and created by
landowners conduct. The intendment of section 24 is that
acquisition to be completed early. If authorities for no good cause
fail to take steps for five years or more on their own the lapse of
acquisition under section 24 to follow.
68. It would be appropriate to refer to maxim - “Omnis Innovatio
Plus Novitate Perturbat Quam Utilitate Prodest” i.e. ‘Every innovation
made has to be, ultimately, adjudged from stand point of the events
that follow it’; and, when we consider the after-effects of the
decision in Pune Municipal Corporation (supra), the fact leaps out at
us that, there being no dearth of unyielding ‘talent’ in this regard,
tenacious efforts are being made at mis-utilizing the dictum
contained in the said decision, by finding out ever newer and
innovative methods to do so.
68
PREJUDICE DUE TO NON-DEPOSIT IN COURT
69. Yet another aspect arises, as to, what prejudice or injustice
would be caused in case the amount is not deposited in the court
and is deposited in the treasury particularly when the provision
contained in section 31 of the Act of 1894 has to be read conjointly
with those in section 34. As per the provisions contained in section
34, a person can claim the interest in case amount is not deposited
as envisaged under section 31(2) if authorities are at fault. Even
assuming that amount is required to be deposited only in the court
where reference would be made and deposit in the treasury is not a
permissible mode of deposit, as per the mode prescribed by law in
section 31(2) of the Act of 1894. It is trite law that in the given
situation unless aggrieved party makes out a case of prejudice and
injustice, every infraction of law would not vitiate the act. This
court in Jankinath Sarangi v. State of Orissa (1969) 3 SCC 392
observed:
"5. From this material, it is argued that the principles of
natural Justice were violated because the right of the appellant
to have his own evidence recorded was denied to him and
further that the material which was gathered behind his back
was used in determining his guilt.
In support of these contentions, a number of rulings are cited
chief among which are State of Bombay v. NurulLatif Khan
69
1966 2 L.L.J.595 State of Uttar Pradesh and another v. C.S.
Sharma 1969 1 L.L.J. 509 and Union of India v. T.R. Varma
1958 2L.L.J.259
There is no doubt that if the principles of natural Justice are
violated and there is a gross case, this Court would interfere
by striking down the order of dismissal; but there are cases
and cases.
We have to look to what actual prejudice has been caused to a
person by the supposed denial to him of a particular right.”
70. In Sunil Kumar Banerjee v. State of West Bengal, (1980) 3 SCC
304, it was observed:
“3. ......It may be noticed straightaway that this provision is
akin to Section 342 of the Criminal Procedure Code of 1898
and Section 313 of the Criminal Procedure Code of 1974. It is
now well established that mere non-examination or defective
examination Under Section 342 of the 1898 Code is not a
ground for interference unless prejudice is established, vide,
K.C. Mathew v. State of Travancore-Cochin 1956 CriLJ 444,
Bibhuti Bhusan Das Gupta and Anr. v. State of West Bengal
1969 CriLJ 654......”
Similar view of the matter is taken in State of Andhra Pradesh v.
Thakkidiram Reddy, (1998) 6 SCC 554; Willie (William) Slaney v.
State of Madhya Pradesh, AIR 1956 SC 116; Abdul Sayeed v. State
of Madhya Pradesh, (2010) 10 SCC 259; State of Punjab v.
DavinderPal Singh Bhullar, AIR 2012 SC 364; and Bahamans v.
State of Karnataka, (2012) 9 SCC 650.
CONSEQUENCE OF NOT DEPOSITING THE AMOUNT UNDER
SECTION 31 OF THE 1894 ACT :
70
71. The expression used in section 31 is not “paid”, it is only
“tender payment” and there is obligation to pay compensation
unless prevented by a cause under sub-section (2) of section 31. In
case there is dispute as to person entitled to compensation or its
apportionment in between person interested or person was not even
competent to make alienation of property that has been acquired it
would not be necessary to tender amount as it may not be so done
due to said exigencies as authority may decide not to pay it till
court orders then it is to be deposited in court to save further
liability of exorbitant interest under section 34 of the Act of 1894.
Collector need not tender the payment invariably. It can be
deposited in the court in the exigencies as provided in section 31(2).
Apart from that section 31(2) does not cover all the exigencies and it
does not require that invariably the compensation has to be
deposited with the court. it is only when reference is sought that
reference court comes to picture not otherwise as provided in rules/
orders in case person refuses and seeks a reference to court it has
to be deposited in court where reference would be submitted
otherwise as provided in the rules it has to be deposited in treasury.
It is only when court comes into play then deposit in reference court
71
is required in exigencies of section 31(2) read with 32 as provided in
rules. Even section 31(2) comes into play to “tender payment” is
obligatory provision. Tender of payment is complete when it is made
unconditionally available it could not have been equated with the
deposit in court under section 31(2) or 24(2) of old and new Acts
respectively as these are two different exigencies and consequence
of non-payment of compensation is clearly culled out in section 34.
There is a liability for payment of interest. This court in Delhi
Development Authority v. Sukhbir Singh & Ors. [(2016) 16 SCC 258],
has considered modes of payment in section 31(1) and has held in
Para 18 quoted above that deposit in the treasury is residuary mode
of payment under section 31(1) of Act of 1894.
72. This court has considered the question of effect of non-deposit
in Hissar Improvement v. Smt. Rukmani Devi & Anr., AIR 1990 SC
2033 and observed that in case of compensation is not being paid
or deposited in time in court before taking possession of the land,
Collector has to deposit the amount awarded in section 31 failing
which he is liable to pay interest as provided in section 34.
The Court has observed:
“5. It cannot be gainsaid that interest is due and payable to
72
the landowner in the event of the compensation not being
paid or deposited in time in court. Before taking possession of
the land, the Collector has to pay or deposit the amount
awarded, as stated in Section 31, failing which he is liable to
pay interest as provided in Section 34.
6. In the circumstances, the High Court was right in stating
that interest was due and payable to the landowner. The High
Court was justified in directing the necessary parties to appear
in the executing court for determination of the amount.”
73. In Kishan Das & Ors. v. State of U.P. & Ors. (1995) 6 SCC 240
this Court has laid down that in case the landowners have
themselves delayed in disposal of acquisition proceedings, cannot
claim higher rate of interest as that would amount to payment of
premium for dilatory tactics. Even the interest under section 34
cannot be claimed as a matter of right. In case a person is indulging
in litigation for adopting dilatory tactics, no divesting of land is
provided under the Act of 1894 in case it is not deposited in court.
Neither it is so provided in section 24(1) of the 2013 Act. The
obligation to pay is discharged as soon as it is tendered
unconditionally and made available to the landowners. Thereafter
there is no further obligation to deposit it in court so as to save the
acquisition. Only to save acquiring body from liability to pay
interest at exorbitant rates, it may be deposited in court in certain
cases where reference court comes into picture to discharge
73
obligation by State but deposit in Court would not be payment to
landowners. In case there is failure on the part of the State
authorities in depositing the compensation in court in the given
exigencies then only the provisions of section 34 would be attracted
and it would be then for the court to examine in each case whether
it would make order for the higher rate of interest and examine if it
was due to failure of the State authorities and in case possession
has been taken then liability may arise to make payment of interest
it cannot be premium for dilatory tactics of landowners that they
can claim even higher rate of interest.
74. In Seshan & Ors. v. Special Tehsildar & Land Acquisition
Officer, SPICOT, Pudukkottai (1996) 8 SCC 89 this Court laid down
that in case compensation is not deposited after expiry of one year,
the provisions of section 34 would be attracted so as to claim the
interest @ 15%, it shall be interest payable on compensation not
paid or deposited after expiry of one year, and 9% for first year both
from the date of taking possession till date of payment or deposit in
court.
74
75. In D Block Ashok Nagar (Sahibabad) Plot Holders’ Association
(Regd.) v. State of U.P. & Ors. (1997) 10 SCC 77, this Court has held
that liability to pay interest under section 34 arises from the date of
taking possession.
76. Thus, when the Act of 1894 provides the consequence of
non-deposit in the in Court. In our opinion deposit in Treasury is
permissible mode of deposit under the proviso to section 24(2) and
within the purview of main section 24(2), the word “paid” could not
have been taken to include the “deposit”, it is contemplated in
proviso only, and in case with respect to the “majority of holding”
the amount is not deposited in the account of
beneficiary/landowner in case award has been passed before five
year or more then acquisition would not lapse however all
beneficiary/landowners would become entitled to higher
compensation as provided in the Act of 2013. The expression
"deposited in the account of landowners" would not mean deposited
in the court as envisaged in Section 31(2) of the old Act, action as
permissible as per the financial instructions having statutory or
administrative orders having force of law as well as under the Rules
framed by various State Governments in exercise of power under
75
section 55 of Act of 1894 can always be taken. In various States,
Financial Code/Order/Rules deals with Government money and as
such amount is required to be deposited in the Treasury by opening
separate accounts of landowners/beneficiaries/claimants that
would be full compliance of the proviso of section 24(2) of new Act.
In Delhi Development Authority v. Sukhbir Singh & Ors. also, this
court has rightly held that deposit in treasury by Land Acquisition
Collector is permissible mode of deposit under section 31(1).
77. In Mahavir & Ors. v. Union of India, [SLP [C] No. 26281/2017]
this Court has held:
“9. Section 31(1) of the Act requires tender of compensation
which is tendered in terms of section 12 of the Act. Section
12 provides a mode of informing claimants as to
compensation. Section 31(2) of the Act requires Collector to
deposit amount in court in case it is not received by the
persons interested or there is some dispute. Under the Act, the
deposit is required only with a view to avoiding liability to
pay interest. Deposit in the Court is not a payment made to
the owner. It is only to avoid liability to pay interest that too
at higher rates on the failure of deposit. Once it is deposited
the liability to pay interest ceases. Section 34 of the Act
makes it clear that if the compensation is not deposited on or
before taking the possession of the land, interest at the rate of
nine percent shall follow from the time of so taking the
possession until compensation so paid or deposited in the
court. The proviso to section 34 makes it clear that in case it
is not so deposited in court as per section 31(1) within a
period of one year from the date of taking possession interest
at the rate of 15 percent per annum shall be payable. Thus, it
is clearly provided under section 34 that interest at the rate of
76
15 percent per annum shall be payable from the date of expiry
of the said period of one year till it is so paid or deposited. As
soon as the deposit is made under Section 31(2) of the Act,
liability ceases to make the payment of interest on the
compensation amount so deposited."
78. Reliance was placed by landowners on the decision in Nazir
Ahmed v. King Emperor, AIR 1936 PC 253 (2), wherein the court
observed, that “where a power is given to do a certain thing in a
certain way, the thing must be done in that way or not at all. Other
methods of performance are necessarily forbidden”. There is no
dispute with the said proposition, and the same has been followed
by this Court umpteen number of times. However, the consistent
practice that has been followed in land acquisition cases is that it is
only when reference is sought, and the amount has not been paid
for one or other reason as per section 31(2), that the amount is
deposited in the court to which the reference would be submitted,
and not otherwise. The action is as per rules. The amount of
compensation, qua the incumbents/landowners who have not
sought the reference, is ordinarily deposited in treasury, by opening
accounts in their separate names; the same is apparent from the
forms, rules framed under section 55 of 1894 Act and various
statutory orders issued by various State Governments. Section
77
31(2) cannot be said to be covering all the exigencies of depositing
amount. It was not necessary for various other exigencies to
deposit the amount in the Court. Particularly in view of the
Government rules and instructions in financial matters which were
binding and consistently followed by making the deposit in treasury
for more than 100 years since 1894.
WHETHER SECTION 24(2) DIVESTS THE STATE OF LAND
79. The question arises when there is absolute vesting of the land
in the State under the provisions of the Act of 1894 whether it can
be divested by virtue of the provisions made in section 24 of 2013
Act. The concept of absolute vesting in the State under Act of 1894
is well settled and on award being passed, possession being taken,
compensation being offered but refused, section 24 would not apply
in such a situation to divest the State if the land is acquired. No
different intention appears from section 24 to divest the land once it
has absolutely vested in the State in accordance with the provisions
of the Act of 1894. Merely by obtaining interim order or keeping the
litigation pending or filing it afresh that too by way of stale and
belated claim after the Act of 2013 has come into force, no divesting
78
of land is contemplated. It is only in exigencies provided deemed
lapse take place either when possession not taken or compensation
not paid as provided in Section 24(2) and where award has not been
passed, the provisions of section 24 of Act of 2013 applies. In a
catena of decisions, this Court has laid down that as provided in
section 16 of the Act of 1894, when an award is passed and
possession is taken, the land vests absolutely in the Government
free from all encumbrances the only legality of procedure is open to
being questioned. The provision contained in section 17(1) also
provides absolute vesting in the Government free from all
encumbrances in the case of urgency even before passing of an
award.
80. The vested right cannot be taken away. In Black's Law
Dictionary "vested" is defined thus:
“vested, adj. (18c) Having become a completed,
consummated right for present or future enjoyment; not
contingent; unconditional; absolute a vested interest in the
estate.
“Unfortunately, the word ‘vested’ is used in two
senses. Firstly, an interest may be vested in possession,
when there is a right to present enjoyment, e.g. when I
own and occupy Blackacre. But an interest may be
vested, even where it does not carry a right to
immediate possession if it does confer a fixed right of
taking possession in the future." George Whitecross
79
Paton, A Textbook of Jurisprudence 305 (CW. Paton &
David P. Derham eds., 4th ed. 1972).
"A future interest is vested if it meets two
requirements: first, that there be no condition
precedent to the interest's becoming a present estate
other than the natural expiration of those estates that
are prior to it in possession; and second, that it be
theoretically possible to identify who would get the
right to possession if the interest should become a
present estate at any time." Thomas F. Bergin 8. Paul
C. Haskell, Preface to Estates in Land and Future
Interests 66-67 (2d ed. 1984)."
In Webster's Dictionary, it is defined as:
“vested adj. [pp. of vest] 1. Clothed; robed, especially
in church vestments. 2. inlaw, fixed; settled; absolute;
not contingent upon anything: as, a vested interest.”
81(a). In State of Punjab v. Sadhu Ram, 1996 (7) JT 118, this Court
has laid down that when possession is taken by the Government
after passing of the award and compensation has been paid, right,
title and interest of the owner stand extinguished. Government
becomes absolute owner of the said land. No one can claim any
title/equitable title by remaining in possession thereafter. This
Court has observed:
"3. The learned Judge having noticed the procedure
prescribed in disposal of the land acquired by the Government
for public purposes has held that the said procedure was not
followed for surrendering the land to the erstwhile owners.
The respondent had purchased the land had improved upon
the land and is, therefore, entitled to be an equitable owner of
the land. We wholly fail to appreciate the view taken by the
80
High Court. The learned Judge had net referred to the relevant
provisions of the Act and law. It is an undisputed fact that
consequent upon the passing of the award under Section 11
and took possession of the land, by operation of Section 16 of
the Act, the right, title and interest of the erstwhile owner
stood extinguished and the Government became absolute
owner of the property free from all encumbrances. Thereby,
no one has nor claimed any right, title and interest in respect
of the acquired land. Before the possession could be taken,
the Government have power under Section 48(1) of the Act to
denotify the land. In that event, land is required to be
surrendered to the erstwhile owners. That is not the case on
the facts of this case. Under these circumstances, the
Government has become the absolute owner of the property
free from all encumbrances, unless the title is conferred on
any person in accordance with a procedure known to law, no
one can claim any title much less equitable title by remaining
in possession. The trial Court as well as the appellate Court
negatived the plea of the respondent that he was inducted into
possession as a lessee for a period of 20 years. On the other
hand, the finding was that he was in possession as a lessee on
yearly basis. Having lawfully come into possession as a
lessee of the Government, Session 116 of Evidence Act estops
him from denying title of the Government and set it up in the
third party. By disclaiming Government title, he forfeited
even the annual lease. Under these circumstances, having
come into possession as a lessee, after expiry and forfeiture of
the lease, he has no right. Illegal and unlawful possession of
the land entails payment of damages to the Government."
(emphasis supplied)
81(b). In Star Wire (India) Ltd. v. State of Haryana & Ors. (1996) 11
SCC 698, this Court has laid down that when award has been
passed, possession has been taken, land vests in the State free from
all encumbrances. Any encumbrance created by erstwhile owner
after publication of notification under section 4 has no valid title
and is not binding on the State. Subsequent purchaser has no right
81
to challenge the legality of acquisition proceedings. This Court has
laid down thus:
“2. Shri P.P. Rao, learned senior counsel for the petitioner,
contends that the petitioner had no knowledge of the
acquisition proceedings; as soon as it came to know of the
acquisition, it had challenged the validity of the acquisition
proceedings and, therefore, it furnishes cause of action to the
petitioner. He further contends that the writ petition could not
be dismissed on the ground of laches but was required to be
considered on merits. We find no force in the contention. Any
encumbrance created by the erstwhile owner of the land after
publication of the notification under Section 4(1) does not bind
the State if the possession of the land is already taken over
after the award came to be passed. The land stood vested in the
State free from all encumbrances under Section 16. In
Gunnukh Singh and Ors. v. The State of Haryana JT (1995) 8
SC 208, this Court has held that a subsequent purchaser is not
entitled to challenge the legality of the acquisition proceedings
on the ground of lack of publication of the notification. In Y.N.
Garg v. State of Rajasthan [1996] 1 SCC 284 and SnehPrabha
v. State of U.P. [1996] 7 SCC 325, this Court had held the
alienations made by the erstwhile owner of the land after
publication of the notification under Section 4(1), do not bind
either the State Government or the beneficiary for whose
benefit the land was acquired. The purchaser does not acquire
any valid title. Even the colour of title claimed by the
purchaser was void. The beneficiary is entitled to have
absolute possession free from encumbrances. In U.P. Jal
Nigam, Lucknow through its Chairman and Anr. v. M/s. Kalra
Properties (P) Ltd., Lucknow, and Ors. [1996] 1 SCC 124, this
Court had further held that the purchaser of the property, after
the notification under Section 4(1) was published, is devoid of
right to challenge the validity of the notification or irregularity
in taking possession of the land before publication of the
declaration under Section 6. As regards laches in approaching
the Court, this Court has been consistently taking the view
starting from State of Madhya Pradesh and Anr. v. Bhailal
Bhai and Ors. [1964]6SCR261 wherein a Constitution Bench
had held that it is not either desirable or expedient to lay down
a rule of universal application but the unreasonable delay
denies to the petitioner, the discretionary extraordinary remedy
82
of mandamus, certiorari or any other relief. The same was
view reiterated in catena of decisions, viz.,
Rabindranath Bose and Ors. v. The Union of India and Ors.
[1970]2SCR697 ;
State of Mysore and Ors. v. Narsimha Ram Naik,
[1976]1SCR369 ;
Aflatoon and Anr. v. Lt. Governor of Delhi [1975]1SCR802 ;
M/s. TilokchandMotichand and Ors. v. H.B. Munshi,
Commissioner of Sales Tax, Bombay, and Anr.
[1969]2SCR824 ;
State of Tamil Nadu and Ors. Etc. v. L. Krishnan and Ors. Etc.,
(1996)1SCC250 ;
Improvement Trust, Faridkot, and Ors. v. Jagjit Singh and Ors.
;
State of Punjab and Ors. v. Hari Om Co-operative House
Building Society Ltd., Amritsar; Market Committee, Hodal v.
KrishanMurari and Ors. , (1996)1SCC311 and;
State of Haryana v. Dewan Singh AIR1996SC675
wherein this Court had held that the High Court was not
justified in interfering with the acquisition proceedings. This
Court in the latest judgment in Municipal Corporation of
Great Bombay v. The Industrial Development & Investment
Co. Pvt. Ltd. and Ors., AIR1997SC482 , reviewed the entire
case law and held that the person who approaches the Court
belatedly will be told that laches close the gates of the Court
for him to question the legality of the notification under
Section 4(1), declaration under Section 6 and the award of the
Collector under Section 11.” (emphasis supplied)
81(c). In Market Committee v. Krishan Murari (1996) 1 SCC 311
award was passed, possession was taken; it was observed that the
land vests in the Government free from all encumbrances. In
PuttuLal (dead) by LRs. v. State of U.P. & Anr. (1996) 3 SCC 99,
possession had been taken and compensation paid to the owner. It
was held that land vests in the State free from all encumbrances.
83
Consequently, State becomes absolute owner and is entitled to file
suit for possession.
81(d). The word “vest” has been considered by this Court in
Fruit and Vegetable Merchants Union v. Delhi Improvement Trust, AIR
1957 SC 344, to mean that the property acquired becomes the
property of the Government without any condition or limitation
either as to title or possession. Thus when there is absolute vesting
in the State it is vesting along with possession and thereafter a
person who remains in possession is only a trespasser not in
rightful possession. Vesting cannot be considered with any rider as
to title or possession. Vesting contemplates absolute title,
possession in the State as laid down in the aforesaid decisions. Of
course, the procedure of vesting can be looked by court if
questioned and once entry is handful, it vests absolutely in State
and the Act of 2013 does not reopen and divest State Government
of the land. 2013 Act would come only in the cases where vesting of
land has not taken place in the State Government. In Fruit and
Vegetable Merchants Union v. Delhi Improvement Trust, AIR 1957 SC
344, this Court has observed thus:
84
“25. That the word "vest" is a word of variable import is
shown by provisions of Indian statutes also. For example, s.
56 of the Provincial Insolvency Act (5 of 1920) empowers the
court at the time of the making of the order of adjudication or
thereafter to appoint a receiver for the property of the
insolvent and further provides that "such property shall
thereupon vest in the receiver." The property vests in the
receiver for the purpose of administering the estate of the
insolvent for the payment of his debts after realising his
assets. The property of the insolvent vests in the receiver not
for all purposes but only for the purpose of the Insolvency Act
and the receiver has no interest of his own in the property. On
the other hand, Sections 16 and 17 of the Land Acquisition
Act (Act I of 1894), provide that the property so acquired,
upon the happening of certain events, shall "vest absolutely in
the Government free from all encumbrances". In the cases
contemplated by Sections, 16 and 17 the property acquired
becomes the property of Government without any conditions
or limitations either as to title or possessions. The legislature
has made it clear that the vesting of the property is not for any
limited purpose or limited duration. It would thus appear that
the word "vest" has not got a fixed connotation, meaning in
all cases that the property is owned by the person or the
authority in whom it vests. It may vest in title, or it may vest
in possession, or it may vest in a limited sense, as indicated in
the context in which it may have been used in a particular
piece of legislation. The provisions of the Improvement Act,
particularly Sections 45 to 49 and 54 and 54A when they
speak of a certain building or street or square or other land
vesting in a municipality or other local body or in a trust, do
not necessarily mean that ownership has passed to any of
them.”
81(e). In Mosammat Bibi Sayeeda v. State of Bihar (1996) 9 SCC
516, the concept of “vest” has been discussed thus:
“17. The word ‘vested’ is defined in Black’s Law Dictionary
(6th Edn.) at p. 1563 as:
“Vested; fixed; accrued; settled; absolute; complete. Having
the character or given the rights of absolute ownership; not
contingent; not subject to be defeated by a condition
precedent.”
85
Rights are ‘vested’ when right to enjoyment, present or
prospective, has become property of some particular person
or persons as present interest; mere expectancy of future
benefits, or contingent interest in property founded on
anticipated continuance of existing laws, does not constitute
vested rights. In Webster’s Comprehensive Dictionary,
(International Edn.) at p. 1397 ‘vested’ is defined as:
“[L]aw held by a tenure subject to no contingency; complete;
established by law as a permanent right; vested interests.”
In State of W.B. v. Suburban Agriculture Dairy & Fisheries
(P) Ltd., the question was whether after the abolition of the
estate under the West Bengal Estates Acquisition Act, 1953 (1
of 1954) the fishery right of the intermediary was saved by
that Act? A Bench of three Judges had held in paragraphs 9
and 11 that the pre-existing rights of the intermediary in the
estate to which the declaration applied, shall stand vested in
the State free from all encumbrances. Section 6 does not have
the effect of divesting the State of the vested right, title and
interest of the intermediary. One of the rights is the right to
take possession of the land held by the intermediary. The
section excluded the operation of Sections 4 and 5, viz., the
interest of the respondent to retain khas possession was saved
subject to his making the application in the prescribed form. It
was held that the fishery rights stood vested in the State.
18. In Brighu Nath Sahay Singh v. Mohd. Khalilur Rahman
the appellants were proprietors of certain lands in Touzi (new)
No. 8655 in Saraunja village in District Begusarai in Bihar
which was sought to be declared as private lands in a civil
suit. The courts granted the decree but the High Court
reversed the decree. On appeal, this Court had held that on
publication of the notification under Section 3, the lands
stood vested in the State. The pre-existing right, title, and
interest held by the appellants stood ceased. They cannot,
therefore, claim khas possession of the lands in occupation of
the tenants.
19. In Labanya Bala Devi v. State of Bihar Patna Secretariat,
the tank and tankail settled by the intermediary were held to
have been vested in the State after the Act had come into
force. Therefore, the pre-existing rights of the tenure-holder
86
in the tank stood ceased since they were not saved under
Section 6(1)(b) of the Act.
20. It would thus be clear that on and with effect from the
date of the publication of the notification under Section 3, the
totality of the right, title and interest held by an intermediary
stands abolished. The consequences thereof, as enumerated in
Section 4(a), is extinguishment of the pre-existing right, title
and interest over the entire estate including the enumerated
items in Section 4(a) which include hats and bazars in the
State and the pre-existing right, title and interest held by the
intermediary/tenure-holder stood divested.”
“Vest” means an absolute or indefeasible right. Thus, the
provisions contained under the Act of 2013 have not taken vested
rights away.
81(f). In J. S. Yadav v. State of Uttar Pradesh (2011) 6 SCC
570, this Court has observed:
“20. "The word 'vested' is defined in Black's Law Dictionary
(6th Edition) at page 1563, as:
vested; fixed; accrued; settled; absolute;
complete. Having the character or given the
rights of absolute ownership; not contingent;
not subject to be defeated by a condition
precedent.'
Rights are 'vested' when right to enjoyment, present or
prospective, has become property of some particular
person or persons as present interest; mere expectancy
of future benefits, or contingent interest in property
founded on anticipated continuance of existing laws,
does not constitute vested rights. In Webster's
Comprehensive Dictionary (International Edition) at
page 1397, 'vested' is defined as :
87
Law held by a tenure subject to no contingency;
complete; established by law as a permanent
right; vested interest."
(See Mosammat Bibi Sayeeda and Ors. etc. v. State of Bihar
and Ors. etc. AIR 1996 SC 1936 at SCC p.527, para 17)
21. The word "vest" is normally used where an immediate
fixed right in present or future enjoyment in respect of a
property is created. With the long usage, the said word "vest"
has also acquired a meaning as "an absolute or indefeasible
right". It had a "legitimate" or "settled expectation" to obtain
right to enjoy the property etc. Such "settled expectation" can
be rendered impossible of fulfillment due to change in law by
the Legislature. Besides this, such a "settled expectation" or
the so-called "vested right" cannot be countenanced against
public interest and convenience which are sought to be served
by amendment of the law. (Vide: Howrah Municipal Corpn.
and Ors. v. Ganges Rope Co. Ltd. and Ors. (2004) 1 SCC
663.
22. Thus, "vested right" is a right independent of any
contingency. Such a right can arise from a contract, statute or
by operation of law. A vested right can be taken away only if
the law specifically or by necessary implication provide for
such a course.”
82. On proper reading of section 24, it is clear that no divesting is
contemplated under the provision. Provisions of section 24 when
award is passed, possession is taken, compensation has been
tendered, vesting takes place. There is no deemed lapse under
section 24 in such a case. In case of urgency also before award is
passed as provided in section 17(1), 17(3A) vesting takes place on
fulfillment of conditions.
88
83. It is settled law that accrued rights cannot be taken away by
repealing statutory provisions. The repealing law must provide for
taking away such rights expressly or by necessary implications.
There is no such express provision or necessary implication. The
beneficial intendment of proviso to section 24(2) is that acquiring
body must have arrangement of money for payment of
compensation with respect to majority of holding. It never envisages
misuse of the provision. Law does not contemplate or permit a
litigant to misuse of the provisions. Law does not permit court cover
to be used as shield when there is no legality in the claim and one
cannot be permitted to reap the fruits of one’s own dilatory tactics,
money power to litigate till eternity. The Act nowhere intends that
only litigating incumbents who are not accepting acquisition have to
be given the benefit of Act of 2013. Those who have obtained
interim orders under guise of prima facie case anyhow or somehow
without any basis, without merit in their claim, cannot be protected
by providing shelter under the protective umbrella of section 24(2)
of the Act of 2013.
84. There are various decisions which have been rendered inter se
parties declining the challenge to land acquisition. It has been held
89
in the previous judgments that the land is vested in the State and
acquisition has been legally made and possession has been taken
and such incumbents are responsible for not receiving
compensation. Now those judgments are sought to be get rid of
under the subsequent legislation, particularly under section 24 of
the Act of 2013.
85. In relation to the maxim ‘nemo debet bis vexari pro una et
eadem causa’, which means that it is a rule of law that a man
should not be twice vexed for one and the same cause, Broom, in
Legal Maxims, has discussed thus:
“When a party to litigation seeks improperly to raise again the
identical question which has been decided by a competent
Court, a summary remedy may be found in the inherent
jurisdiction which our Courts possess of preventing an abuse
of process.”
Thus, the provisions of section 24 cannot be interpreted by
ignoring and overlooking the previous verdicts. What has been held
in them is binding and rights cannot be taken away. When issues
raised within section 24 have already been decided and vesting has
already taken place it is final. Exception as carved out in section 24
when award has not been passed under section 24(1)(a) for
90
determination of compensation only the provisions of the Act of
2013 would apply. Once possession has been taken Compensation
tendered but not accepted under section 17(1) of the Act or section
16 of Act of 1894 vesting takes place.
IN RE: QUESTION NO.II: MODE OF TAKING PHYSICAL
POSSESSION AS CONTEMPLATED UNDER SECTION 24(2) OF ACT
OF 2013 AND THE ACT OF 1894:
86. Intrinsically connected with Question No.1 is the question of
taking physical possession as contained in section 24(2) of Act of
2013 when it can be said that possession has been taken. When we
consider the same, question arises what is the meaning of “physical
possession not taken” in section 24(2) when the State is involved in
taking possession of the property acquired it can take possession by
drawing a Panchnama. The normal rule of State possessing the
land through some persons would not be applicable in such cases.
On open land, possession is deemed to be of owner. When the State
acquired the land and has drawn memorandum of taking
possession that in the way the State take possession of large chunk
of property acquired as State is not going to put other persons in
91
possession or its police force or going to cultivate it or start residing
or physically occupy it after displacing who were physically in
possession as in the case of certain private persons, in case they
re-enter in possession of open land, start cultivation or residing in
the house. Lawful possession is deemed to be of the State. This
Court in a number of decisions has accepted the mode of drawing
Panchnama by State consistently to be a mode of taking possession.
87(a). In Balwant Narayan Bhagde v. M.D. Bhagwat & Ors., (1976)
1 SCC 700 in the majority view, it was held that the act of Tehsildar
in going on the spot and inspecting the land was sufficient to
constitute taking of possession. Neither the Government nor the
Commissioner could withdraw from the acquisition of the land
under section 48(1) of the Act. This Court observed thus:
“28. We agree with the conclusion reached by our brother
Untwalia, J., as also with the reasoning on which the
conclusion is based. But we are writing a separate judgment as
we feel that the discussion in the judgment of our learned
brother Untwalia, J., in regard to delivery of 'symbolical' and
'actual' possession under Rules 35, 36, 95 and 96 of Order XXI
of the CPC, is not necessary for the disposal of the present
appeals' and we do not wish to subscribe to what has been said
by our learned brother Untwalia, J., in that connection, nor do
we wish to express our assent with the discussion of the
various authorities made by him in his judgment. We think it is
enough to state that when the Government proceeds to take
possession of the land acquired by it under the Land
Acquisition Act, 1894, it must take actual possession of the
land since all interests in the land are sought to be acquired by
92
it. There can be no question of taking 'symbolical' possession
in the sense understood by judicial decisions under the CPC.
Nor would possession merely on paper be enough. What the
Act contemplates as a necessary condition of vesting of the
land in the Government is the taking of actual possession of
the land. How such possession may be taken would depend on
the nature of the land. Such possession would have to be taken
as the nature of the land admits of. There can be no hard and
fast rule laying down what, act would be sufficient to
constitute taking of possession of land. We should not,
therefore, be taken as laying down an absolute and inviolable
rule that merely going on the spot and making a declaration by
beat of drum or otherwise would be sufficient to constitute
taking of possession of land in every case. But here, in our
opinion, since the land was lying fallow and there was no crop
on it at the material time, the act of the Tehsildar in going on
the spot and inspecting the land for the purpose of determining
what part was waste and arable and should, therefore, be taken
possession of and determining its extent, was sufficient to
constitute taking of possession. It appears that the appellant
was not present when this was done by the Tehsildar, but the
presence of the owner or the occupant of the land is not
necessary to effectuate the taking of possession. It is also not
strictly necessary as a matter of legal requirement that notice
should be given to the owner or the occupant of the land that
possession would be taken at a particular time, though it may
be desirable where possible, to give such notice before
possession is taken by the authorities, as that would eliminate
the possibility of any fraudulent or collusive transaction of
taking of mere paper possession, without the occupant or the
owner ever coming to know of it.”
87(b). In Tamil Nadu Housing Board v. A.Viswam (Dead) by LRs.,
(1996) 8 SCC 259, this Court has held that recording of
memorandum/ Panchnama by Land Acquisition Officer in the
presence of witnesses signed by them would constitute taking
possession of land. This Court observed:
93
“8. It is settled law by series of judgments of this Court that
one of the accepted modes of taking possession of the
acquired land is recording of a memorandum or Panchnama
by the LAO in the presence of witnesses winged by him/them
and that would constitute taking possession of the land as it
would be impossible to take physical possession of the
acquired land. It is common Knowledge that in some cases
the owner/interested person may not co-operate in taking
possession of the land.”
87(c). In Banda Development Authority, Banda v. Moti Lal Agarwal &
Ors. (2011) 5 SCC 394 this Court observed that preparing a
Panchnama is sufficient to constitute taking of possession. If
acquisition is of a large tract of land, it may not be possible to take
physical possession of each and every parcel of the land and it
would be sufficient that symbolic possession is taken by preparing
an appropriate document in the presence of independent witnesses
and getting their signatures. Even subsequent utilization of a
portion of acquired land for public purpose was still sufficient to
prove taking possession. This Court in Banda Development
Authority (supra) has considered various decisions and laid down
thus:
"37. The principles which can be culled out from the
above-noted judgments are:
i) No hard and fast rule can be laid down as to what act
would constitute taking of possession of the acquired
land.
94
ii) If the acquired land is vacant, the act of
the concerned State authority to go to the
spot and prepare a panchnama will ordinarily be
treated as sufficient to constitute taking of possession.
iii) If crop is standing on the acquired land or
building/structure exists, mere going on the spot by the
concerned authority will, by itself, be not sufficient for
taking possession. Ordinarily, in such cases, the
concerned authority will have to give notice to the
occupier of the building/structure or the person who
has cultivated the land and take possession in the
presence of independent witnesses and get their
signatures on the panchnama. Of course, refusal of the
owner of the land or building/structure may not lead to
an inference that the possession of the acquired land
has not been taken.
iv) If the acquisition is of a large tract of land, it may
not be possible for the acquiring/designated authority
to take physical possession of each and every parcel of
the land and it will be sufficient that symbolic
possession is taken by preparing appropriate document
in the presence of independent witnesses and getting
their signatures on such document.
v) If beneficiary of the acquisition is an
agency/instrumentality of the State and 80% of the
total compensation is deposited in terms of Section
17(3A) and substantial portion of the acquired land has
been utilized in furtherance of the particular public
purpose, then the Court may reasonably presume that
possession of the acquired land has been taken.”
87(d). In State of Tamil Nadu & Anr. v. Mahalakshmi Ammal & Ors.
(1996) 7 SCC 269, this Court has held: “Possession of the acquired
land would be taken only by way of memorandum, Panchnama
which is a legally accepted form.” This Court observed:
95
“9. It is well settled law that publication of the declaration
under Section 6 gives conclusiveness to public purpose.
Award was made on September 26, 1986 and for Survey No.
2/11 award was made on August 31, 1990. Possession having
already been undertaken on November 24, 1981, it stands
vested in the State under Section 16 of the Act free from all
encumbrances and thereby the Government acquired absolute
title to the land. The initial award having been made within
two years under Section 11 of the Act, the fact that
subsequent award was made on 31st August, 1990 does not
render the initial award invalid. It is also to be seen that there
is stay of dispossession. Once there is stay of dispossession,
all further proceedings necessarily could not be proceeded
with as laid down by this Court. Therefore, the limitation also
does not stand as an impediment as provided in the proviso to
Section 11A of the Act. Equally, even if there is an
irregularity in service of notice under Sections 9 and 10, it
would be a curable irregularity and on account thereof, award
made under Section 11 does not become invalid. Award is
only an offer on behalf of the State. If compensation was
accepted without protest, it binds such party but subject to
Section 28A. Possession of the acquired land would be taken
only by way of a memorandum, Panchanama, which is a
legally accepted norm. It would not be possible to take any
physical possession. Therefore, subsequent continuation, if
any, had by the erstwhile owner is only illegal or unlawful
possession which does not bind the Government nor vested
under Section 16 divested in the illegal occupant. Considered
from this perspective, we hold that the High Court was not
justified in interfering with the award.”
87(e). In Balmokand Khatri Educational and Industrial Trust v. State
of Punjab (1996) 4 SCC 212 it was observed that it is difficult to
take physical possession of land under compulsory acquisition. The
normal rule of taking possession is drafting the Panchnama in the
presence of Panchas, is accepted mode of taking possession of land.
This Court observed:
96
"4. It is seen that the entire gamut of the acquisition
proceedings stood completed by April 17, 1976, by which
date possession of the land had been taken. No doubt, Shri
Parekh has contended that the appellant still retained their
possession. It is now well-settled legal position that it is
difficult to take physical possession of the land under
compulsory acquisition. The normal mode of taking
possession is drafting the Panchanama in the presence of
Panchas and taking possession and giving delivery to the
beneficiaries is the accepted mode of taking possession of the
land. Subsequent thereto, the retention of possession would
tantamount only to illegal or unlawful possession.
5. Under these circumstances, merely because the appellant
retained possession of the acquired land, the acquisition
cannot be said to be bad in law. It is then contended by Shri
Parekh that the appellant-Institution is running an educational
institution and intends to establish a public school and that
since other land was available, the Government would have
acquired some other land leaving the acquired land for the
appellant. In the counter-affidavit filed in the High Court, it
was stated that apart from the acquired land, appellant also
owned 482 canals 19 marlas of land. Thereby, it is seen that
the appellant is not disabled to proceed with the continuation
of the educational institution which it seeks to establish. It is
then contended that an opportunity may be given to the
appellant to make a representation to the State Government.
We find that it is not necessary for us to give any such liberty
since acquisition process has already been completed.”
(emphasis supplied)
87(f). In P. K. Kalburqi v. State of Karnataka & Ors. (2005) 12 SCC
489, this Court held that if land were vacant and unoccupied,
taking symbolical possession would be enough. This Court held
that in case land was vacant only symbolical possession could be
taken and such possession would amount to vesting the land in the
Government. Thus power under section 48 could not be exercised.
97
87(g). In Raghbir Singh Sehrawat v. State of Haryana & Ors. (2012)
1 SCC 792, it was observed:
“28. If the Appellant's case is examined in the light of the
propositions culled out in Banda Development Authority,
Banda v. MotiLalAgarwal and Ors. we have no hesitation to
hold that possession of the acquired land had not been taken
from the Appellant on 28.11.2008, i.e. the day on which the
award was declared by the Land Acquisition Collector
because crops were standing on several parcels of land
including the Appellant's land and possession thereof could
not have been taken without giving notice to the landowners.
That apart, it was humanly impossible to give notice to large
number of persons on the same day and take actual
possession of land comprised in various survey numbers
(total measuring 214 Acres 5 Kanals and 2 Marlas).”
This Court has laid down that since the land was lying fallow
with no crop on it, the Tehsildar going on the spot and inspecting
the land was enough to constitute taking possession. No notice was
required to be given to the occupant of the land.
87(h). In Sita Ram Bhandar Society, New Delhi v. Lieutenant
Governor, Government of NCT, Delhi & Ors. (2009) 10 SCC 501, this
Court observed that when possession is to be taken of large tract of
land then it is permissible to have possession by drawing
Panchnama.
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87(i). In Om Prakash Verma & Ors. v. State of Andhra Pradesh &
Ors. (2010) 13 SCC 158, this Court observed:
“85. As pointed out earlier, the expression `civil appeals are
allowed' carry only one meaning, i.e., the judgment of the
High Court is set aside and the writ petitions are dismissed.
Moreover, the determination of surplus land based on the
declaration of owners has become final long back. The
notifications issued under Section 10 of the Act and the
panchanama taken possession are also final. On behalf of the
State, it was asserted that the possession of surplus land was
taken on 20.07.1993 and the Panchanama was executed
showing that the possession has been taken. It is signed by
witnesses. We have perused the details which are available in
the paper book. It is settled law that where possession is to be
taken of a large tract of land then it is permissible to take
possession by a properly executed Panchanama. [videSita
Ram Bhandar Society, New Delhi v. Lieutenant Governor,
Govt. of NCT, Delhi (2009) 10 SCC 501].
86. It is not in dispute that the Panchnama has not been
questioned in any proceedings by any of the appellants.
Though it is stated that Chanakyapuri Cooperative Society is
in possession at one stage and ShriVenkateshawar Enterprises
was given possession by the owners and possession was also
given to Golden Hill Construction Corporation and thereafter
it was given to the purchasers, the fact remains that the
owners are not in possession. In view of the same, the finding
of the High Court that the possession was taken by the State
legally and validly through a Panchnama is absolutely correct
and deserves to be upheld.”
87(j). In M. Venkatesh & Ors. v. Commissioner, Bangalore
Development Authority etc. (2015) 17 SCC 1, a three-Judge Bench of
this Court has opined:
“17. To the same effect are the decisions of this Court in Ajay
Krishan Shinghal v. Union of India, Mahavir v. Rural
Institute, Gian Chand v. Gopala, Meera Sahni v. Lt. Governor
99
of Delhi and Tika Ram v. State of U.P. More importantly, as
on the date of the suit, the respondents had not completed 12
years in possession of the suit property so as to entitle them to
claim adverse possession against BDA, the true owner. The
argument that possession of the land was never taken also
needs notice only to be rejected for it is settled that one of the
modes of taking possession is by drawing a panchnama which
part has been done to perfection according to the evidence led
by the defendant BDA. Decisions of this Court in T.N.
Housing Board v. A. Viswam and Larsen & Toubro Ltd. v.
State of Gujarat, sufficiently support BDA that the mode of
taking possession adopted by it was a permissible mode.”
(emphasis supplied)
87(k). However, view has been taken in Velaxan Kumar v. Union of
India & Ors. (2015) 4 SCC 325 that actual physical possession is
required to be taken and the court has seen the photographs to
hold that possession was not taken. The view taken in Velaxan
Kumar (supra) cannot be said to be correct and in accordance with
law. Drawing of Panchnama is the accepted mode of taking
possession and once Panchnama has been drawn in the presence of
witnesses, in case Panchnama has been signed by official witnesses
as to its correctness as there is presumption of correctness of the
official act under section 114 of the Act of 2013. A photograph
cannot show actual/ legal possession much less proof of possession
as person may enter/re-enter by committing trespass to have
100
photographed. That would not negate the proceedings held for
taking possession and drawing panchnama.
87(l). In Raghbir Singh Sehrawat (supra) also the observations have
been made that it was not possible to take possession of the entire
land in a day, cannot be accepted. The State is not going to put
their own persons/ police/ or other officials to possess the land.
Thus the mode of taking possession by drawing Panchnama has
been accepted in a large number of decisions, which appears to be
the consistent view of this Court, and must prevail.
87(m). In Narmada Bachao Andolan v. State of Madhya Pradesh
& Anr. AIR 2011 SC 1989, this Court has observed that it would
depend upon the facts of individual case whether possession has
been taken or not. However, this Court had appointed a
Commissioner in the said case to find out the possession on the
spot and DVDs. and CDs were seen to hold that landowners were in
possession. District Judge, Indore, recorded the statements of the
tenure-holders, which were referred to by this Court in the said
judgment. Said decision has to be treated as confined to its own
facts, as the mode adopted for determining the possession by the
101
help of Commissioner is doubtful. The Commissioner could not
have determined the factum of possession. It is the function of the
court and this cannot abdicate to Commissioner its function. Even
under Order XXVII CPC function of Commissioner is not to
determine possession and once possession has been taken, whether
there was re-entry or trespass had not been examined in the said
case. However, statements recorded by the District Judge were also
taken into consideration in Narmada Bachao Andolan (supra). The
decision in said case is to be taken as confined to the facts and
cannot be said to be of universal application. Subsequent DVD/CD
are not going to establish whether possession, in fact, was taken
earlier. Such mode of determining the possession by subsequent
material is not of much value as there can be re-entry in possession
after possession had been taken. In the decision of Banda
Development Authority (supra), it appears that the law laid down has
been properly discussed and propositions have been laid down
properly.
88. We find that while this Court examined several aspects of the
matter in Banda Development Authority, Banda versus Moti Lal
Agarwal [(2011) 5 SCC 394], contrary view has been taken in some
102
subsequent judgments. In Banda Development Authority (supra),
this Court has held that if land was vacant, going to the spot and
preparing a panchnama by a state authority would ordinarily be
treated as sufficient to constitute the taking of possession. If crop
is standing, notice was required to be given to the occupier of
building or structure and thereafter taking possession in presence
of independent witnesses and in spite of refusal by the owner did
not mean that possession of the has not been taken. If acquisition
is of a large tract of land, it would not be possible to take physical
possession of each and every parcel of such land. Taking ‘symbolic’
possession, by preparing an appropriate document, in presence of
independent witnesses, was sufficient. Where urgency clause was
invoked and substantial portion of land was acquired or utilized in
furtherance of the particular public purpose, taking of possession
was presumed. Utilization of a major portion of acquired land for
public purpose was itself sufficient to prove taking over possession.
89. We find that in Velaxan Kumar versus Union of India [(2015) 4
SCC 325], the Court held that Section 24(2) of the 2013 Act being a
benevolent provision, even though possession had been taken, but
if due procedure was not followed and, the photographs showed
103
that the landowners were in possession, the proceedings would
lapse. Such a view, in our opinion, is contrary to the settled law as
referred to in Banda Development Authority (supra). The same will,
accordingly, stand overruled.
In Re: Question No.III :
WHETHER SECTION 24 OF THE ACT OF 2013 REVIVES STALE/
BARREDCLAIMS?
90. In several cases, the challenge to the acquisition has become
stale and otherwise barred. The question arises whether a beneficial
provision of section 24 of the Act of 2013 revives such claims and
the Courts can entertain them.
91. Arguments to the effect, that section 24 of the Act of 2013 does
have the effect of re-opening claims of the beneficiaries, qua
acquisitions that had, in certain instances, been made as far back
as the first and the second decade of the 20th century or decades
before, are being routinely urged before various courts, including
this Court and is involved in several instant cases. To that end,
proceedings are being filed anew, even though everything
appertaining the concerned acquisition proceedings, including
several rounds of legal challenge to the same, has attained finality
104
decades ago. The question is whether it is permissible to assert for
resuscitation of such claims, placing them under the umbrella of
the provisions of Section 24.
92. An instance of such a claim, put forth before this Court, was
argued and decided within the confines of the case titled as Mahavir
& Ors. v. Union of India & Anr., numbered as SLP (C) No.
26281/2017, decided on 8.9.2017. This was a petition filed with
respect to an area known as the ‘Raisina Hills’, located in the
‘Lutyens Zone’ of New Delhi.
93. The question arose as to whether the court can interfere in
such cases? The Court’s discussion on the legal aspects involved in
Mahavir’s case (supra), and its decision thereon, is summarized
hereunder. The petition was dismissed on the ground of delay and
laches, holding that it destroyed the remedy. It was further held
that section 24 does not revive non-existing or dead claims; it only
ensures that claims, which were alive, would be examined.
94. In Mahavir’s case (supra), this Court has also referred to the
decision in Tamil Nadu Housing Board, Chennai v. M. Meiyappan &
Ors. [(2010) 14 SCC 309], and in Jasveer Singh v. State of U.P. &
Ors. [(2017) 6 SCC 787]. The delay and laches are enough to destroy
105
the remedy.
Mahavir’s case (supra) also contains the observation to the
effect that, if the conduct and neglect of the landowner or his
successor is allowed to prevail, permitting them to assert their claim
at this belated juncture, it would place the Estate Authority in a
position in which it would not be reasonable to place them; and that
in such cases, lapse of time and delay are one of the most material
considerations. The Court’s observations in Mahavir’s case (supra)
are extracted hereunder:
“15. In U.P. State Jal Nigam & Anr. v. Jaswant Singh & Anr.
(2006) 11 SCC 464 this court has observed that in
determining whether there has been delay so as to amount to
laches in case petitioner/claimant is aware of the violation of
the right, where a remedy by his conduct tantamount to
waiver of it or where, by his conduct or neglect, though not
waiving the remedy, he has put the other party in a position in
which it would not be reasonable to place him if the remedy
were afterwards to be asserted. In such cases lapse of time
and delay are most material. Upon these considerations rests
the doctrine of laches.
16. The Constitution Bench of this court in Rabindranath
Bose &Ors. v. Union of India &Ors. (1970) 1 SCC 84 has
observed:
“32 …we are of the view that no relief should be given
to petitioners who, without any reasonable
explanation, approach this Court under Article 32 of
the Constitution after inordinate delay. The highest
Court in this land has been given Original Jurisdiction
to entertain petitions under Article 32 of the
Constitution. It could not have been the intention that
this Court would go into stale demands after a lapse of
106
years. It is said that Article 32 is itself a guaranteed
right. So it is, but it does not follow from this that it
was the intention of the Constitution makers that this
Court should discard all principles and grant relief in
petitions filed after inordinate delay.”
(emphasis supplied)”
95. This Court, in Dharappa v. Bijapur Co-operative Milk Producers
Societies Union Ltd. [(2007) 9 SCC 109], had an occasion to consider
the effect and operation of section 10(4A) of the Industrial Disputes
Act, 1947; the section had been inserted via an amendment made to
the Act. With regard to the same, the Court observed that delay, if
has resulted in material evidence relevant to adjudication being lost
or rendered unavailable, would be fatal. It was held that the time
limit of 6 months, prescribed by section 10(4A), should be
interpreted so as not to revive stale and dead claims, for it would
not be possible to defend such claims due to lapse of time and due
to material evidence having been lost or rendered unavailable. In
Dharappa (supra), it was observed;
“29. This Court while dealing with Section 10(1)(c) and (d) of
the ID Act, has repeatedly held that though the Act does not
provide a period of limitation for raising a dispute under
Section 10(1)(c) or (d), if on account of delay, a dispute has
become stale or ceases to exist, the reference should be
rejected. It has also held that lapse of time results in losing the
remedy and the right as well. The delay would be fatal if it
has resulted in material evidence relevant to adjudication
being lost or rendered unavailable [vide - Nedungadi Bank
107
Ltd. v. K.P. Madhavan Kutty (2000) I LLJ 561 SC; Balbir
Singh v. Punjab Roadways 2000 (8) SCALE 180; Asst.
Executive Engineer v. Shivalinga (2002) I LLJ 457 SC;
and S.M. Nilajkar v. Telecom DT. Manager (2003) II LLJ 359
SC. When belated claims are considered as stale and
non-existing for the purpose of refusing or rejecting a
reference under Section 10(1)(c) or (d), in spite of no period
of limitation being prescribed, it will be illogical to hold that
the amendment to the Act inserting
Section 10(4A) prescribing a time limit of six months, should
be interpreted as reviving all stale and dead claims.
30. The object of Section 10(4A) is to enable workmen to
apply directly to the Labour Court for adjudication of disputes
relating to termination, without going through the laborious
process of seeking a reference under Section 10(1) of ID Act.
The Legislative intent was not to revive stale or non-existing
claims. Section 10(4A) clearly requires that a workman who
wants to directly approach the Labour Court should do so
within six months from the date of communication of the
order. Then come the words "or the date of commencement of
the Industrial Disputes (Karnataka Amendment) Act, 1987,
whichever is later". The reason for these words is obvious. In
cases where the cause of action arose prior to 7.4.1988, some
additional time had to be provided to make the provisions
effective. Let us take the example of a workman who had
received the termination order on 10-10-1987. If
Section 10(4A), which come into effect on 7.4.1988, had
merely stated that the application had to be filed within six
months from the date of communication, he had to file the
application before 10-4-1988, that is hardly three days from
the date when the amendment came into effect. The
Legislature thought that workmen should be given some
reasonable time to know about the new provision and take
steps to approach the Labour Court. Therefore, all workmen
who were communicated orders of termination within six
months prior to 7-4-1988 were given the benefit of uniform
six months time from 7-4-1988, irrespective of the date of
expiry of six months. When a new remedy or relief is
provided by a statute, such a transitional provision is made to
ensure that persons who are given a special right, do not lose
it for want of adequate time to enforce it, though they have a
cause of action or right as on the date when the new remedy
or relief comes into effect.
108
31. Section 10(4A) does not, therefore, revive non-existing or
stale or dead claims but only ensures that claims which were
live, by applying the six month rule in Section 10(4A) as on
the date when the Section came into effect, have a minimum
of six months time to approach the Labour Court. That is
ensured by adding the words "or the date of commencement
of the Industrial Disputes (Karnataka Amendment) Act, 1987,
which is later" to the words "within six months from, the date
of communication to him of the order of discharge, dismissal,
retrenchment or termination." In other words all those who
were communicated orders of termination during a period of
six months prior to 7-4-1988 were deemed to have been
communicated such orders of termination as on 7-4-1988 for
the purpose of seeking remedy. Therefore, the words "within
six months from the date of commencement of the Industrial
Disputes (Karnataka Amendment) Act, 1987, whichever is
later" only enables those who had been communicated order
of termination within six months prior to 7-4-1988, to apply
under Section 10(4A).”
96. The stale claims cannot be entertained even though no time
limit is prescribed, it was observed in State of Karnataka v.
Laxuman [(2005) 8 SCC 709] thus:
“9. As can be seen, no time for applying to the court in terms
of sub-section (3) is fixed by the statute. But since the
application is to the court, though under a special enactment,
Article 137, the residuary article of the Limitation Act, 1963,
would be attracted and the application has to be made within
three years of the application for making a reference or the
expiry of 90 days after the application. The position is settled
by the decision of this Court in The Addl. Spl. Land
Acquisition Officer, Bangalore v. Thakoredas, Major and Ors.,
AIR 1994 SC 2227 It was held:
"3. Admittedly, the cause of action for seeking a
reference had arisen on the date of service of the award
under Section 12(2) of the Act. Within 90 days from
the date of the service of notice, the respondents made
the application requesting the Deputy Commissioner to
refer the cases to the Civil Court under Section 18.
109
Under the amended sub-section 3(a)of the Act, the
Deputy Commissioner shall, within 90 days from
September 1, 1970 make reference under Section 18 to
the Civil Court which he failed to do . Consequently,
by operation of subsection 3(b) with the expiry of the
aforestated 90 days, the cause of action had accrued to
the respondents to make an application to the Civil
Court with a prayer to direct the Deputy Commissioner
to make a reference. There is no period of limitation
prescribed in subsection 3(b) to make that application
but it should be done within limitation prescribed by
the Schedule to the Limitation Act. Since no Article
expressly prescribed the limitation to make such
application, the residuary article under Article 137 of
the Schedule to the Limitation Act gets attracted. Thus,
it could be seen that in the absence of any special
period of limitation prescribed by clause (b) of
subsection (3) of Section 18 of the Act, the application
should have been made within three years from the
date of expiry of 90 days prescribed in Section 18(3)
(b) i.e. the date on which cause of action had accrued
to the respondent-claimant. Since the applications had
been admittedly made beyond three years, it was
clearly barred by limitation. Since, the High Court
relied upon the case in Municipal Corporation of
Athani,(1969) IILLJ651SC, which has stood
overruled, the order of the High Court is
unsustainable."
This position is also supported by the reasoning
in Kerala State Electricity Board v. T.P. Kunhaliumma, 1977] 1
SCR 996. It may be seen that under the Central Act sans the
Karnataka amendment there was no right to approach the
principal civil court of original jurisdiction to compel a
reference and no time limit was also fixed for making such an
approach. All that was required of a claimant was to make an
application for reference within six weeks of the award or the
notice of the award, as the case may be. But obviously the
State Legislature thought it necessary to provide a time frame
for the claimant to make his claim for enhanced compensation
and for ensuring an expeditious disposal of the application for
reference by the authority under the Act fixing a time within
which he is to act and conferring an additional right on the
claimant to approach the civil court on satisfying the condition
precedent of having made an application for reference within
110
the time prescribed.
10. A statute can, even while conferring a right, provide also
for a repose. The Limitation Act is not an equitable piece of
legislation but is a statute of repose. The right undoubtedly
available to a litigant becomes unenforceable if the litigant
does not approach the court within the time prescribed. It is in
this context that it has been said that the law is for the diligent.
The law expects a litigant to seek the enforcement of a right
available to him within a reasonable time of the arising of the
cause of action and that reasonable time is reflected by the
various articles of the Limitation Act.”
97. Thus, when we ponder as to the instant case, qua the
re-opening of stale claims under section 24 of the 2013 Act, no
‘Johnny come lately’ can be permitted to assert that he is in
possession (claiming that physical possession has not been taken
away from him), when such assertion has not been made for
decades together. Such claims would not be revived after the person
has slept over them; the courts must not condone sudden
wakefulness from such slumber, especially in relation to claims over
open pieces of land, and even houses/structures, when the person
may have illegally reentered into the possession or may have
committed trespass. Thus, for the aforesaid reasons, such claims
cannot be entertained or adjudicated under section 24 of the 2013
Act.
98. In our considered opinion section 24 cannot be used to revive
111
the dead or stale claims and the matters, which have been
contested up to this Court or even in the High Court having lost the
cases or where reference has been sought for enhancement of the
compensation. Compensation obtained and still it is urged that
physical possession has not been taken from them, such claims
cannot be entertained under the guise of section 24(2). We have
come across the cases in which findings have been recorded that by
which of drawing a Panchnama, possession has been taken, now
again under Section 24(2) it is asserted again that physical
possession is still with them. Such claims cannot be entertained in
view of the previous decisions in which such plea ought to have
been raised and such decisions would operate as res judicata or
constructive res judicata. As either the plea raised is negatived or
such plea ought to have been raised or was not raised in the
previous round of litigation. Section 24 of the Act of 2013 does not
supersede or annul the court’s decision and the provisions cannot
be misused to reassert such claims once over again. Once
Panchnama has been drawn and by way of drawing the Panchnama
physical possession has been taken, the case cannot be reopened
under the guise of section 24 of Act of 2013.
112
99. Section 24 is not intended to come to the aid of those who first
deliberately refuse to accept the compensation, and then indulge in
ill-advised litigation, and often ill-motivated dilatory tactics, for
decades together. On the contrary, the section is intended to help
those who have not been offered or paid the compensation despite it
being the legal obligation of the acquiring body so to do, and/or who
have been illegally deprived of their possession for five years or
more; in both the scenarios, fault/cause not being attributable to
the landowners/claimants.
100. We are of the view that stale or dead claims cannot be the
subject-matter of judicial probing under section 24 of the Act of
2013. The provisions of section 24 do not invalidate those
judgment/orders of the courts where under rights/claims have been
lost/negatived, neither do they revive those rights which have come
barred, either due to inaction or otherwise by operation of law.
Fraudulent and stale claims are not at all to be raised under the
guise of section 24. Misuse of provisions of section 24(2) cannot be
permitted. Protection by the courts in cases of such blatant misuse
of the provisions of law could never have been the intention behind
113
enacting the provisions of section 24 (2) of the 2013 Act; and, by the
decision laid down in Pune Municipal Corporation (supra), and this
Court never, even for a moment, intended that such cases would be
received or entertained by the courts.
IN RE: QUESTION NOS. IV AND V
101. Question Nos. IV and V have been referred to in Yogesh
Neema & Ors. v. State of M.P. & Ors. (supra) by this Court relating to
correctness of the decision in Shree Balaji Nagar Residential
Association v. State of Tamil Nadu (supra) and conscious omission
referred in para 11 of the said judgment makes any substantial
difference to the legal position with regard to the exclusion or
inclusion of the period covered by an interim order of the Court and
applicability of the principle of “actus curiae neminem gravabit” and
its effect on Section 24(3) of Act of 2013.
102. In Yogesh Kumar & Ors. v. State of M.P., this Court has
doubted the correctness of decision in Shree Balaji Nagar
Residential Association (supra) in which this Court has observed:
"11. 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 proceedings might
have remained stayed on account of stay or injunction granted
by any Court. In the same Act, the proviso to Section 19(7) in
114
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 Padma Sundara Rao v. State of T.N.
(2002) 3 SCC 533.
12. 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 I 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 the Explanation to Section
11-A 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 wording 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."
In Shree Balaji (supra) a Division Bench of this Court has
opined that their conscious omission made by the legislature in
section 24(2) of Act, 2013 to exclude the period covered by the
interim order of the Court staying the acquisition proceedings, this
Court has observed that in the Act of 1894 by making amendment
115
of the provisions contained in sections 6 and 11A by providing
extension of period of limitation the period during which interim
order of the court has operated has been excluded. It has not been
so provided in Section 24(2), reference has also been made in Shree
Balaji, to the decision of a 3-Judge Bench of this Court in Union of
India v. Shiv Raj (2014) 6 SCC 564. The Division Bench in Yogesh
Kumar & Ors. v. State of Madhya Pradesh and Ors. while referring
the matter to the larger Bench has observed that in Union of India &
Anr. v. Shiv Raj (supra), there is no view expressed on the question
whether the period during which the award had remained stayed,
should be excluded for the purpose of consideration of the
provisions of section 24(2) of the Act of 1894. A doubt has been
expressed as to the correctness of the decision in Shree Balaji
(supra) on the ground that it is an established principle of law that
the act of court cannot be construed to cause prejudice to any of
the contesting parties in litigation which is expressed in the maxim
‘actus curiae neminem gravabit’.
EFFECT OF INTERIM ORDER OF A COURT
116
103. It was contended on behalf of the landowners that there was
interim stay only with respect to obtaining the possession and not
with respect to payment of compensation. Thus compensation
ought to have been paid. While raising aforesaid submission the
basic concept of acquisition under 1894 Act is ignored and
overlooked as right to receive compensation is a statutory right and
that comes into being only when the Government takes possession
of the property acquired. It is a ‘right in debitum in praesenti’, and
not dependent on the quantum of the compensation, either by the
Land Acquisition Officer under section 11 of the Act or by Court
under section 26 of the Act of 1894. Section 17(1) also provides that
compensation has to be offered when the possession is taken and in
case interim stay on possession is obtained in any litigation or
orders of status quo and or such other order is passed, it is not
open to such persons to contend that they ought to have been paid
the compensation notwithstanding that they have been resisting the
acquisition and taking of possession.
104. In our opinion, when there is interim stay with respect to
possession or order of status quo or stay on further proceedings
etc., there is no justification for authorities to proceed any further
117
with respect to payment of compensation or otherwise as these
obligations are intertwined in the scheme of land acquisition.
Everything stands still till the interim order is vacated. There are
cases also in which we have come across that the High Court in
writ petition has illegally set aside the acquisition on impermissible
reasons and during the pendency of the writ appeal or matter before
this Court, the provisions of Act of 2013 have come into force. Such
matters have to be decided on their own merits and the benefit of
any illegal quashment of land acquisition by the High Court cannot
come in the way of adjudication of the dispute on merits
considering situation when it was filed as Act does not cover cause
of illegal order, in view of the provisions contained in repeal and
saving in section 114 of the Act of 2013 read with and section 6(e)
of the General Clauses Act and no different intention appears in
such matters in view of provisions contained in section 24 of the Act
of 2013.
105(a). In Abhey Ram (Dead) by LRs. & Ors. v. Union of India &
Ors. (1997) 5 SCC 421, this Court considered the extended meaning
of words “stay of the action or proceedings” and referring to various
decisions observed that any type of the orders passed by this Court
118
would be an inhibitive action on the part of the authorities to
proceed further. In said decision this Court has observed thus :
“9. Therefore, the reason given in B.R. Gupta v. U.O.I. and
Ors. 37(1989) DLT 150 are obvious with reference to the
quashing of the publication of the declaration under Section 6
vis-a-vis the writ petitioners therein. The question thus arise
for consideration is: whether the stay obtained by some of the
persons who prohibited the respondents from publication of
the declaration under Section 6 would equally be extendible
to the cases relating to the appellants? We proceed on the
premise that the appellants had not obtained any stay of the
publication of the declaration but since the High Court in
some of the cases has, in fact, prohibited them as extracted
hereinbefore, from publication of the declaration, necessarily,
when the Court has not restricted the declaration in the
impugned orders in support of the petitioners therein, the
officers had to hold back their hands till the matters are
disposed of. In fact, this Court has given extended meaning to
the orders of stay or proceeding in various cases, namely,
Yusufbhai Noormohmed Nendoliya v. State of Gujarat and
Anr. AIR1991SC2153;Hansraj Jain v. State of Maharashtra
and Ors. (1993) 4 JT 360; Sangappa Gurulingappa Sajjan v.
State of Kamataka and Ors. (1994) 4 SCC 145; Gandhi Grah
Nirman Sahkari Samiti Ltd. Etc. Etc. v. State of Rajasthan
and Ors.JT(1993) 3 194; G. Narayanaswamy Reddy (dead) by
Lrs. and Anr. v. Govt. of Karnataka and Anr. JT (1991) 312
and Roshnara Begum Etc. v. U.O.I. and Ors.(1986) 1 apex
Dec 6.The words "stay of the action or proceeding" have been
widely interpreted by this Court and mean that any type of the
orders passed by this Court would be an inhibitive action on
the part of the authorities to proceed further. When the action
of conducting an enquiry under Section 5-A was put in issue
and the declaration under Section 6 was questioned,
necessarily unless the Court holds that enquiry under Section
5-A was properly conducted and the declaration published
under Section 6 to be valid, it would not be open to the
officers to proceed further into the matter. As a consequence,
the stay granted in respect of some would be applicable to
others also who had not obtained stay in that behalf. We are
not concerned with the correctness of the earlier direction
with regard to Section 5-A enquiry and consideration of
119
objections as it was not challenged by the respondent union.
We express no opinion on its correctness, though it is open to
doubt.”
(emphasis supplied)
105(b). In Om Parkash v. Union of India & Ors. (2010) 4 SCC 17,
this Court observed thus :
“72. Thus, in other words, the interim order of stay granted in
one of the matters of the landowners would put complete
restraint on the respondents to have proceeded further to issue
notification under Section 6 of the Act. Had they issued the
said notification during the period when the stay was
operative, then obviously they may have been hauled up for
committing contempt of court. The language employed in the
interim orders of stay is also such that it had completely
restrained the respondents from proceeding further in the
matter by issuing declaration/ notification under Section 6 of
the Act.”
(emphasis supplied)
105(c). In Shiv Raj (supra), it was noted by this Court that there
was stay of dispossession when the writ petition was pending but
this Court passed no interim order. There was no stay for the last 7
years and thereafter respondent took no action in pursuance of the
award. That was also one of the distinguishing features of Shiv Raj’s
case (supra) and it was largely based upon circular issued on the
basis of the opinion of the Solicitor General.
120
105(d). A Three-Judge Bench of this Court in Suresh Chand v.
Gulam Chisti (1990) 1 SCC 593, while referring to Atma Ram Mittal
v. Ishwar Singh Punia (1988) 4 SCC 284, had observed:
"17. It was argued that the words 'commencement of this Act'
should be construed to mean the date on which the
moratorium period expired and the Act became applicable to
the demised buildings. Such a view would require this Court
to give different meanings to the same expression appearing
at two places in the same section. The words 'on the date of
commencement of this Act' in relation to the pendency of the
suit would mean 15th July 1972 as held in Om Prakash Gupta
(supra) but the words 'from such date of commencement'
appearing immediately thereafter in relation to the deposit to
be made would have to be construed as the date of actual
application of the act at a date subsequent to 15th July 1972.
Ordinarily the rule of construction is that the same expression
where it appears more than once in the same statute, more so
in the same provision, must receive the same meaning unless
the context suggests otherwise Besides, such an interpretation
would render the use of prefix 'such' before the word
'commencement' redundant. Thirdly such an interpretation
would run counter to the view taken by this Court in Atma
Ram Mittal's case (supra) wherein it was held that no man can
be made to suffer because of the court's fault or court's delay
in the disposal of the suit. To put it differently if the suit could
be disposed of within the period of ten years, the tenant
would not be entitled to the protection of Section 39 but if the
suit is prolonged beyond ten years the tenant would be
entitled to such protection. Such an interpretation would
encourage the tenant to protract the litigation and if he
succeeds in delaying the disposal of the suit till the expiry of
ten years he would secure the benefit of Section 39, otherwise
not. We are, therefore, of the opinion that it is not possible to
uphold the argument.”
(emphasis supplied)
105(e). A Constitution Bench of this Court in Shyam Sunder &
Ors. v. Ram Kumar & Anr. (2001) 8 SCC 24, held that substantive
121
rights of the parties are to be examined on the date of the suit
unless the legislature makes such rights retrospective. This Court
observed:
“28. From the aforesaid decisions the legal position that
emerges is that when a repeal of an enactment is followed by
a fresh legislation such legislation does not affect the
substantive rights of the parties on the date of suit or
adjudication of suit unless such a legislation is retrospective
and a court of appeal cannot take into consideration a new
law brought into existence after the judgment appealed from
has been rendered because the rights of the parties in an
appeal are determined under the law in force on the date of
suit. However, the position in law would be different in the
matters which relate to procedural law but so far as
substantive rights of parties are concerned they remain
unaffected by the amendment in the enactment. We are,
therefore, of the view that where a repeal of provisions of an
enactment is followed by fresh legislation by an amending
Act such legislation is prospective in operation and does not
affect substantive or vested rights of the parties unless made
retrospective either expressly or by necessary intendment. We
are further of the view that there is a presumption against the
retrospective operation of a statue and further a statute is not
to be construed to have a greater retrospective operation than
its language renders necessary, but an amending act which
affects the procedure is presumed to be retrospective unless
amending act provides otherwise. We have carefully looked
into new substituted section 15 brought in the parent Act by
Amendment Act 1995 but do not find it either expressly or by
necessary implication retrospective in operation which may
affect the right of the parties on the date of adjudication of
suit and the same is required to be taken into consideration by
the appellate Court. In Shanti Devi (Smt) and another vs.
Hukum Chand AIR 1996 SC 3525 this Court had occasion to
interpret the substituted section 15 with which we are
concerned and held that on a plain reading of section 15 it is
clear that it has been introduced prospectively and there is no
question of such section affecting in any manner the judgment
and decree passed in the suit for pre-emption affirmed by the
High Court in the second appeal. We are respectfully in
agreement with the view expressed in the said decision and
122
hold that the substituted Section 15 in the absence of anything
in it to show that it is retrospective, does not affect the right of
the parties which accrued to them on the date of suit or on the
date of passing of the decree by the Court of the first instance.
We are also of the view that present appeals are unaffected by
change in law in so far it related to determination of the
substantive rights of the parties and the same are required to
be decided in light of law of preemption as it existed on the
date of passing of the decree.”
(emphasis supplied)
105(f). In Dau Dayal v. State of Uttar Pradesh, AIR 1959 SC 433,
it was observed that in case complaint has been filed within time
and in case issue of process is permitted by the court, it was held
that it would be an unfortunate state of the law if the trader whose
rights had been infringed and who takes up the matter promptly
before the criminal court, is nevertheless denied redress owing to
the delay in the issue of process which occurs in court. The Court
observed:
“6.It will be noticed that the complainant is required to resort
to the Court within one year of the discovery of the offence if
he is to have the benefit of proceeding under the Act. That
means that if the complaint is presented within one year of
such discovery, the requirements of Section 15 are satisfied.
The period of limitation, it should be remembered, is intended
to operate against the complainant and to ensure diligence on
his part in prosecuting his rights, and not against the Court.
Now, it will defeat the object of the enactment and deprive
traders of the protection which the law intended to give them
if we were to hold that unless process is issued on their
complaint within one year of the discovery of the offence, it
should be thrown out. It will be an unfortunate state of the
law if the trader whose rights had been infringed and who
takes up the matter promptly before the Criminal Court is,
123
nevertheless, denied redress owing to the delay in the issue of
process which occurs in Court.” (emphasis supplied)
105(g). This Court in Sarah Mathew v. Institute of Cardio Vascular
Diseases, (2014) 2 SCC 62, relied upon decision in DauDayal
(supra) and observed:
“29. Section 473 reads as under:
473. Extension of period of limitation in certain cases.
- Notwithstanding anything contained in the foregoing
provisions of this Chapter, any Court may take
cognizance of an offence after the expiry of the period
of limitation, if it is satisfied on the facts and in the
circumstances of the case that the delay has been
properly explained or that it is necessary so to do in the
interests of justice.
37. We are inclined to take this view also because there has to
be some amount of certainty or definiteness in matters of
limitation relating to criminal offences. If, as stated by this
Court, taking cognizance is application of mind by the
Magistrate to the suspected offence, the subjective element
comes in. Whether a Magistrate has taken cognizance or not
will depend on facts and circumstances of each case. A
diligent complainant or the prosecuting agency which
promptly files the complaint or initiates prosecution would be
severely prejudiced if it is held that the relevant point for
computing limitation would be the date on which the
Magistrate takes cognizance. The complainant or the
prosecuting agency would be entirely left at the mercy of the
Magistrate, who may take cognizance after the limitation
period because of several reasons; systemic or otherwise. It
cannot be the intention of the legislature to throw a diligent
complainant out of the court in this manner. Besides it must
be noted that the complainant approaches the court for
redressal of his grievance. He wants action to be taken against
the perpetrators of crime. The courts functioning under the
criminal justice system are created for this purpose. It would
be unreasonable to take a view that delay caused by the court
124
in taking cognizance of a case would deny justice to a diligent
complainant. Such an interpretation of Section 468 of the
Code of Criminal Procedure would be unsustainable and
would render it unconstitutional. It is well settled that a court
of law would interpret a provision which would help
sustaining the validity of the law by applying the doctrine of
reasonable construction rather than applying a doctrine which
would make the provision unsustainable and ultra vires the
Constitution. (U.P. Power Corporation Ltd. v. Ayodhaya
Prasad Mishra).”
(emphasis supplied)
106. When once the court has restrained the State authorities to
take possession, or to maintain status quo they cannot pay the
amount or do anything further, as such the consequences of
interim orders cannot be used against the State. It is basic principle
that when a party is disabled to perform a duty and it is not
possible for him to perform a duty, is a good excuse. It is a settled
proposition that one cannot be permitted to take advantage of his
own wrong. The doctrine “commodum ex-injuria sua Nemo
habere debet" means convenience cannot accrue to a party from
his own wrong. No person ought to have advantage of his own
wrong. A litigant may be right or wrong. Normally merit of lis is to
be seen on date of institution. One cannot be permitted to obtain
unjust injunction or stay orders and take advantage of own actions.
Law intends to give redress to the just causes; at the same time, it
125
is not its policy to foment litigation and enable to reap the fruits
owing to the delay caused by unscrupulous persons by their own
actions by misusing the process of law and dilatory tactics.
107. In Suresh Chandra v. Gulam Chisti (supra), it has been laid
down that no man can be made to suffer because of court's faults or
court's delay in disposal of suits. It was held that in case it could
not be the argument that if the suit prolonged beyond 10 years,
tenant would be entitled to protection and if disposed of within 10
years, tenant would not be entitled to the protection. The argument
on the rights based on gains of delay of litigation was rejected and
such party could not take the benefit of change in law.
CASUS OMISSUS:
108. It was urged that there was casus omissus while not excluding
the period of interim stay in the provisions of section 24. While
Parliamentary Committee discussed the matter, Delhi Government
has put forward its case that the period spent during the stay
should be excluded and such provision be inserted in section 24.
Later on, by way of Ordinance it was to be incorporated as the
second proviso, the Ordinance has lapsed. It was also urged that it
126
is a case of casus omissus as wherever the legislature wanted
exclusion of stay period in section 19(7) of the Act of 2013, specific
provision has been made for exclusion of the period spent during
the currency of stay and injunction order. Section 19 of the new Act
corresponds to section 6 of the Act of 1894. It was also urged that
there is also a provision made in the Explanation appended to
section 69(2) to exclude the period spent during the
stay/injunction. Section 69 deals with determination of amount of
compensation to be awarded and interest thereupon.
109. We have gone through the Minutes of the Parliamentary
Committee; it has simply noted the views of the concerned
Government/authorities. The report of the Standing Committee on
rural development simply mentions in the recommendations that
the Committee would like the Government to re-examine the issue
as the acquisition, which has been made, should not lapse.
Committee has noted the suggestions. Whether it was necessary to
incorporate such a provision was not gone into by the Committee.
Its recommendation is bald. Though the Ordinance had been
promulgated, the second proviso was to be added for exclusion of
the time of stay. Proviso also wanted to validate deposit in treasury
127
to remove the basis of decision of Pune Municipal Corporation
(supra). That would not mean that in the absence of addition of
proviso, the actual legal position could be ignored. The position of
law discussed by us makes it clear that it cannot be said to be a
casus omissus and merely because certain provisions have been
made in sections 19 and 69 excluding the period of stay, it would
not mean that in the provisions of section 24, there is casus
omissus it is not to be readily inferred. In the provisions contained
in section 19 of the Act of 2013 there is prescription of the period of
limitation in which a declaration has to be issued, it was equivalent
to section 6 of the Act of 1894, as such the provision of exclusion
has been made alike the previous provision, so also in section 69.
Section 24 as couched did not contemplate providing cover to the
litigation and its fruits to be reaped. The absence of provision for
excluding the period of stay/ injunction of a Court order does not at
all affect the provision of section 24(2) of the Act of 2013. It
intended that authority should not keep pending acquisition due to
laxity on their part for five years or more. It never intended to apply
in case they were not able to perform obligation due to court order
or conduct of landowners. Obviously the legal provisions have to be
128
interpreted in the light of the settled principles of common law
unless they are excluded, and in case a person is litigating for
several decades, non-acceptance of compensation and questioning
the acquisition, cannot be permitted to ask for compensation or
claim lapse under 2013 Act.
110. In Shivraj (supra), this court did not consider the question of
exclusion of the time. In Karnail Kaur (supra), and in Balaji Nagar
Residential Association (supra), various aspects, having a bearing on
the issue, were not considered. Thus, they cannot be said to be
laying down the correct law.
111. The landowners placed reliance on a decision of this Court,
rendered in Padma Sundara Rao (Dead) & Ors. v. State of Tamil
Nadu & Ors., (2002) 3 SCC 533, in which this court considered
casus omissus and observed:
“12. The rival pleas regarding re-writing of statute and casus
omissus need careful consideration. It is well settled principle
in law that the Court cannot read anything into a statutory
provision which is plain and unambiguous. A statute is an
edict of the legislature. The language employed in a statute is
the determinative factor of legislative intent. The first and
primary rule of construction is that the intention of the
Legislation must be found in the words used by the
Legislature itself. The question is not what may be supposed
and has been intended but what has been said. "Statutes
should be construed not as theorems of Euclid". Judge
129
Learned Hand said, "but words must be construed with some
imagination of the purposes which lie behind them". (See
Lehigh Valley Coal Co. v. Yensavage 218 FR 547). The view
was reiterated in Union of India and Ors. v. Filip Tiago De
Gama of Vedem Vasco De Gama (1990)1SCC277 .
13. In Dr. R. Venkatchalam and Ors. etc. v. Dv. Transport
Commissioner and Ors. etc. [1977] 2 SCR 392 it was
observed that Courts must avoid the danger of apriority
determination of the meaning of a provision based on their
own pre-conceived notions of ideological structure or scheme
into which the provision to be interpreted is somewhat fitted.
They are not entitled to usurp legislative function under the
disguise of interpretation.
14. While interpreting a provision the Court only interprets
the law and cannot legislate it. If a provision of law is
misused and subjected to the abuse of process of law, it is for
the legislature to amend, modify or repeal it, if deemed
necessary.
[See Rishabh Agro Industries Ltd. v. P.N.B Capital Services
Ltd. (2000)5SCC515 ]. The legislative casus omissus cannot
be supplied by judicial interpretative process. Language of
Section 6(1) is plain and unambiguous. There is no scope for
reading something into it, as was done in Narasimhaiah's case
(supra). In Nanjudaiah's case (supra), the period was further
stretched to have the time period run from date of service of
High Court's order. Such a view cannot reconciled with the
language of Section 6(1). If the view is accepted it would
mean that a case can be covered by not only Clauses (i)
and/or (ii) of the proviso to Section 6(1), but also by a
non-prescribed period. Same can never be the legislative
intent.
15. Two principles of construction - one relating to casus
omissus and the other in regard to reading the statute as a
whole - appear to be well settled. Under the first principle a
casus omissus cannot be supplied by the Court except in the
case of clear necessity and when reason for it is found in the
four corners of the statute itself but at the same time a casus
omissus should not be readily inferred and for that purpose all
the parts of a statute or section must be construed together
130
and every clause of a section should be construed with
reference to the context and other clauses thereof so that the
construction to be put on a particular provision makes a
consistent enactment of the whole statute.
This would be more so if literal construction of a
particular clause leads to manifestly absurd or anomalous
results which could not have been intended by the
Legislature. "An intention to produce an unreasonable result",
said Danckwerts, L.J., in Artemiou v. Procopiou (1966 1 QB
878), "is not to be imputed to a statute if there is some other
construction available". Where to apply words literally would
"defeat the obvious intention of the legislation and produce a
wholly unreasonable result" we must "do some violence to
the words" and so achieve that obvious intention and produce
a rational construction. [Per Lord Reid in Luke v. I.R.C. 1966
AC 557 where at p. 577 he also observed: "this is not a new
problem, though our standard of drafting is such that it rarely
emerges".]
16. The plea relating to applicability of the stare decisis
principles is clearly unacceptable. The decision in K.
Chinnathambi Gounder (supra) was rendered on 22.6.1979
i.e. much prior to the amendment by 1984 Act. If the
Legislature intended to give a new lease of life in those cases
where the declaration under Section 6 is quashed, there is no
reason why it could not have done so by specifically
providing for it. The fact that legislature specifically provided
for periods covered by orders of stay or injunction clearly
shows that no other period was intended to be excluded and
that there is no scope for providing any other period of
limitation. The maxim 'actus curiae neminem gravabit'
highlighted by the Full Bench of the Madras High Court has
no application to the fact situation of this case.
17. The view expressed in Narasimhaiah's case (supra) and
Nanjudaiah's case (supra), is not correct and is over-ruled
while that expressed in A.S. Naidu's case (supra) and Oxford's
case (supra) is affirmed.”
In Padma Sundara Rao (supra), this court considered the
period of limitation for issuance of declaration under section 6 of
131
the Act of 1894. It was observed that the language of section 6 was
plain and unambiguous; there was no scope for reading something
into it, as had been done in N. Narasimhaiah v. State of Karnataka,
(1996) 3 SCC 88. In State of Karnataka v. D.C. Nanjudaiah, (1996)
10 SCC 619, the period had been stretched further, so as to have
the time period run from date of service of the High Court’s order.
This Court, in Padma SundaraRao (supra), held that such a view
could not be reconciled with the language of section 6(1), and in
this regard, further observed, that explanation to section 6 excluded
only that period during which any action or proceeding, initiated in
pursuance of the notification issued under section 4 (1), had been
stayed by an order of a court. When the legislature has specifically
provided for the periods covered by the order of stay and injunction,
the Court observed no other period could be said to be intended to
be excluded, by providing time period to run from date of service of
the High Court’s order; in that, it was not open to the court to add
to that period.
112. The question for consideration in Padma Sunder Rao (supra)
was entirely different from what we are concerned with. In the
instant case, the question is not of the exclusion of period, but is of
132
the application of the Common Law maxims, and of what it is that
section 24 of the Act of 2013 intends; the issue before us is not as
to add to the period of limitation, with which the Court in the case
of Padma Sunder Rao (supra) was concerned. Thus, the ratio of the
said decision has a different field to operate on, and consequently,
renders no support to the submission raised on behalf of the
landowners.
113. Reliance has been placed by land owners in Rana Girders Ltd.
v. Union of India (2013) 10 SCC 746 which is relied upon in Union of
India v. Sicom Limited & Ors. (2009) 2 SCC 121. This court has
observed that the statutory provision would prevail upon the
common law principles thus:
“9. Generally, the rights of the crown to recover the debt
would prevail over the right of a subject. Crown debt means
the debts due to the State or the king; debts which a
prerogative entitles the Crown to claim priority for before all
other creditors. [See Advanced Law Lexicon by P. Ramanatha
Aiyar (3rd Edn.) p. 1147]. Such creditors, however, must be
held to mean unsecured creditors. Principle of Crown debt as
such pertains to the common law principle. A common law
which is a law within the meaning of Article 13 of the
Constitution is saved in terms of Article 372 thereof. Those
principles of common law, thus, which were existing at the
time of coming into force of the Constitution of India are
saved by reason of the aforementioned provision. A debt
which is secured or which by reason of the provisions of a
statute becomes the first charge over the property having
regard to the plain meaning of Article 372 of the Constitution
of India must be held to prevail over the Crown debt which is
133
an unsecured one.
10. It is trite that when a Parliament or State Legislature
makes an enactment, the same would prevail over the
common law. Thus, the common law principle which was
existing on the date of coming into force of the Constitution
of India must yield to a statutory provision. To achieve the
same purpose, the Parliament as also the State Legislatures
inserted provisions in various statutes, some of which have
been referred to hereinbefore providing that the statutory dues
shall be the first charge over the properties of the tax-payer.
This aspect of the matter has been considered by this Court in
a series of judgments.” (Emphasis supplied)
114. There is no dispute with the aforesaid proposition; and, in our
opinion, the statutory provisions, contained in section 24 of the Act
of 2013, do not exclude the principles of common law which we
have held applicable. The principles that can be excluded are only
those in respect to which, provision has been made in the statute
itself or the applicability is ousted by implication.
115. The afore-extracted observations in respect of the principle of
interpretation that if something is expressed in a provision,
anything contrary is impliedly excluded, are themselves based on
the maxim "expressio unius est exclusio alterius". This maxim
has been held to have limit of operation and is not of universal
application in Mary Angel v. State of Tamil Nadu (1999) 5 SCC 209.
Thus, mere fact that in some of the provisions there is a mention
134
about period of stay being excluded, cannot be taken to be
conclusive that in other provisions with respect to the effect of stay
not to be considered or common law maxims have no applicability
in the context of Section 24(2) of the 2013 Act. The Court in Mary
Angel has observed :
“19. Further, for the rule of interpretation on the basis of the
maxim "expressio unius est exclusio alterius", it has been
considered in the decision rendered by the Queen's Bench in
the case of Dean v. Wiesengrund (1955) 2 QBD 120. The
Court considered the said maxim and held that after all it is
more than an aid to construction and has little, if any, weight
where it is possible, to account for the "exclusiounius" on
grounds other than intention to effect the "exclusioalterius".
Thereafter, the Court referred to the following passage from
the case of Colquhoon v. Brooks (1887) 19 QBD 400 wherein
the Court called for its approval-"the maxim"
'expressiouniusestexclusioalterius' has been pressed upon us. I
agree with what is said in the Court below by Wills J, about
this maxim. It is often a valuable servant, but a dangerous
master to follow in the construction of statutes of documents.
The exclusio is often the result of inadvertence or accident,
and the maxim ought not to be applied, when its application
having regard to the subject matter to which it is to be
applied, leads to inconsistency or injustice. In my opinion, the
application of the maxim here would lead to inconsistency
and injustice, and would make Section 14(1) of the Act of
1920 uncertain and capricious in its operation."(emphasis
supplied)
116. In Assistant A.C.E., Calcutta versus National Tobacco Co. Ltd. of
India Ltd, (1972) 2 SCC 560, it was held:
“30. The question whether there was or was not an implied
power to hold an enquiry in the circumstances of the case
before us, in view of the provisions of Section 4 of the Act
135
read with Rule 10-A of the Central Excise Rule, was not
examined by the Calcutta High Court because it erroneously
shut out consideration of the meaning and applicability of
Rule 10A. The High Court's view was based on an application
of the rule of construction that where a mode of performing a
duty is laid down by law it must be performed in that mode or
not at all. This rule flows from the maxim : "Expressio unius
est exclusion alterius." But, as we pointed out by Wills, J., in
Colquohoun v. Brooks (1888) 2 1. Q.B. D. 52 this maxim "is
often a valuable servant, but a dangerous master ...." The rule
is subservient to the basic principle that Courts must
endeavour to ascertain the legislative intent and purpose, and
then adopt a rule of construction which effectuates rather than
one that may defeat these. Moreover the rule of prohibition by
necessary implication could be applied only where a specified
procedure is laid down for the performance of a duty.
Although Rule 52 makes an assessment obligatory before
goods are removed by a manufacturer, yet, neither that rule
nor any other, rule, as already indicated above, has specified
the detailed procedure for an assessment. There is no express
prohibition anywhere against an assessment at any other time
in the circumstances of a case like the one before us where no
"assessment", as it is understood in Jaw, took place at all. On
the other hand, Rule 10A indicates that there are residuary
powers of making a demand in special circumstances not
foreseen by the framers of the Act or the rules. If the assessee
disputes the correctness of the demand an assessment
becomes necessary to protect the interests of the assessee. A
case like the one before us falls more properly within the
residuary class of unforeseen cases. We think that, from the
provisions of Section 4 of the Act read with Rule 10A, an
implied power to carry out or complete an assessment, not
specifically provided for by the rules, can be inferred. No
writs of prohibition or mandamus were, therefore, called for
in the circumstances of the case.”
Thus, the Common Law principles, as discussed by us, cannot
be ousted, to do complete justice to parties and to prevent
miscarriage of justice, within purview of section 24 of the Act of
2013.
136
DOCTRINE OF IMPOSSIBILITY
117. In several cases it is often seen that the landowners are not
ready to accept the compensation even though they have been
offered the same; they have either refused to accept or have filed
writ applications questioning the land acquisitions. Further, it is
also observed, that repeatedly, successive writ applications have
also been filed by the persons who have purchased the property
after issuance of notification under section 4 and, in some
instances, even after passing of the award, possession taken and
when the land has absolutely vested in the State Government, that
such persons are calling into question the land acquisition. We
have come across several cases when the challenges to acquisition
have been negatived right up to this court but, undeterred by the
same, fresh round of litigation is, thereafter, started again, with the
cause again being agitated either by the same persons or by some
other such purchasers. It has come to our notice that now, after the
coming into force of the Act of 2013, unsavory attempts are being
made to grossly misuse the process of law by moving such
petitions, and asserting therein that though they themselves might
137
not have accepted the compensation, and have refused to accept
the same, but, since it has ‘not been paid to them’, by making
deposit in court, or they have remained in the actual possession of
the land, though Panchnama of taking possession might have been
drawn, as such, land acquisition has lapsed. The aforementioned
assertions are being made; notwithstanding even earlier judicial
finding that possession had been taken by drawing Panchnama etc.
If section 24 is interpreted in the method and manner so as to
reopen all the cases, notwithstanding the fact that the land owners,
or as the case may be their successors-in-interest are themselves
responsible for not accepting or illegally refusing to accept the
compensation, or that they have, in an illegal manner, re-entered
into possession of land, then it becomes, and it has, in fact,
become, virtually impossible for the State Governments to save and
carry into effect the much-needed acquisition of the land, at the
cost of public interest, leaving it with no viable legal defense with
which to save the acquisition in such proceedings made decades
before.
118. Shri Patwalia has pressed into service the doctrine of ‘lax
non cogit ad impossibilia’ and has urged us to consider the scope
138
and application of the same. He argued that a law does not expect
the State authorities to do what cannot possibly be performed by
owing to the adamant attitude and conduct of such landowners; it
is a settled proposition of law that law does not expect a party to do
the impossible. It was urged that the maxim ‘impossibilium
nullaobligatio est’ would come to the rescue of State authorities in
such cases. The doctrine has been dealt with by this Court in
Chander Kishore Jha v. Mahabir Prasad (1999) 8 SCC 266 thus:
“13. In our opinion insofar as an election petition is
concerned, proper presentation of an election petition in the
Patna High Court can only be made in the manner prescribed
by Rule 6 of Chapter XXI-E. No other mode of presentation
of an election petition is envisaged under the Act or the Rules
thereunder and therefore, an election petition could, under no
circumstances, be presented to the Registrar to save the
period of limitation. It is a well-settled salutary principle that
if a statute provides for a thing to be done in a particular
manner, then it has to be done in that manner and in no other
manner. [See with advantage: Nazir Ahmad v. King Emperor;
Rao Shiv Bahadur Singh and Anr. v. State of Vindhya Pradesh
1954 CriLJ 910 State of Uttar Pradesh v. Singhara Singh and
Ors. [1964] 4 SCR 485. An election petition under the Rules
could only have been presented in the open Court upto
16.5.1995 till 4.15 P.M. (working hours of the Court) in the
manner prescribed by Rule 6 (supra) either to the Judge or the
Bench as the case may be to save the period of limitation.
That, however, was not done. However, we cannot ignore that
the situation in the present case was not of the making of the
appellant. Neither the designated election Judge before whom
the election petition could be formally presented in the open
Court nor the Bench hearing civil applications and motions
was admittedly available on 16.5.1995 after 3.15 P.M., after
the Obituary Reference since admittedly the Chief Justice of
the High Court had declared that "the Court shall not sit for
the rest of the day" after 3.15 P.M. Law does not expect a
139
party to do the impossible-Impossible nulla obligation est--As
in the instant case, the election petition could not be filed on
16.5.1995 during the Court hours, as far all intent and
purposes, the Court was closed on 16.5.1995 after 3.15 P.M.”
119. In Mohd Gazi v. State of Madhya Pradesh (2000) 4 SCC 342
this court has laid down thus:
“6. In the facts and circumstances of the case the maxim of
equity, namely, actus curiae neminem gravabit - an act of the
Court shall prejudice no man, shall be applicable. This maxim
is founded upon justice and good sense which serves a safe
and certain guide for the administration of law. The other
maxim is, lex non cogit ad impossibilia - the law does not
compel a man to do which he cannot possibly perform. The
law itself and its administration is understood to disclaim as it
does in its general aphorisms, all intention of compelling
impossibilities, and the administration of law must adopt that
general exception in the consideration of particular cases. The
applicability of the aforesaid maxims has been approved by
this Court in Raj Kumar Day and Ors. v. Tarapada Day and
Ors. [1988] 1 SCR 118 and Gursharan Singh and Ors. v.
NDMC and Ors. [1996] 1 SCR 1154.”
120. Shri Patwalia has also pressed into service the maxim of
Roman Law namely, ‘Nemo Tenetur ad Impossibilia’ (no one is
bound to do an impossibility). Claimants/ landowners are filing
successive applications/ litigations for obtaining interim stay that
has been granted. There is no way to make them ready to accept
the compensation as once they accept the compensation their right
to question the acquisition would stand wiped off. They could not
even claim higher compensation in Reference Court, in case they
140
accept the compensation without protest. It is only after accepting
the compensation under protest that they can seek reference under
section 18 of the Act of 1894.
121. Learned Counsel has relied upon decision in Industrial Finance
Corporation of India Ltd. v. Cannanore Spinning and Weaving Mills
Ltd. (2002) 5 SCC 54 in which the Court observed:
“30. The Latin Maxim referred to the English judgment "lax
non cogit ad impossibilia" also expressed as "impotentia
excusat legem" in common English acceptation means, the
law does not compel a man to do that which he cannot
possibly perform. There ought always thus to be an invincible
disability to perform the obligation and the same is akin to the
Roman Maxim "nemo tenetur ad impossibilia" In Broom's
Legal Maxims the state of the situation has been described as
below:-
"It is, then, a general rule which admits of ample
practical illustration, that impotentiaexcusatlegem;
where the law creates a duty or charge, and the party is
disabled to perform it, without any default in him, and
has no remedy over, there the law will in general
excuse him (t) : and though impossibility of
performance is, in general, no excuse for not
performing an obligation which a party has expressly
undertaken by contract, yet when the obligation is one
implied by law, impossibility of performance is a good
excuse. Thus in a case in which consignees of a
cargo were prevented from unloading a ship
promptly by reason of a dock strike, the Court, after
holding that in the absence of an express agreement to
unload in a specified time there was implied obligation
to unload within a reasonable time, held that the
maxim lax non cogit ad impossibilia applied, and
Lindley, L.J., said: "We have to do with implied
obligations, and I am not aware of any case in which
an obligation to pay damages is ever cast by
141
implication upon a person for not doing that which is
rendered impossible by causes beyond his control".
(emphasis supplied)
122. In HUDA v. Babeswar Kanhar (2005) 1 SCC 191 this court has
held:
“5. What is stipulated in Clause-4 of the letter dated
30.10.2001 is a communication regarding refusal to accept
the allotment. This was done on 28.11.2001. Respondent No.
1 cannot be put to loss for the closure of the office of HUDA
on 01.12.2001 and 02.12.2001 and the postal holiday on
30.11.2001. In fact he had no control over these matters. Even
the logic of Section 10 of the General Clauses Act, 1897 can
be pressed into service. Apart from the said Section and
various provisions in various other Acts, there is the general
principle that a party prevented from doing an act by some
circumstances beyond his control, can do so at the first
subsequent opportunity (see Sambasiva Chari v. Ramaswami
Reddi (1898) (8) Madras Law Journal 265). The underlying
object of the principle is to enable a person to do what he
could have done on a holiday, on the next working day.
Where, therefore, a period is prescribed for the performance
of an act in a court or office, and that period expires on a
holiday, then the act should be considered to have been done
within that period if it is done on the next day on which the
court or office is open. The reason is that law does not compel
the performance of an impossibility. (See Hossein Ally v.
Donzelle) ILR 5 Cal 906. Every consideration of justice and
expediency would require that the accepted principle which
underlies Section 10 of the General Clauses Act should be
applied in cases where it does not otherwise in terms apply.
The principles underlying are lex non cogit ad impossibilia
(the law does not compel a man to do the impossible) and
actus curiae neminem gravabit (the act of Court shall
prejudice no man). Above being the position, there is nothing
infirm in the orders passed by the Forums below. However,
the rate of interest fixed appears to be slightly on the higher
side and is reduced to 9% to be paid with effect from
03.12.2001, i.e., the date on which the letter was received by
HUDA.”
(emphasis supplied)
142
123. In Re: Presidential Poll, (1974) 2 SCC 33 this court has
observed:
“…………
(v) The maxim of law impotentia excusat legem is intimately
connected with another maxim of law lex non cogit ad
impossibilia. Impotentia excusat legem is that when there is a
necessary or invincible disability to perform the mandatory
part of the law that impotentia excuses, The law does not
compel one to do that which one cannot possibly perform.
"Where the law creates a duty or charge, and the party is
disabled to perform it, without any default in him, and has no
remedy over it, there the law will in general excuse him."
Therefore, when it appears that the performance of the
formalities prescribed by a statute has been rendered
impossible by circumstances over which the persons
interested had no control, like the act of God, the
circumstances will be taken as a valid excuse. Where the act
of God prevents the compliance of the words of a statute, the
statutory provision is not denuded of its mandatory character
because of supervening impossibility caused by the act of
God. (Sec Broom's Legal Maxims 10th Edition at pp.
1962-63 and Craies on Statute Law 6th Ed. p. 268)”.
(emphasis supplied)
124. In Standard Chartered Bank v. Directorate of Enforcement, AIR
2005 (2) SC 2622, this court held that there is an acceptable legal
maxim that law does not compel a man to do that which cannot
possibly be performed “impotentia excusat legem”. Basic
principle of law is that law compels no impossibility. It was urged
that in case the landowners create such circumstances, which
143
renders impossible performance of the statutorily prescribed
formalities, such landowners couldn’t take advantage of their own
act or wrong.
125. In our opinion, the maxims regarding the impossibility of
performance of an act may not be strictly applicable, as acts, under
section 31 or 24, were capable of being performed but authorities
were disabled to perform them as no fault on their part. However,
the effect of Court orders, or the conduct of the
landowners/claimants/ beneficiaries, is required to be considered,
it was not an ‘impossibility’ to perform the acts in question by their
very nature but the aforesaid aspect is relevant and underlying
principle of inability to perform has to be considered in the
backdrop of fact whether it was in the control or capacity of
authority to perform actions which were possible to be performed
but when it was not possible to perform or were incapacitated to
perform. In such event person responsible for interdicting cannot
ask him to be put in advantageous position for non-compliance of
an act, which possibly would have been performed, but for such
action.
144
The maxim “nullus commodum capere potest de injuria
sua propria” i.e. ‘No man can take advantage of his own wrong’.
126. The author Broom, in Legal Maxims, has discussed the
maxim, and observed:
“Tender: Again, where a creditor refuses a tender sufficient in
amount, and duly made, he cannot afterwards, for purposes of
oppression or extortion, avail himself of such refusal; for,
although the debtor still remains liable to pay whenever
required so to do, yet the tender operates in bar of any claim
for damages and interest for not paying or for detaining the
debt, and also of the costs of an action brought to recover the
demand (y).”
A “tender” of the amount to be paid operates as a bar upon
any claim for damages and interest.
127. Thus, in the context of the factual and legal scenario of the
land acquisition proceedings, and of the conduct of the
landowners/claimants, with which we are presently concerned,
when once “tender” of the amount had been made, in any of the
prescribed modes, which met with refusal to accept it and/or by the
conduct of indulging in incessant litigation which, in some
instances, culminated into a stay/interim order, the party which
thus refused to accept the amount, indulging instead in the ‘theater
145
of the absurd’, cannot turn around and contend that the other
party should now be visited with the penalty for non-payment. The
author Broom, in regard to the maxim, has remarked thus:
“Further, we may remark that the maxim which precludes a
man from taking advantage of his own wrong is, in principle,
closely allied to the maxim, ex dolo malo non oritur action,
which is likewise of general application, and will be treated of
hereafter in Chapter IX. The latter maxim is, indeed,
included in that above noticed; for it is clear, that since a man
cannot be permitted to take advantage of his own wrong, he
will not be allowed to found a claim upon his own iniquity:
nemo ex proprio dolo consequitur actionem; and, as before
observed, frustra legis auxilium quaerit qui in legem
committit (g)”
DOCTRINE OF ACTUS CURIAE NEMINEM GRAVABIT.
128. Coupled with aforesaid maxim we have to consider
applicability of maxim ‘actus curiae neminem gravabit’ to the
question.
In the book titled “Selection of Legal Maxims” by Herbert
Broom, the author about the said maxim has observed:
“This maxim “is founded upon justice and good sense;
and affords a safe and certain guide for the
administration of the law” (b). In virtue of it, where a
case stands over for argument on account of the
multiplicity of business in the Court, or for judgment
from the intricacy of the question, the party ought not
to be prejudiced by that delay, but should be allowed
to enter up his judgment retrospectively to meet the
justice of the case (c); and, therefore, if one party to an
action die during a curia advisari vult, judgment may
be entered nunc pro tunc, for the delay is the act of the
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Court, for which neither party should suffer(d).”
129. It is settled proposition of law that no litigant can derive the
benefit of pendency of a case in a court of law. In case any interim
order is passed during the pendency of litigation it merges in the
final order. In case the case is dismissed the interim order passed
during its pendency is nullified automatically. It is also settled that
a party cannot be allowed to take benefit of his own wrong as
‘commodum ex injuria sua nemo habere debet’ i.e. convenience
cannot accrue to a party from his own wrong. “No person ought to
have advantage of his own wrong.” In case litigation has been filed
without any basis and interim order is passed it would be giving
illegal benefit or wrongful gain for filing untenable claim. This Court
in Mrutunjay Pan v. Narmada Bala Sasmal & Anr. AIR 1961 SC 1353
has observed :
“…….The following three conditions shall be satisfied before
S.90 of the Indian Trusts Act can be applied to a case: (1) the
mortgage shall avail himself of his position as mortgagee; (2)
he shall gain an advantage; and (3) the gaining should be in
derogation of the right of the other persons interested in the
property. The section, read with illustration ©, clearly lays
down that where an obligation is cast on the mortgagee and in
breach of the said obligation he purchases the property for
himself, he stands in a fiduciary relationship in respect of the
property so purchased for the benefit of the owner of the
property. This is only another illustration of the well-settled
principle that a trustee ought not to be permitted to make a
profit out of the trust. The same principle is comprised in the
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latin maxim commodum convenience cannot accrue to a party
from his own wrong. To put it in other words, no one can be
allowed to benefit from his own wrongful act……..”
(emphasis supplied)
130. It was submitted on behalf of the landowners that once the
court finds prima facie case and interim order is granted, the
litigant couldn’t be said to be at fault. A merit ultimately examined
finally in the case and is found to be meritless. In such
circumstances the maxim ‘actus curiae neminem gravabit’ comes
to the rescue of the opposite party who has suffered due to interim
order and was unable to take steps. The principle that the act of the
court shall prejudice no one is clearly applicable in such a case. The
court is under an obligation to undo a wrong done to a party by the
act of the court and to make restitution under inherent powers.
Thus any undeserved or unfair advantage gained by a party
invoking the jurisdiction of the court must be neutralized, as
institution of litigation cannot be permitted to confer any advantage
on a suitor from the delayed action by the act of the court. Nor it
was so contemplated by Section 24 of Act of 2013. It is not the
policy of law that those who are litigating, obtained interim orders
though ultimately their claim may not be tenable. Gain due to
delay or tainted act is not permissible and sufferance of person who
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has abided by law is not permissible. The provisions of section 24
aim only at expeditious disposal of acquisition authorities, lethargy
of authorities for five years or more is not tolerated by legislature
the provision does not provide cover or protect such situation of
pendency at litigation and does not confer rights on litigants.
131(a). This Court in GTC Industries Ltd. v. Union of India (1998)
3 SCC 376 has observed that while vacating stay it is court’s duty
to account for the period of delay and to settle equities, the court
observed:
“16. Section 11AA of the Central Excises and Salt Act, 1944
was added on 26th of May, 1995 by the Finance Act, 1995.
This section provides, inter alia, for interest on delayed
payment of duty. Where a person chargeable with duty
determined under sub-section (2) of Section 11A fails to pay
such duty within three months from the date of such
determination, he shall pay, in addition to the duty, interest at
such rate not below 10% and not exceeding 30% per annum as
is for the time being fixed by the board on such duty from the
date immediately after the expiry of the said period of three
months till the date of payment of such duty. Prior to the
insertion of Section 11AA, there was no specific provision in
the Central Excises and Salt Act, 1944 under which the
department could recover interest on delayed payment of duty.
But this Court had, in suitable cases, directed payment of
interest. Two such decisions have been brought to our notice.
In the case of KashyapZip Ind vs. Union of India & Ors. 1993
(64) ELT 161(SC), the recovery of disputed duty had been
stayed by an interim order of the High Court in the writ
petition. While dismissing the writ petition and revoking the
Stay order, the High Court directed the appellant to pay
interest at 17.5% per annum from the date of the order of Stay
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till recovery. This Court reduced the rate of interest to 12% per
annum and on the facts and circumstances directed that this
amount should be recovered from 1st of January, 1985 till
payment, this being the year in which the matter was Finally
decided by this Court as a result of which the writ petition
came to be dismissed by the High Court.” (emphasis supplied)
131(b). This Court in Jaipur Municipal Corpn. v. C.L. Mishra
(2005) 8 SCC 423 has observed that interim order merges in final
order, it cannot have independent existence, cannot survive beyond
is. Thus, no benefit of interim order can be taken.
131(c). This Court in Ram Krishna Verma v. State of U.P. (1992) 2
SCC 620, relying upon earlier decision in Grindlays Bank Ltd. v.
Income Tax Officer, Calcutta (1980) 2 SCC 191, held that no one can
suffer from the act of the court and in case an interim order has
been passed and petitioner takes advantage thereof and ultimately
petition is found to be without merit and is dismissed, the interest
of justice requires that any undeserved or unfair advantage gained
by a party invoking the jurisdiction of the court must be
neutralized.
131(d). This Court in Mahadeo Savlaram Shelke v. Pune
Municipal Corporation (1995) 3 SCC 33 has observed that the court
can under inherent jurisdiction ‘ex debito justitiae’ has a duty to
150
mitigate the damage suffered by the defendants by the act of the
court. Such action is necessary to put a check on abuse of process
of court.
131(e). In Amarjeet Singh v. Devi Ratan & Ors. (2010) 1 SCC 417
this Court in Ramakrishna Verma has held that no person can
suffer from the act of court and unfair advantage of interim order
must be neutralized, the court observed:
“In Ram Krishna Verma v. State of U.P., this Court examined
the similar issue while placing reliance upon its earlier
judgment in Grindlays Bank Ltd. v. ITO, (1980) 2 SCC 191,
and held that no person can suffer from the act of the Court
and in case an interim order has been passed and the Petitioner
takes advantage thereof and ultimately the petition is found to
be without any merit and is dismissed, the interest of justice
requires that any underserved or unfair advantage gained by a
party invoking the jurisdiction of the Court must be
neutralized.”
(emphasis supplied)
131(f). This Court has considered the maxim of ‘actus curiae
neminem gravabit’ in Karnataka Rare Earth & Anr. v. Senior
Geologist, Department of Mines & Geology & Anr. (2004) 2 SCC 783,
it was emphasized that parties should be placed in the same
position they would have been but for courts order and observed :
“10. ….the doctrine of actus curiae neminem gravabit and
held that the doctrine was not confined in its application only
to such acts of the Court which were erroneous; the doctrine is
applicable to all such acts as to which it can be held that the
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Court would not have so acted had it been correctly apprised
of the facts and the law. It is the principle of restitution which
is attracted. When on account of an act of the party, persuading
the Court to pass an order, which at the end is held as not
sustainable, has resulted in one party gaining advantage which
it would not have otherwise earned, or the other party has
suffered an improvement which it would not have suffered but
for the order of the Court and the act of such party, then the
successful party finally held entitled to a relief, assessable in
terms of money at the end of the litigation, is entitled to be
compensated in the same manner in which the parties would
have been if the interim order of the Court would not have
been passed. The successful party can demand (a) the delivery
of benefit earned by the opposite party under the interim order
of the Court, or (b) to make restitution for what it has lost.
11. In the facts of this case, in spite of the judgment of the
High Court, if the appellants would not have persuaded this
Court to pass the interim orders, they would not have been
entitled to operate the mining leases and to raise and remove
and disposed of the minerals extracted. But for the interim
orders passed by this Court, there is no difference between the
appellants and any person raising, without any lawful
authority, any mineral from any land, attracting applicability of
Sub-section (5) of Section 21. As the appellants have lost from
the Court they cannot be allowed to retain the benefit earned
by them under the interim orders of the Court. The High Court
has rightly held the appellants liable to be placed in the same
position in which they would have been if this Court would not
have protected them by issuing interim orders. All that the
State Government is demanding from the appellants is the
price of the minor minerals. Rent, royalty or tax has already
been recovered by the State Government and, therefore, there
is no demand under that Head. No penal proceedings, much
less any criminal proceedings, have been initiated against the
appellants. It is absolutely incorrect to contend that the
appellants are being asked to pay any penalty or are being
subjected to any penal action. It is not the case of the
appellants that they are being asked to pay a price more than
what they have realised from the exports or that the price
appointed by the respondent State is in any manner arbitrary or
unreasonable………..”
(emphasis supplied)
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131(g). The principle “Actus Curia Neminem Gravabit” is
essence of administration of law and good sense. It has been
considered in A.R. Antulay v. R.S. Nayak and Ors., AIR 1988 SC
1531 thus:
“83. This case has caused us considerable anxiety. The
appellant-accused has held an important position in this
country, being the Chief Minister of a premier State of the
country. He has been charged with serious criminal offences.
His trial in accordance with law and the procedure established
by law would have to be in accordance with the 1952 Act.
That could not possibly be done because of the directions of
this Court dated 16th February 1984, as indicated above. It
has not yet been found whether the appellant is guilty or
innocent. It is unfortunate, unfortunate for the people of the
State, unfortunate for the country as a whole, unfortunate for
the future working of democracy in this country which,
though is not a plant of an easy growth yet is with deep root
in the Indian polity that delay has occurred due to procedural
wrangles. The appellant may be guilty of grave offences
alleged against him or he may be completely or if not
completely to a large extent, innocent. Values in public life
and perspective of these values in public life have undergone
serious changes and erosion during the last few decades.
What was unheard of before is common place today. A new
value orientation is being undergone in our life and in our
culture. We are at the threshold of the cross-roads of values. It
is, for the sovereign people of the country to settle those
conflicts yet the Courts have vital roles to play in such
matters. With the avowed object of speedier trial the case of
the appellant had been transferred to the High Court but on
grounds of expediency of trial, he cannot be subjected to a
procedure unwarranted by law, and contrary to the
constitutional provisions. The appellant may or may not be an
ideal politician. It is a fact, however, that the allegations have
been brought against him by a person belonging to a political
party opposed to his but that is not the decisive factor. If the
appellant Shri Abdul Rehman Antulay has infringed law, he
must be dealt with in accordance with the law. We proclaim
and pronounce that no man is above the law, but at the same
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time reiterate and declare that no man can be denied his rights
under the Constitution and the laws. He has a right to be dealt
with in accordance with the law and not in derogation of it.
this Court, in its anxiety to facilitate the parties to have a
speedy trial gave directions on 16th February 1984 as
mentioned hereinbefore without conscious awareness of the
exclusive jurisdiction of the Special Courts under the 1952
Act and that being the only procedure established by law,
there can be no deviation from the terms of Article 21 of the
Constitution of India. That is the only procedure under which
it should have been guided. By reason of giving the directions
on 16th February 1984 this Court had also unintentionally
caused the appellant the denial of rights under Article 14 of
the Constitution by denying him the equal protection of law
by being singled out for a special procedure not provided for
by law. When these factors are brought to the notice of this
Court, even if there are any technicalities this Court should
not feel shackled and decline to rectify that injustice or
otherwise the injustice noticed will remain forever a blot on
justice. It has been said long time ago that "Actus Curiae
Neminem Gravabit"- an act of the Court shall prejudice no
man. This maxim is founded upon justice and good sense and
affords a safe and certain guide for the administration of the
law.
104. This being the apex Court, no litigant has any
opportunity of approaching any higher forum to question its
decisions. Lord Buck-master in 1917 A.C. 170 stated:
All rules of court are nothing but provisions intended to
secure proper administration of justice. It is, therefore,
essential that they should be made to serve and be subordinate
to that purpose.
this Court in Gujarat v. Ram Prakash [1970]2SCR875
reiterated the position by saying:
Procedure is the handmaid and not a mistress of law, intended
to subserve and facilitate the cause of justice and not to
govern or obstruct it, like all rules of procedure, this rule
demands a construction which would promote this cause.
Once judicial satisfaction is reached that the direction was not
open to be made and it is accepted as a mistake of the court, it
154
is not only appropriate but also the duty of the Court to rectify
the mistake by exercising inherent powers. Judicial opinion
heavily leans in favour of this view that a mistake of the
Court can be corrected by the Court itself without any fetters.
This is on the principle as indicated in Alexander Rodger's
case (supra). I am of the view that in the present situation, the
Court's inherent powers can be exercised to remedy the
mistake. Mahajan, J. speaking for a four-Judge Bench in
Kishan Deo v. Radha Kissen [1953]4SCR136 stated:
The Judge had jurisdiction to correct his own error without
entering into a discussion of the grounds taken by the
decree-holder or the objections raised by the
judgment-debtors.”
131(h).The Constitution Bench in Sarah Mathew v. Institute of
Cardio Vascular Diseases, (2014) 2 SCC 62, has considered the
aforesaid maxim; it observed:
“39. As we have already noted in reaching this conclusion,
light can be drawn from legal maxims. Legal maxims are
referred to in Bharat Kale, Japani Sahoo and Vanka
Radhamanohari (Smt.). The object of the criminal law is to
punish perpetrators of crime. This is in tune with the well
known legal maxim 'nullum tempus aut locus occurritregi',
which means that a crime never dies. At the same time, it is
also the policy of law to assist the vigilant and not the sleepy.
This is expressed in the Latin maxim 'vigilantibus et non
dormientibus, jura subveniunt'. Chapter XXXVI of the Code
of Criminal Procedure which provides limitation period for
certain types of offences for which lesser sentence is provided
draws support from this maxim. But, even certain offences
such as Section 384 or 465 of the Indian Penal Code, which
have lesser punishment may have serious social
consequences. Provision is, therefore, made for condonation
of delay. Treating date of filing of complaint or date of
initiation of proceedings as the relevant date for computing
limitation under Section 468 of the Code is supported by the
legal maxim 'actus curiae neminem gravabit' which means
that the act of court shall prejudice no man. It bears repetition
to state that the court's inaction in taking cognizance i.e.
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court's inaction in applying mind to the suspected offence
should not be allowed to cause prejudice to a diligent
complainant. Chapter XXXVI thus presents the interplay of
these three legal maxims. Provisions of this Chapter,
however, are not interpreted solely on the basis of these
maxims. They only serve as guiding principles.”
(emphasis supplied)
132. Landowners have also placed reliance on Suptd. of Taxes,
Dhubri & Ors. v. Assam Jute Supply Ltd & Ors. (1976) 1 SCC 766:
“17. The first contention on behalf of the State that it became
impossible for the State to issue notice under Section 7(2) of
the New Act within two years of the expiry of the period of
return is unsound on principle and facts. The maxim lex non
cogit ad impossibilia means that the law does not compel a
man to do that which he cannot possibly perform. In the
present appeals, the applications were moved in the High
Court for stay of proceedings. The respondents challenged the
validity of the Act, and, therefore, asked for an injunction
restraining the State from taking proceedings under the Act.
At no stage, did the State ask for variation or modification of
the order of injunction. It is well known that if it is brought to
the notice of a court that proceedings are likely to be barred
by time by reason of any order of injunction or stay the court
passes such suitable or appropriate orders as will protect the
interest of the parties and will not prejudice either party. Even
when certificate to appeal to this Court was granted on 1
August 1963, the State did not ask for any order for stay of
operation of the judgment. That is quite often done. For the
first time, on 10 August 1964 the State filed an application for
stay of operation of the judgment of the High Court. The State
did not take steps at the appropriate time. This Court on 28
October 1964 granted an interim order staying the operation
of the High Court judgment. The interim order was made
absolute on 28 January 1965 with certain conditions. The
State cannot take advantage of its own wrong and lack of
diligence. The State cannot contend that it was impossible to
issue any notice within the period mentioned in Section 7(2)
of the New Act. The State did not endeavour to obtain
appropriate orders to surmount the difficulties by reason of
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the injunction against taking steps within the time
contemplated in Section 7(2) of the New Act. The State is
guilty of default. The State had remedies open to take steps by
asking for modification of the order. The State had to assert
the right that the State was entitled to demand taxes and the
respondent was liable to pay the same. The State followed the
policy of inactivity. Inactivity is not impossibility. The order
injunction is not to be equated with an act of God or an action
of the enemy of the State or a general strike.”
In the aforesaid case, there was the fault on part of the State.
The State failed to assert rights. The State was guilty of defaults
and did not take steps within time contemplated under section 7(2)
of the said Act. The case turned on its own facts.
133. Reliance has also been placed in this regard on Neeraj Kumar
Sainy & Ors. v. State of UP & Ors., (2017) SCC Online SC 258,
wherein this court has observed:
“31. It is noticeable from the aforesaid passage that the
interpretation was made in accordance with the Code and the
legal maxim was taken as a guiding principle. Needless to
say, it is well settled in law that no one should suffer any
prejudice because of the act of the court. The authorities that
we have referred to dealt with the different factual
expositions. The legal maxim that has been taken recourse to
cannot operate in a vacuum. It has to get the sustenance from
the facts. As is manifest, after the admissions were over as per
the direction of this Court, the Appellants, who seemed to
have resigned to their fate, woke up to have control over the
events forgetting that the law does not assist the non-vigilant.
One cannot indulge in luxury of lethargy, possibly nurturing
the feeling that forgetting is a virtue, and thereafter, when the
time has slipped through, for it waits for none, wake up and
take shelter under the maxim "actus curiae neminem
gravabit". It is completely unacceptable.”
157
The case pertains to lethargy that would depend on facts of a
case to what extent benefit can be derived from legal principles.
134. An incumbent must succeed or fail in final decision in a
pending litigation on what case he has set up in the petition. In
case of possession has continued under the cover of the court's
order or compensation could not be disbursed due to the courts
order in our considered opinion the provision contained in Section
24 (2) cannot be invoked in such a situation, as such a situation is
not covered under the provisions of section 24(2), as holding
otherwise would amount to giving a litigant premium for his dilatory
tactics in spite of there is no merit in his challenge to acquisition. In
such an event no incumbents can be permitted to urge though I
might have obtained stay restraining you from taking possession,
though I might have refused to receive compensation or otherwise
due to the court’s proceedings, it was not paid/accepted. Now you
must suffer due to said act of mine. This would be against all
canons of justice and settled propositions of law in Uma Devi v.
State of Karnataka (2006) 6 SCC 1 where this court has directed as
one-time measure regularization of those incumbents only, those
158
who have served for more than ten years without cover of the
court's order. It was also based upon aforesaid principles that no
one can be permitted to take advantage of the courts cover to put
the other party in disadvantageous position.
135. The common law principles are in fact rules of equity, justice,
and sound logic. In the absence of there being prohibition in the
law, these principles would be attracted. The efficacy and binding
nature of such common law principles cannot be diminished or
whittled down in the absence of any express prohibition in law.
They are interpretation of section 24 of Act of 2013.
136. The question then arises as to what the position would be in
case State authorities were, by an order of the court, restrained
from taking possession, though they would have otherwise taken
the possession in the absence of such an order; and, ultimately,
there is no merit found in the lis in which challenge to acquisition
had been raised and interim order had been passed. The question is
whether the provisions of Section 24 (2) contemplate such a
situation, and whether such period is to be excluded from within
the purview of Section 24 of the Act of 2013, where the authorities
159
have been, during the interregnum of a litigation, brought at the
instance of landowner/beneficiary, restrained by the act of the
court, interdicting the steps which would have been taken by the
authorities but for such an interim order or conduct of the litigant.
137. In case of possession could not be taken, or compensation
could not be paid or deposited, due to cover of courts’ order or
conduct of landowner, such cases provision of lapse cannot be
invoked. Section 24(2), a policy of the law is not to benefit a litigant
or confer undeserving benefit by involving in the lis and to reap
fruits on the basis of possession on illegal basis without any right
and often lis is filed in land acquisition cases one after the other
and intendment of law is not to treat law-abiding incumbents
differently. Operation of law and beneficial provisions of law in the
Act of 2013 are not meant to benefit litigants and to permit them to
reap the fruits of unworthy or frivolous litigation; and, if there is
any merit in such a lis, the challenge therein must stand or fall on
its own footing, irrespective of, and apart from, the coming into
force of the 2013 Act. Litigation cannot be permitted to become
lucrative industry for the unworthy litigant; it cannot be permitted
to be device providing for fruits in respect of a meritless lis.
160
138. The maxims nullus commodum capere potest de injuria sua
propria and actus curiae neminem gravabit etc. come into play while
interpreting the provisions of section 24 including the principle of
restitution. They are not excluded from the purview of section 24 of
the Act of 2013.
PRINCIPLE OF RESTITUTION
139. While construing provisions of section 24(2) applicable in case
of lis, we have to keep in consideration the principle of restitution
which enjoins a duty upon the courts to do complete justice to the
party at the time of final decision. Successful party at the end of
the litigation has to be placed as far as possible at the same place
unless it would have been had the interim order not being passed.
In doing away the effect of interim order by resorting to fact of
restitution is in fact obligation of the court.
140(a). In South Eastern Coal Field Ltd. v. State of Madhya
Pradesh & Ors. (2003) 8 SCC 648 this court held that no party can
take advantage of litigation; it has to disgorge the advantage gained
due to delay in case lis is lost, the court has observed:
161
"26. In our opinion, the principle of restitution takes care of
this submission. The word 'restitution' in its etymological
sense means restoring to a party on the modification,
variation or reversal of a decree or order, what has been lost
to him in execution or decree or order or the court or indirect
consequence of a decree or order (See Zafar Khan and Ors. v.
Board of Revenue, U.P., and Ors., : [1985] 1 SCR 287. In law,
the term 'restitution' is used in three senses; (i) return or
restoration of some specific thing to its rightful owner or
status; (ii) compensation for benefits derived from a wrong
done to another; (iii) compensation or reparation for the loss
caused to another.
(See Black's Law Dictionary, Seventh Edition, p.1315).
The Law of Contracts by John D. Calamari & Joseph M.
Perillo has been quoted by Black to say that 'restitution' is an
ambiguous term, sometimes referring to the disgorging of
something which has been taken and at times referring to
compensation for injury done. "Often, the result in either
meaning of the term would be the same. ..... Unjust
impoverishment, as well as unjust enrichment, is a ground for
restitution. If the defendant is guilty of a non-tortuous
misrepresentation, the measure of recovery is not rigid but, as
in other cases of restitution, such factors as relative fault, the
agreed upon risks, and the fairness of alternative risk
allocations not agreed upon and not attributable to the fault of
either party need to be weighed."
The principle of restitution has been statutorily recognized in
Section 144 of the Code of Civil Procedure, 1908. Section
144 of the C.P.C. speaks not only of a decree being varied,
reversed, set aside or modified but also includes an order on
par with a decree. The scope of the provision is wide enough
so as to include therein almost all the kinds of variation,
reversal, setting aside or modification of a decree or order.
The interim order passed by the Court merges into a final
decision. The validity of an interim order, passed in favour
of a party, stands reversed in the event of final decision
going against the party successful at the interim stage.
Unless otherwise ordered by the Court, the successful party at
the end would be justified with all expediency in demanding
compensation and being placed in the same situation in which
it would have been if the interim order would not have been
162
passed against it. The successful party can demand (a) the
delivery of benefit earned by the opposite party under the
interim order of the court, or (b) to make restitution for what
it has lost; and it is the duty of the court to do so unless it
feels that in the facts and on the circumstances of the case, the
restitution would far from meeting the ends of justice, would
rather defeat the same. Undoing the effect of an interim order
by resorting to principles of restitution is an obligation of the
party, who has gained by the interim order of the Court, so as
to wipe out the effect of the interim order passed which, in
view of the reasoning adopted by the court at the stage of
final decision, the court earlier would not or ought not to have
passed. There is nothing, wrong in an effort being made to
restore the parties to the same position in which they would
have been if the interim order would not have existed.
27. Section 144 of the C.P.C. is not the fountain source of
restitution; it is rather a statutory recognition of a pre-existing
rule of justice, equity and fair play. That is why it is often
held that even away from Section 144 the Court has inherent
jurisdiction to order restitution so as to do complete justice
between the parties.
In Jai Berham v. Kedar Nath Marwari (1923) 25 BOMLR
643, their Lordships of the Privy council said: "It is the duty
of the Court under Section 144 of the Civil Procedure Code to
place the parties in the position which they would have
occupied but for such decree or such part thereof as has been
varied or reversed. Nor indeed does this duty or jurisdiction
arise merely under the said section. It is inherent in the
general jurisdiction of the Court to act rightly and fairly
according to the circumstances towards all parties involved.
Cairns, L.C., said in Rodger v. Comptoir d'Escompte de Paris,
(1871) L.R. 3: "One of the first and highest duties of all
Courts is to take care that the act of the Court does no injury
to any of the suitors and when the expression, the act of the
Court is used, it does not mean merely the act of the primary
Court, or of any intermediate Court of appeal, but the act of
the Court as a whole from the lowest court which entertains
jurisdiction over the matter up to the highest Court which
finally disposes of the case". This is also on the principle that
a wrong order should not be perpetuated by keeping it alive
and respecting it, A.A. Nadar v. S.P. Rathinasami, (1971) 1
MLJ 220 . In the exercise of such inherent power the Courts
163
have applied the principles of restitution to myriad situations
not strictly falling within the terms of Section 144.
28. That no one shall suffer by an act of the court is not a rule
confined to an erroneous act of the court; the 'act of the court'
embraces within its sweep all such acts as to which the court
may form an opinion in any legal proceedings that the court
would not have so acted had it been correctly apprised of the
facts and the law. The factor attracting applicability of
restitution is not the act of the Court being wrongful or a
mistake or error committed by the Court; the test is whether
on account of an act of the party persuading the Court to pass
an order held at the end as not sustainable, has resulted in one
party gaining an advantage which it would not have otherwise
corned, or the other party has suffered an impoverishment
which it would not have suffered but for the order of the
Court and the set of such party.
The quantum of restitution, depending on the facts and
circumstances of a given case, may take into consideration
not only what the party excluded would have made but also
what the party under obligation has or might reasonably have
made. There is nothing wrong in the parties demanding being
placed in the same position in which they would have been
had the court not intervened by its interim order when at the
end of the proceedings the court pronounces its judicial
verdict which does not match with and countenance its own
interim verdict. Whenever called upon to adjudicate, the court
would act in conjunction with what is the real and substantial
justice. The injury, if any, caused by the act of the court shall
be undone and the gain which the party would have earned
unless it was interdicted by the order of the court would be
restored to or conferred on the party by suitably commanding
the party liable to do so. Any opinion to the contrary would
lead to unjust if not disastrous consequences. Litigation may
turn into a fruitful industry. Though litigation is not gambling
yet there is an element of chance in every litigation.
Unscrupulous litigants may feel encouraged to approach the
Courts, persuading the court to pass interlocutory orders
favourable to them by making out a prima facie case when the
issues are yet to be heard and determined on merits and if the
concept of restitution is excluded from application to interim
orders, then the litigant would stand to gain by swallowing
the benefits yielding out of the interim order even though the
164
battle has been lost at the end. This cannot be countenanced,
we are, therefore, or the opinion that the successful party
finally held entitled to a relief assessable in terms of money at
the end of the litigation, is entitled to be compensated by
award of interest at a suitable reasonable rate for the period
for which the interim order of the court withholding the
release of money had remained in operation.”
(emphasis supplied)
140(b). The doctrine of restitution in common law principle lies in
conscience of court, it had also been discussed in State of Gujarat v.
Essar Oil Ltd., (2012) 3 SCC 522; it was held that:
“61. The concept of restitution is virtually a common law
principle and it is a remedy against unjust enrichment or
unjust benefit. The core of the concept lies in the conscience
of the Court which prevents a party from retaining money or
some benefit derived from another which he has received by
way of an erroneous decree of Court. Such remedy in English
Law is generally different from a remedy in contract or in tort
and falls within a third category of common law remedy
which is called quasi-contract or restitution.
62. If we analyze the concept of restitution one thing emerges
clearly that the obligation to restitute lies on the person or the
authority that has received unjust enrichment or unjust benefit
(See Halsbury's Laws of England, Fourth Edition, Volume 9,
page 434).
63. If we look at Restatement of the Law of Restitution by
American Law Institute (1937 American Law Institute
Publishers, St. Paul) we get that a person is enriched if he has
received a benefit and similarly a person is unjustly enriched
if the retention of the benefit would be unjust. Now the
question is what constitutes a benefit. A person confers
benefit upon another if he gives to the other possession of or
some other interest in money, land, chattels, or performs
services beneficial to or at the request of the other, satisfies a
debt or a duty of the other or in a way adds to the other's
security or advantage. He confers a benefit not only where he
adds to the property of another but also where he saves the
other from expense or loss. Thus the word "benefit" therefore
165
denotes any form of advantage (page 12 of the Restatement of
the Law of Restitution by American Law Institute).
64. Ordinarily in cases of restitution, if there is a benefit to
one, there is a corresponding loss to other and in such cases;
the benefiting party is also under a duty to give to the losing
party, the amount by which he has been enriched."
(emphasis supplied)
140(c). In A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu
Madalaya Nandhavana Paripalanai Sangam, (2012) 6 SCC 430, by
relying upon the decision rendered in Indian Council for Enviro-Legal
Action v. Union of India [(2011) 8 SCC 161]. The jurisdiction to
restitution is inherent in every court. Court has to neutralize
advantage of litigation. The person on right side of law should not
be frustrated. The wrongful gain of frivolous litigation has to be
eradicated if faith of people in judiciary has to be sustained Court
has to adopt pragmatic approach. The doctrine of restitution has
been considered thus:
“37. This Court in another important case in Indian Council
for Indian Council for Enviro-Legal Action v. Union of India
and Ors. (2011) 8 SCC 161 (of which one of us, Bhandari, J.
was the author of the judgment) had an occasion to deal with
the concept of restitution. The relevant paragraphs of that
judgment dealing with relevant judgments are reproduced
hereunder:
170. This Court in Grindlays Bank Limited v. Income
Tax Officer, Calcutta (1980) 2 SCC 191 observed as
under:
When passing such orders the High Court draws on its
166
inherent power to make all such orders as are
necessary for doing complete justice between the
parties. The interests of justice require that any
undeserved or unfair advantage gained by a party
invoking the jurisdiction of the court, by the mere
circumstance that it has initiated a proceeding in the
court, must be neutralised. The simple fact of the
institution of litigation by itself should not be
permitted to confer an advantage on the party
responsible for it.
171. In Ram Krishna Verma and Ors. v. State of U.P.
and Ors. (1992) 2 SCC 620 this Court observed as
under:
The 50 operators including the Appellants/ private
operators have been running their stage carriages by
blatant abuse of the process of the court by delaying
the hearing as directed in JeevanNathBahl's case and
the High Court earlier thereto. As a fact, on the expiry
of the initial period of grant after Sept. 29, 1959, they
lost the right to obtain renewal or to ply their vehicles,
as this Court declared the scheme to be operative.
However, by sheer abuse of the process of law, they
are continuing to ply their vehicles pending hearing of
the objections. This Court in Grindlays Bank Ltd. v.
Income-tax Officer - [1990] 2 SCC 191 held that the
High Court while exercising its power under Article
226 the interest of justice requires that any undeserved
or unfair advantage gained by a party invoking the
jurisdiction of the court must be neutralised. It was
further held that the institution of the litigation by it
should not be permitted to confer an unfair advantage
on the party responsible for it. In the light of that law
and in view of the power under Article 142(1) of the
Constitution this Court, while exercising its
jurisdiction would do complete justice and neutralise
the unfair advantage gained by the 50 operators
including the Appellants in dragging the litigation to
run the stage carriages on the approved route or area or
portion thereof and forfeited their right to hearing of
the objections filed by them to the draft scheme dated
Feb. 26, 1959.
167
172. This Court in Kavita Trehan v. Balsara Hygiene
Products (1994) 5 SCC 380 observed as under:
The jurisdiction to make restitution is inherent in every
court and will be exercised whenever the justice of the
case demands. It will be exercised under inherent
powers where the case did not strictly fall within the
ambit of Section 144. Section 144 opens with the
words "Where and in so far as a decree or an order is
varied or reversed in any appeal, revision or other
proceeding or is set aside or modified in any suit
instituted for the purpose,.". The instant case may not
strictly fall within the terms of Section 144, but the
aggrieved party in such a case can appeal to the larger
and general powers of restitution inherent in every
court.
173. This Court in Marshall Sons and Company (I)
Ltd. v. Sahi Oretrans (P) Ltd. and Anr. (1999) 2 SCC
325 observed as under:
From the narration of the facts, though it appears to us,
prima facie, that a decree in favour of the Appellant is
not being executed for some reason or the other, we do
not think it proper at this stage to direct the
Respondent to deliver the possession to the Appellant
since the suit filed by the Respondent is still pending.
It is true that proceedings are dragged for a long time
on one count or the other and on occasion become
highly technical accompanied by unending prolixity, at
every stage providing a legal trap to the unwary.
Because of the delay, unscrupulous parties to the
proceedings take undue advantage and person who is
in wrongful possession draws delight in delay in
disposal of the cases by taking undue advantage of
procedural complications. It is also known fact that
after obtaining a decree for possession of immovable
property, its execution takes long time. In such a
situation for protecting the interest of judgment
creditor, it is necessary to pass appropriate order so
that reasonable mesneprofit which may be equivalent
to the market rent is paid by a person who is holding
over the property. In appropriate cases, Court may
appoint Receiver and direct the person who is holding
168
over the property to act as an agent of the Receiver
with a direction to deposit the royalty amount fixed by
the Receiver or pass such other order which may meet
the interest of justice. This may prevent further injury
to the Plaintiff in whose favour decree is passed and to
protect the property including further alienation.
174. In Padmawati v. Harijan Sewak Sangh CM
(Main) No. 449 of 2002 decided by the Delhi High
Court on 6.11.2008, the court held as under:
‘6. The case at hand shows that frivolous defences and
frivolous litigation is a calculated venture involving no
risks situation. You have only to engage professionals
to prolong the litigation so as to deprive the rights of a
person and enjoy the fruits of illegalities. I consider
that in such cases where Court finds that using the
Courts as a tool, a litigant has perpetuated illegalities
or has perpetuated an illegal possession, the Court
must impose costs on such litigants which should be
equal to the benefits derived by the litigant and harm
and deprivation suffered by the rightful person so as to
check the frivolous litigation and prevent the people
from reaping a rich harvest of illegal acts through the
Court. One of the aims of every judicial system has to
be to discourage unjust enrichment using Courts as a
tool. The costs imposed by the Courts must in all cases
should be the real costs equal to deprivation suffered
by the rightful person.’
We approve the findings of the High Court of
Delhi in the aforementioned case.
175. The High Court also stated: (Padmavati case
[(2008) 154 DLT 411], DLT pp. 414-415, para 9)
"9. Before parting with this case, we consider it
necessary to observe that one of the main reasons for
over-flowing of court dockets is the frivolous litigation
in which the Courts are engaged by the litigants and
which is dragged as long as possible. Even if these
litigants ultimately loose the lis, they become the real
victors and have the last laugh. This class of people
who perpetuate illegal acts by obtaining stays and
169
injunctions from the Courts must be made to pay the
sufferer not only the entire illegal gains made by them
as costs to the person deprived of his right and also
must be burdened with exemplary costs. Faith of
people in judiciary can only be sustained if the persons
on the right side of the law do not feel that even if they
keep fighting for justice in the Court and ultimately
win, they would turn out to be a fool since winning a
case after 20 or 30 years would make wrongdoer as
real gainer, who had reaped the benefits for all those
years. Thus, it becomes the duty of the Courts to see
that such wrongdoers are discouraged at every step and
even if they succeed in prolonging the litigation due to
their money power, ultimately they must suffer the
costs of all these years-long litigation. Despite settled
legal positions, the obvious wrongdoers, use one after
another tier of judicial review mechanism as a gamble,
knowing fully well that dice is always loaded in their
favour, since even if they lose, the time gained is the
real gain. This situation must be redeemed by the
Courts".
184. In Ouseph Mathai and Ors. v. M. Abdul Khadir
(2002) 1 SCC 319 this Court reiterated the legal
position that: (SCC p.328, para 13)
’13. …[the] stay granted by the Court does not confer
a right upon a party and it is granted always subject to
the final result of the matter in the Court and at the risk
and costs of the party obtaining the stay. After the
dismissal, of the lis, the party concerned is relegated to
the position which existed prior to the filing of the
petition in the Court which had granted the stay. Grant
of stay does not automatically amount to extension of a
statutory protection.
188. In a relatively recent judgment of this Court in
Amarjeet Singh and Ors. v. Devi Ratan and Ors.
(2010) 1 SCC 417 the Court in para 17 of the judgment
observed as under: (SCC pp.422-23)
’17. No litigant can derive any benefit from mere
pendency of case in a court of law, as the interim order
170
always merges in the final order to be passed in the
case and if the writ petition is ultimately dismissed, the
interim order stands nullified automatically. A party
cannot be allowed to take any benefit of its own
wrongs by getting an interim order and thereafter
blame the court. The fact that the writ is found,
ultimately, devoid of any merit, shows that a frivolous
writ petition had been filed. The maxim actus curiae
neminem gravabit, which means that the act of the
court shall prejudice no one, becomes applicable in
such a case. In such a fact situation the court is under
an obligation to undo the wrong done to a party by the
act of the court. Thus, any undeserved or unfair
advantage gained by a party invoking the jurisdiction
of the court must be neutralised, as the institution of
litigation cannot be permitted to confer any advantage
on a suitor from delayed action by the act of the
court...’
190. In consonance with the concept of restitution, it
was observed that courts should be careful and pass an
order neutralizing the effect of all consequential orders
passed in pursuance of the interim orders passed by the
court. Such express directions may be necessary to
check the rising trend among the litigants to secure the
relief as an interim measure and then avoid
adjudication on merits.
191. In consonance with the principle of equity,
justice, and good conscience judges should ensure that
the legal process is not abused by the litigants in any
manner. The court should never permit a litigant to
perpetuate illegality by abusing the legal process. It is
the bounden duty of the court to ensure that dishonesty
and any attempt to abuse the legal process must be
effectively curbed and the court must ensure that there
is no wrongful, unauthorized or unjust gain for anyone
by the abuse of the process of the court. One way to
curb this tendency is to impose realistic costs, which
the Respondent or the Defendant has in fact incurred in
order to defend himself in the legal proceedings. The
courts would be fully justified even imposing punitive
costs where legal process has been abused. No one
should be permitted to use the judicial process for
171
earning undeserved gains or unjust profits. The court
must effectively discourage fraudulent, unscrupulous
and dishonest litigation.
192. The court's constant endeavour must be to ensure
that everyone gets just and fair treatment. The court
while rendering justice must adopt a pragmatic
approach and in appropriate cases realistic costs and
compensation be ordered in order to discourage
dishonest litigation. The object and true meaning of the
concept of restitution cannot be achieved or
accomplished unless the courts adopt a pragmatic
approach in dealing with the cases.”
(emphasis supplied)
140(d). In Krishnaswamy S. Pd. & Anr v. Union of India & Ors.,
Civil Appeal Nos.3376-3377 of 2000 decided on 21.02.2006 this
Court has considered the question of restitution. This court has
relied upon Eastern Coalfield’s case (supra) and observed:
“The maxim 'actus curiae neminem gravabit' i.e. an act of
Court shall prejudice no man is an important one. The maxim
"is founded upon justice and good sense, and affords a safe
and certain guide for the administration of the law", said
Cresswell J. in Freeman v. Tranah (12 C.B. 406). An
unintentional mistake of the Court which
may prejudice the cause of any party must and alone could be
rectified.
The maxim of equity, namely, actus curiae neminem gravabit:
an act of court shall prejudice no man, is founded upon justice
and good sense which serves a safe and certain guide for the
administration of law. The other relevant maxim is, lex non
cogit ad impossibilia: the law does not compel a man to do
what he cannot possibly perform. The law itself and its
administration is understood to disclaim as it does in its
general aphorisms, all intention of compelling impossibilities,
and the administration of law must adopt that general
exception in the consideration of particular cases. (See: M/s
U.P.S.R.T.C. v. lmtiaz Hussein (2006 (1) 800 380),
172
ShaikhSalim Haji Abdul Khayumsab v. Kumar and Ors. (2006
(1) SCC 46), Mohammod Gazi v. State of M.P. and others
(2000(4) SCC 342) and Gursharan Singh v. New Delhi
Municipal Committee (1996 (2) SCC 459).”
(emphasis supplied)
141. The aforesaid legal exposition also makes it incumbent upon
court not to confer benefit upon an unscrupulous litigant, not to
confer undeserved gain, administration of land does not control
performance of Act which is not possible, attempt to abuse legal
provisions must be thwarted, prolonging of litigation by money
power, dilatory tactics or otherwise not to confer benefit, person
with merits in the case cannot succeed, perpetuation of illegality
cannot be provided shelter by court to unjust enrichment to be
saved, the doctrine of restitution compels court to not to provide
benefit to such litigants of provisions of section 24 of Act of 2013.
EFFECT OF REPEAL:
142. The Act of 2013 has repealed the Act of 1894. The repealing
and saving is provided in section 114 of the Act of 2013. The
provisions of section 114, is extracted hereunder:
“114. Repeal and saving.- (1) The Land Acquisition Act, 1894
(1 of 1894) is hereby repealed.
(2) Save as otherwise provided in this Act the repeal under
sub-section (1) shall not be held to prejudice or affect the
173
general application of section 6 of the General Clauses Act,
1897 (10 of 1897) with regard to the effect of repeals.”
143. The repeal of the Act of 1894 has been made without prejudice
or affect the general application of section 6 of the General Clauses
Act, 1897 with regard to the effect such repealing provision we have
to consider provisions in Section 6 of the General Clauses Act. It is
extracted hereunder:
“6. Effect of repeal. —Where this Act, or any 1 [Central Act]
or Regulation made after the commencement of this Act,
repeals any enactment hitherto made or hereafter to be made,
then, unless a different intention appears, the repeal shall not
—
(a) revive anything not in force or existing at the time
at which the repeal takes effect; or
(b) affect the previous operation of any enactment so
repealed or anything duly done or suffered thereunder;
or
(c) affect any right, privilege, obligation or liability
acquired, accrued or incurred under any enactment so
repealed; or
(d) affect any penalty, forfeiture or punishment
incurred in respect of any offence committed against
any enactment so repealed; or
(e) affect any investigation, legal proceeding or
remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or punishment
as aforesaid,
and any such investigation, legal proceeding or remedy
may be instituted, continued or enforced, and any such
penalty, forfeiture or punishment may be imposed as if the
repealing Act or Regulation had not been passed.”
174
144. Thus, section 6 of the General Clauses Act provides that
unless a different intention appears, the repeal shall not revive
anything not in force. Section 6(b) provides that it would not affect
any previous operation of any enactment so repealed or anything
duly done or suffered thereunder. Section 6(e) provides that it will
not affect any investigation, legal proceedings or remedy in respect
of any such right, privilege, obligation, liability, penalty, forfeiture or
punishment unless different intention appears, and any such
investigation, legal proceeding or remedy may be instituted, or
continued or enforced, and any such penalty, forfeiture or
punishment may be imposed as if the repealing Act or Regulation
had not been passed. The provisions of section 6 clearly save such
proceedings and pending litigation has to be decided only on the
basis of 1894 Act except as provided specifically in Act of 2013.
VARIOUS DECISIONS:
145(a). In Pune Municipal Corporation (supra), the High Court had
quashed the notification issued under section 4 on 30.9.2004.
Award was passed on 31.1.2008. Writ petitions were filed in the
High Court which was allowed on the ground that for development
175
of "forest garden" acquisition proceedings could not have been
initiated without resolution of the General Body of the Corporation,
not on the ground of section 24(2) of Act of 2013. There was
non-compliance with section 7 and other statutory breaches. The
special leave petitions were filed in this Court in the year 2008.
During pendency, the Act of 2013 came into force and this Court
has taken the view that expression “paid” used in section 24(2)
shall carry dual meaning, i.e.it has been offered to the person
interested and also that such compensation has been deposited in
court. The compensation is paid within the meaning of section 24(2)
when the Collector has offered and in case of refusal deposited the
amount of compensation in court and has discharged his obligation
under Section 31(2). The Court has also laid down that amount of
deposit of compensation in Government Treasury is not equivalent
to the amount of compensation paid to landowners/persons
interested. This Court held that deposit of the amount of
compensation in State revenue is of no avail relying on Ivo Agnelo
Santimano Fernandes v. State of Goa (2011) 11 SCC 506 and Prem
Nath Kapur v. National Fertilizers Corporation of India Ltd. (1996) 2
SCC 71.
176
145(b). In the decision in Ivo Agnelo (supra) it was held that
liability to pay interest subsists until amount is paid to the owner
or deposited in court. Whether the State has deposited the amount
in revenue account and utilized the same as it, was impermissible
hence it could not be said that the amount was deposited as
required under Section 31(2) of the Act of 1894. Reliance was also
placed on the decision in Prem Nath Kapur (supra) wherein this
Court had observed :
“13. Thus we hold that the liability to pay interest on the
amount of compensation determined under Section 23(1)
continues to subsist until it is paid to the owner or interested
person or deposited into court under Section 34 read with
Section 31. Equally, the liability to pay interest on the excess
amount of compensation determined by the Civil Court under
Section 26 over and above the compensation determined by
the Collector/Land Acquisition Officer under Section 11
subsists until it is deposited into court. Propriovigore in case
of further enhancement of the compensation on appeal under
Section 54 to the extent of the said enhanced excess amount
or part thereof, the liability subsists until it is deposited into
court. The liability to pay interest ceases on the date on which
the deposit into court is made with the amount of
compensation so deposited. As held earlier, the computation
of the interest should be calculated from the date of taking
possession till date of payment or deposit in terms of Section
34 or deposit into court in terms of Section 28, as the case
may be.”
177
145(c). The question in aforesaid decisions was only with respect
to liability to pay interest from the date of taking possession till the
amount is paid or deposited. The decisions are only authority with
respect to payment of interest under section 34 read with section
31. In Prem Nath Kapur (supra), the main question was how the
appropriation of amount deposited towards cost price, an additional
amount of interest has to be made. In that context a three-Judge
Bench of this Court had made the discussion. This Court also dealt
with debtor's right to specify how appropriation to be made of
money paid under section 60 of the Contract Act, 1872. The
questions involved in the said cases were different. There was no
such issue involved with regard to the meaning of the word “paid”.
The decision is only on liability to pay interest and is of no utility for
interpretation of section 24(2) as to what is the meaning of the word
"paid" did not arise for consideration in the said decisions. The
provisions of section 24(2) used expression "paid" and "deposited" in
different contexts at different places "paid" in the main section and
"deposited" in proviso. Both are to be given the plain meanings and
it is not open to the court to add or substitute any word in statute.
178
As a matter of fact, the High Court had quashed acquisition in
Pune Municipal Corporation in 2008 as such Act of 2013 was not
attractive. There was no question of complying with section 24 of
Act of 2013.
145(d). The landowners have relied on the decision in Bharat
Kumar v. State of Haryana & Anr. (2014) 6 SCC 586. What is the
meaning of “paid” did not arise for consideration. It was not a case
where amount was tendered or paid under Section 31(1) of the Act
of 1894 and there was refusal and in that case possession had also
not been taken. There was no vesting of the land. The case is
distinguishable. In the said decision various aspects were not urged
for consideration. Thus, it cannot be said to be laying down the law
as to what has not been decided.
145(e). Reliance has also been placed on Bimla Devi & Ors. v.
State of Haryana & Ors. (2014) 6 SCC 583 in which, similarly the
decision in Pune Municipal Corporation (supra) has been followed.
Thus the decision is of no avail in view of the aforesaid discussion.
145(f). In Union of India & Ors. v. Shiv Raj & Ors. (2014) 6 SCC
564, decision in Pune Municipal Corpn. (supra) has been followed. A
179
Circular of Government of India, Ministry of Urban Development
has also been quoted to clarify the statutory provisions of the Act of
2013. A Circular issued by the Government on advice of its law
officer cannot be said to have force of law. It was based on certain
legal opinion. The circular issued cannot be said to have any
binding force with respect to actual legal position. As already
discussed there is no discussion in said case with respect to the
impact of the interim order of stay or litigation which has prevented
the authorities from taking action in Shiv Raj (supra).
145(g). In Magnum Promoters Pvt. Ltd. v. Union of India &Ors.
(2015) 3 SCC 327, Shree Balaji Nagar Residential Association (supra)
and Pune Municipal Corpn. (supra) had been followed, for the
reasons mentioned above, and apart from that, it was found by the
court that possession of the building was not taken and the record
did not indicate that it was ever taken.
145(h). In Karnail Kaur & Ors. v. State of Punjab & Ors. (2015) 3
SCC 206 the Amendment Ordinance to amend the Act of 2013 came
up for consideration. The second proviso to section 24(2) to be
introduced in Act was held to be prospective in operation. The
180
correctness of the decision need not be further examined as the
Ordinance itself has lapsed and for various other reason, we are of
opinion that law, as it stands, has to be examined. In Karnail Kaur
(supra), reliance was mainly placed upon Shree Balaji Nagar
Residential Association (supra), Pune Municipal Corpn. (supra),
Bharat Kumar (supra) and Bimla Devi (supra), we have already
discussed the matter following Pune Municipal Corporation (supra).
Radiance Fincap Pvt. Ltd. & Ors. v. Union of India & Ors. (2015) 8
SCC 544 has also been pressed into service, it considered the
second proviso to section 24(2) of the Ordinance that has lapsed.
145(i). In Working Friends Cooperative House Building Society
Ltd. v. State of Punjab & Ors. (2016) 15 SCC 464 again the other
decisions based on Pune Municipal Corporation (supra) referred to
above have been followed. In Working Friends Cooperative House
Building Society Ltd. (supra) compensation was not tendered to the
appellant. When compensation was not tendered as per section 31,
it could not be said that it was paid. To that extent there is no
dispute with respect to applicability of section 24(2). Mere deposit in
treasury or in court was not going to help the authorities as it was
obligatory on them to have tendered the amount unless saved by
181
three out of four exigencies provided in section 31(2) as discussed
above.
145(j). In Delhi Development Authority v. Sukhbir Singh & Ors.
(2016) 16 SCC 258, Pune Municipal Corpn. (supra) has been
followed and deposit in treasury has been held, referable to section
31(1) of the Act of 1894 and not under section 31(2). We agree with
discussion made with respect to section 31(1). In view of the
discussion made with respect to the expressions “paid” and
“tendered” the decision of Pune Municipal Corpn. (supra) cannot be
said to be laying down the correct law. It suffers to that extent from
the same malady as it has simply followed Pune Municipal Corpn.
(supra). In State of Haryana & Anr. v. Devander Sagar & Ors. (2016)
14 SCC 746, this Court has held that the compensation had been
paid; HUDA had taken possession. As per requirement of section
24, award was also passed. The acquisition had been allowed to
become final. Thus challenge to acquisition under the Act of 2013
was repelled.
145(k). In Aligarh Development Authority v. Megh Singh & Ors.
(2016) 12 SCC 504, the award was not passed when the Act of 2013
182
came into force. Thus, it was rightly held by this Court that the
acquisition proceedings would continue but with a rider that the
award will have to be passed and compensation determined under
the provisions of the 2013 Act. This Court has passed the aforesaid
orders in view of the provisions contained in section 24(1)(a) of the
Act of 2013. There is no dispute with the proposition.
145(l). In Sharma Agro Industries v. State of Haryana & Ors.,
(2015) 3 SCC 341, decisions of this Court in Pune Municipal Corpn.
(supra), Bimla Devi (supra), Shree Balaji Residential Association
(supra) and Shiv Raj (supra) have been followed. It proceeds on the
same reasoning as that of Pune Municipal Corpn. (supra).
145(m). In Pawan Kumar Aggarwal v. State of Punjab & Ors. (2016)
7 SCC 614, decision in Karnail Kaur (supra) has been followed. In
that case, there is not much discussion. Only the fact has been
mentioned that the appellant has not been dispossessed, as such
protection under section 24(2) was available.
PRINCIPLE OF ‘PER INCURIAM’:
146. The concept of “per incuriam” signifies those decisions
183
rendered in ignorance or forgetfulness of some inconsistent
statutory provisions, or of some authority binding on the Court
concerned. In order words, the concept means that a given decision
is in disregard of the previous decisions of the Court itself, or that it
was rendered in ignorance of the terms of an applicable statute or
of a rule having the force of law.
147(a). In practice, per incuriam, is taken to mean per ignoratium,
as observed by this Court in Mamleshwar Prasad v. Kanahaiya Lal,
(1975) 2 SCC 232, thus:
“5. A litigant cannot play fast and loose with the Court. His
word to the Court is as good as his bond and we must,
without more ado, negative the present shift in stand by an
astute discovery of a plea that the earlier judgment was
rendered per incuriam.
6. The wisdom which has fallen from Bowen, L.J. in Ex Parte
Pratt 52 Q.B. 334, though delivered in a different context, has
wider relevance to include the present position. The learned
Lord Justice observed :
“There is a good old-fashioned rule that no one has a
right to conduct himself before a tribunal as if he
accepted its jurisdiction, and then afterwards, when he
finds that it has decided against him, to turn round and
say, "You have no jurisdiction".
7. Certainty of the law, consistency of rulings and comity of
courts- all flowering from the same principle-coverage to the
conclusion that a decision once rendered must later bind like
cases. We do not intend to detract from the rule that, in
exceptional instances, whereby obvious inadvertence or
oversight a judgment fails to notice a plain statutory provision
184
or obligatory authority running counter to the reasoning and
result reached, it may not have the sway of binding
precedents. It should be a glaring case, an obtrusive omission.
No such situation presents itself here and we do not embark
on the principle of judgment per incuriam.”
147(b). In A.R. Anutulay v. R.S. Nayak, (1988) 2 SCC 602, this
Court has observed:
“42. It appears that when this Court gave the aforesaid
directions on 16th February 1984, for the disposal of the case
against the appellant by the High Court, the directions were
given oblivious of the relevant provisions of law and the
decision in Anwar Ali Sarkar's case (supra). See Halsbury's
Laws of England, 4th End, Vol. 26, page 297, para 578 and
page 300, the relevant notes 8, 11 and 15; Dias on
Jurisprudence, 5th Edn., pages 128 and 130; Young v. Bristol
Aeroplane Co. Ltd. [1944] 2 AER 293. Also see the
observations of Lord Goddard in Moore v. Hewitt [1947] 2
A.E.R. 270-A and Penny v. Nicholas [1950] 2 A.E.R. 89. "per
incuriam" are those decisions given in ignorance or
forgetfulness of some inconsistent statutory provision or of
some authority binding on the Court concerned, so that in
such cases some part of the decision or some step in the
reasoning on which it is based, is found, on that account to be
demonstrably wrong. See Morelle v. Wakeling [1955] 1 All
E.R. 708. Also, see State of Orissa v. The Titaghur Paper
Mills Co. Ltd. [1985]3SCR26 . We are of the opinion that in
view of the clear provisions of Section 7(2) of the Criminal
Law Amendment Act, 1952 and Articles 14 and 21 of the
Constitution, these directions were legally wrong.”
47. In support of the contention that a direction to delete
wholly the impugned direction of this Court be given,
reliance was placed on Satyadhvan Ghoshal v. Deorajini Devi
[1960] 3 SCR 590 . The ratio of the decision as it appears
from pages 601 to 603 is that the judgment which does not
terminate the proceedings, can be challenged in an appeal
from final proceedings. It may be otherwise if subsequent
proceedings were independent ones.”
(emphasis supplied)
185
147(c). In State of Uttar Pradesh v. Synthetics and Chemicals Ltd.,
(1991) 4 SCC 139, as to per incuriam this court has observed:
“40. 'Incuria literally means 'carelessness'. In practice per in
curium appears to mean per ignoratium.' English Courts have
developed this principle in relaxation of the rule of stare
decisis. The 'quotable in law' is avoided and ignored if it is
rendered, in ignoratium of a statute or other binding
authority'. 1944 1KB 718 Young v. Bristol Aeroplane Ltd..
Same has been accepted, approved and adopted by this Court
while interpreting Article 141 of the Constitution which
embodies the doctrine of precedents as a matter of law. In
Jaisri Sahu v. Rajdewan Dubey AIR (1962) SC 83 this Court
while pointing out the procedure to be followed when
conflicting decisions are placed before a bench extracted a
passed from Halsbury’s Laws of England incorporating one of
the exceptions when the decisions of an appellate court is not
binding.”
147(d). In Municipal Corporation of Delhi v. Gurnam Kaur, (1989)
1 SCC 101, it was held that decision of ignorance of rule is per
incuriam,the court has observed:
“11. ....A decision should be treated as given per incur am
when it is given in ignorance of the terms of a statute or of a
rule having the force of a statute......”
147(e). In Narmada Bachao Andolan (III) v. State of Madhya
Pradesh, AIR 2011 SC 1989, this court has observed:
“61. Thus, "per incuriam" are those decisions given in
ignorance or forgetfulness of some statutory provision or
186
authority binding on the Court concerned, or a statement of
law caused by inadvertence or conclusion that has been
arrived at without application of mind or proceeded without
any reason so that in such a case some part of the decision or
some step in the reasoning on which it is based, is found, on
that account to be demonstrably wrong.”
(emphasis supplied)
148. To refer the case to larger Bench, reliance was placed by the
landowners on Sant Lal Gupta v. Modern Coop. Societies Ltd. 2010
13 SCC 336 laying down thus:
“17. A coordinate bench cannot comment upon the
discretion exercised or judgment rendered by another
coordinate bench of the same court. The rule of precedent is
binding for the reason that there is a desire to secure
uniformity and certainty in law. Thus, in judicial
administration precedents which enunciate rules of law form
the foundation of the administration of justice under our
system. Therefore, it has always been insisted that the
decision of a coordinate bench must be followed. (Vide:
Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel
and Ors. AIR 1968 SC 372; Sub-Committee of Judicial
Accountability v. Union of India and Ors. (1992) 4 SCC 97;
and State of Tripura v. Tripura Bar Association and Ors.
(1998) 5 SCC 637).
18. In Rajasthan Public Service Commission and Anr. v.
Harish Kumar Purohit and Ors. (2003) 5 SCC 480, this Court
held that a bench must follow the decision of a coordinate
bench and take the same view as has been taken earlier. The
earlier decision of the coordinate bench is binding upon any
latter coordinate bench deciding the same or similar issues. If
the latter bench wants to take a different view than that taken
by the earlier bench, the proper course is for it to refer the
matter to a larger bench.”
149. It was contended on behalf of the landowners that since the
187
decisions of Pune Municipal Corporation as well as of Shivraj case
(supra) are of Three Judges bench then propriety requires that the
case should be referred to a Larger Bench. With respect to Shivraj
(supra) it is apparent that no view has been expressed by the
Division Bench making reference itself, as observed that upon
reading the decision of this court in Union of India & Ors. v. Shivraj
& Ors. (2014) 6 SCC 564, they have not found any view on the
question arising namely whether the period during which interim
stay has been enjoyed should be extended while considering the
provisions of Section 24(2) of the Act of 2013. Division Bench of
this court in order dated 12.1.2016, while making reference has
rightly observed thus:
“We have considered the views expressed in Sree Balaji
Nagar Residential Association (supra) and Union of India
&Ors. v. Shiv Raj and others (supra). At the outset, we clarify
that upon reading the decision of the three Judge Bench of
this Court in Union of India and other versus Shiv Raj and
others, we do not find any view of the bench on the question
arising, namely, whether the period during which the award
had remained stayed should be excluded for the purposes of
consideration of the provisions of Section 24(2) of the Act of
2013. Insofar as the decision of the coordinate bench of this
Court in Sree Balaji Nagar Residential Association (supra) is
concerned, having read and considered paragraphs 11 and 12
thereof, as extracted above, it is our considered view that the
legal effect of the absence of any specific exclusion of the
period covered by an interim order in Section 24(2) of the Act
of 2013 requires serious reconsideration having regard to the
fact that it is an established principle of law that the act of the
court cannot be understood to cause prejudice to any of the
188
contesting parties in a litigation which is expressed in the
maxim “actus curiae neminem gravabit”.
150. In Pune Municipal Corporation (supra) the land acquisition
had been quashed by the High Court in the year 2008. Most of the
special leave petitions were filed in this court in the year 2008. The
High Court has quashed the acquisition proceedings and has
directed restoration of the possession. When the High Court has
quashed the acquisition, there was no room for this court to
entertain the submissions based upon section 24(2) of the Act of
2013. There was no question of payment of compensation to the
owners or depositing it in the court as land acquisition itself had
been quashed in 2008. There was no subsisting acquisition and
award. When Act of 2013 came into force thus no question could
have been raised as to non-compliance with section 24 for five years
or more. Thus, there was no question of taking possession or
payment of compensation as per provisions contained in section
24(2). The provisions contained in section 24 could not be said to
be applicable after quashing/lapse of the proceedings. Thus, when
the provisions of section 24 were not attracted to the fact situation
of the case in Pune Municipal Corporation (supra), the decision
cannot be said to be an authority on a question which, in fact, did
189
not arise for consideration of this court. Thus, the decision
rendered on a question which was not germane to the case cannot
be said to be a binding precedent it is obiter dicta and thus has to
be ignored.
151. When the High Court has quashed the land acquisition in
Pune Municipal Corporation (supra), as we have held that period of
interim stay has to be excluded once the High Court has quashed
the land acquisition in case it was illegally quashed, the maxim
actus curiae neminem gravabit would come to the rescue for the
acquiring body and it could not have said that acquisition had
lapsed, thus there was no lapse under section 24(2). There was no
question of taking possession or payment of compensation once the
acquisition had been quashed. This court in Pune Municipal
Corporation (supra) had not dwelled upon the merit of the decision
of the High Court quashing the land acquisition and has outrightly
decided the case on the basis of section 24(2). It obviously had no
application to the fact situation of the case. As such a decision
cannot be said to be an authority on the aforesaid.
152. With respect to the decision of this court in Pune Municipal
190
Corporation (supra) we have given deep thinking whether to refer it
to further Larger Bench but it was not considered necessary as we
are of the opinion that Pune Municipal Corporation (supra) has to be
held per incuriam, inter alia for the following reasons:
1. The High Court has quashed land acquisition, in Pune
Municipal Corporation case (supra), as such provisions of
section 24(2) of the Act of 2013 could not be said to be
applicable. It was not surviving acquisition then compliance of
section 24(2) by taking possession or by payment of
compensation for five years or more did not arise as
acquisition had been quashed by the High Court in 2008.
2. It was not held in Pune Municipal Corporation (supra) that High
Court has illegally set aside the acquisition. In case, High
Court had set aside the acquisition in an illegal manner then
also maxim ‘actus curiae neminum gravabit’ would have
come to the rescue to save acquisition from being lapsed and a
period spent in appeal in this Court was to be excluded.
3. The provisions of Section 24(2) could not be said to be
applicable to the case once acquisition stood quashed in 2008
191
by the High Court. Thus, there was no occasion for this court
to decide the case on aforesaid aspect envisaged under section
24(2) of the Act of 2013.
4. That statutory rules framed under section 55 of Act of 1894
and orders having statutory force issued under, constitutional
provisions or otherwise by various State Governments were
not placed for consideration before this court in Pune
Municipal Corporation case (supra)
5. Provisions of section 34 prevailing practice of deposit, and
binding decisions thereunder section 34 of the Act of 1894
were not placed for consideration of this court while deciding
the case.
6. The proviso to section 24(2) was not placed for consideration
which uses different expression ‘deposited' than ‘paid' in main
section 24(2) which carry a different meaning.
7. What is the meaning of expression ‘paid' as per various
binding decisions of this court when the obligation to pay is
complete as held in Straw Board Manufacturing Co. Ltd.,
Saharanpur v. Gobind (supra), Management of Delhi Transport
Undertaking v. The Industrial Tribunal, Delhi & Anr. (supra),
192
Indian Oxygen Ltd. v. Narayan Bhoumik (supra) and the
Benares State Bank Ltd. v. The Commissioner of Income Tax,
Lucknow, (supra) and other decisions were not placed for
consideration.
8. The binding decisions of the court as to the consequence of
non-deposit in Hissar Improvement v. Smt. Rukmani Devi &
Anr. (supra), Kishan Das & Ors. v. State of U.P. & Ors. (supra)
and Seshan & Ors. v. Special Tehsildar & Land Acquisition
Officer, SPICOT, Pudukkottai (supra) etc. were not placed for
consideration while deciding the case.
9. The maxim “nullus commodum capere potest de injuria
sua propria” i.e. no man can take advantage of his own
wrong of filing litigation and effect of refusal to receive
compensation was not placed for consideration while deciding
the aforesaid case.
10. There is no lapse of acquisition due to the non deposit of
amount under the provisions of Act of 1894 or Act of 2013. In
this regard, the provision of section 77 and 80 relating to
payment and deposit under Act of 2013 which corresponds to
section 31 and 34 were not placed for consideration of this
193
court while rendering the aforesaid decision.
11. The past practice for more than a century, of deposit in
treasury, as per rules/ orders and decisions were not placed
for consideration. It was not open to invalidate such deposits
made in treasury without consideration of the provisions,
prevailing practice, and decisions under the Act of 1894.
The decision rendered in Pune Municipal Corporation (supra),
which is related to Question No.1 and other decisions following,
the view taken in Pune Municipal Corporation (supra) are per
incuriam. The decision in Shree Balaji (supra) cannot be said to
be laying down good law, is overruled and other decisions
following the said decision to the extent they are in conflict with
this decision, stand overruled. The decision in DDA v. Sukhbir
Singh (supra) is partially overruled to the extent it is contrary to
this decision. The decisions rendered on the basis of Pune
Municipal Corporation (supra) are open to be reviewed in
appropriate cases on the basis of this decision.
CONCLUSIONS :
153. Our answers to the questions are as follows:
194
Q. No. I :- The word ‘paid’ in section 24 of the Act of 2013 has the
same meaning as ‘tender of payment’ in section 31(1) of the Act of
1894. They carry the same meaning and the expression ‘deposited’
in section 31(2) is not included in the expressions ‘paid’ in section
24 of the Act of 2013 or in ‘tender of payment' used in section 31(1)
of the Act of 1894. The words ‘paid'/tender' and ‘deposited' are
different expressions and carry different meanings within their fold.
In section 24(2) of the Act of 2013 in the expression ‘paid,' it is
not necessary that the amount should be deposited in court as
provided in section 31(2) of the Act of 1894. Non-deposit of
compensation in court under section 31(2) of the Act of 1894 does
not result in a lapse of acquisition under section 24(2) of the Act of
2013. Due to the failure of deposit in court, the only consequence at
the most in appropriate cases may be of a higher rate of interest on
compensation as envisaged under section 34 of the Act of 1894 and
not lapse of acquisition.
Once the amount of compensation has been unconditionally
tendered and it is refused, that would amount to payment and the
obligation under section 31(1) stands discharged and that amounts
to discharge of obligation of payment under section 24(2) of the Act
195
of 2013 also and it is not open to the person who has refused to
accept compensation, to urge that since it has not been deposited in
court, acquisition has lapsed. Claimants/landowners after refusal,
cannot take advantage of their own wrong and seek protection
under the provisions of section 24(2).
Q. No. II :- The normal mode of taking physical possession under
the land acquisition cases is drawing of Panchnama as held in
Banda Development Authority (supra).
Q. No. III :- The provisions of section 24 of the Act of 2013, do not
revive barred or stale claims such claims cannot be entertained.
Q. No. IV :- Provisions of section 24(2) do not intend to cover the
period spent during litigation and when the authorities have been
disabled to act under section 24(2) due to the final or interim order
of a court or otherwise, such period has to be excluded from the
period of five years as provided in section 24(2) of the Act of 2013.
There is no conscious omission in section 24(2) for the exclusion of
a period of the interim order. There was no necessity to insert such
a provision. The omission does not make any substantial difference
as to legal position.
196
Q. No. V :- The principle of actus curiae neminem gravabit is
applicable including the other common law principles for
determining the questions under section 24 of the Act of 2013. The
period covered by the final/ interim order by which the authorities
have been deprived of taking possession has to be excluded. Section
24(2) has no application where Court has quashed acquisition.
The questions referred to are answered accordingly.
……………………………….J.
(ARUN MISHRA)
……………………………….J.
(ADARSH KUMAR GOEL)
NEW DELHI;
FEBRUARY 8, 2018.
197
O R D E R
We unanimously agree to the answers given to all the
questions i.e. Nos.I to V, except to the aspect decided by
majority whether Pune Municipal Corporation & Anr. v.
Harakchand Misirimal Solanki, 2014 (3) SCC 183, is per
incuriam or not. As the majority has taken the view that it is
per incuriam, it is declared to be per incuriam. The questions
referred stand answered in terms of majority judgment.
Hence, ordered accordingly.
Mattes may now be listed on 16.2.2018 for orders
before an appropriate Bench, subject to the orders of the
Hon’ble the Chief Justice of India.
.........……………….................J.
[ARUN MISHRA]
..........……….………...............J.
[ADARSH KUMAR GOEL]
...………......…………..............J.
[MOHAN M. SHANTANAGOUDAR]
New Delhi;
8
th February, 2018.
198
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.20982 OF 2017
INDORE DEVELOPMENT AUTHORITY ...APPELLANT (S)
VERSUS
SHAILENDRA (DEAD)
THROUGH LRS.& ORS. ...RESPONDENT (S)
WITH
SPECIAL LEAVE PETITION (C) No.10742 OF 2008
YOGESH KUMAR & ORS. ...PETITIONER (S)
VERSUS
STATE OF MADHYA PRADESH & ORS. ...RESPONDENT (S)
WITH
SPECIAL LEAVE PETITION (C) No.20920 OF 2011
SPECIAL LEAVE PETITION (C)Nos.26574-26575 OF 2011
SPECIAL LEAVE PETITION (C)No.28993 OF 2011
SPECIAL LEAVE PETITION (C)No.30198 OF 2015
SPECIAL LEAVE PETITION (C)No.30192 OF 2015
SPECIAL LEAVE PETITION (C)No.30142 OF 2015
1
SPECIAL LEAVE PETITION (C)No.30128 OF 2015
SPECIAL LEAVE PETITION (C)No.30203 OF 2015
CIVIL APPEAL No.4835 OF 2015
SPECIAL LEAVE PETITION (C)No.25289 OF 2015
SPECIAL LEAVE PETITION (C)………………CC No.9842 OF 2016
SPECIAL LEAVE PETITION (C) No.22356 OF 2015
SPECIAL LEAVE PETITION (C) No.31678 OF 2015
CIVIL APPEAL NO.4836 OF 2015
SPECIAL LEAVE PETITION (C) No.22527 OF 2015
SPECIAL LEAVE PETITION (C) No.4705 OF 2016
SPECIAL LEAVE PETITION (C) No.30577-30580 OF 2015
SPECIAL LEAVE PETITION (C) No.27389 OF 2015
SPECIAL LEAVE PETITION (C) No.27383 OF 2015
SPECIAL LEAVE PETITION (C) No.34787 OF 2015
SPECIAL LEAVE PETITION (C) No.10190-10200 OF 2017
SPECIAL LEAVE PETITION (C) No.38290 OF 2016
SPECIAL LEAVE PETITION (C) No.9571 OF 2016
SPECIAL LEAVE PETITION (C) No.15127 OF 2016
SPECIAL LEAVE PETITION (C) No.15144 OF 2016
SPECIAL LEAVE PETITION (C) No.15131 OF 2016
2
SPECIAL LEAVE PETITION (C) No.15139 OF 2016
SPECIAL LEAVE PETITION (C) No.16425 OF 2016
SPECIAL LEAVE PETITION (C) No.15117 OF 2016
SPECIAL LEAVE PETITION (C) No.15140 OF 2016
SPECIAL LEAVE PETITION (C) No.9570 OF 2016
SPECIAL LEAVE PETITION (C) No.15113 OF 2016
SPECIAL LEAVE PETITION (C) No.16438 OF 2016
SPECIAL LEAVE PETITION (C) No.15119 OF 2016
SPECIAL LEAVE PETITION (C) No.15126 OF 2016
SPECIAL LEAVE PETITION (C) No.15125 OF 2016
SPECIAL LEAVE PETITION (C) No.15118 OF 2016
SPECIAL LEAVE PETITION (C) No.15124 OF 2016
SPECIAL LEAVE PETITION (C) No.15112 OF 2016
SPECIAL LEAVE PETITION (C) No.11824 OF 2016
SPECIAL LEAVE PETITION (C) No.15143 OF 2016
SPECIAL LEAVE PETITION (C) No.15141 OF 2016
SPECIAL LEAVE PETITION (C) No.15142 OF 2016
SPECIAL LEAVE PETITION (C) No.15213-15217 OF 2017
SPECIAL LEAVE PETITION (C) No.17324 OF 2016
SPECIAL LEAVE PETITION (C) No.38368 OF 2016
3
SPECIAL LEAVE PETITION (C) No.5182-5184 OF 2017
SPECIAL LEAVE PETITION (C) No.23846 OF 2016
SPECIAL LEAVE PETITION (C) No.23097 OF 2016
SPECIAL LEAVE PETITION (C) No.19804-19805 OF 2016
SPECIAL LEAVE PETITION (C) No.22127-22128 OF 2016
SPECIAL LEAVE PETITION (C) No.21997-21998 OF 2016
W.P.(C) No.602 OF 2017
SPECIAL LEAVE PETITION (C) ..Diary No.24901 OF 2017
J U D G M E N T
ARUN MISHRA, J.
1. In Indore Development Authority v. Shailendra (Dead) through
LRs. & Others [C.A No.20982 of 2017] correctness of the decision of
Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki
[2014 (3) SCC 183] has been doubted. The main issue is
interpretation of section 24 of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 (for short, ‘the Act of 2013’) and section 31 of the Land
Acquisition Act, 1894 (for short, ‘the Act of 1894’).
2. In Yogesh Neema & Ors. v. State of M.P. & Ors. [S.L.P. [C]
No.10742 of 2008] vide order of 12.1.2016, observing that other
4
question, that may arise undoubtedly to be considered question
Nos. IV and V have been referred.
Following questions arises for consideration:
I. What is the meaning of the expression ‘paid'/ ‘tender' in
Section 24 of the Act of 2013 and section 31 of the Act of
1894? Whether non-deposit of compensation in court under
section 31(2) of the Act of 1894 results into a lapse of
acquisition under section 24(2) of the Act of 2013. What are
the consequences of non-deposit in Court especially when
compensation has been tendered and refused under section
31(1) of the Act of 1894 and section 24(2) of the Act of 2013?
Whether such persons after refusal can take advantage of
their wrong/conduct?
II. Mode of taking physical possession as contemplated under
section 24(2) of the Act of 1894.
III. Whether section 24 of Act of 2013 revives barred and stale
claims?
IV. Whether the conscious omission referred to in paragraph 11 of
the judgment in Shree Balaji Nagar Residential Association v.
State of Tamil Nadu [(2015) 3 SCC 353] makes any substantial
5
difference to the legal position with regard to the exclusion or
inclusion of the period covered by an interim order of the
Court for the purpose of determination of the applicability of
Section 24(2) of the 2013 Act?
V. Whether the principle of “actus curiae neminem gravabit”,
namely act of the Court should not prejudice any parties
would be applicable in the present case to exclude the period
covered by an interim order for the purpose of determining the
question with regard to taking of possession as contemplated
in Section 24(2) of the 2013 Act?
In Re: Question No.1
3. Question that has been referred in as to meaning of the
expression ‘paid' used in section 24 of Act of 2013 and expression
‘tender' used in section 31(1) of Act of 1894 when deposit under
section 31(2) of Act of 1894 is necessary, effect of refusal to accept
compensation and whether deposit in treasury is permissible and
effect of non-deposit of compensation in Court.
4. In order to appreciate the various questions to be answered, it
is appropriate to first consider the provisions contained in the Act of
1894 with respect to the passing of the award, together with its
6
communication and payment; the following then is a ‘bird’s eye
view’ of the same.
SCHEME OF ACT & RELEVANT PROVISIONS :
5. After notification under section 4 and declaration under
section 6 have been issued under the Act of 1894, the Collector is
required to proceed to pass an award under section 11. Section 12
requires the Collector to give immediate notice of the award to such
persons interested as are not present personally or by their
representatives when the award is made. Section 16 deals with the
power of the Collector to take possession of the land after an award
has been made under section 11. It is open to the Collector to take
possession of the land, which shall, thereupon, vest absolutely in
the Government. Section 16 is extracted hereunder:
“16. Power to take possession – When the Collector has made
an award under section 11, he may take possession of the land,
which shall thereupon vest absolutely in the Government, free
from all encumbrances. (emphasis supplied)
6. Section 17 deals with special powers in cases of urgency. The
same authorizes the Collector to take possession before passing of
the award as provided in section 17(1) of the Act of 1894, and on
taking possession of any land, such land shall thereupon vest
7
absolutely in the Government, free from all encumbrances. Section
17 is extracted hereunder:
“17. Special powers in case of urgency – (1) In cases of
urgency whenever the [appropriate Government], so directs,
the Collector, though no such award has been made, may, on
the expiration of fifteen days from the publication of the notice
mentioned in section 9, subsection 1). [take possession of any
land needed for a public purpose]. Such land shall thereupon
[vest absolutely in the [Government], free from all
encumbrances.
(2) Whenever owing to any sudden change in the channel of
any navigable river or other unforeseen emergency, it becomes
necessary for any Railway Administration to acquire the
immediate possession of any land for the maintenance of their
traffic or for the purpose of making thereon a river-side or ghat
station, or of providing convenient connection with or accesses
to any such station, [or the appropriate Government considers
it necessary to acquire the immediate possession of any land
for the purpose of maintaining any structure or system
pertaining to irrigation, water supply, drainage, road
communication or electricity,] the Collector may immediately
after the publication of the notice mentioned in sub-section (1)
and with the previous sanction of the [appropriate
Government], enter upon and take possession of such land,
which shall thereupon [vest absolutely in the [Government]]
free from all encumbrances : Provided that the Collector shall
not take possession of any building or part of a building under
this sub-section without giving to the occupier thereof at least
forty-eight hours notice of his intention so to do, or such
longer notice as may be reasonably sufficient to enable such
occupier to remove his movable property from such building
without unnecessary inconvenience.
(3) In every case under either of the preceding sub-sections the
Collector shall at that time of taking possession offer to the
persons interested compensation for the standing crops and
trees (if any) on such land and from any other damage
sustained by them caused by such sudden dispossession and
not excepted in section 24; and, in case such offer is not
accepted, the value of such crops and trees and the amount of
such other damage shall be allowed for in awarding
compensation for the land under the provisions herein
8
contained.
3[(3A) Before taking possession of any land under sub-section
(1) or sub-section (2), the Collector shall, without prejudice to
the provisions of sub-section (3)- (a) tender payment of eighty
per centum of the compensation for such land as estimated by
him to the person interested entitled thereto, and (b) pay it to
them, unless prevented by some one or more of the
contingencies mentioned in section 31, sub-section (2), and
where the Collector is so prevented, the provisions of section
31, sub-section (2), (except the second proviso thereto), shall
apply as they apply to the payment of compensation under that
section.
(3B) The amount paid or deposited under section (3A), shall
be taken into account for determining the amount of
compensation required to be tendered under section 31, and
where the amount so paid or deposited exceeds the
compensation awarded by the Collector under section 11, the
excess may, unless refunded within three months from the date
of Collector's award, be recovered as an arrear of land
revenue]. [(4) In the case of any land to which, in the opinion
of the [appropriate Government], the provisions of sub-section
(1) or sub-section (2) are applicable, the [appropriate
Government] may direct that the provisions of section 5A shall
not apply, and, if it does so direct, a declaration may be made
under section 6 in respect of the land at any time [after the date
of the publication of the notification] under section 4,
sub-section (1).” (emphasis
supplied)
Before taking possession of the land, it is necessary under
Section 17(3A) to tender payment of 80% compensation unless
prevented by some one or more of the contingencies mentioned in
sub-section (2) of section 31, and where the Collector is so
prevented, the provisions of section 31(2), except the second
proviso, shall apply as they apply to the payment of compensation
9
under that section. As required under section 17(3A) and section
17(3B), the amount paid or deposited under sub-section (3A) shall
be taken into account for determining the amount of compensation
to be tendered under section 31. Section 18 of the Act of 1894
provides that any person interested, who has not accepted the
award, may ask for a reference to be made to the court with respect
to (1) measurement of the land; (2) the amount of compensation (3)
the persons to whom it is payable or (4) the apportionment of the
compensation among the persons interested. Under section 30,
there can be a reference to the court; its scope is confined to any
dispute arising as to the apportionment of the amount of
compensation or any part thereof, or as to the persons to whom the
same or any part thereof is payable. In a reference under section 30,
measurement of land and quantum of compensation cannot be
questioned. There is a limitation for reference under section 18(2);
whereas, the limitation is not prescribed in the Act of 1894 for
seeking reference under section 30.
7. There is yet another reference under the Act of 1894, i.e. under
section 28A. The provisions of section 28A aim at removal of the
disparity in the matter of payment of compensation which provides
10
for re-determination of the amount of compensation, on the basis of
the award of the court, in respect of a person who had not sought
reference, and had accepted the Collector’s award; such a person
can seek re-determination of compensation within three months
from the date of the award of the court. In case a person is not
satisfied with the re-determination so made under section 28A(2),
he can seek a reference to court under section 28A(3).
8. The payment of compensation and deposit of it in Court is
dealt with in Part V of the Act of 1894, in section 31. Section 31 is
extracted hereunder:
“31. Payment of compensation or deposit of same in Court. -
(1) On making an award under section 11, the Collector shall
tender payment of the compensation awarded by him to the
persons interested entitled thereto according to the award and
shall pay it to them unless prevented by some one or more of
the contingencies mentioned in the next sub-section.
(2) If they shall not consent to receive it, or if there be no
person competent to alienate the land, or if there be any
dispute as to the title to receive the compensation or as to the
apportionment of it, the Collector shall deposit the amount of
the compensation in the Court to which a reference under
section 18 would be submitted: Provided that any person
admitted to be interested may receive such payment under
protest as to the sufficiency of the amount: Provided also that
no person who has received the amount otherwise than under
protest shall be entitled to make any application under section
18: Provided also that nothing herein contained shall affect the
liability of any person, who may receive the whole or any part
of any compensation awarded under this Act, to pay the same
to the person lawfully entitled thereto.
11
(3) Notwithstanding anything in this section the Collector may,
with the sanction of the [appropriate Government] instead of
awarding a money compensation in respect of any land, make
any arrangement with a person having a limited interest in
such land, either by the grant of other lands in exchange, the
remission of land-revenue on other lands held under the same
title, or in such other way as may be equitable having regard to
the interests of the parties concerned.
(4) Nothing in the last foregoing sub-section shall be construed
to interfere with or limit the power of the Collector to enter
into any arrangement with any person interested in the land
and competent to contract in respect thereof.”
9. The provision of section 31(2) makes it clear that only in the
exigencies as provided in section 31(2), the amount has to be
deposited in reference court, not in all exigencies. As discussed
hereinafter rules framed under section 55 provide that in case a
person seeks no reference and he refuses to accept the
compensation it has to be deposited in the treasury. An attempt
has to be made to harmonize the Act and the rules. The expression
used in section 31(2) is that on refusal amount to be deposited in
Court where reference would be submitted. When no reference is
sought there is no question of it being submitted to the Court.
Hence, Reference Court does not come into picture then the deposit
is to be obviously made in treasury as provided in Rules/ Order
discussed hereinafter.
12
10. Sub-section (1) of section 31 deals with "payment", whereas,
sub-section (2) of section 31 deals with "deposit" of the amount of
compensation in court in certain contingencies. "Payment" of
compensation is differently dealt with in section 31(1), and "deposit"
is separately dealt with in section 31(2) of the Act of 1894. Section
31(1) provides tender of the amount to be the mode to pay. The
provisions of sub-section (1) deal with payment, and sub-section (2)
of section 31 deals with deposit in the Court “where reference would
be submitted”, only in the contingencies mentioned, i.e. (1) if the
person interested shall not consent to receive it, and has sought
reference to Court or (2) if there be no person competent to alienate
the land, or (3) if there be any dispute as to the entitlement to
receive the compensation, or (4) if there be any dispute as to the
apportionment of compensation between the interested persons.
The Collector is required to deposit the amount of the compensation
in the Court to which a reference under section 18 would be
submitted. It is also provided in section 31(2) that no person who
has received the amount otherwise than under protest shall be
entitled to make an application for seeking reference under section
18. It is open to a person, under the first proviso to section 31(2), to
13
receive payment of compensation under protest as to the sufficiency
of the amount, and such person is also entitled to maintain a
reference. The third proviso to section 31(2) makes it clear that any
person who has received the whole or any part of compensation
awarded under the Act, shall still be liable to pay the same to a
person who is lawfully entitled thereto. It is with the purpose as
provided in section 31 when the amount is tendered it can be
accepted under protest and still a reference can be maintained. In
case awarded amount has been accepted without protest, reference
cannot be maintained under section 18.
11. In case of incompetency of a person to alienate the land in
question, amount has to be deposited in the reference court under
section 31(2), and when money of such person is deposited in
Court, court may order the money to be invested in the purchase of
another land to be held under the like title and conditions of
ownership, as the land, in respect of which, such money shall have
been deposited, was held, or if such purchase cannot be effected
forthwith, money can be invested in Government or other approved
securities as the court shall think fit and has to be dealt with in
accordance with the provisions contained in section 32. Section 33
14
deals with an investment of money deposited in other cases.
12. In case money is deposited in court otherwise than as provided
under section 32, any party interested can apply to the court for
investing the same in Government or other approved securities, is
the purpose of deposit. The provisions of sections 32 and 33 of the
Act of 1894 are extracted hereunder:
“32. Investment of money deposited in respect of lands
belonging to persons incompetent to alienate. -
(1) If any money shall be deposited in Court under
sub-section (2) of the last preceding section and it
appears that the land in respect whereof the same was
awarded belonged to any person who had no power to
alienate the same, the Court shall(a)
order the money to be invested in the purchase of
other lands to be held under the like title and conditions
of ownership as the land in respect of which such
money shall have been deposited was held, or
(b) if such purchase cannot be effected forthwith, then
in such Government of other approved securities as the
Court shall think fit;
and shall direct the payment of the interest or other
proceeds arising from such investment to the person or
persons who would, for the time being, have been
entitled to the possession of the said land, and such
moneys shall remain so deposited and invested until the
same be applied(i)in
the purchase of such other lands as
aforesaid; or
(ii) in payment to any person or persons
becoming absolutely entitled thereto.
(2) In all cases of money deposited to which this
section applies the Court shall order the costs of the
following matters, including therein all reasonable
15
charge and expenses incident thereon, to be paid by the
Collector, namely: -
(a) the costs of such investments as aforesaid; (b) the
costs of the orders for the payment of the interest or
other proceeds of the securities upon which such
moneys are for the time being invested, and for the
payment out of Court of the principal of such moneys,
and of all proceedings relating thereto, except such as
may be occasioned by litigation between adverse
claimants.
33. Investment of money deposited in other cases - When any
money shall have been deposited in Court under this Act for
any cause other than mentioned in the last proceeding section,
the court may, on the application of any party interested or
claiming an interest in such money, order the same to be
invested in such Government or other approved securities as it
may think proper, and paid in such manner as it may consider
will give the parties interested therein the same benefit the
reform as they might have had from the land in respect
whereof such money shall have been deposited or as near
thereto as may be.”
13. The provisions contained in section 34 deals with the
exigencies where the amount of compensation is not paid or
deposited on or before taking possession of the land. The Collector
shall pay the amount awarded with interest thereon @ 9% from the
time of so taking possession until it shall have been so paid or
deposited; and if such compensation or any part thereof is not paid
or deposited within one year from the date on which possession is
taken, interest @ 15% per annum shall follow. Section 34 of 1894
Act is extracted hereunder:
16
“34. Payment of interest - When the amount of such
compensation is not paid or deposited on or before taking
possession of the land, the Collector shall pay the amount
awarded with interest thereon at the rate of (nine per centum)
per annum from the time of so taking possession until it shall
have been so paid or deposited:
[Provided that if such compensation or any part thereof is not
paid or deposited within a period of one year from the date on
which possession is taken, interest at the rate of fifteen per
centum per annum shall be payable from the date or expiry of
the said period of one year on the amount of compensation or
part thereof which has not been paid or deposited before the
date of such expiry.”
14. The expression “paid”/“tender” and the expression “deposited”
have both been used separately in section 31, as well as in section
34, of the Act of 1894; so also in Section 24(2) of the Act of 2013.
They carry different meanings, and different consequences flow from
them. Significantly, it is clear under Section 16 of the Act of 1894,
that once award has been passed and possession has been taken,
land absolutely vests in the State, and in the case of contingencies
as provided in section 17(1) when possession is taken in the case of
urgency, even before passing of the award, land vests absolutely in
the State under section 17(3A), 80% amount is required to be
tendered before taking possession under sections 17(1) and 17(2);
and, the same is to be paid in the mode as provided for under
section 31(1) and, in case of refusal, incompetency etc. to alienate
17
and other such cases as provided under section 31(2), it has to be
deposited in the court and in case it is not so deposited,
consequences, as prescribed under section 34, shall follow i.e. from
the date of taking possession 9% interest for the first year and after
1 year, 15% interest has to be paid on the amount not so paid or
deposited. Under the provisions of the Act of 1894, there is no
divesting of the land which has vested absolutely in the State; and,
the consequences of non-payment, or of non-tendering of
compensation, or of non-depositing of the same in court, would only
be that of the additional liability of interest as provided in section
34. The provision with respect to the payment of 15% interest has
been inserted via the proviso to section 34, w.e.f. 24.9.1984, vide
Amendment Act No.68/1984.
15. When we consider the provisions of the Act of 2013, vis-à-vis
those of the Act of 1894, it becomes apparent that Section 11 of the
Act of 2013 is akin to section 4 of the Act of 1894. Section 19 deals
with publication of declaration and summary of Rehabilitation and
Settlement, it is equivalent to section 6 of the Act of 1894. Section
23 deals with matters to be considered while determining
18
compensation by the Collector.
16. Section 24 of the Act of 2013 deals with land acquisition
process initiated under the Act of 1894, which shall be deemed to
have lapsed in certain cases. With respect to acquisition, when
award, under the Act of 1894, has not been passed, then, as per
Section 24(1)(a) of the Act of 2013, all the provisions of the Act of
2013 relating to the determination of compensation shall apply;
where, however, an award under section 11 of the act of 1894 has
been made, then such proceedings shall continue,as per section
24(1)(b), under the Act of 1894, as if the said Act has not been
repealed.
17. Section 24(2) begins with a non-obstante clause — as
notwithstanding anything contained in sub-section (1). The
provisions of sub-section (2) of section 24 shall, under the
exigencies provided therein, have the overriding effect, i.e. in case of
award, under Act of 1894, has been made five years or more prior to
the commencement of the Act of 2013, but either the physical
possession has not been taken, or compensation has not been paid,
the said proceedings shall be deemed to have lapsed. The proviso to
section 24(2) lays down when the award has been made and
19
compensation in respect of majority of holdings has not been
deposited in the account of the beneficiaries, the acquisition would
not lapse; however, all the beneficiaries shall be entitled to
compensation in accordance with the provisions of the Act of 2013.
18. When we consider the scheme of the Act of 2013 also with
respect to the mode of payment of compensation, we find provisions
of section 77 are almost akin to those of section 31. The provisions
of section 77 of the Act of 2013 are extracted hereunder:
“77. Payment of compensation or deposit of same in Authority. –(1)
On making an award under section 30, the Collector shall tender
payment of the compensation awarded by him to the persons
interested entitled thereto according to the award and shall pay it to
them by depositing the amount in their bank accounts unless
prevented by someone or more of the contingencies mentioned in
sub-section (2).
(2) If the person entitled to compensation shall not consent to receive
it, or if there be no person competent to alienate the land, or if there
be any dispute as to the title to receive the compensation or as to the
apportionment of it, the Collector shall deposit the amount of the
compensation in the Authority to which a reference under section 64
would be submitted:
Provided that any person admitted to be interested may receive
such payment under protest as to the sufficiency of the amount:
Provided further that no person who has received the
amount otherwise than under protest shall be entitled to make any
application under sub-section (1) of section 64:
Provided also that nothing herein contained shall affect the
liability of any person, who may receive the whole or any part of any
compensation awarded under this Act, to pay the same to the person
lawfully entitled thereto."
20
19. Section 80 of the Act of 2013, is equivalent to section 34 of the
Act of 1894, the same is extracted hereunder:
"80. Payment of interest. –When the amount of such compensation is
not paid or deposited on or before taking possession of the land, the
Collector shall pay the amount awarded with interest thereon at the
rate of nine percent. per annum from the time of so taking possession
until it shall have been so paid or deposited:
Provided that if such compensation or any part thereof is not
paid or deposited within a period of one year from the date on which
possession is taken, interest at the rate of fifteen percent. per annum
shall be payable from the date or expiry of the said period of one
year on the amount of compensation or part thereof which has not
been paid or deposited before the date of such expiry.”
20. It is apparent, from the provisions contained in section 77 of
the Act of 2013, that, the expression used in section 77 that the
Collector shall “tender” payment of the compensation to
landowners/interested persons, and the obligation is to pay it to
them by depositing the amount in their bank accounts unless
prevented by exigencies provided in section 77(2), are akin to
section 31(2) of the Act of 1894.
21. In proviso to section 24(2), expression used is compensation
has not been “deposited” in the account of the beneficiaries, which
may be deposited separately in treasury also; whereas, in section
77, of the Act of 2013 the deposit is required, in the “bank” account
of beneficiaries, unless refused. The expression “bank-account” has
21
not been used in section 31 of the Act of 1894 or in section 24(2) of
Act of 2013. In proviso to section 24(2), the expression used
“deposited in account” would mean deposited only in Treasury or
with the Land Acquisition collector for payment.
22. It is pertinent to mention that section 80 of the Act of 2013
also imposes a liability of interest, akin to Section 34 of the Act of
1894, upon amount not being deposited; i.e. 9% for the first year
and, thereafter, 15% per annum. The Act of 2013 does not envisage
the consequence of lapse of the acquisition on non-deposit of
compensation in court, and neither was it so provided for in section
31 of the Act of 1894. The provision of section 24 thus does not
contemplate deposit of amount in Court. In our opinion, the
expression "paid" and "deposited" are separately used in both
enactments, and they both carry a different meaning. The aforesaid
provisions deal with tender and deposit; and, consequences are
similar.
INTERPRETATION OF SECTION 24
23. Section 24 of the Act of 2013 is extracted hereunder:-
“24. Land acquisition process under Act No. 1 of 1894 shall
be deemed to have lapsed in certain cases.–(1)
Notwithstanding anything contained in this Act, in any case of
22
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 (1 of 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.”
24. When we consider the provisions of section 24 of the 2013 Act,
it is clear that in case of the award has not been passed then as per
section 24(1)(a), compensation has to be determined under the Act
of 2013. It is also clear that section 24(1)(b) provides that where an
award under section 11 of the 1894 Act has been made, then such
proceedings shall continue under the provisions of the said Act of
1894 as if it has not been repealed. However, in case physical
23
possession of the land has not been taken, or the compensation has
not been paid, the proceedings shall be deemed to have lapsed; and,
in case of compensation with respect to a majority of landholdings
has not been deposited in the account of the beneficiaries, then, all
beneficiaries i.e. landowners shall be entitled to compensation in
accordance with the provisions of the Act of 2013.
25. In section 24(2), the expression that has been employed is
"compensation has not been paid". The expression "deposited",
which occurs in the proviso to sub-section (2), has not been used in
the main section 24(2). Its proviso uses the expression "deposited in
the account of the beneficiaries", meaning thereby, in the case with
respect to the majority of land holdings amount has not been
deposited in the account of beneficiaries, though the acquisition
would not lapse, all beneficiaries would get benefit of the
compensation under the Act of 2013. Thus, the consequence of
non-deposit of the amount, with respect to the majority of land
holdings, in the account of the beneficiaries, is that the acquisition
would not lapse, and only compensation under the new Act would
be payable. Whereas, under the main part of section 24(2), it is
apparent that, the expression "compensation has not been paid"
24
has been used. The word "deposited" is missing from main part of
section 24(2), and it is only used in the proviso. Thus it is crystal
clear that the Legislature has used two different expressions to
carry, respectively different meanings; and, the proviso operates in a
different field, where the acquisition would not lapse. The object is
that a body or State Government, for whose benefit land has been
acquired, must have possessed the requisite funds for payment to
the landowners. The proviso is not attracted where compensation
has been paid.
26. The proviso to section 24(2) does not provide that amount of
compensation has to be deposited in the court. It obviously refers to
a payment deposited with LAO or in treasury.
27. The different expression “paid”, used in section 24(2) of the
2013 Act, thus, cannot carry same meaning and include in it the
deposit to be made in Court under section 31(2) of the Act of 1894;
it only reflects the mode of payment as envisaged under section
31(1) of the Act of 1894 i.e. “tender”.
28. The expression used in section 31 of Act of 1894 and Section
77(1) of Act of 2013 is to “tender payment”. Once there is tender,
then in case of refusal to accept the same,the obligation to pay
25
under section 31(1) is complete by tender, and that tantamount to
making the payment; and, that is precisely what is intended by the
word “paid” in section 24(2) of 2013 Act.
29. In Section 31(2) of the 1894 Act, the word ‘deposited in Court’
is used. The deposit in Court is not payment to the beneficiaries. It
is only after their refusal to accept the compensation tendered
under section 31(1) of the Act of 1894 it is to be deposited in Court.
It is further provided in the rules that in case of reference is sought,
the amount is to be deposited in court where reference would be
submitted otherwise it is to be deposited in the treasury.If the
expression “deposited”, used in the proviso to section 24(2), and
expression “paid” used in main section 24(2), are both taken as
contained in expression “paid” i.e. the tender; and, on refusal it is
deposited in court to make the “payment” complete; if expression
“deposited” is included in expression ‘payment’ under Section 24(2),
inconsistency and repugnancy would be caused as between the
proviso and the main sub-section; which has to be eschewed. The
Court cannot add the word "deposited" to the expression “paid”/
“tender” in Section 31 of Act 1894 or Section 24(2) of Act of 2013.
26
30. The proviso to section 24(2) of the 2013 Act deals with ‘deposit'
of compensation in treasury or with Land Acquisition Collector with
respect to the majority of holding it does obviously contemplate that
amount has not been ‘paid' to landowners/ beneficiaries/ interested
persons. Thus, when Scheme of entire section 24 is considered, the
concept of ‘paid' in the main section 24(2) is different than the
deposit. If the deposit is included in word paid the proviso to section
24(2), which has the different consequence of no lapse, but only
higher compensation would be otiose and become redundant and
repugnancy would occur.
31. It is clear that expression ‘paid’ in section 24 is different than
‘deposit’ which is provided in its proviso. The word ‘deposit’ is
included in section 24 in word ‘paid’. Same is the position even
under section 31(1) and 31(2). The provisions of section 24 cannot
be rendered wholly unworkable by the inclusion of ‘deposit' in
‘paid'.
MEANING OF “PAID” IN SECTION 31 OF THE ACT OF 1894 AND
SECTION 24(2) OF THE ACT OF 2013 :
27
32. The question arises what is the meaning of the expression ‘paid'
in section 24 and ‘tender' in section 31(2) of the Act of 1894.
Whether the tender of compensation amount to discharge of
obligations to make payment. The meaning of expression “tender”:
is when a person has tendered the amount and made it
unconditionally available and the landowner has refused to receive
it, the person who has tendered the amount cannot be saddled with
the liability, which is to be visited for non-payment of the amount.
"Tender" has been defined in Black's Law Dictionary thus:
“tender, n. (16c) 1. A valid and sufficient offer of
performance; specific, an unconditional offer of money or
performance to satisfy a debt or obligation a tender of
delivery.The tender may save the tendering party from a
penalty for non-payment or non-performance or may, if the
other party unjustifiably refuses the tender, place the other
party in default. Cf. OFFER OR PERFORMANCE;
CONSIGNATION.”
It is apparent from aforesaid that "tender" may save the
tendering party from the penalty for non-payment or
non-performance or penalty if another party unjustifiably refusing
the tender, places the other party in default. A formal offer duly
made by one party to another especially an offer of money in
discharge of liability fulfills the terms of the law and of the liability.
Tender is to offer of money in satisfaction of a debt, by producing
28
and showing the amount to a creditor or party claiming and
expressing verbally, willingness to pay it. The expression "tender"
has been used in section 31.The concept of deposited in court is
different from tender and “paid”.
33. This Court in the Straw Board Manufacturing Co. Ltd.,
Saharanpur v. Gobind, AIR 1962 SC 1500 has held in the context of
section 33 of the Industrial Disputes Act where payment of one
month's wages was necessary. It was held that the payment of
one-month wages can always mean that the employer has tendered
his wages and that would amount to payment for otherwise a
workman could always make the section unworkable by refusing to
take wages. The Court observed thus:
"8. Let us now turn to the words of the proviso in the
background of what we have said above. The proviso lays
down that no workman shall be discharged or dismissed
unless he has been paid wages for one month and an
application has been made by the employer to the authority
before which the proceeding is pending for approval of the
action taken by the employer. It will be clear that two kinds of
punishment are subject to the conditions of the proviso,
namely, discharge or dismissal. Any other kind of punishment
is not within the proviso. Further, the proviso lays down two
conditions, namely (i) payment of wages for one month and
(ii) making of an application by the employer to the authority
before which the proceeding is pending for approval of the
action taken. It is not disputed before us that when the proviso
lays down the condition as to payment of one month's wages,
all that the employer is required to do in order to carry out
that condition is to tender the wages to the employee. But if
29
the employee chooses not to accept the wages, he cannot
come forward and say that there has been no payment of
wages to him by the employer. Therefore, though s. 33 speaks
of payment of one month's wages it can only mean that the
employer has tendered the wages and that would amount, for
payment, for otherwise, a workman could always make the
section unworkable by refusing to take the wages. So far as
the second condition about the making of the application is
concerned." (emphasis supplied)
34. In The Management of Delhi Transport Undertaking v. The
Industrial Tribunal, Delhi &Anr. AIR 1965 SC 1503, a 3-Judge Bench
of this Court considered the question of payment of wages under
the proviso to section 33(3) of Industrial Disputes Act and has
taken a similar view and observed:
“The proviso does not mean that the wages for one month
should have been actually paid because in many cases the
employer can only tender the amount before the dismissal but
cannot force the employee to receive the payment before
dismissal becomes effective. In this case, the tender was
definitely made before the order of dismissal became
effective and the wages would certainly have been paid if
Hari Chand had asked for them. There was no failure to
comply with the provision in this respect.”
35. This Court in Indian Oxygen Ltd. v. Narayan Bhoumik (1968) 1
PLJR 94 has discussed the concept of ‘paid’ and has observed:
“4. The proviso to Section 33(2)(b) lays down that no
workman shall be discharged or dismissed unless he has been
paid wages for one month and an application has been made
by the employer to the authority before which the proceeding
is pending for approval of the action taken by him. Though
the word used in the proviso is 'paid', the proviso does not
mean that the employer must actually hand over or pay to the
30
workman dismissed or discharged his one month's wages. In
(1962) 3 Suppl. S.C.R. 618] Strawboard Manufacturing Co. v.
Gobind this Court while construing this proviso, observed
that when it lays down the condition as to payment of one
month's wages all that the employer is required to do to carry
out that condition is to tender the wages to the employee. But
if the employee chooses not to accept them, he cannot come
forward and say that there has been no payment of wages to
him by the employer, Therefore, though Section 33 speaks of
payment of one month's wages, it can only mean that the
employer has tendered the wages and that would amount to
payment, for otherwise, a workman could always make the
section unworkable by refusing to take the wages. In (1964) 2
SCR 104, 109 P.H. Kalyani v. M/s. Air France, the employer
had offered one month's wages to the workman before the
order of dismissal against him came into force. The offer was
held to be sufficient compliance of the said condition laid
down in the proviso, [(1955) 1 SCR 998] Management of
Delhi Transport Undertaking v. Industrial Tribunal, Delhi was
a case where the wages were remitted by money order but the
workman purposely refused to receive them. It was held that
the employer could not be said not to have complied with the
condition laid down by the proviso. It is thus clear that the
condition as to payment in the proviso does not mean that the
wages have to be actually paid but if wages are tendered or
offered, such a tender or offer would be sufficient compliance
for the purposes of Section 33(2)(b) proviso.”
36. The word "paid" means applied, settled or satisfied. The
concept of paid has also been considered by this Court in The
Benares State Bank Ltd. v. The Commissioner of Income Tax,
Lucknow, (1969) 2 SCC 316, in the context of section 14(2)(c) of
Income Tax Act, 1922. This Court observed that the expression
"paid" in section 16(2) does not contemplate actual receipt of the
dividend by the members of the community; in general, the dividend
31
may be said to be paid when company discharges its liability and
makes the amount of dividend unconditionally available to the
member entitled thereto. The Court has observed:
“5. …..This Court observed in J. Dalmia v. Commissioner of
Income-tax, Delhi 53 ITR 83 that the expression "paid" in
Section 16(2) does not contemplate actual receipt of the
dividend by the member : in general, dividend may be said to
be paid within the meaning of Section 16(2) when the
Company discharges its liability and makes the amount of
dividend unconditionally available to the member entitled
thereto…….” (emphasis supplied)
37. In N.B. Sanjana, Assistant Collector of Central Excise, Bombay
& Ors. v. The Elphinstone Spinning & Weaving Mills Co. Ltd. (1971) 1
SCC 337, the court observed that literal meaning of the word "paid"
need not be adopted.
38. In J.Dalmia v. Commissioner of Income Tax, New Delhi, AIR
1964 SC 1866 at 1869, this Court has observed that the expression
“paid” does not contemplate actual receipt of the dividend by the
member. The dividend may be said to be paid within the meaning of
section 16(2) when the company discharges its liability and makes
amount unconditionally available the members entitled thereto.
“The expression "paid" in s. 16(2) it is true does not
contemplate actual receipt of the dividend by the member. In
general, dividend may be said to be paid within the meaning of
s. 16(2) when the company discharges its liability and makes
32
the amount of dividend unconditionally available to the
member entitled thereto.
(emphasis supplied)
39. The expression “paid” would mean in section 31(1) of Act 1894
and section 24(2) of Act of 2013 as soon as it is offered and made
unconditionally available. Merely, if a landowner refuses to accept
it, it cannot be said that it has not been paid. Once amount has
been tendered that would amount to payment. Thus, word “paid”
does not mean actual payment to be made but whatever is possible
for an incumbent to make the payment is only contemplated.
“Paid” does not mean receipt or deposited in Court. There may be
refusal to receive an amount in spite of its tender. Thus, in view of
the decisions of this court in CIT Kerala (supra), N.B. Sanjana
(supra) and J. Dalmia (supra), the provisions of section 24(2) have to
be construed to mean tender of amount would mean payment as
envisaged.
40. It is settled that a Court cannot add or subtract a word; the
expression “compensation has not been paid” is used in section
24(2); it is not open to the court to add to these words, or to
substitute the said expression with any further expression, such as
‘deposit’. In the “Principles of Statutory Interpretation” by G.P. Singh
33
(14th edition), it has been observed that court has to avoid addition
or substitution of the words. Thus, when the word “paid” is there, it
is not open to adding "deposited", particularly when the scheme of
the Act of 1894 also contains different provisions in section 31(1)
with respect to tender is payment, while section 31(2)deals with
deposit in the court; on non-deposit consequence in section 34,
later is not a payment made to the landowner. The deposit is only in
certain exigencies with a view to wiping off the liability of making
payment of interest as provided in section 34.
41(a). While interpreting a statutory provision, no addition to, or
subtraction from, the Act is permissible. It is not open to Court to
either add or subtract, a word. The legal maxim “A Verbis Legis
Non Est Recedendum” means: from the words of law, there must
be no departure. The learned author in Interpretation of Statutes
has referred to the Privy Council decision in Crawford v. Spooner,
(1846) 6 Moore PC 1 and Lord Howard de Walden v. IRC, (1948) 2
AER 825 and other decisions of the Court and observed:
“…….(a) Avoiding addition or substitution of words
As stated by the Privy Council: “We cannot aid the
Legislature’s defective phrasing of an Act, we cannot add or
mend and, by construction makeup deficiencies which are left
there". "It is contrary to all rules of construction to read words
34
into an Act unless it is absolutely necessary to do so."
Similarly, it is wrong and dangerous to proceed by substituting
some other words for words of the statute. Speaking briefly the
court cannot reframe the legislation for the very good reason
that it has no power to legislate.
x xxxx
While interpreting section 621-A(1) of the Companies Act,
1956, the Supreme Court held that the Court must avoid
rejection or addition of words and resort to that only in
exceptional circumstances to achieve the purpose of the Act or
to give a purposeful meaning to the section. Section 621-A
provides for compounding, by the Company Law Board, of
any offence punishable under the Act, not being an offence
punishable with imprisonment only, or with imprisonment and
also with fine, either before or after the institution of any
prosecution. It was held that the Company Law Board has the
power to compound such offences without the permission of
the Court. Since the Legislature, in its wisdom, has not put the
rider of prior permission in the section, addition of the words
‘with the prior permission of the court’ to the provision is not
permissible.
Section 2(2) of the Arbitration and Conciliation Act, 1996,
which is in Part I of the Act, provides that ‘This Part shall
apply where the place of arbitration is in India. In Bharat
Aluminium Company v. Kaiser Aluminium Technical Services
Inc., a Constitution Bench of the Supreme Court rejected the
contention that Part I of the Act was also applicable to
arbitrations seated in foreign countries on the ground that in
such a case certain words would have to be added to section
2(2), which would then have to provide that ‘this part shall
apply where the place of arbitration is in India and to
arbitrations having its place out of India’. This would amount
to a drastic and unwarranted rewriting or alteration of the
language of section 2(2), and it is not permissible for the Court
to reconstruct a statutory provision. In this case, the
Constitution Bench prospectively overruled the decision of a
three-Judge Bench of the Supreme Court in Bhatia
International v. Bulk Trading SA, which had held that
provisions of Part I would apply to international commercial
arbitrations held outside India unless the parties, by agreement,
express or implied, exclude all or any of its provisions.
35
x xxxx
And, in construing section 14(f) of the U.P. Town Areas Act,
1914, which reads ‘A tax on persons assessed according to
their circumstances and property not exceeding such rate and
subject to such limitations and restrictions as may be
prescribed’, the Supreme Court refused to read residence
within the town area as a necessary part of the condition for
imposition of the said tax. S.K. DAS, J. said, “To do so will be
to read in clause (f) words which do not occur there”.
Further, in interpreting section 6(a) and section 43 of the
Transfer of Property Act, 1882, the Supreme Court refused to
read a further exception in section 43 excluding its operation in
cases of transfer of spessuccessionis. VENKATARAMA
AIYER, J. quoted with approval the observations of LORD
LOREBURN, L.C., “We are not entitled to read words into an
Act of Parliament unless clear reason for it is to be found
within the four corners of the Act itself”.
x xxxx
0n the same principle the House of Lords refused to read the
word ‘satisfied’ in section 4 of the Matrimonial Causes Act,
1950 to mean ‘satisfied beyond reasonable doubt’.
X xxxx
Sections 12(5) and 15(5) of the Right to Information Act,
2005, while providing that the Chief Information
Commissioner and Information Commissioners shall be
persons of eminence in public life, with wide knowledge and
experience in law, science, and technology, social science,
management, journalism, mass media or administration and
governance, do not further prescribe any basic qualification
which such persons must have in the respective fields in which
they work. As a result, the Court cannot read into the
provisions of sections 12(5) and 15(5) of the Act the words
that such persons must have a basic degree in their respective
fields.'”
(emphasis supplied)
41(b). This Court in Nali Nalinakhya Bysack v. Shyamsunder
36
Halder, AIR 1953 SC 148 at 152, State of Madhya Pradesh v. G.S.
Dall and Flour Mills, AIR 1991 SC 772, State of Gujarat and Others v.
Dilipbhai Nathjibhai Patel and Another (1998) 3 SCC 234,
Competition Commission of India v. Steel Authority of India Ltd.
(2010) 10 SCC 744, Assessing Authority cum-Excise and Taxation
Officer v. East India Cotton Mfg. Co. Ltd. (1981) 3 SCC 531, Paul
Enterprises & Ors. v. Rajib Chatterjee & Co. & Ors., AIR 2009 SC
187, Sakshi v. Union of India (2004) 5 SCC 518, Commissioner of
Income Tax, Kerala v. Tata Agencies (2007) 6 SCC 429, Ram Narain
Medhi v. State of Bombay AIR 1959 SC 459, S.P. Gupta v. President
of India AIR 1982 SC 149, Dadi Jagannadham v. Jammulu Ramulu
(2001) 7 SCC 71, P.K. Unni v. Nirmala Industries AIR 1990 SC 933,
Crawford v. Spooner (1846) 6 Moore PC 1, Royal Trust Company v.
Minister of Finance AIR 1921 PC 184, Padma Sundara Rao (dead) &
Ors. v. State of T. N. & Ors. (2002) 3 SCC 533 has observed that
what legislation wanted has been stated in the provision. The court
cannot give extended meaning to the expression. It is not open to
the Court to aid defective phrasing of the Act or to make up for the
deficiencies. It is not open to the Court to recast, rewrite, or
reframe the provision. The court cannot assume omission and add
37
or amend words. Plain and unambiguous construction has to be
given without addition and substitution of the words. The
temptation of substituting words by explaining what it thought
legislation is endeavoring is to be discouraged. Court has to
consider what has been said and what has not been said. It is
wrong and dangerous to proceed by substituting some other words
for the words of the statute. When literal reading produces an
intelligible result it is not open to read words or add words to
statute. Making any generous addition to the language of the Act
would not be a construction of the statutory provision; rather,
would be an amendment thereof. While interpreting the provision
the Court only interprets the law. The intention of the legislation
must be found by the words used by the legislature itself. The
legislative casus omissus cannot be supplied by judicial
interpretative process. When language of the provision is clear,
there is no scope for reading something into it. The scenario that
thus emerges in relation to an interpretationof a statute can be
explained as follows. It is a salutary principle that it is not open to
the Court to add or substitute some words in place of the words of
the statute. The court cannot reframe the legislation. The court
38
cannot add to, or amend, the provisions; neither can the
expressions used in the statute be treated as fungible.
We need not add any word when Section 24(2) uses the
expression “compensation has not been paid”. To complete the
payment, we cannot read words into it to the effectthat deposit of
payment in the court is payment to the landowners. It is clear that
unless it is absolutely necessary to do so, it is not open to read the
word "deposited" in court as part of ‘paid' when payment is
contemplated to the landowners. The consequence of nondeposit is
culled out in proviso to section 24(2). It is not that section 31(2)
would become meaningless. Hence, deposit cannot and need not be
added to expressions paid/ tender. In case the legislature wanted
the ‘deposit in Court’ to be included in ‘paid/ tender’, it could have
easily said so. But it has used expressions differently, with different
consequences.
42. What follows from the aforesaid enunciation is that the
legislature has consciously omitted the expression “deposited” in
main section 24(2), whereas, it is used in the proviso; both have
different objectives. When the legislature has used different
39
expressions with respect to past events — the word “paid” is used in
a discernibly distinctive sense than the sense conveyed by the word
“deposited” occurring in the proviso — both are required to be given
different meanings. There is casus omissus, i.e. conscious omission
made by the Legislature in main Section 24(2) when the expression
“deposited” has not been used in the expression “has been paid”,
and it is only after amount tendered is declined, it is to be deposited
in Court that too in certain exigencies as per section 31(2).
43. The word “paid”, in view of the different consequences of paid
and deposited, has to be given different meaning from “deposited”.
Otherwise, if it were the case that ‘deposit’ is included in the
‘payment’, then there would have been no necessity of using two
different expressions, in different provisions, carrying different
consequences. Deposit made in the court cannot be said to be
payment made to the landowner i.e. persons
interested/beneficiaries. Thus, in case of deposit is directly made in
the court without tender, it could not be said that it was tendered
or paid. ‘Deposit in court’ simply is the discharge of Collector’s
liability of making payment of interest as envisaged under section
34 of the 1894 Act, and no more; deposit in Court is not tender to
40
landowner. Once the amount has been tendered and not accepted,
obligation to pay is discharged, as envisaged under section 31(1); no
penal consequences can follow and, the person who has refused to
accept cannot be permitted to take an advantage of his own wrong,
or in case his conduct is of filing litigations, delaying the passing of
the award or obtaining stay of the proceedings; such action would
tantamount to refusal to accept compensation, and the person then
may not even be entitled to higher rate of interest as envisaged
under section 34.
44. While making statutory interpretation, inconsistency and
repugnancy is to be avoided and harmonious construction has to be
adopted. The construction to be adopted should be such, as would
make the statute as a whole, a consistent enactment. Such a
construction would have the merit of avoiding any inconsistency or
repugnancy, either within a given section or as between a particular
section on the one hand and other parts of the statute on the other.
It is the duty of the courts to avoid "a head-on clash", as held in Raj
Krushna v. Binod Kanungo, AIR 1954 SC 202, at 203; Sultana
Begum v. Premchand Jain, AIR 1997 SC 1006, at page 1109;
Kailash Chandra v. Mukundi Lal, (2002) 2 SCC 67; and, CIT v.
41
Hindustan Bulk Carriers, (2003) 3 SCC 57, at p.74.
45. When we apply the rule of harmonious construction to the
provisions of section 24(2) of the Act of 2013, i.e. as between the
main part of the section and its proviso, the word “paid” occurring
in the main part, has to be construed differently (with a different
meaning being given to it) from the word “deposited” occurring in
the proviso; otherwise, inconsistency and repugnancy would be the
result of the provision contained in section 24 (2) as a whole; and,
that is what has to be avoided. As discussed, the provisions would
be irreconcilable, and an anomalous result would be occasioned.
46. This Court, in Balasinor Nagrik Cooperative Bank Limited vs.
Babubhai Shankerlal Pandya, (1987) 1 SCC 606, held that a section
is to be interpreted by reading all its parts altogether, and it is not
permissible to omit any part thereof. Thus, in the instant case,
proviso to Section 24(2) cannot be ignored while interpreting the
main subsection.
47. The proviso is enacted as part of section 24(2); it is not an
independent provision and applies to an acquisition made five years
or before, in which amount, with respect to majority of holdings,
has not been deposited in court. There has to be harmonized
42
construction of provision of section 24(2).
48. Since there is no ambiguity of drafting in the provisions
contained in section 24(2) of the Act of 2013, so also none is there
in those contained in sections 31(1) and 31(2) of the Act of 1894.
Thus, in discharging its interpretative function, to exercise the
power to correct obvious drafting errors that can be done only in
suitable cases where there is error of drafting. Before adding the
word or omitting a word the court has to consider 3 matters : (1) the
intended purpose of the statute or the provision in question, (2) that
by inadvertence the draftsman and Parliament failed to give effect to
that purpose in the provision in question, and (3) substance of the
provision Parliament would have made, although not necessarily
the precise words Parliament would have used, had the error in the
Bill been noticed. As observed in Inco Europe Ltd. v. First Choice
Distribution (a firm) by the House of Lords in (2000) 2 All ER 109 at
115. There is no accidental omission as to the concept of payment
in section 24(2) or section 31(1) of the aforesaid Acts. Thus, it is not
permissible to supply the word “deposited” to include in the
expression “payment”.
43
49(a). Rule of literal construction lays down that words of a statute
are first understood in their natural, ordinary or popular sense and
phrases, and sentences are construed according to their
grammatical meaning. The learned author G.P. Singh, in “Principles
of Statutory Interpretation” (14th edition), at Page 91 onwards, has
observed:
“……..Natural and grammatical meaning. The words of a
statute are first understood in their natural, ordinary or popular
sense and phrases and sentences are construed according to
their grammatical meaning, unless that leads to some absurdity
or unless there is something in the context, or in the object of
the statute to suggest the contrary.“ “The true way”, according
to LORD BROUGHAM is, “to take the words as the
Legislature have given them, and to take the meaning which
the words given naturally imply, unless where the construction
of those Words is, either by the preamble or by the context of
the words in question, controlled or alter ”; and in the words of
VISCOUNT HALDANE, L.C., if the language used "has a
natural meaning we cannot depart from that meaning unless
reading the statute as a whole, the context directs us to do so.
In an oft-quoted passage, LORD WENSLEYDALE stated the
rule thus: "In construing wills and indeed statutes and all
written instruments, the grammatical and ordinary sense of the
word is adhered to, unless that would lead to some absurdity,
or some repugnance or inconsistency with the rest of the
instrument in which case the grammatical and ordinary sense
of the words may be modified, so as to avoid that absurdity,
and inconsistency, but no further". And stated LORD
ATKINSON: "In the construction of statutes, their words must
be interpreted in their ordinary grammatical sense unless there
be something in the context, or in the object of the statute in
which they occur or in the circumstances in which they are
used, to show that they were used in a special sense different
from their ordinary grammatical sense”.28 VISCOUNT
SIMON, L.C., said: “The golden rule is that the words of a
statute must prima facie be given their ordinary meaning”.
Natural and ordinary meaning of words should not be departed
44
from "unless it can be shown that the legal context in which
the words are used requires a different meaning". Such a
meaning cannot be departed from by the judges "in the light of
their own views as to policy" although they can "adopt a
purposive interpretation if they can find in the statute read as a
whole or in material to which they are permitted by law to
refer as aids to interpretation an expression of Parliament's
purpose or policy". For a modern statement of the rule, one
may refer to the speech of LORD SIMON OF GLAISDALE in
a case where he said: "Parliament is prima facie to be credited
with meaning what is said in an Act of Parliament. The
drafting of statutes, so important to a people who hope to live
under the rule of law, will never be satisfactory unless courts
seek whenever possible to apply ‘the golden rule’ of
construction, that is to read the statutory language,
grammatically and terminologically, in the ordinary and
primary sense which it bears in its context, without omission
or addition. Of course, Parliament is to be credited with good
sense; so that when such an approach produces injustice,
absurdity, contradiction or stultification of statutory objective
the language may be modified sufficiently to avoid such
disadvantage, though no further”. The rules stated above have
been quoted with approval by the Supreme Court…….”
(emphasis supplied)
49(b). This Court, in Harbhajan Singh v. Press Council of India, AIR
2002 SC 1351, at 1354 has observed thus :
“Legislature does not waste its words. Ordinary, grammatical
and full meaning is to be assigned to the words used while
interpreting a provision to honour the rule -- Legislature
chooses appropriate words to express what it intends, and
therefore, must be attributed with such intention as is conveyed
by the words employed so long as this does not result in
absurdity or anomaly or unless material -- intrinsic or external
-- is available to permit a departure from the rule.” (emphasis
supplied)
50. Thus, in the instant case, when we give the plain, natural and
grammatical meaning to the word ‘paid’/ ‘tender’, which has been
45
used in contradistinction to the words “deposited in court”, it is
clear that tendering payment would not include deposit in court, in
that it is only when payment is refused, that the same is deposited
in court; obligation to pay is over as soon as amount is tendered
and refused.
51(a) When two different expressions have been used in the
same provision of a statute, there is a presumption that they are
not used in the same sense. In this regard, G.P. Singh, in his
treatise Interpretation of Statutes (14th Edition) at page 395, has
observed thus:
“…….When in relation to the same subject matter, different
words are used in the same statute, there is a presumption that
they are not used in the same sense.
In construing the words ‘distinct matters’ occurring in
section 5 of the Stamp Act, 1899, and in concluding that these
words have not the same meaning as the words ‘two or more
of the descriptions in Schedule I’ occurring in section 6,
VENKATARAMA AIYAR, J., observed: “When two words of
different import are used in a statute in two consecutive
provisions, it would be difficult to maintain that they are used
in the same sense.” Similarly, while construing the word ‘gain’
under Section 3(ff) of the Bombay Municipal Corporation Act,
1888, which used the words ‘profit or gain’, the Supreme
Court relied on the dictionary meanings of the words to hold
that the word ‘gain’ is not synonymous with the word ‘profit’
as it is not restricted to pecuniary or commercial profits, and
that any advantage or benefit acquired or value addition made
by some activities would amount to ‘gain’…….”
***14.Brighton Parish Guardians v. Strand Union Guardians,
46
(1891) 2 QB 156, p. 167 (CA); Member, Board of Revenue v.
Arthur Paul Benthall, AIR 1956 SC 35, p. 38: 1955 (2) SCR
842; CIT v. East West Import & Export (P.) Ltd., Jaipur, AIR
1989 SC 836, p.838 : (1989) 1 SCC 760; B.R. Enterprises v.
State of U.P., AIR 1999 SC 1867, p.1902 : (1999) 9 SCC 700
(‘trade and business' in Article 298 have different meaning
from ‘trade and commerce' in Article 301); ShriIshal Alloy
Steels Ltd. v. JayaswalasNeco Ltd., JT 2001 (3) SC 114, p. 119
: (2001) 3 SCC 609 : AIR 2001 SC 1161 (The words ‘a bank’
and ‘the bank’ in section 138 N.I. Act, 1881 do not have the
same meaning); The Oriental Insurance Co. Ltd. v.
Hansrajbhai v. Kodala, AIR 2001 SC 1832, p. 1842 : (2001) 5
SCC 175; KailashNathAgarwal v. PradeshiyaIndust and Inv.
Corp. of U.P., 2003 AIR SCW 1358, p. 1365 : (2003) 4 SCC
305, p. 313. (The words ‘proceeding’ and ‘suit’ used in the
same section construed differently); But in Paramjeet Singh
Pathak v. ICDS Ltd, (2006) 13 SCC 322 : AIR 2007 SC 168
different view was taken therefore in Zenith Steel Tubes v.
Sicom Ltd, (2008) 1 SCC 533 : AIR 2008 SC 451 case referred
to a larger Bench; D.L.F. Qutab Enclave Complex Educational
Charitable Trust v. State of Haryana, 2003 AIR SCW 1046, p.
1057: AIR 2003 SC 1648: (2003) 5 SCC 622 (The expressions
‘at his own cost’ and ‘at its cost’, used in one section given
different meanings)” (emphasis supplied)
51(b). The author has referred to the decisions in Brighton
Parish Guardians v. Strand Union Guardians, 1891 QB 156, Member,
Board of Revenue v. Arthur Paul Benthall, AIR 1956 SC 35 at p.38,
and CIT v. East West Import & Export (P) Ltd., Jaipur, (1989) 1 SCC
760, in that case this Court has observed :
"7. The Explanation has reference to the point of time at two
places: the first one has been stated as "at the end of the
previous year" and the second, which is in issue, is "in the
course of such previous year". Counsel for the Revenue has
emphasised upon the feature that in the same Explanation
reference to time has been expressed differently and if the
legislative intention was not to distinguish and while stating
47
"in the course of such previous year" it was intended the
convey the idea of the last day of the previous year, there
would have been no necessity of expressing the position
differently. There is abundant authority to support the stand of
the counsel for the Revenue that when the situation has been
differently expressed the legislature must be taken to have
intended to express a different intention.”
(emphasis supplied)”
51(c). In Kailash Nath Agarwal v. Pradeshiya Industries and
Investment Corporation of Uttar Pradesh, (2003) 4 SCC 305,
Tejmohammed Hussainkhan Pathan v. V.J. Raghuvanshi, 1993 supp.
(2) SCC 493, D.L.F. Qutab Enclave Complex Educational Charitable
Trust v. State of Haryana, (2003) 5 SCC 622, Pallawi Resources Ltd.
v. Protos Engineering Company Pvt. Ltd., (2010) 5 SCC 196, Grasim
Industries Ltd. v. Collector of Customs, Bombay, (2002) 4 SCC 297,
B.R. Enterprises v. State of U.P., AIR 1999 SC 1867, ShriIshar Alloy
Steels Ltd. v. Jayaswals Neco Ltd., (2001) 3 SCC 609, Labour
Commissioner, Madhya Pradesh vs. Burhanpur Tapti Mills and Ors.
AIR 1964 SC 1687 this Court has observed that as a general rule
when two different words are used by statute prima facie one has to
construe different words as carrying different meanings. Rule of
'purposive constructions' would be resorted to only when the
statute to observe or when read literally it leads to manifest
injustice or absurdity. The Court has to keep in mind that the
48
provision enacted by the legislature in a certain manner as had
intended. Different words are used in different senses.
51(d) The aforesaid principles of statutory construction,
different words to be given different meaning as also the binding
precedents of this Court, indicate that the expression ‘deposited’
cannot be added to ‘tender’ / ‘paid’, both carry different
consequences under section 24, tender on lapse of
acquisition/non-deposit higher interest under section 34 of the Act
of 1894.
51(e). It is a settled proposition of law that when two different
expressions have been used in section 24(2) of the Act of 2013, as
well as in section 31 of the Act of 1894, i.e. "paid to the
landowners" and "deposited in the court", they both carry different
meanings, and have to be interpreted as used in the respective
contexts. It is not the expression used that deposit in the court is
payment to landowners, neither it is used that amount deposited in
the treasury is the payment to the landowners. The payment
indicates the obligation to pay; and, deposit is made in the court or
revenue treasury only upon happening of various exigencies as
provided in Section 31, and there can be several other exigencies
49
which are not covered under section 31(2) of the Act of 1894 and in
the statutory rules/orders.
52. In section 24 of the Act of 2013, brooks no lethargy on the
part of authorities, the expression “possession of the land has not
been taken” indicates a failure on the part of authorities to take for
five years or more.
53. When we consider the intendment of the beneficial provisions
of the Act of 2013, it addresses the concern of farmers and of those
whose livelihood is dependent upon the land being acquired, while
at the same time facilitating land acquisition for myriad reasons,
including urbanization, rural electrification et al., in a timely and
transparent manner. The legislature has not brook the delay of five
years or more on part of authorities in completing the acquisition.
When it says ‘timely’,it would mean without delay on the part of
authorities, not delay due to dilatory tactics and conduct of land
owners/interested persons.
EFFECT OF RULES FRAMED UNDER SECTION 55 OF 1894 ACT
AND ORDERS ISSUED BY STATE GOVERNMENTS
50
54. There are various State rules framed under section 55 of the
Act of 1894 by various State Governments as well as there are
instructions issued with respect to dealing with Government money
as provided in Article 283 of the Constitution of India, and when it
is the Government money it has to be dealt with in accordance with
the instructions issued by the State Government from time to time.
There are other Financial Codes/Rules/orders issued time to time
by various State Governments with respect to dealing with
Government money. The Land Acquisition (Bihar and Orissa) Rules
were framed under the Act of 1894 and Rule 10 thereof provided
thus :
“10. In giving notice of the award under section 12(2) and
tendering payment under section 31(1), to such of the persons
interested as were not present personally or by their
representatives when the award was made, the officer shall
require them to appear personally or by representatives by a
certain date to receive payment of the compensation awarded
to them, intimating also that no interest will be allowed to
them if they fail to appear. If they do not appear, and do not
apply for reference to the Civil Court under section 18, the
officer shall after any further endeavour to secure their
attendance that may seem desirable, cause the amounts due to
be paid into the Treasury as Revenue deposits payable to the
persons to whom they are respectively due and vouched for in
the accompanying form (marked E). The officer shall also
give notice to the payees of such deposits, the Treasury in
which the deposits specifying have been made. When the
payees ultimately claim payment of sums placed in deposit,
the amounts will be paid to them in the same manner as
ordinary revenue deposits. The officer should, as far as
possible, arrange to make the payments due in or near the
51
village to which the payees belong, in order that the number
of undisbursed sums to be placed in deposit on account of
non-attendance may be reduced to a minimum. Whenever
payment is claimed through a representative whether before
or after deposit of the amount awarded, such representative,
must show legal authority for receiving the compensation on
behalf of his principal."
(emphasis supplied)
55. The Karnataka Land Acquisition Rules 1965 were also framed
under section 55 of the Land Acquisition Act, 1894. Similarly in the
State of Kerala Rule 14(2) of the Land Acquisition (Kerala) Rules,
1990 were framed under section 55 of the Act of 1894 provided that
the payment relating to an award shall be made or the amount
credited to the court or Revenue deposit (Treasury) within one
month from the date of award.
56. The state of Assam has also framed the rules dealing with
deposit in exercise of power under Section 55 of the Act of 1894.
Rule 9 whereof provides that on failure to collect the compensation
if landowner/interested person does not appear, and do not apply
for a reference to the civil court under section 18, the Collector shall
after making endeavour to secure their attendance or make
payment that may seem desirable, cause the amounts due to be
paid into the Treasury as revenue deposits payable to the persons
52
to whom they are respectively due, and vouched for in the form
prescribed or approved by Government from time to time. He shall
also give notice to the payee of such deposits, specifying the
Treasury in which the deposits have been made. When no reference
is sought for amount has to be deposited in treasury only. Rule 9 of
Assam Rules is extracted hereunder:
“9. In giving notice of the award under section 12(2) and
tendering payment under section 31(1), to such of the persons
interested as were not present personally or by their
representatives when the award was made, the Collector shall
require them to appear personally or by representatives by a
certain date, to receive payment of the compensation awarded
to them intimating also that no interest will be allowed to
them, if they fail to appear. If they do not appear and do not
apply for a reference to the Civil Court under section 18, he
shall, after any further endeavour to secure their attendance or
make payment that may seem desirable, cause the amounts
due to be paid into the WW as revenue deposits payable to the
persons to whom they are respectively due, and vouched for
in the form prescribed or approved by Government from time
to time. He shall also give notice to the payees of such
deposits, specifying the Treasury in which the deposits have
been made. When the payees ultimately claim payment of
sums placed in deposit, the amount will be paid to them in the
same manner as ordinary revenue deposits. The Collector
should, as far as possible, arrange to make the payment due in
or near the village to which the land pertains in order that the
number of undisbursed sum to be placed in deposit on
account of nonattendance may be reduced to a minimum.
Whenever payment is claimed through a representative, such
representative, must show legal authority for receiving the
compensation on behalf of the principal.”
(emphasis supplied)
53
57. Identical is the rule for Bihar and Orissa. Similar instructions
have been issued by the other State Government so as to deal with
public money. They have the force of law. The duty of the court is to
harmonize rules with provision of Act. In State of West Bengal also
similar rules had been framed under section 55 of the Act of 1894.
58. Standing Order No.28 issued in 1909 the State of Punjab is
applicable to Delhi also, provides 5 modes of payment in Para 74
and 75 based on Government of India’s orders, which are extracted
hereunder:
“74. Methods of making payments-There are five methods of
making payments:
(1) By direct payments, see paragraph 75(I) infra
(2) By order on treasury, see paragraph 75(II) infra
(3) By Money Order, see paragraph 75(III) infra
(4) By cheque, see paragraph 75(IV) infra
(5) By deposit in a treasury, see paragraph 75(V) infra
75. Direct payments
(V) By treasury deposit-In giving notice of the award Under
Section 12(2) and tendering payment Under Section 31(1) to
such of the persons interested as were not present personally
or by their representatives when the award was made, the
officer shall require them to appear personally or by
representatives by a certain date to receive payment of the
compensation awarded to them, intimating also that no
interest will be allowed to them if they fail to appear, if they
do not appear and do not apply for a reference to the civil
court Under Section 18, the officer shall after any further
endeavours to secure their attendance that may seem
desirable, cause the amounts due to be paid to the treasury as
revenue deposited payable to the persons to whom they are
respectively due and vouched for in the Form marked E
below. The officer shall also give notice to the payees of such
54
deposits, specifying the treasury in which the deposit has
been made. When then payees ultimately claim payment of
sums placed in deposit, the amounts will be paid to them in
the same manner as ordinary revenue deposit. The officer
should, as far as possible, arrange to make the payments due
in or near the village to which the payee belong in order that
the number of un-disbursed sums to be placed in deposits on
account of non-attendance may be reduced to a minimum.
Whenever payment is claimed through a representative
whether before or after deposit of the amount awarded, such
representative, must have legal authority for receiving the
compensation on behalf of his principal."
55
59. In Delhi Development Authority v. Sukhbir Singh & Ors. (2016)
16 SCC 258. This court with respect to mode under section 31(1)
has held:
“18. Para 73 makes it clear that payment may be accepted
either without protest or under protest, and Paragraph 74
makes it clear that there are five methods of making payment.
The first four methods are all methods strictly in consonance
with Section 31 of the Land Acquisition Act in that they are
all direct payments that have to be made to persons ready to
accept compensation. This is clear from a reading of
sub-paragraphs (I) to (IV) of paragraph 74. Even the second
method, which is payment by order on the treasury, is a direct
method of payment in cases where no officer is specially
deputed for acquisition of land. In such cases instead of
making a direct payment, a receipt is countersigned making it
immediately payable at the treasury to the payee. Otherwise,
in certain circumstances, payment is to be made by money
order and/or by cheque. When we come to paragraph (V), it is
clear that payment is made into the treasury only when
persons who are served notice Under Section 12(2) are not
present personally at the time the award is delivered. Even
though they may not appear at that stage, the officer shall
require them to appear personally or by representatives by a
certain date to receive payment of compensation awarded. It
is only if they fail to appear after such an intimation, and if
the officer, after further endeavours to secure their attendance,
cannot so secure their attendance, that amounts due are to be
paid to the treasury as revenue deposited payable to persons
to whom they are due. It is clear, therefore, that sub-para (V),
when read in its proper perspective, is not a separate mode of
payment by itself as is contended by learned Counsel for the
Appellants. It is a residuary mode of payment after all
necessary efforts have been made by the authorities to secure
the attendance of the persons entitled to compensation, and it
is only after all such methods have failed that, as a last resort,
the money is then to be deposited in the treasury. In any case,
such deposit in the treasury is referable only to Section 31(1)
and cannot ever be a substitute for deposit before the
reference court as provided Under Section 31(2) of the Land
Acquisition Act, which applies in the circumstances
mentioned in the aforesaid Sub-section.
56
We agree with aforesaid part of Sukhbir Singh (supra) related
to section 31(1), however, not with respect to part relating section
31(2).
60. It is apparent from rules that when no reference is sought on
refusal to accept, amount is to be deposited in treasury. Rules have
to be harmonized with the provision in the Act, thus, it would be
necessary to deposit in court when reference is sought. Thus, under
section 31(2) provision of deposit in court on refusal would be
attracted, when reference had been sought, as provided in rules.
Section 31(2) does not come in play at all in cases of refusal to
accept amount when reference has not been sought and deposit in
treasury would be valid deposit even otherwise where reference is
sought and person refuses to accept it only liability of
non-compliance of deposit in Court would be higher interest under
section 34.
61. Though as per subsection (2) of section 31 in the certain
exigencies the amount has to be deposited in court where the
reference would be made, it does not cover the entire situation
when it is not possible to disburse the compensation and deposit in
57
treasury has to be made as per rules and if not deposited in Court
at the most would be merely a procedural irregularity and the
maximum liability would be as envisaged under section 34 of Act of
1894 in case it has not been “tendered”. Due to non deposit at the
most it could be said that amount could not be invested in
Government security etc. under section 32 or 33 of Act of 1894. In
such securities the interest is not more than 15 % as such.
62. Moreover, the proviso to section 24(2) which prescribes
amount to be deposited with respect to ‘majority of holding’, in the
account of beneficiaries, it is not provided that such amount has to
be deposited in court. Section 31 of the Act of 1894 does not deal
with the deposit of the amount with respect to “the majority of
holdings” in the court in the account of landowners. Section 31(2) of
the Act of 1894 only contemplates certain exigencies i.e. (1) refusal
to accept, and reference is sought (2) incompetence to alienate the
land, (3) there is dispute as to entitlement or (4) apportionment and
authority decides not to disburse compensation in later two
exigencies. In such cases, it has to be deposited in court. It is not
necessary to make tender of amount of compensation under Section
31(1) in the 3 latter exigencies provided in section 31(2) itself. The
58
proviso to section 24(2) of the Act of 2013 does not envisage any of
the exigencies as contemplated under section 31(2) it clearly deals
with deposit of money before the Land Acquisition Collector or in
the treasury with respect to “majority of the holding” as the
State/authority who is acquiring the land or has acquired it, must
have arrangement to pay the money to the landowners and in case
such money has not been deposited with the Land Acquisition
Collector or with the treasury or in any other permissible mode
consequence enumerated in proviso to follow, regarding payment of
higher compensation under the Act of 2013 to all land holders. In
the Treasury also separate accounts are opened of the landowners
and money is kept in such separate accounts. As is apparent from
the standing order 28 of Punjab and the rules framed under section
55 of Act of 1894 by various State Governments in case the amount
has been deposited as per the proviso to section 24(2) in the
treasury or with the Land Acquisition Collector with respect to
majority of the holding the provisions contained in proviso to
section 24(2), in our opinion, would be fully complied with.
63. A perusal of Section 24(2)of the Act of 2013 shows that the
expression ‘paid’ does not include deposit in it. The expression
59
‘deposit’ would include deposit in terms of the rules also. Section
24(2) does not, in any manner, lay down that the amount cannot be
said to have been ‘deposited’ even when a deposit is made in terms
of the mandatory rules, or in accordance with the applicable
instructions. ‘Deposit-in-treasury’ is stipulated under the rules
made with reference to a constitutional provision, so also framed
under Section 55 of the 1894 Act, as well as under other statutory
or administrative powers. The deposit in treasury is not, in any
manner, invalid. If the deposit is valid, there is no reason to hold
that the said deposit has to be ignored. Government finances, after
all, have to be handled as per the applicable rules. The deposit in
treasury was as per binding procedural rules/orders issued by
Government of India and/or in exercise of the powers under Article
283 of the Constitution of India.
PRACTICAL DIFFICULTY ON REFUSAL/NON ACCEPTANCE OF
COMPENSATION BY CONDUCT, PRACTICE AND LEGAL POSITION
UNDER ACT OF 1894.
64. One mode of refusal to acceptance of compensation is when it
is tendered, it is refused. Another mode is of filing a litigation to
question the very land acquisition, filing application for an interim
60
stay and contesting it for decades reflects clear conduct of
nonacceptance of acquisition/compensation. State authorities
cannot retain the money in their own hands in such circumstances
and are bound to deposit the Government money where it is
supposed to be i.e. in the treasury as provided in rules. Thus, by
conduct also, there can be non-acceptance of compensation. Once
compensation is accepted, right to challenge acquisition would
vanish. State authorities are not expected to retain the money with
them and run after the landowners and match with their dilatory
tactics with vigil to find out that one ultimate day, the litigation
would attain finality. Once by their conduct, there is refusal to
accept the land acquisition itself, much less compensation, in such
circumstances such landowners have to inform the authorities
about the outcome of the litigation and in case they have lost, to
ask for compensation. Authorities are not supposed to be on vigil so
as to ascertain after lapse of so much time even after decades in
new generation, who has received the compensation and who has
not received the compensation. There is no such data readily
available to them. Thus once by conduct, such landowners refuse to
accept the land acquisition/compensation, so as to saddle liability
61
on authority, they have to inform the outcome/ willingness to the
concerned authorities to apply for payment and to show their
readiness to accept. Same would be the position in case amount is
deposited in court. They have to apply for its withdrawal. The
obligation of authorities is at initial stage. At subsequent stage,
unless and until there is willingness shown by
landowners/interested persons to accept the compensation,
authorities cannot presume that they would accept it and that
landowners are not going to question acquisition in the higher
forum and it is not open to the authorities to offer to them
compensation time and again, once amount is deposited in treasury
during the pendency of litigation. In case of landowner interdict,
initial offer/ tender by refusal or otherwise by questioning the land
acquisition itself would mean they do not want to accept the
compensation, is reflected by their conduct in the litigation. In case
of interim stay also authorities cannot offer the compensation as
that would tantamount to violation of court's order and after
interim stay ceases to operate, it is for the landowners to apprise
the authorities of their intention not to take the litigation further
and their willingness to accept compensation. Section 24(2) does
62
not provide cover to such litigation. The intent of 2013 Act has been
discussed in DDA v. Sukhbir Singh (supra) thus:
“13. The picture that therefore emerges on a reading of
Section 24(2) is that the State has no business to expropriate
from a citizen his property if an award has been made and the
necessary steps to complete acquisition have not been taken
for a period of five years or more. These steps include the
taking of physical possession of land and payment of
compensation. What the legislature is in effect telling the
executive is that they ought to have put their house in order
and completed the acquisition proceedings within a
reasonable time after pronouncement of award. Not having
done so even after a leeway of five years is given, would
cross the limits of legislative tolerance, after which the whole
proceeding would be deemed to have lapsed. It is important to
notice that the Section gets attracted if the acquisition
proceeding is not completed within five years after
pronouncement of the award.”
The intent is that authority to complete acquisition within five
years, the legislature frowns upon delay of more than five years.
65. In case it is held in spite of refusal to receive payment, it is
necessary to deposit in Court, most of the acquisition would lapse.
The acquisition of Raisina Hills in Lutyen’s zone of Delhi made in
1913 was questioned in said case but this Court never intended
such misuse of the provision. There is no dearth of ingenuity left in
misusing the provisions of section 24 of the 2013 Act whereas it is
meant to beneficial legislation. Its intention is to resettle the
incumbents to offer better compensation as compared to the 1894
63
Act. In the various ways, the provision has been sought to be
blatantly misused. The law never envisages such absurd results as
is being sought to be achieved. The beneficial provisions of 2013 Act
are put to misuse that tantamounts to grossest abuse of the
provisions of law to reopen such acquisitions and court has to
thwart all such attempts at threshold and not to receive such cases
even for consideration for a moment. We see development has taken
place in the area that has been acquired, there have been several
rounds of litigation which have been lost by landowners even up to
this Court; thereafter some persons are filing cases on the basis of
power of attorneys or sale deeds which are not permissible after
land has vested in the State and purchase after issuance of
notification under section 4 is illegal and void and no such right is
given to such incumbents to re-open the whole gamut of issues and
to even contend that acquisition has lapsed under the provisions of
the 2013 Act.
66. The law as prevailed under the Act of 1894 never invalidated
any land acquisition in the absence of amount being deposited in
court since the time immemorial in most cases where reference is
not sought, amount had been invariably deposited in the Treasury
64
as provided in statutory rules framed under section 55 of Act of
1894 and other standing order issued by State Governments, and
there were decisions of this Court which have simply laid down that
in case landowner is not responsible for delay in payment, at the
most he may be entitled to interest on such amount, in case it has
not been tendered/paid to him when possession has been taken.
Similar provisions are made under sections 77 and 80 of the Act of
2013. All of a sudden it would not be appropriate considering the
statutory rules which have been framed under section 55 of the Act
of 1894 and order to invalidate all such land acquisitions which
have taken place in various States in the country by laying down
that once amount has not been deposited in the court but in
treasury, acquisitions would lapse under section 24. It will be a very
harsh operation of law as old Act never provided for such a
consequence since 1894 the Act was enacted till new 2013 Act
came into force. Same is not consequence in case acquisition is
made under Act of 2013 is apparent from conjoint reading of
sections 77 and 80 thereof. When there were such anomalous
situation, the statutory rules and statutory orders issued by various
State Governments dealing how the Government money has to be
65
dealt with, it would not be appropriate to unsettle the legal position.
The 1894 Act never contemplated such result and by and large, it
was not the practice to deposit in court. Only in those cases the
amount used to be deposited in court, where reference was sought
under sections 18 or 30, as provided under rules also and there
was dispute as to person entitled to it or apportionment thereof
between the claimants. Primarily it is for the Land Acquisition
Collector to distribute the compensation and poor farmers are not
supposed to know the court and place where the reference would be
made, if it was not sought person would not know a place where it
would not be submitted to court, the question of deposit in court
would not arise. The court is not disbursing authority of
compensation when reference is not sought. Farmers/ claimants
are primarily concerned with the Land Acquisition Collector and for
more than one century this procedure of deposit in treasury was
prevailing and by and large amounts had been deposited in the
treasury only and thus it would not be appropriate to make the
operation of law to be such as to invalidate land acquisition when
deposit is made in Treasury. Such an interpretation is not
permissible as per the intendment of the Act of 2013. Though it is a
66
beneficial law to benefit the incumbents it cannot be interpreted to
be a law which would be to invalidate concluded transaction as per
prevailing law and divest the land which has vested in State,
development has taken place, possession taken, awards passed,
after litigation/several rounds of litigation lost and then land
cannot be ordered to revert back. The law does not intend that
effect, as it may be termed as arbitrary and beyond legislative
competence. We have to prevent the misuse of provisions and avoid
anomalous results.
67. The court has to be cautious and duty-bound to prevent such
misuse of the provisions of law and to make the purposive
interpretation, considering the experience and after-effect of
decisions. At the same time we have to forward the intendment and
spirit of the provisions of the Act of 2013 to benefit farmers, at the
same time, not to thwart the entire development which has taken
place or to burden the Exchequer with such liability which is not
contemplated in the Act of 2013 and invalidate acquisitions that
have taken place in 1912, 1950s and 1960s onwards and have
attained finality, as are sought to be reopened under the guise of
2013 Act taking advantage of the aforesaid technical aspect. Courts
67
are duty-bound to thwart all such attempts as the land which has
been acquired long back, it would not be possible to make payment
of compensation as of the rate as provided in the Act of 2013 to
undeserving persons at the cost of public revenue, and it would not
be appropriate to interpret the provisions in such a manner to
entertain stale and dead claims and to revive them on the ground of
technical and procedural defaults, if any, and created by
landowners conduct. The intendment of section 24 is that
acquisition to be completed early. If authorities for no good cause
fail to take steps for five years or more on their own the lapse of
acquisition under section 24 to follow.
68. It would be appropriate to refer to maxim - “Omnis Innovatio
Plus Novitate Perturbat Quam Utilitate Prodest” i.e. ‘Every innovation
made has to be, ultimately, adjudged from stand point of the events
that follow it’; and, when we consider the after-effects of the
decision in Pune Municipal Corporation (supra), the fact leaps out at
us that, there being no dearth of unyielding ‘talent’ in this regard,
tenacious efforts are being made at mis-utilizing the dictum
contained in the said decision, by finding out ever newer and
innovative methods to do so.
68
PREJUDICE DUE TO NON-DEPOSIT IN COURT
69. Yet another aspect arises, as to, what prejudice or injustice
would be caused in case the amount is not deposited in the court
and is deposited in the treasury particularly when the provision
contained in section 31 of the Act of 1894 has to be read conjointly
with those in section 34. As per the provisions contained in section
34, a person can claim the interest in case amount is not deposited
as envisaged under section 31(2) if authorities are at fault. Even
assuming that amount is required to be deposited only in the court
where reference would be made and deposit in the treasury is not a
permissible mode of deposit, as per the mode prescribed by law in
section 31(2) of the Act of 1894. It is trite law that in the given
situation unless aggrieved party makes out a case of prejudice and
injustice, every infraction of law would not vitiate the act. This
court in Jankinath Sarangi v. State of Orissa (1969) 3 SCC 392
observed:
"5. From this material, it is argued that the principles of
natural Justice were violated because the right of the appellant
to have his own evidence recorded was denied to him and
further that the material which was gathered behind his back
was used in determining his guilt.
In support of these contentions, a number of rulings are cited
chief among which are State of Bombay v. NurulLatif Khan
69
1966 2 L.L.J.595 State of Uttar Pradesh and another v. C.S.
Sharma 1969 1 L.L.J. 509 and Union of India v. T.R. Varma
1958 2L.L.J.259
There is no doubt that if the principles of natural Justice are
violated and there is a gross case, this Court would interfere
by striking down the order of dismissal; but there are cases
and cases.
We have to look to what actual prejudice has been caused to a
person by the supposed denial to him of a particular right.”
70. In Sunil Kumar Banerjee v. State of West Bengal, (1980) 3 SCC
304, it was observed:
“3. ......It may be noticed straightaway that this provision is
akin to Section 342 of the Criminal Procedure Code of 1898
and Section 313 of the Criminal Procedure Code of 1974. It is
now well established that mere non-examination or defective
examination Under Section 342 of the 1898 Code is not a
ground for interference unless prejudice is established, vide,
K.C. Mathew v. State of Travancore-Cochin 1956 CriLJ 444,
Bibhuti Bhusan Das Gupta and Anr. v. State of West Bengal
1969 CriLJ 654......”
Similar view of the matter is taken in State of Andhra Pradesh v.
Thakkidiram Reddy, (1998) 6 SCC 554; Willie (William) Slaney v.
State of Madhya Pradesh, AIR 1956 SC 116; Abdul Sayeed v. State
of Madhya Pradesh, (2010) 10 SCC 259; State of Punjab v.
DavinderPal Singh Bhullar, AIR 2012 SC 364; and Bahamans v.
State of Karnataka, (2012) 9 SCC 650.
CONSEQUENCE OF NOT DEPOSITING THE AMOUNT UNDER
SECTION 31 OF THE 1894 ACT :
70
71. The expression used in section 31 is not “paid”, it is only
“tender payment” and there is obligation to pay compensation
unless prevented by a cause under sub-section (2) of section 31. In
case there is dispute as to person entitled to compensation or its
apportionment in between person interested or person was not even
competent to make alienation of property that has been acquired it
would not be necessary to tender amount as it may not be so done
due to said exigencies as authority may decide not to pay it till
court orders then it is to be deposited in court to save further
liability of exorbitant interest under section 34 of the Act of 1894.
Collector need not tender the payment invariably. It can be
deposited in the court in the exigencies as provided in section 31(2).
Apart from that section 31(2) does not cover all the exigencies and it
does not require that invariably the compensation has to be
deposited with the court. it is only when reference is sought that
reference court comes to picture not otherwise as provided in rules/
orders in case person refuses and seeks a reference to court it has
to be deposited in court where reference would be submitted
otherwise as provided in the rules it has to be deposited in treasury.
It is only when court comes into play then deposit in reference court
71
is required in exigencies of section 31(2) read with 32 as provided in
rules. Even section 31(2) comes into play to “tender payment” is
obligatory provision. Tender of payment is complete when it is made
unconditionally available it could not have been equated with the
deposit in court under section 31(2) or 24(2) of old and new Acts
respectively as these are two different exigencies and consequence
of non-payment of compensation is clearly culled out in section 34.
There is a liability for payment of interest. This court in Delhi
Development Authority v. Sukhbir Singh & Ors. [(2016) 16 SCC 258],
has considered modes of payment in section 31(1) and has held in
Para 18 quoted above that deposit in the treasury is residuary mode
of payment under section 31(1) of Act of 1894.
72. This court has considered the question of effect of non-deposit
in Hissar Improvement v. Smt. Rukmani Devi & Anr., AIR 1990 SC
2033 and observed that in case of compensation is not being paid
or deposited in time in court before taking possession of the land,
Collector has to deposit the amount awarded in section 31 failing
which he is liable to pay interest as provided in section 34.
The Court has observed:
“5. It cannot be gainsaid that interest is due and payable to
72
the landowner in the event of the compensation not being
paid or deposited in time in court. Before taking possession of
the land, the Collector has to pay or deposit the amount
awarded, as stated in Section 31, failing which he is liable to
pay interest as provided in Section 34.
6. In the circumstances, the High Court was right in stating
that interest was due and payable to the landowner. The High
Court was justified in directing the necessary parties to appear
in the executing court for determination of the amount.”
73. In Kishan Das & Ors. v. State of U.P. & Ors. (1995) 6 SCC 240
this Court has laid down that in case the landowners have
themselves delayed in disposal of acquisition proceedings, cannot
claim higher rate of interest as that would amount to payment of
premium for dilatory tactics. Even the interest under section 34
cannot be claimed as a matter of right. In case a person is indulging
in litigation for adopting dilatory tactics, no divesting of land is
provided under the Act of 1894 in case it is not deposited in court.
Neither it is so provided in section 24(1) of the 2013 Act. The
obligation to pay is discharged as soon as it is tendered
unconditionally and made available to the landowners. Thereafter
there is no further obligation to deposit it in court so as to save the
acquisition. Only to save acquiring body from liability to pay
interest at exorbitant rates, it may be deposited in court in certain
cases where reference court comes into picture to discharge
73
obligation by State but deposit in Court would not be payment to
landowners. In case there is failure on the part of the State
authorities in depositing the compensation in court in the given
exigencies then only the provisions of section 34 would be attracted
and it would be then for the court to examine in each case whether
it would make order for the higher rate of interest and examine if it
was due to failure of the State authorities and in case possession
has been taken then liability may arise to make payment of interest
it cannot be premium for dilatory tactics of landowners that they
can claim even higher rate of interest.
74. In Seshan & Ors. v. Special Tehsildar & Land Acquisition
Officer, SPICOT, Pudukkottai (1996) 8 SCC 89 this Court laid down
that in case compensation is not deposited after expiry of one year,
the provisions of section 34 would be attracted so as to claim the
interest @ 15%, it shall be interest payable on compensation not
paid or deposited after expiry of one year, and 9% for first year both
from the date of taking possession till date of payment or deposit in
court.
74
75. In D Block Ashok Nagar (Sahibabad) Plot Holders’ Association
(Regd.) v. State of U.P. & Ors. (1997) 10 SCC 77, this Court has held
that liability to pay interest under section 34 arises from the date of
taking possession.
76. Thus, when the Act of 1894 provides the consequence of
non-deposit in the in Court. In our opinion deposit in Treasury is
permissible mode of deposit under the proviso to section 24(2) and
within the purview of main section 24(2), the word “paid” could not
have been taken to include the “deposit”, it is contemplated in
proviso only, and in case with respect to the “majority of holding”
the amount is not deposited in the account of
beneficiary/landowner in case award has been passed before five
year or more then acquisition would not lapse however all
beneficiary/landowners would become entitled to higher
compensation as provided in the Act of 2013. The expression
"deposited in the account of landowners" would not mean deposited
in the court as envisaged in Section 31(2) of the old Act, action as
permissible as per the financial instructions having statutory or
administrative orders having force of law as well as under the Rules
framed by various State Governments in exercise of power under
75
section 55 of Act of 1894 can always be taken. In various States,
Financial Code/Order/Rules deals with Government money and as
such amount is required to be deposited in the Treasury by opening
separate accounts of landowners/beneficiaries/claimants that
would be full compliance of the proviso of section 24(2) of new Act.
In Delhi Development Authority v. Sukhbir Singh & Ors. also, this
court has rightly held that deposit in treasury by Land Acquisition
Collector is permissible mode of deposit under section 31(1).
77. In Mahavir & Ors. v. Union of India, [SLP [C] No. 26281/2017]
this Court has held:
“9. Section 31(1) of the Act requires tender of compensation
which is tendered in terms of section 12 of the Act. Section
12 provides a mode of informing claimants as to
compensation. Section 31(2) of the Act requires Collector to
deposit amount in court in case it is not received by the
persons interested or there is some dispute. Under the Act, the
deposit is required only with a view to avoiding liability to
pay interest. Deposit in the Court is not a payment made to
the owner. It is only to avoid liability to pay interest that too
at higher rates on the failure of deposit. Once it is deposited
the liability to pay interest ceases. Section 34 of the Act
makes it clear that if the compensation is not deposited on or
before taking the possession of the land, interest at the rate of
nine percent shall follow from the time of so taking the
possession until compensation so paid or deposited in the
court. The proviso to section 34 makes it clear that in case it
is not so deposited in court as per section 31(1) within a
period of one year from the date of taking possession interest
at the rate of 15 percent per annum shall be payable. Thus, it
is clearly provided under section 34 that interest at the rate of
76
15 percent per annum shall be payable from the date of expiry
of the said period of one year till it is so paid or deposited. As
soon as the deposit is made under Section 31(2) of the Act,
liability ceases to make the payment of interest on the
compensation amount so deposited."
78. Reliance was placed by landowners on the decision in Nazir
Ahmed v. King Emperor, AIR 1936 PC 253 (2), wherein the court
observed, that “where a power is given to do a certain thing in a
certain way, the thing must be done in that way or not at all. Other
methods of performance are necessarily forbidden”. There is no
dispute with the said proposition, and the same has been followed
by this Court umpteen number of times. However, the consistent
practice that has been followed in land acquisition cases is that it is
only when reference is sought, and the amount has not been paid
for one or other reason as per section 31(2), that the amount is
deposited in the court to which the reference would be submitted,
and not otherwise. The action is as per rules. The amount of
compensation, qua the incumbents/landowners who have not
sought the reference, is ordinarily deposited in treasury, by opening
accounts in their separate names; the same is apparent from the
forms, rules framed under section 55 of 1894 Act and various
statutory orders issued by various State Governments. Section
77
31(2) cannot be said to be covering all the exigencies of depositing
amount. It was not necessary for various other exigencies to
deposit the amount in the Court. Particularly in view of the
Government rules and instructions in financial matters which were
binding and consistently followed by making the deposit in treasury
for more than 100 years since 1894.
WHETHER SECTION 24(2) DIVESTS THE STATE OF LAND
79. The question arises when there is absolute vesting of the land
in the State under the provisions of the Act of 1894 whether it can
be divested by virtue of the provisions made in section 24 of 2013
Act. The concept of absolute vesting in the State under Act of 1894
is well settled and on award being passed, possession being taken,
compensation being offered but refused, section 24 would not apply
in such a situation to divest the State if the land is acquired. No
different intention appears from section 24 to divest the land once it
has absolutely vested in the State in accordance with the provisions
of the Act of 1894. Merely by obtaining interim order or keeping the
litigation pending or filing it afresh that too by way of stale and
belated claim after the Act of 2013 has come into force, no divesting
78
of land is contemplated. It is only in exigencies provided deemed
lapse take place either when possession not taken or compensation
not paid as provided in Section 24(2) and where award has not been
passed, the provisions of section 24 of Act of 2013 applies. In a
catena of decisions, this Court has laid down that as provided in
section 16 of the Act of 1894, when an award is passed and
possession is taken, the land vests absolutely in the Government
free from all encumbrances the only legality of procedure is open to
being questioned. The provision contained in section 17(1) also
provides absolute vesting in the Government free from all
encumbrances in the case of urgency even before passing of an
award.
80. The vested right cannot be taken away. In Black's Law
Dictionary "vested" is defined thus:
“vested, adj. (18c) Having become a completed,
consummated right for present or future enjoyment; not
contingent; unconditional; absolute a vested interest in the
estate.
“Unfortunately, the word ‘vested’ is used in two
senses. Firstly, an interest may be vested in possession,
when there is a right to present enjoyment, e.g. when I
own and occupy Blackacre. But an interest may be
vested, even where it does not carry a right to
immediate possession if it does confer a fixed right of
taking possession in the future." George Whitecross
79
Paton, A Textbook of Jurisprudence 305 (CW. Paton &
David P. Derham eds., 4th ed. 1972).
"A future interest is vested if it meets two
requirements: first, that there be no condition
precedent to the interest's becoming a present estate
other than the natural expiration of those estates that
are prior to it in possession; and second, that it be
theoretically possible to identify who would get the
right to possession if the interest should become a
present estate at any time." Thomas F. Bergin 8. Paul
C. Haskell, Preface to Estates in Land and Future
Interests 66-67 (2d ed. 1984)."
In Webster's Dictionary, it is defined as:
“vested adj. [pp. of vest] 1. Clothed; robed, especially
in church vestments. 2. inlaw, fixed; settled; absolute;
not contingent upon anything: as, a vested interest.”
81(a). In State of Punjab v. Sadhu Ram, 1996 (7) JT 118, this Court
has laid down that when possession is taken by the Government
after passing of the award and compensation has been paid, right,
title and interest of the owner stand extinguished. Government
becomes absolute owner of the said land. No one can claim any
title/equitable title by remaining in possession thereafter. This
Court has observed:
"3. The learned Judge having noticed the procedure
prescribed in disposal of the land acquired by the Government
for public purposes has held that the said procedure was not
followed for surrendering the land to the erstwhile owners.
The respondent had purchased the land had improved upon
the land and is, therefore, entitled to be an equitable owner of
the land. We wholly fail to appreciate the view taken by the
80
High Court. The learned Judge had net referred to the relevant
provisions of the Act and law. It is an undisputed fact that
consequent upon the passing of the award under Section 11
and took possession of the land, by operation of Section 16 of
the Act, the right, title and interest of the erstwhile owner
stood extinguished and the Government became absolute
owner of the property free from all encumbrances. Thereby,
no one has nor claimed any right, title and interest in respect
of the acquired land. Before the possession could be taken,
the Government have power under Section 48(1) of the Act to
denotify the land. In that event, land is required to be
surrendered to the erstwhile owners. That is not the case on
the facts of this case. Under these circumstances, the
Government has become the absolute owner of the property
free from all encumbrances, unless the title is conferred on
any person in accordance with a procedure known to law, no
one can claim any title much less equitable title by remaining
in possession. The trial Court as well as the appellate Court
negatived the plea of the respondent that he was inducted into
possession as a lessee for a period of 20 years. On the other
hand, the finding was that he was in possession as a lessee on
yearly basis. Having lawfully come into possession as a
lessee of the Government, Session 116 of Evidence Act estops
him from denying title of the Government and set it up in the
third party. By disclaiming Government title, he forfeited
even the annual lease. Under these circumstances, having
come into possession as a lessee, after expiry and forfeiture of
the lease, he has no right. Illegal and unlawful possession of
the land entails payment of damages to the Government."
(emphasis supplied)
81(b). In Star Wire (India) Ltd. v. State of Haryana & Ors. (1996) 11
SCC 698, this Court has laid down that when award has been
passed, possession has been taken, land vests in the State free from
all encumbrances. Any encumbrance created by erstwhile owner
after publication of notification under section 4 has no valid title
and is not binding on the State. Subsequent purchaser has no right
81
to challenge the legality of acquisition proceedings. This Court has
laid down thus:
“2. Shri P.P. Rao, learned senior counsel for the petitioner,
contends that the petitioner had no knowledge of the
acquisition proceedings; as soon as it came to know of the
acquisition, it had challenged the validity of the acquisition
proceedings and, therefore, it furnishes cause of action to the
petitioner. He further contends that the writ petition could not
be dismissed on the ground of laches but was required to be
considered on merits. We find no force in the contention. Any
encumbrance created by the erstwhile owner of the land after
publication of the notification under Section 4(1) does not bind
the State if the possession of the land is already taken over
after the award came to be passed. The land stood vested in the
State free from all encumbrances under Section 16. In
Gunnukh Singh and Ors. v. The State of Haryana JT (1995) 8
SC 208, this Court has held that a subsequent purchaser is not
entitled to challenge the legality of the acquisition proceedings
on the ground of lack of publication of the notification. In Y.N.
Garg v. State of Rajasthan [1996] 1 SCC 284 and SnehPrabha
v. State of U.P. [1996] 7 SCC 325, this Court had held the
alienations made by the erstwhile owner of the land after
publication of the notification under Section 4(1), do not bind
either the State Government or the beneficiary for whose
benefit the land was acquired. The purchaser does not acquire
any valid title. Even the colour of title claimed by the
purchaser was void. The beneficiary is entitled to have
absolute possession free from encumbrances. In U.P. Jal
Nigam, Lucknow through its Chairman and Anr. v. M/s. Kalra
Properties (P) Ltd., Lucknow, and Ors. [1996] 1 SCC 124, this
Court had further held that the purchaser of the property, after
the notification under Section 4(1) was published, is devoid of
right to challenge the validity of the notification or irregularity
in taking possession of the land before publication of the
declaration under Section 6. As regards laches in approaching
the Court, this Court has been consistently taking the view
starting from State of Madhya Pradesh and Anr. v. Bhailal
Bhai and Ors. [1964]6SCR261 wherein a Constitution Bench
had held that it is not either desirable or expedient to lay down
a rule of universal application but the unreasonable delay
denies to the petitioner, the discretionary extraordinary remedy
82
of mandamus, certiorari or any other relief. The same was
view reiterated in catena of decisions, viz.,
Rabindranath Bose and Ors. v. The Union of India and Ors.
[1970]2SCR697 ;
State of Mysore and Ors. v. Narsimha Ram Naik,
[1976]1SCR369 ;
Aflatoon and Anr. v. Lt. Governor of Delhi [1975]1SCR802 ;
M/s. TilokchandMotichand and Ors. v. H.B. Munshi,
Commissioner of Sales Tax, Bombay, and Anr.
[1969]2SCR824 ;
State of Tamil Nadu and Ors. Etc. v. L. Krishnan and Ors. Etc.,
(1996)1SCC250 ;
Improvement Trust, Faridkot, and Ors. v. Jagjit Singh and Ors.
;
State of Punjab and Ors. v. Hari Om Co-operative House
Building Society Ltd., Amritsar; Market Committee, Hodal v.
KrishanMurari and Ors. , (1996)1SCC311 and;
State of Haryana v. Dewan Singh AIR1996SC675
wherein this Court had held that the High Court was not
justified in interfering with the acquisition proceedings. This
Court in the latest judgment in Municipal Corporation of
Great Bombay v. The Industrial Development & Investment
Co. Pvt. Ltd. and Ors., AIR1997SC482 , reviewed the entire
case law and held that the person who approaches the Court
belatedly will be told that laches close the gates of the Court
for him to question the legality of the notification under
Section 4(1), declaration under Section 6 and the award of the
Collector under Section 11.” (emphasis supplied)
81(c). In Market Committee v. Krishan Murari (1996) 1 SCC 311
award was passed, possession was taken; it was observed that the
land vests in the Government free from all encumbrances. In
PuttuLal (dead) by LRs. v. State of U.P. & Anr. (1996) 3 SCC 99,
possession had been taken and compensation paid to the owner. It
was held that land vests in the State free from all encumbrances.
83
Consequently, State becomes absolute owner and is entitled to file
suit for possession.
81(d). The word “vest” has been considered by this Court in
Fruit and Vegetable Merchants Union v. Delhi Improvement Trust, AIR
1957 SC 344, to mean that the property acquired becomes the
property of the Government without any condition or limitation
either as to title or possession. Thus when there is absolute vesting
in the State it is vesting along with possession and thereafter a
person who remains in possession is only a trespasser not in
rightful possession. Vesting cannot be considered with any rider as
to title or possession. Vesting contemplates absolute title,
possession in the State as laid down in the aforesaid decisions. Of
course, the procedure of vesting can be looked by court if
questioned and once entry is handful, it vests absolutely in State
and the Act of 2013 does not reopen and divest State Government
of the land. 2013 Act would come only in the cases where vesting of
land has not taken place in the State Government. In Fruit and
Vegetable Merchants Union v. Delhi Improvement Trust, AIR 1957 SC
344, this Court has observed thus:
84
“25. That the word "vest" is a word of variable import is
shown by provisions of Indian statutes also. For example, s.
56 of the Provincial Insolvency Act (5 of 1920) empowers the
court at the time of the making of the order of adjudication or
thereafter to appoint a receiver for the property of the
insolvent and further provides that "such property shall
thereupon vest in the receiver." The property vests in the
receiver for the purpose of administering the estate of the
insolvent for the payment of his debts after realising his
assets. The property of the insolvent vests in the receiver not
for all purposes but only for the purpose of the Insolvency Act
and the receiver has no interest of his own in the property. On
the other hand, Sections 16 and 17 of the Land Acquisition
Act (Act I of 1894), provide that the property so acquired,
upon the happening of certain events, shall "vest absolutely in
the Government free from all encumbrances". In the cases
contemplated by Sections, 16 and 17 the property acquired
becomes the property of Government without any conditions
or limitations either as to title or possessions. The legislature
has made it clear that the vesting of the property is not for any
limited purpose or limited duration. It would thus appear that
the word "vest" has not got a fixed connotation, meaning in
all cases that the property is owned by the person or the
authority in whom it vests. It may vest in title, or it may vest
in possession, or it may vest in a limited sense, as indicated in
the context in which it may have been used in a particular
piece of legislation. The provisions of the Improvement Act,
particularly Sections 45 to 49 and 54 and 54A when they
speak of a certain building or street or square or other land
vesting in a municipality or other local body or in a trust, do
not necessarily mean that ownership has passed to any of
them.”
81(e). In Mosammat Bibi Sayeeda v. State of Bihar (1996) 9 SCC
516, the concept of “vest” has been discussed thus:
“17. The word ‘vested’ is defined in Black’s Law Dictionary
(6th Edn.) at p. 1563 as:
“Vested; fixed; accrued; settled; absolute; complete. Having
the character or given the rights of absolute ownership; not
contingent; not subject to be defeated by a condition
precedent.”
85
Rights are ‘vested’ when right to enjoyment, present or
prospective, has become property of some particular person
or persons as present interest; mere expectancy of future
benefits, or contingent interest in property founded on
anticipated continuance of existing laws, does not constitute
vested rights. In Webster’s Comprehensive Dictionary,
(International Edn.) at p. 1397 ‘vested’ is defined as:
“[L]aw held by a tenure subject to no contingency; complete;
established by law as a permanent right; vested interests.”
In State of W.B. v. Suburban Agriculture Dairy & Fisheries
(P) Ltd., the question was whether after the abolition of the
estate under the West Bengal Estates Acquisition Act, 1953 (1
of 1954) the fishery right of the intermediary was saved by
that Act? A Bench of three Judges had held in paragraphs 9
and 11 that the pre-existing rights of the intermediary in the
estate to which the declaration applied, shall stand vested in
the State free from all encumbrances. Section 6 does not have
the effect of divesting the State of the vested right, title and
interest of the intermediary. One of the rights is the right to
take possession of the land held by the intermediary. The
section excluded the operation of Sections 4 and 5, viz., the
interest of the respondent to retain khas possession was saved
subject to his making the application in the prescribed form. It
was held that the fishery rights stood vested in the State.
18. In Brighu Nath Sahay Singh v. Mohd. Khalilur Rahman
the appellants were proprietors of certain lands in Touzi (new)
No. 8655 in Saraunja village in District Begusarai in Bihar
which was sought to be declared as private lands in a civil
suit. The courts granted the decree but the High Court
reversed the decree. On appeal, this Court had held that on
publication of the notification under Section 3, the lands
stood vested in the State. The pre-existing right, title, and
interest held by the appellants stood ceased. They cannot,
therefore, claim khas possession of the lands in occupation of
the tenants.
19. In Labanya Bala Devi v. State of Bihar Patna Secretariat,
the tank and tankail settled by the intermediary were held to
have been vested in the State after the Act had come into
force. Therefore, the pre-existing rights of the tenure-holder
86
in the tank stood ceased since they were not saved under
Section 6(1)(b) of the Act.
20. It would thus be clear that on and with effect from the
date of the publication of the notification under Section 3, the
totality of the right, title and interest held by an intermediary
stands abolished. The consequences thereof, as enumerated in
Section 4(a), is extinguishment of the pre-existing right, title
and interest over the entire estate including the enumerated
items in Section 4(a) which include hats and bazars in the
State and the pre-existing right, title and interest held by the
intermediary/tenure-holder stood divested.”
“Vest” means an absolute or indefeasible right. Thus, the
provisions contained under the Act of 2013 have not taken vested
rights away.
81(f). In J. S. Yadav v. State of Uttar Pradesh (2011) 6 SCC
570, this Court has observed:
“20. "The word 'vested' is defined in Black's Law Dictionary
(6th Edition) at page 1563, as:
vested; fixed; accrued; settled; absolute;
complete. Having the character or given the
rights of absolute ownership; not contingent;
not subject to be defeated by a condition
precedent.'
Rights are 'vested' when right to enjoyment, present or
prospective, has become property of some particular
person or persons as present interest; mere expectancy
of future benefits, or contingent interest in property
founded on anticipated continuance of existing laws,
does not constitute vested rights. In Webster's
Comprehensive Dictionary (International Edition) at
page 1397, 'vested' is defined as :
87
Law held by a tenure subject to no contingency;
complete; established by law as a permanent
right; vested interest."
(See Mosammat Bibi Sayeeda and Ors. etc. v. State of Bihar
and Ors. etc. AIR 1996 SC 1936 at SCC p.527, para 17)
21. The word "vest" is normally used where an immediate
fixed right in present or future enjoyment in respect of a
property is created. With the long usage, the said word "vest"
has also acquired a meaning as "an absolute or indefeasible
right". It had a "legitimate" or "settled expectation" to obtain
right to enjoy the property etc. Such "settled expectation" can
be rendered impossible of fulfillment due to change in law by
the Legislature. Besides this, such a "settled expectation" or
the so-called "vested right" cannot be countenanced against
public interest and convenience which are sought to be served
by amendment of the law. (Vide: Howrah Municipal Corpn.
and Ors. v. Ganges Rope Co. Ltd. and Ors. (2004) 1 SCC
663.
22. Thus, "vested right" is a right independent of any
contingency. Such a right can arise from a contract, statute or
by operation of law. A vested right can be taken away only if
the law specifically or by necessary implication provide for
such a course.”
82. On proper reading of section 24, it is clear that no divesting is
contemplated under the provision. Provisions of section 24 when
award is passed, possession is taken, compensation has been
tendered, vesting takes place. There is no deemed lapse under
section 24 in such a case. In case of urgency also before award is
passed as provided in section 17(1), 17(3A) vesting takes place on
fulfillment of conditions.
88
83. It is settled law that accrued rights cannot be taken away by
repealing statutory provisions. The repealing law must provide for
taking away such rights expressly or by necessary implications.
There is no such express provision or necessary implication. The
beneficial intendment of proviso to section 24(2) is that acquiring
body must have arrangement of money for payment of
compensation with respect to majority of holding. It never envisages
misuse of the provision. Law does not contemplate or permit a
litigant to misuse of the provisions. Law does not permit court cover
to be used as shield when there is no legality in the claim and one
cannot be permitted to reap the fruits of one’s own dilatory tactics,
money power to litigate till eternity. The Act nowhere intends that
only litigating incumbents who are not accepting acquisition have to
be given the benefit of Act of 2013. Those who have obtained
interim orders under guise of prima facie case anyhow or somehow
without any basis, without merit in their claim, cannot be protected
by providing shelter under the protective umbrella of section 24(2)
of the Act of 2013.
84. There are various decisions which have been rendered inter se
parties declining the challenge to land acquisition. It has been held
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in the previous judgments that the land is vested in the State and
acquisition has been legally made and possession has been taken
and such incumbents are responsible for not receiving
compensation. Now those judgments are sought to be get rid of
under the subsequent legislation, particularly under section 24 of
the Act of 2013.
85. In relation to the maxim ‘nemo debet bis vexari pro una et
eadem causa’, which means that it is a rule of law that a man
should not be twice vexed for one and the same cause, Broom, in
Legal Maxims, has discussed thus:
“When a party to litigation seeks improperly to raise again the
identical question which has been decided by a competent
Court, a summary remedy may be found in the inherent
jurisdiction which our Courts possess of preventing an abuse
of process.”
Thus, the provisions of section 24 cannot be interpreted by
ignoring and overlooking the previous verdicts. What has been held
in them is binding and rights cannot be taken away. When issues
raised within section 24 have already been decided and vesting has
already taken place it is final. Exception as carved out in section 24
when award has not been passed under section 24(1)(a) for
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determination of compensation only the provisions of the Act of
2013 would apply. Once possession has been taken Compensation
tendered but not accepted under section 17(1) of the Act or section
16 of Act of 1894 vesting takes place.
IN RE: QUESTION NO.II: MODE OF TAKING PHYSICAL
POSSESSION AS CONTEMPLATED UNDER SECTION 24(2) OF ACT
OF 2013 AND THE ACT OF 1894:
86. Intrinsically connected with Question No.1 is the question of
taking physical possession as contained in section 24(2) of Act of
2013 when it can be said that possession has been taken. When we
consider the same, question arises what is the meaning of “physical
possession not taken” in section 24(2) when the State is involved in
taking possession of the property acquired it can take possession by
drawing a Panchnama. The normal rule of State possessing the
land through some persons would not be applicable in such cases.
On open land, possession is deemed to be of owner. When the State
acquired the land and has drawn memorandum of taking
possession that in the way the State take possession of large chunk
of property acquired as State is not going to put other persons in
91
possession or its police force or going to cultivate it or start residing
or physically occupy it after displacing who were physically in
possession as in the case of certain private persons, in case they
re-enter in possession of open land, start cultivation or residing in
the house. Lawful possession is deemed to be of the State. This
Court in a number of decisions has accepted the mode of drawing
Panchnama by State consistently to be a mode of taking possession.
87(a). In Balwant Narayan Bhagde v. M.D. Bhagwat & Ors., (1976)
1 SCC 700 in the majority view, it was held that the act of Tehsildar
in going on the spot and inspecting the land was sufficient to
constitute taking of possession. Neither the Government nor the
Commissioner could withdraw from the acquisition of the land
under section 48(1) of the Act. This Court observed thus:
“28. We agree with the conclusion reached by our brother
Untwalia, J., as also with the reasoning on which the
conclusion is based. But we are writing a separate judgment as
we feel that the discussion in the judgment of our learned
brother Untwalia, J., in regard to delivery of 'symbolical' and
'actual' possession under Rules 35, 36, 95 and 96 of Order XXI
of the CPC, is not necessary for the disposal of the present
appeals' and we do not wish to subscribe to what has been said
by our learned brother Untwalia, J., in that connection, nor do
we wish to express our assent with the discussion of the
various authorities made by him in his judgment. We think it is
enough to state that when the Government proceeds to take
possession of the land acquired by it under the Land
Acquisition Act, 1894, it must take actual possession of the
land since all interests in the land are sought to be acquired by
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it. There can be no question of taking 'symbolical' possession
in the sense understood by judicial decisions under the CPC.
Nor would possession merely on paper be enough. What the
Act contemplates as a necessary condition of vesting of the
land in the Government is the taking of actual possession of
the land. How such possession may be taken would depend on
the nature of the land. Such possession would have to be taken
as the nature of the land admits of. There can be no hard and
fast rule laying down what, act would be sufficient to
constitute taking of possession of land. We should not,
therefore, be taken as laying down an absolute and inviolable
rule that merely going on the spot and making a declaration by
beat of drum or otherwise would be sufficient to constitute
taking of possession of land in every case. But here, in our
opinion, since the land was lying fallow and there was no crop
on it at the material time, the act of the Tehsildar in going on
the spot and inspecting the land for the purpose of determining
what part was waste and arable and should, therefore, be taken
possession of and determining its extent, was sufficient to
constitute taking of possession. It appears that the appellant
was not present when this was done by the Tehsildar, but the
presence of the owner or the occupant of the land is not
necessary to effectuate the taking of possession. It is also not
strictly necessary as a matter of legal requirement that notice
should be given to the owner or the occupant of the land that
possession would be taken at a particular time, though it may
be desirable where possible, to give such notice before
possession is taken by the authorities, as that would eliminate
the possibility of any fraudulent or collusive transaction of
taking of mere paper possession, without the occupant or the
owner ever coming to know of it.”
87(b). In Tamil Nadu Housing Board v. A.Viswam (Dead) by LRs.,
(1996) 8 SCC 259, this Court has held that recording of
memorandum/ Panchnama by Land Acquisition Officer in the
presence of witnesses signed by them would constitute taking
possession of land. This Court observed:
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“8. It is settled law by series of judgments of this Court that
one of the accepted modes of taking possession of the
acquired land is recording of a memorandum or Panchnama
by the LAO in the presence of witnesses winged by him/them
and that would constitute taking possession of the land as it
would be impossible to take physical possession of the
acquired land. It is common Knowledge that in some cases
the owner/interested person may not co-operate in taking
possession of the land.”
87(c). In Banda Development Authority, Banda v. Moti Lal Agarwal &
Ors. (2011) 5 SCC 394 this Court observed that preparing a
Panchnama is sufficient to constitute taking of possession. If
acquisition is of a large tract of land, it may not be possible to take
physical possession of each and every parcel of the land and it
would be sufficient that symbolic possession is taken by preparing
an appropriate document in the presence of independent witnesses
and getting their signatures. Even subsequent utilization of a
portion of acquired land for public purpose was still sufficient to
prove taking possession. This Court in Banda Development
Authority (supra) has considered various decisions and laid down
thus:
"37. The principles which can be culled out from the
above-noted judgments are:
i) No hard and fast rule can be laid down as to what act
would constitute taking of possession of the acquired
land.
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ii) If the acquired land is vacant, the act of
the concerned State authority to go to the
spot and prepare a panchnama will ordinarily be
treated as sufficient to constitute taking of possession.
iii) If crop is standing on the acquired land or
building/structure exists, mere going on the spot by the
concerned authority will, by itself, be not sufficient for
taking possession. Ordinarily, in such cases, the
concerned authority will have to give notice to the
occupier of the building/structure or the person who
has cultivated the land and take possession in the
presence of independent witnesses and get their
signatures on the panchnama. Of course, refusal of the
owner of the land or building/structure may not lead to
an inference that the possession of the acquired land
has not been taken.
iv) If the acquisition is of a large tract of land, it may
not be possible for the acquiring/designated authority
to take physical possession of each and every parcel of
the land and it will be sufficient that symbolic
possession is taken by preparing appropriate document
in the presence of independent witnesses and getting
their signatures on such document.
v) If beneficiary of the acquisition is an
agency/instrumentality of the State and 80% of the
total compensation is deposited in terms of Section
17(3A) and substantial portion of the acquired land has
been utilized in furtherance of the particular public
purpose, then the Court may reasonably presume that
possession of the acquired land has been taken.”
87(d). In State of Tamil Nadu & Anr. v. Mahalakshmi Ammal & Ors.
(1996) 7 SCC 269, this Court has held: “Possession of the acquired
land would be taken only by way of memorandum, Panchnama
which is a legally accepted form.” This Court observed:
95
“9. It is well settled law that publication of the declaration
under Section 6 gives conclusiveness to public purpose.
Award was made on September 26, 1986 and for Survey No.
2/11 award was made on August 31, 1990. Possession having
already been undertaken on November 24, 1981, it stands
vested in the State under Section 16 of the Act free from all
encumbrances and thereby the Government acquired absolute
title to the land. The initial award having been made within
two years under Section 11 of the Act, the fact that
subsequent award was made on 31st August, 1990 does not
render the initial award invalid. It is also to be seen that there
is stay of dispossession. Once there is stay of dispossession,
all further proceedings necessarily could not be proceeded
with as laid down by this Court. Therefore, the limitation also
does not stand as an impediment as provided in the proviso to
Section 11A of the Act. Equally, even if there is an
irregularity in service of notice under Sections 9 and 10, it
would be a curable irregularity and on account thereof, award
made under Section 11 does not become invalid. Award is
only an offer on behalf of the State. If compensation was
accepted without protest, it binds such party but subject to
Section 28A. Possession of the acquired land would be taken
only by way of a memorandum, Panchanama, which is a
legally accepted norm. It would not be possible to take any
physical possession. Therefore, subsequent continuation, if
any, had by the erstwhile owner is only illegal or unlawful
possession which does not bind the Government nor vested
under Section 16 divested in the illegal occupant. Considered
from this perspective, we hold that the High Court was not
justified in interfering with the award.”
87(e). In Balmokand Khatri Educational and Industrial Trust v. State
of Punjab (1996) 4 SCC 212 it was observed that it is difficult to
take physical possession of land under compulsory acquisition. The
normal rule of taking possession is drafting the Panchnama in the
presence of Panchas, is accepted mode of taking possession of land.
This Court observed:
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"4. It is seen that the entire gamut of the acquisition
proceedings stood completed by April 17, 1976, by which
date possession of the land had been taken. No doubt, Shri
Parekh has contended that the appellant still retained their
possession. It is now well-settled legal position that it is
difficult to take physical possession of the land under
compulsory acquisition. The normal mode of taking
possession is drafting the Panchanama in the presence of
Panchas and taking possession and giving delivery to the
beneficiaries is the accepted mode of taking possession of the
land. Subsequent thereto, the retention of possession would
tantamount only to illegal or unlawful possession.
5. Under these circumstances, merely because the appellant
retained possession of the acquired land, the acquisition
cannot be said to be bad in law. It is then contended by Shri
Parekh that the appellant-Institution is running an educational
institution and intends to establish a public school and that
since other land was available, the Government would have
acquired some other land leaving the acquired land for the
appellant. In the counter-affidavit filed in the High Court, it
was stated that apart from the acquired land, appellant also
owned 482 canals 19 marlas of land. Thereby, it is seen that
the appellant is not disabled to proceed with the continuation
of the educational institution which it seeks to establish. It is
then contended that an opportunity may be given to the
appellant to make a representation to the State Government.
We find that it is not necessary for us to give any such liberty
since acquisition process has already been completed.”
(emphasis supplied)
87(f). In P. K. Kalburqi v. State of Karnataka & Ors. (2005) 12 SCC
489, this Court held that if land were vacant and unoccupied,
taking symbolical possession would be enough. This Court held
that in case land was vacant only symbolical possession could be
taken and such possession would amount to vesting the land in the
Government. Thus power under section 48 could not be exercised.
97
87(g). In Raghbir Singh Sehrawat v. State of Haryana & Ors. (2012)
1 SCC 792, it was observed:
“28. If the Appellant's case is examined in the light of the
propositions culled out in Banda Development Authority,
Banda v. MotiLalAgarwal and Ors. we have no hesitation to
hold that possession of the acquired land had not been taken
from the Appellant on 28.11.2008, i.e. the day on which the
award was declared by the Land Acquisition Collector
because crops were standing on several parcels of land
including the Appellant's land and possession thereof could
not have been taken without giving notice to the landowners.
That apart, it was humanly impossible to give notice to large
number of persons on the same day and take actual
possession of land comprised in various survey numbers
(total measuring 214 Acres 5 Kanals and 2 Marlas).”
This Court has laid down that since the land was lying fallow
with no crop on it, the Tehsildar going on the spot and inspecting
the land was enough to constitute taking possession. No notice was
required to be given to the occupant of the land.
87(h). In Sita Ram Bhandar Society, New Delhi v. Lieutenant
Governor, Government of NCT, Delhi & Ors. (2009) 10 SCC 501, this
Court observed that when possession is to be taken of large tract of
land then it is permissible to have possession by drawing
Panchnama.
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87(i). In Om Prakash Verma & Ors. v. State of Andhra Pradesh &
Ors. (2010) 13 SCC 158, this Court observed:
“85. As pointed out earlier, the expression `civil appeals are
allowed' carry only one meaning, i.e., the judgment of the
High Court is set aside and the writ petitions are dismissed.
Moreover, the determination of surplus land based on the
declaration of owners has become final long back. The
notifications issued under Section 10 of the Act and the
panchanama taken possession are also final. On behalf of the
State, it was asserted that the possession of surplus land was
taken on 20.07.1993 and the Panchanama was executed
showing that the possession has been taken. It is signed by
witnesses. We have perused the details which are available in
the paper book. It is settled law that where possession is to be
taken of a large tract of land then it is permissible to take
possession by a properly executed Panchanama. [videSita
Ram Bhandar Society, New Delhi v. Lieutenant Governor,
Govt. of NCT, Delhi (2009) 10 SCC 501].
86. It is not in dispute that the Panchnama has not been
questioned in any proceedings by any of the appellants.
Though it is stated that Chanakyapuri Cooperative Society is
in possession at one stage and ShriVenkateshawar Enterprises
was given possession by the owners and possession was also
given to Golden Hill Construction Corporation and thereafter
it was given to the purchasers, the fact remains that the
owners are not in possession. In view of the same, the finding
of the High Court that the possession was taken by the State
legally and validly through a Panchnama is absolutely correct
and deserves to be upheld.”
87(j). In M. Venkatesh & Ors. v. Commissioner, Bangalore
Development Authority etc. (2015) 17 SCC 1, a three-Judge Bench of
this Court has opined:
“17. To the same effect are the decisions of this Court in Ajay
Krishan Shinghal v. Union of India, Mahavir v. Rural
Institute, Gian Chand v. Gopala, Meera Sahni v. Lt. Governor
99
of Delhi and Tika Ram v. State of U.P. More importantly, as
on the date of the suit, the respondents had not completed 12
years in possession of the suit property so as to entitle them to
claim adverse possession against BDA, the true owner. The
argument that possession of the land was never taken also
needs notice only to be rejected for it is settled that one of the
modes of taking possession is by drawing a panchnama which
part has been done to perfection according to the evidence led
by the defendant BDA. Decisions of this Court in T.N.
Housing Board v. A. Viswam and Larsen & Toubro Ltd. v.
State of Gujarat, sufficiently support BDA that the mode of
taking possession adopted by it was a permissible mode.”
(emphasis supplied)
87(k). However, view has been taken in Velaxan Kumar v. Union of
India & Ors. (2015) 4 SCC 325 that actual physical possession is
required to be taken and the court has seen the photographs to
hold that possession was not taken. The view taken in Velaxan
Kumar (supra) cannot be said to be correct and in accordance with
law. Drawing of Panchnama is the accepted mode of taking
possession and once Panchnama has been drawn in the presence of
witnesses, in case Panchnama has been signed by official witnesses
as to its correctness as there is presumption of correctness of the
official act under section 114 of the Act of 2013. A photograph
cannot show actual/ legal possession much less proof of possession
as person may enter/re-enter by committing trespass to have
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photographed. That would not negate the proceedings held for
taking possession and drawing panchnama.
87(l). In Raghbir Singh Sehrawat (supra) also the observations have
been made that it was not possible to take possession of the entire
land in a day, cannot be accepted. The State is not going to put
their own persons/ police/ or other officials to possess the land.
Thus the mode of taking possession by drawing Panchnama has
been accepted in a large number of decisions, which appears to be
the consistent view of this Court, and must prevail.
87(m). In Narmada Bachao Andolan v. State of Madhya Pradesh
& Anr. AIR 2011 SC 1989, this Court has observed that it would
depend upon the facts of individual case whether possession has
been taken or not. However, this Court had appointed a
Commissioner in the said case to find out the possession on the
spot and DVDs. and CDs were seen to hold that landowners were in
possession. District Judge, Indore, recorded the statements of the
tenure-holders, which were referred to by this Court in the said
judgment. Said decision has to be treated as confined to its own
facts, as the mode adopted for determining the possession by the
101
help of Commissioner is doubtful. The Commissioner could not
have determined the factum of possession. It is the function of the
court and this cannot abdicate to Commissioner its function. Even
under Order XXVII CPC function of Commissioner is not to
determine possession and once possession has been taken, whether
there was re-entry or trespass had not been examined in the said
case. However, statements recorded by the District Judge were also
taken into consideration in Narmada Bachao Andolan (supra). The
decision in said case is to be taken as confined to the facts and
cannot be said to be of universal application. Subsequent DVD/CD
are not going to establish whether possession, in fact, was taken
earlier. Such mode of determining the possession by subsequent
material is not of much value as there can be re-entry in possession
after possession had been taken. In the decision of Banda
Development Authority (supra), it appears that the law laid down has
been properly discussed and propositions have been laid down
properly.
88. We find that while this Court examined several aspects of the
matter in Banda Development Authority, Banda versus Moti Lal
Agarwal [(2011) 5 SCC 394], contrary view has been taken in some
102
subsequent judgments. In Banda Development Authority (supra),
this Court has held that if land was vacant, going to the spot and
preparing a panchnama by a state authority would ordinarily be
treated as sufficient to constitute the taking of possession. If crop
is standing, notice was required to be given to the occupier of
building or structure and thereafter taking possession in presence
of independent witnesses and in spite of refusal by the owner did
not mean that possession of the has not been taken. If acquisition
is of a large tract of land, it would not be possible to take physical
possession of each and every parcel of such land. Taking ‘symbolic’
possession, by preparing an appropriate document, in presence of
independent witnesses, was sufficient. Where urgency clause was
invoked and substantial portion of land was acquired or utilized in
furtherance of the particular public purpose, taking of possession
was presumed. Utilization of a major portion of acquired land for
public purpose was itself sufficient to prove taking over possession.
89. We find that in Velaxan Kumar versus Union of India [(2015) 4
SCC 325], the Court held that Section 24(2) of the 2013 Act being a
benevolent provision, even though possession had been taken, but
if due procedure was not followed and, the photographs showed
103
that the landowners were in possession, the proceedings would
lapse. Such a view, in our opinion, is contrary to the settled law as
referred to in Banda Development Authority (supra). The same will,
accordingly, stand overruled.
In Re: Question No.III :
WHETHER SECTION 24 OF THE ACT OF 2013 REVIVES STALE/
BARREDCLAIMS?
90. In several cases, the challenge to the acquisition has become
stale and otherwise barred. The question arises whether a beneficial
provision of section 24 of the Act of 2013 revives such claims and
the Courts can entertain them.
91. Arguments to the effect, that section 24 of the Act of 2013 does
have the effect of re-opening claims of the beneficiaries, qua
acquisitions that had, in certain instances, been made as far back
as the first and the second decade of the 20th century or decades
before, are being routinely urged before various courts, including
this Court and is involved in several instant cases. To that end,
proceedings are being filed anew, even though everything
appertaining the concerned acquisition proceedings, including
several rounds of legal challenge to the same, has attained finality
104
decades ago. The question is whether it is permissible to assert for
resuscitation of such claims, placing them under the umbrella of
the provisions of Section 24.
92. An instance of such a claim, put forth before this Court, was
argued and decided within the confines of the case titled as Mahavir
& Ors. v. Union of India & Anr., numbered as SLP (C) No.
26281/2017, decided on 8.9.2017. This was a petition filed with
respect to an area known as the ‘Raisina Hills’, located in the
‘Lutyens Zone’ of New Delhi.
93. The question arose as to whether the court can interfere in
such cases? The Court’s discussion on the legal aspects involved in
Mahavir’s case (supra), and its decision thereon, is summarized
hereunder. The petition was dismissed on the ground of delay and
laches, holding that it destroyed the remedy. It was further held
that section 24 does not revive non-existing or dead claims; it only
ensures that claims, which were alive, would be examined.
94. In Mahavir’s case (supra), this Court has also referred to the
decision in Tamil Nadu Housing Board, Chennai v. M. Meiyappan &
Ors. [(2010) 14 SCC 309], and in Jasveer Singh v. State of U.P. &
Ors. [(2017) 6 SCC 787]. The delay and laches are enough to destroy
105
the remedy.
Mahavir’s case (supra) also contains the observation to the
effect that, if the conduct and neglect of the landowner or his
successor is allowed to prevail, permitting them to assert their claim
at this belated juncture, it would place the Estate Authority in a
position in which it would not be reasonable to place them; and that
in such cases, lapse of time and delay are one of the most material
considerations. The Court’s observations in Mahavir’s case (supra)
are extracted hereunder:
“15. In U.P. State Jal Nigam & Anr. v. Jaswant Singh & Anr.
(2006) 11 SCC 464 this court has observed that in
determining whether there has been delay so as to amount to
laches in case petitioner/claimant is aware of the violation of
the right, where a remedy by his conduct tantamount to
waiver of it or where, by his conduct or neglect, though not
waiving the remedy, he has put the other party in a position in
which it would not be reasonable to place him if the remedy
were afterwards to be asserted. In such cases lapse of time
and delay are most material. Upon these considerations rests
the doctrine of laches.
16. The Constitution Bench of this court in Rabindranath
Bose &Ors. v. Union of India &Ors. (1970) 1 SCC 84 has
observed:
“32 …we are of the view that no relief should be given
to petitioners who, without any reasonable
explanation, approach this Court under Article 32 of
the Constitution after inordinate delay. The highest
Court in this land has been given Original Jurisdiction
to entertain petitions under Article 32 of the
Constitution. It could not have been the intention that
this Court would go into stale demands after a lapse of
106
years. It is said that Article 32 is itself a guaranteed
right. So it is, but it does not follow from this that it
was the intention of the Constitution makers that this
Court should discard all principles and grant relief in
petitions filed after inordinate delay.”
(emphasis supplied)”
95. This Court, in Dharappa v. Bijapur Co-operative Milk Producers
Societies Union Ltd. [(2007) 9 SCC 109], had an occasion to consider
the effect and operation of section 10(4A) of the Industrial Disputes
Act, 1947; the section had been inserted via an amendment made to
the Act. With regard to the same, the Court observed that delay, if
has resulted in material evidence relevant to adjudication being lost
or rendered unavailable, would be fatal. It was held that the time
limit of 6 months, prescribed by section 10(4A), should be
interpreted so as not to revive stale and dead claims, for it would
not be possible to defend such claims due to lapse of time and due
to material evidence having been lost or rendered unavailable. In
Dharappa (supra), it was observed;
“29. This Court while dealing with Section 10(1)(c) and (d) of
the ID Act, has repeatedly held that though the Act does not
provide a period of limitation for raising a dispute under
Section 10(1)(c) or (d), if on account of delay, a dispute has
become stale or ceases to exist, the reference should be
rejected. It has also held that lapse of time results in losing the
remedy and the right as well. The delay would be fatal if it
has resulted in material evidence relevant to adjudication
being lost or rendered unavailable [vide - Nedungadi Bank
107
Ltd. v. K.P. Madhavan Kutty (2000) I LLJ 561 SC; Balbir
Singh v. Punjab Roadways 2000 (8) SCALE 180; Asst.
Executive Engineer v. Shivalinga (2002) I LLJ 457 SC;
and S.M. Nilajkar v. Telecom DT. Manager (2003) II LLJ 359
SC. When belated claims are considered as stale and
non-existing for the purpose of refusing or rejecting a
reference under Section 10(1)(c) or (d), in spite of no period
of limitation being prescribed, it will be illogical to hold that
the amendment to the Act inserting
Section 10(4A) prescribing a time limit of six months, should
be interpreted as reviving all stale and dead claims.
30. The object of Section 10(4A) is to enable workmen to
apply directly to the Labour Court for adjudication of disputes
relating to termination, without going through the laborious
process of seeking a reference under Section 10(1) of ID Act.
The Legislative intent was not to revive stale or non-existing
claims. Section 10(4A) clearly requires that a workman who
wants to directly approach the Labour Court should do so
within six months from the date of communication of the
order. Then come the words "or the date of commencement of
the Industrial Disputes (Karnataka Amendment) Act, 1987,
whichever is later". The reason for these words is obvious. In
cases where the cause of action arose prior to 7.4.1988, some
additional time had to be provided to make the provisions
effective. Let us take the example of a workman who had
received the termination order on 10-10-1987. If
Section 10(4A), which come into effect on 7.4.1988, had
merely stated that the application had to be filed within six
months from the date of communication, he had to file the
application before 10-4-1988, that is hardly three days from
the date when the amendment came into effect. The
Legislature thought that workmen should be given some
reasonable time to know about the new provision and take
steps to approach the Labour Court. Therefore, all workmen
who were communicated orders of termination within six
months prior to 7-4-1988 were given the benefit of uniform
six months time from 7-4-1988, irrespective of the date of
expiry of six months. When a new remedy or relief is
provided by a statute, such a transitional provision is made to
ensure that persons who are given a special right, do not lose
it for want of adequate time to enforce it, though they have a
cause of action or right as on the date when the new remedy
or relief comes into effect.
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31. Section 10(4A) does not, therefore, revive non-existing or
stale or dead claims but only ensures that claims which were
live, by applying the six month rule in Section 10(4A) as on
the date when the Section came into effect, have a minimum
of six months time to approach the Labour Court. That is
ensured by adding the words "or the date of commencement
of the Industrial Disputes (Karnataka Amendment) Act, 1987,
which is later" to the words "within six months from, the date
of communication to him of the order of discharge, dismissal,
retrenchment or termination." In other words all those who
were communicated orders of termination during a period of
six months prior to 7-4-1988 were deemed to have been
communicated such orders of termination as on 7-4-1988 for
the purpose of seeking remedy. Therefore, the words "within
six months from the date of commencement of the Industrial
Disputes (Karnataka Amendment) Act, 1987, whichever is
later" only enables those who had been communicated order
of termination within six months prior to 7-4-1988, to apply
under Section 10(4A).”
96. The stale claims cannot be entertained even though no time
limit is prescribed, it was observed in State of Karnataka v.
Laxuman [(2005) 8 SCC 709] thus:
“9. As can be seen, no time for applying to the court in terms
of sub-section (3) is fixed by the statute. But since the
application is to the court, though under a special enactment,
Article 137, the residuary article of the Limitation Act, 1963,
would be attracted and the application has to be made within
three years of the application for making a reference or the
expiry of 90 days after the application. The position is settled
by the decision of this Court in The Addl. Spl. Land
Acquisition Officer, Bangalore v. Thakoredas, Major and Ors.,
AIR 1994 SC 2227 It was held:
"3. Admittedly, the cause of action for seeking a
reference had arisen on the date of service of the award
under Section 12(2) of the Act. Within 90 days from
the date of the service of notice, the respondents made
the application requesting the Deputy Commissioner to
refer the cases to the Civil Court under Section 18.
109
Under the amended sub-section 3(a)of the Act, the
Deputy Commissioner shall, within 90 days from
September 1, 1970 make reference under Section 18 to
the Civil Court which he failed to do . Consequently,
by operation of subsection 3(b) with the expiry of the
aforestated 90 days, the cause of action had accrued to
the respondents to make an application to the Civil
Court with a prayer to direct the Deputy Commissioner
to make a reference. There is no period of limitation
prescribed in subsection 3(b) to make that application
but it should be done within limitation prescribed by
the Schedule to the Limitation Act. Since no Article
expressly prescribed the limitation to make such
application, the residuary article under Article 137 of
the Schedule to the Limitation Act gets attracted. Thus,
it could be seen that in the absence of any special
period of limitation prescribed by clause (b) of
subsection (3) of Section 18 of the Act, the application
should have been made within three years from the
date of expiry of 90 days prescribed in Section 18(3)
(b) i.e. the date on which cause of action had accrued
to the respondent-claimant. Since the applications had
been admittedly made beyond three years, it was
clearly barred by limitation. Since, the High Court
relied upon the case in Municipal Corporation of
Athani,(1969) IILLJ651SC, which has stood
overruled, the order of the High Court is
unsustainable."
This position is also supported by the reasoning
in Kerala State Electricity Board v. T.P. Kunhaliumma, 1977] 1
SCR 996. It may be seen that under the Central Act sans the
Karnataka amendment there was no right to approach the
principal civil court of original jurisdiction to compel a
reference and no time limit was also fixed for making such an
approach. All that was required of a claimant was to make an
application for reference within six weeks of the award or the
notice of the award, as the case may be. But obviously the
State Legislature thought it necessary to provide a time frame
for the claimant to make his claim for enhanced compensation
and for ensuring an expeditious disposal of the application for
reference by the authority under the Act fixing a time within
which he is to act and conferring an additional right on the
claimant to approach the civil court on satisfying the condition
precedent of having made an application for reference within
110
the time prescribed.
10. A statute can, even while conferring a right, provide also
for a repose. The Limitation Act is not an equitable piece of
legislation but is a statute of repose. The right undoubtedly
available to a litigant becomes unenforceable if the litigant
does not approach the court within the time prescribed. It is in
this context that it has been said that the law is for the diligent.
The law expects a litigant to seek the enforcement of a right
available to him within a reasonable time of the arising of the
cause of action and that reasonable time is reflected by the
various articles of the Limitation Act.”
97. Thus, when we ponder as to the instant case, qua the
re-opening of stale claims under section 24 of the 2013 Act, no
‘Johnny come lately’ can be permitted to assert that he is in
possession (claiming that physical possession has not been taken
away from him), when such assertion has not been made for
decades together. Such claims would not be revived after the person
has slept over them; the courts must not condone sudden
wakefulness from such slumber, especially in relation to claims over
open pieces of land, and even houses/structures, when the person
may have illegally reentered into the possession or may have
committed trespass. Thus, for the aforesaid reasons, such claims
cannot be entertained or adjudicated under section 24 of the 2013
Act.
98. In our considered opinion section 24 cannot be used to revive
111
the dead or stale claims and the matters, which have been
contested up to this Court or even in the High Court having lost the
cases or where reference has been sought for enhancement of the
compensation. Compensation obtained and still it is urged that
physical possession has not been taken from them, such claims
cannot be entertained under the guise of section 24(2). We have
come across the cases in which findings have been recorded that by
which of drawing a Panchnama, possession has been taken, now
again under Section 24(2) it is asserted again that physical
possession is still with them. Such claims cannot be entertained in
view of the previous decisions in which such plea ought to have
been raised and such decisions would operate as res judicata or
constructive res judicata. As either the plea raised is negatived or
such plea ought to have been raised or was not raised in the
previous round of litigation. Section 24 of the Act of 2013 does not
supersede or annul the court’s decision and the provisions cannot
be misused to reassert such claims once over again. Once
Panchnama has been drawn and by way of drawing the Panchnama
physical possession has been taken, the case cannot be reopened
under the guise of section 24 of Act of 2013.
112
99. Section 24 is not intended to come to the aid of those who first
deliberately refuse to accept the compensation, and then indulge in
ill-advised litigation, and often ill-motivated dilatory tactics, for
decades together. On the contrary, the section is intended to help
those who have not been offered or paid the compensation despite it
being the legal obligation of the acquiring body so to do, and/or who
have been illegally deprived of their possession for five years or
more; in both the scenarios, fault/cause not being attributable to
the landowners/claimants.
100. We are of the view that stale or dead claims cannot be the
subject-matter of judicial probing under section 24 of the Act of
2013. The provisions of section 24 do not invalidate those
judgment/orders of the courts where under rights/claims have been
lost/negatived, neither do they revive those rights which have come
barred, either due to inaction or otherwise by operation of law.
Fraudulent and stale claims are not at all to be raised under the
guise of section 24. Misuse of provisions of section 24(2) cannot be
permitted. Protection by the courts in cases of such blatant misuse
of the provisions of law could never have been the intention behind
113
enacting the provisions of section 24 (2) of the 2013 Act; and, by the
decision laid down in Pune Municipal Corporation (supra), and this
Court never, even for a moment, intended that such cases would be
received or entertained by the courts.
IN RE: QUESTION NOS. IV AND V
101. Question Nos. IV and V have been referred to in Yogesh
Neema & Ors. v. State of M.P. & Ors. (supra) by this Court relating to
correctness of the decision in Shree Balaji Nagar Residential
Association v. State of Tamil Nadu (supra) and conscious omission
referred in para 11 of the said judgment makes any substantial
difference to the legal position with regard to the exclusion or
inclusion of the period covered by an interim order of the Court and
applicability of the principle of “actus curiae neminem gravabit” and
its effect on Section 24(3) of Act of 2013.
102. In Yogesh Kumar & Ors. v. State of M.P., this Court has
doubted the correctness of decision in Shree Balaji Nagar
Residential Association (supra) in which this Court has observed:
"11. 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 proceedings might
have remained stayed on account of stay or injunction granted
by any Court. In the same Act, the proviso to Section 19(7) in
114
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 Padma Sundara Rao v. State of T.N.
(2002) 3 SCC 533.
12. 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 I 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 the Explanation to Section
11-A 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 wording 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."
In Shree Balaji (supra) a Division Bench of this Court has
opined that their conscious omission made by the legislature in
section 24(2) of Act, 2013 to exclude the period covered by the
interim order of the Court staying the acquisition proceedings, this
Court has observed that in the Act of 1894 by making amendment
115
of the provisions contained in sections 6 and 11A by providing
extension of period of limitation the period during which interim
order of the court has operated has been excluded. It has not been
so provided in Section 24(2), reference has also been made in Shree
Balaji, to the decision of a 3-Judge Bench of this Court in Union of
India v. Shiv Raj (2014) 6 SCC 564. The Division Bench in Yogesh
Kumar & Ors. v. State of Madhya Pradesh and Ors. while referring
the matter to the larger Bench has observed that in Union of India &
Anr. v. Shiv Raj (supra), there is no view expressed on the question
whether the period during which the award had remained stayed,
should be excluded for the purpose of consideration of the
provisions of section 24(2) of the Act of 1894. A doubt has been
expressed as to the correctness of the decision in Shree Balaji
(supra) on the ground that it is an established principle of law that
the act of court cannot be construed to cause prejudice to any of
the contesting parties in litigation which is expressed in the maxim
‘actus curiae neminem gravabit’.
EFFECT OF INTERIM ORDER OF A COURT
116
103. It was contended on behalf of the landowners that there was
interim stay only with respect to obtaining the possession and not
with respect to payment of compensation. Thus compensation
ought to have been paid. While raising aforesaid submission the
basic concept of acquisition under 1894 Act is ignored and
overlooked as right to receive compensation is a statutory right and
that comes into being only when the Government takes possession
of the property acquired. It is a ‘right in debitum in praesenti’, and
not dependent on the quantum of the compensation, either by the
Land Acquisition Officer under section 11 of the Act or by Court
under section 26 of the Act of 1894. Section 17(1) also provides that
compensation has to be offered when the possession is taken and in
case interim stay on possession is obtained in any litigation or
orders of status quo and or such other order is passed, it is not
open to such persons to contend that they ought to have been paid
the compensation notwithstanding that they have been resisting the
acquisition and taking of possession.
104. In our opinion, when there is interim stay with respect to
possession or order of status quo or stay on further proceedings
etc., there is no justification for authorities to proceed any further
117
with respect to payment of compensation or otherwise as these
obligations are intertwined in the scheme of land acquisition.
Everything stands still till the interim order is vacated. There are
cases also in which we have come across that the High Court in
writ petition has illegally set aside the acquisition on impermissible
reasons and during the pendency of the writ appeal or matter before
this Court, the provisions of Act of 2013 have come into force. Such
matters have to be decided on their own merits and the benefit of
any illegal quashment of land acquisition by the High Court cannot
come in the way of adjudication of the dispute on merits
considering situation when it was filed as Act does not cover cause
of illegal order, in view of the provisions contained in repeal and
saving in section 114 of the Act of 2013 read with and section 6(e)
of the General Clauses Act and no different intention appears in
such matters in view of provisions contained in section 24 of the Act
of 2013.
105(a). In Abhey Ram (Dead) by LRs. & Ors. v. Union of India &
Ors. (1997) 5 SCC 421, this Court considered the extended meaning
of words “stay of the action or proceedings” and referring to various
decisions observed that any type of the orders passed by this Court
118
would be an inhibitive action on the part of the authorities to
proceed further. In said decision this Court has observed thus :
“9. Therefore, the reason given in B.R. Gupta v. U.O.I. and
Ors. 37(1989) DLT 150 are obvious with reference to the
quashing of the publication of the declaration under Section 6
vis-a-vis the writ petitioners therein. The question thus arise
for consideration is: whether the stay obtained by some of the
persons who prohibited the respondents from publication of
the declaration under Section 6 would equally be extendible
to the cases relating to the appellants? We proceed on the
premise that the appellants had not obtained any stay of the
publication of the declaration but since the High Court in
some of the cases has, in fact, prohibited them as extracted
hereinbefore, from publication of the declaration, necessarily,
when the Court has not restricted the declaration in the
impugned orders in support of the petitioners therein, the
officers had to hold back their hands till the matters are
disposed of. In fact, this Court has given extended meaning to
the orders of stay or proceeding in various cases, namely,
Yusufbhai Noormohmed Nendoliya v. State of Gujarat and
Anr. AIR1991SC2153;Hansraj Jain v. State of Maharashtra
and Ors. (1993) 4 JT 360; Sangappa Gurulingappa Sajjan v.
State of Kamataka and Ors. (1994) 4 SCC 145; Gandhi Grah
Nirman Sahkari Samiti Ltd. Etc. Etc. v. State of Rajasthan
and Ors.JT(1993) 3 194; G. Narayanaswamy Reddy (dead) by
Lrs. and Anr. v. Govt. of Karnataka and Anr. JT (1991) 312
and Roshnara Begum Etc. v. U.O.I. and Ors.(1986) 1 apex
Dec 6.The words "stay of the action or proceeding" have been
widely interpreted by this Court and mean that any type of the
orders passed by this Court would be an inhibitive action on
the part of the authorities to proceed further. When the action
of conducting an enquiry under Section 5-A was put in issue
and the declaration under Section 6 was questioned,
necessarily unless the Court holds that enquiry under Section
5-A was properly conducted and the declaration published
under Section 6 to be valid, it would not be open to the
officers to proceed further into the matter. As a consequence,
the stay granted in respect of some would be applicable to
others also who had not obtained stay in that behalf. We are
not concerned with the correctness of the earlier direction
with regard to Section 5-A enquiry and consideration of
119
objections as it was not challenged by the respondent union.
We express no opinion on its correctness, though it is open to
doubt.”
(emphasis supplied)
105(b). In Om Parkash v. Union of India & Ors. (2010) 4 SCC 17,
this Court observed thus :
“72. Thus, in other words, the interim order of stay granted in
one of the matters of the landowners would put complete
restraint on the respondents to have proceeded further to issue
notification under Section 6 of the Act. Had they issued the
said notification during the period when the stay was
operative, then obviously they may have been hauled up for
committing contempt of court. The language employed in the
interim orders of stay is also such that it had completely
restrained the respondents from proceeding further in the
matter by issuing declaration/ notification under Section 6 of
the Act.”
(emphasis supplied)
105(c). In Shiv Raj (supra), it was noted by this Court that there
was stay of dispossession when the writ petition was pending but
this Court passed no interim order. There was no stay for the last 7
years and thereafter respondent took no action in pursuance of the
award. That was also one of the distinguishing features of Shiv Raj’s
case (supra) and it was largely based upon circular issued on the
basis of the opinion of the Solicitor General.
120
105(d). A Three-Judge Bench of this Court in Suresh Chand v.
Gulam Chisti (1990) 1 SCC 593, while referring to Atma Ram Mittal
v. Ishwar Singh Punia (1988) 4 SCC 284, had observed:
"17. It was argued that the words 'commencement of this Act'
should be construed to mean the date on which the
moratorium period expired and the Act became applicable to
the demised buildings. Such a view would require this Court
to give different meanings to the same expression appearing
at two places in the same section. The words 'on the date of
commencement of this Act' in relation to the pendency of the
suit would mean 15th July 1972 as held in Om Prakash Gupta
(supra) but the words 'from such date of commencement'
appearing immediately thereafter in relation to the deposit to
be made would have to be construed as the date of actual
application of the act at a date subsequent to 15th July 1972.
Ordinarily the rule of construction is that the same expression
where it appears more than once in the same statute, more so
in the same provision, must receive the same meaning unless
the context suggests otherwise Besides, such an interpretation
would render the use of prefix 'such' before the word
'commencement' redundant. Thirdly such an interpretation
would run counter to the view taken by this Court in Atma
Ram Mittal's case (supra) wherein it was held that no man can
be made to suffer because of the court's fault or court's delay
in the disposal of the suit. To put it differently if the suit could
be disposed of within the period of ten years, the tenant
would not be entitled to the protection of Section 39 but if the
suit is prolonged beyond ten years the tenant would be
entitled to such protection. Such an interpretation would
encourage the tenant to protract the litigation and if he
succeeds in delaying the disposal of the suit till the expiry of
ten years he would secure the benefit of Section 39, otherwise
not. We are, therefore, of the opinion that it is not possible to
uphold the argument.”
(emphasis supplied)
105(e). A Constitution Bench of this Court in Shyam Sunder &
Ors. v. Ram Kumar & Anr. (2001) 8 SCC 24, held that substantive
121
rights of the parties are to be examined on the date of the suit
unless the legislature makes such rights retrospective. This Court
observed:
“28. From the aforesaid decisions the legal position that
emerges is that when a repeal of an enactment is followed by
a fresh legislation such legislation does not affect the
substantive rights of the parties on the date of suit or
adjudication of suit unless such a legislation is retrospective
and a court of appeal cannot take into consideration a new
law brought into existence after the judgment appealed from
has been rendered because the rights of the parties in an
appeal are determined under the law in force on the date of
suit. However, the position in law would be different in the
matters which relate to procedural law but so far as
substantive rights of parties are concerned they remain
unaffected by the amendment in the enactment. We are,
therefore, of the view that where a repeal of provisions of an
enactment is followed by fresh legislation by an amending
Act such legislation is prospective in operation and does not
affect substantive or vested rights of the parties unless made
retrospective either expressly or by necessary intendment. We
are further of the view that there is a presumption against the
retrospective operation of a statue and further a statute is not
to be construed to have a greater retrospective operation than
its language renders necessary, but an amending act which
affects the procedure is presumed to be retrospective unless
amending act provides otherwise. We have carefully looked
into new substituted section 15 brought in the parent Act by
Amendment Act 1995 but do not find it either expressly or by
necessary implication retrospective in operation which may
affect the right of the parties on the date of adjudication of
suit and the same is required to be taken into consideration by
the appellate Court. In Shanti Devi (Smt) and another vs.
Hukum Chand AIR 1996 SC 3525 this Court had occasion to
interpret the substituted section 15 with which we are
concerned and held that on a plain reading of section 15 it is
clear that it has been introduced prospectively and there is no
question of such section affecting in any manner the judgment
and decree passed in the suit for pre-emption affirmed by the
High Court in the second appeal. We are respectfully in
agreement with the view expressed in the said decision and
122
hold that the substituted Section 15 in the absence of anything
in it to show that it is retrospective, does not affect the right of
the parties which accrued to them on the date of suit or on the
date of passing of the decree by the Court of the first instance.
We are also of the view that present appeals are unaffected by
change in law in so far it related to determination of the
substantive rights of the parties and the same are required to
be decided in light of law of preemption as it existed on the
date of passing of the decree.”
(emphasis supplied)
105(f). In Dau Dayal v. State of Uttar Pradesh, AIR 1959 SC 433,
it was observed that in case complaint has been filed within time
and in case issue of process is permitted by the court, it was held
that it would be an unfortunate state of the law if the trader whose
rights had been infringed and who takes up the matter promptly
before the criminal court, is nevertheless denied redress owing to
the delay in the issue of process which occurs in court. The Court
observed:
“6.It will be noticed that the complainant is required to resort
to the Court within one year of the discovery of the offence if
he is to have the benefit of proceeding under the Act. That
means that if the complaint is presented within one year of
such discovery, the requirements of Section 15 are satisfied.
The period of limitation, it should be remembered, is intended
to operate against the complainant and to ensure diligence on
his part in prosecuting his rights, and not against the Court.
Now, it will defeat the object of the enactment and deprive
traders of the protection which the law intended to give them
if we were to hold that unless process is issued on their
complaint within one year of the discovery of the offence, it
should be thrown out. It will be an unfortunate state of the
law if the trader whose rights had been infringed and who
takes up the matter promptly before the Criminal Court is,
123
nevertheless, denied redress owing to the delay in the issue of
process which occurs in Court.” (emphasis supplied)
105(g). This Court in Sarah Mathew v. Institute of Cardio Vascular
Diseases, (2014) 2 SCC 62, relied upon decision in DauDayal
(supra) and observed:
“29. Section 473 reads as under:
473. Extension of period of limitation in certain cases.
- Notwithstanding anything contained in the foregoing
provisions of this Chapter, any Court may take
cognizance of an offence after the expiry of the period
of limitation, if it is satisfied on the facts and in the
circumstances of the case that the delay has been
properly explained or that it is necessary so to do in the
interests of justice.
37. We are inclined to take this view also because there has to
be some amount of certainty or definiteness in matters of
limitation relating to criminal offences. If, as stated by this
Court, taking cognizance is application of mind by the
Magistrate to the suspected offence, the subjective element
comes in. Whether a Magistrate has taken cognizance or not
will depend on facts and circumstances of each case. A
diligent complainant or the prosecuting agency which
promptly files the complaint or initiates prosecution would be
severely prejudiced if it is held that the relevant point for
computing limitation would be the date on which the
Magistrate takes cognizance. The complainant or the
prosecuting agency would be entirely left at the mercy of the
Magistrate, who may take cognizance after the limitation
period because of several reasons; systemic or otherwise. It
cannot be the intention of the legislature to throw a diligent
complainant out of the court in this manner. Besides it must
be noted that the complainant approaches the court for
redressal of his grievance. He wants action to be taken against
the perpetrators of crime. The courts functioning under the
criminal justice system are created for this purpose. It would
be unreasonable to take a view that delay caused by the court
124
in taking cognizance of a case would deny justice to a diligent
complainant. Such an interpretation of Section 468 of the
Code of Criminal Procedure would be unsustainable and
would render it unconstitutional. It is well settled that a court
of law would interpret a provision which would help
sustaining the validity of the law by applying the doctrine of
reasonable construction rather than applying a doctrine which
would make the provision unsustainable and ultra vires the
Constitution. (U.P. Power Corporation Ltd. v. Ayodhaya
Prasad Mishra).”
(emphasis supplied)
106. When once the court has restrained the State authorities to
take possession, or to maintain status quo they cannot pay the
amount or do anything further, as such the consequences of
interim orders cannot be used against the State. It is basic principle
that when a party is disabled to perform a duty and it is not
possible for him to perform a duty, is a good excuse. It is a settled
proposition that one cannot be permitted to take advantage of his
own wrong. The doctrine “commodum ex-injuria sua Nemo
habere debet" means convenience cannot accrue to a party from
his own wrong. No person ought to have advantage of his own
wrong. A litigant may be right or wrong. Normally merit of lis is to
be seen on date of institution. One cannot be permitted to obtain
unjust injunction or stay orders and take advantage of own actions.
Law intends to give redress to the just causes; at the same time, it
125
is not its policy to foment litigation and enable to reap the fruits
owing to the delay caused by unscrupulous persons by their own
actions by misusing the process of law and dilatory tactics.
107. In Suresh Chandra v. Gulam Chisti (supra), it has been laid
down that no man can be made to suffer because of court's faults or
court's delay in disposal of suits. It was held that in case it could
not be the argument that if the suit prolonged beyond 10 years,
tenant would be entitled to protection and if disposed of within 10
years, tenant would not be entitled to the protection. The argument
on the rights based on gains of delay of litigation was rejected and
such party could not take the benefit of change in law.
CASUS OMISSUS:
108. It was urged that there was casus omissus while not excluding
the period of interim stay in the provisions of section 24. While
Parliamentary Committee discussed the matter, Delhi Government
has put forward its case that the period spent during the stay
should be excluded and such provision be inserted in section 24.
Later on, by way of Ordinance it was to be incorporated as the
second proviso, the Ordinance has lapsed. It was also urged that it
126
is a case of casus omissus as wherever the legislature wanted
exclusion of stay period in section 19(7) of the Act of 2013, specific
provision has been made for exclusion of the period spent during
the currency of stay and injunction order. Section 19 of the new Act
corresponds to section 6 of the Act of 1894. It was also urged that
there is also a provision made in the Explanation appended to
section 69(2) to exclude the period spent during the
stay/injunction. Section 69 deals with determination of amount of
compensation to be awarded and interest thereupon.
109. We have gone through the Minutes of the Parliamentary
Committee; it has simply noted the views of the concerned
Government/authorities. The report of the Standing Committee on
rural development simply mentions in the recommendations that
the Committee would like the Government to re-examine the issue
as the acquisition, which has been made, should not lapse.
Committee has noted the suggestions. Whether it was necessary to
incorporate such a provision was not gone into by the Committee.
Its recommendation is bald. Though the Ordinance had been
promulgated, the second proviso was to be added for exclusion of
the time of stay. Proviso also wanted to validate deposit in treasury
127
to remove the basis of decision of Pune Municipal Corporation
(supra). That would not mean that in the absence of addition of
proviso, the actual legal position could be ignored. The position of
law discussed by us makes it clear that it cannot be said to be a
casus omissus and merely because certain provisions have been
made in sections 19 and 69 excluding the period of stay, it would
not mean that in the provisions of section 24, there is casus
omissus it is not to be readily inferred. In the provisions contained
in section 19 of the Act of 2013 there is prescription of the period of
limitation in which a declaration has to be issued, it was equivalent
to section 6 of the Act of 1894, as such the provision of exclusion
has been made alike the previous provision, so also in section 69.
Section 24 as couched did not contemplate providing cover to the
litigation and its fruits to be reaped. The absence of provision for
excluding the period of stay/ injunction of a Court order does not at
all affect the provision of section 24(2) of the Act of 2013. It
intended that authority should not keep pending acquisition due to
laxity on their part for five years or more. It never intended to apply
in case they were not able to perform obligation due to court order
or conduct of landowners. Obviously the legal provisions have to be
128
interpreted in the light of the settled principles of common law
unless they are excluded, and in case a person is litigating for
several decades, non-acceptance of compensation and questioning
the acquisition, cannot be permitted to ask for compensation or
claim lapse under 2013 Act.
110. In Shivraj (supra), this court did not consider the question of
exclusion of the time. In Karnail Kaur (supra), and in Balaji Nagar
Residential Association (supra), various aspects, having a bearing on
the issue, were not considered. Thus, they cannot be said to be
laying down the correct law.
111. The landowners placed reliance on a decision of this Court,
rendered in Padma Sundara Rao (Dead) & Ors. v. State of Tamil
Nadu & Ors., (2002) 3 SCC 533, in which this court considered
casus omissus and observed:
“12. The rival pleas regarding re-writing of statute and casus
omissus need careful consideration. It is well settled principle
in law that the Court cannot read anything into a statutory
provision which is plain and unambiguous. A statute is an
edict of the legislature. The language employed in a statute is
the determinative factor of legislative intent. The first and
primary rule of construction is that the intention of the
Legislation must be found in the words used by the
Legislature itself. The question is not what may be supposed
and has been intended but what has been said. "Statutes
should be construed not as theorems of Euclid". Judge
129
Learned Hand said, "but words must be construed with some
imagination of the purposes which lie behind them". (See
Lehigh Valley Coal Co. v. Yensavage 218 FR 547). The view
was reiterated in Union of India and Ors. v. Filip Tiago De
Gama of Vedem Vasco De Gama (1990)1SCC277 .
13. In Dr. R. Venkatchalam and Ors. etc. v. Dv. Transport
Commissioner and Ors. etc. [1977] 2 SCR 392 it was
observed that Courts must avoid the danger of apriority
determination of the meaning of a provision based on their
own pre-conceived notions of ideological structure or scheme
into which the provision to be interpreted is somewhat fitted.
They are not entitled to usurp legislative function under the
disguise of interpretation.
14. While interpreting a provision the Court only interprets
the law and cannot legislate it. If a provision of law is
misused and subjected to the abuse of process of law, it is for
the legislature to amend, modify or repeal it, if deemed
necessary.
[See Rishabh Agro Industries Ltd. v. P.N.B Capital Services
Ltd. (2000)5SCC515 ]. The legislative casus omissus cannot
be supplied by judicial interpretative process. Language of
Section 6(1) is plain and unambiguous. There is no scope for
reading something into it, as was done in Narasimhaiah's case
(supra). In Nanjudaiah's case (supra), the period was further
stretched to have the time period run from date of service of
High Court's order. Such a view cannot reconciled with the
language of Section 6(1). If the view is accepted it would
mean that a case can be covered by not only Clauses (i)
and/or (ii) of the proviso to Section 6(1), but also by a
non-prescribed period. Same can never be the legislative
intent.
15. Two principles of construction - one relating to casus
omissus and the other in regard to reading the statute as a
whole - appear to be well settled. Under the first principle a
casus omissus cannot be supplied by the Court except in the
case of clear necessity and when reason for it is found in the
four corners of the statute itself but at the same time a casus
omissus should not be readily inferred and for that purpose all
the parts of a statute or section must be construed together
130
and every clause of a section should be construed with
reference to the context and other clauses thereof so that the
construction to be put on a particular provision makes a
consistent enactment of the whole statute.
This would be more so if literal construction of a
particular clause leads to manifestly absurd or anomalous
results which could not have been intended by the
Legislature. "An intention to produce an unreasonable result",
said Danckwerts, L.J., in Artemiou v. Procopiou (1966 1 QB
878), "is not to be imputed to a statute if there is some other
construction available". Where to apply words literally would
"defeat the obvious intention of the legislation and produce a
wholly unreasonable result" we must "do some violence to
the words" and so achieve that obvious intention and produce
a rational construction. [Per Lord Reid in Luke v. I.R.C. 1966
AC 557 where at p. 577 he also observed: "this is not a new
problem, though our standard of drafting is such that it rarely
emerges".]
16. The plea relating to applicability of the stare decisis
principles is clearly unacceptable. The decision in K.
Chinnathambi Gounder (supra) was rendered on 22.6.1979
i.e. much prior to the amendment by 1984 Act. If the
Legislature intended to give a new lease of life in those cases
where the declaration under Section 6 is quashed, there is no
reason why it could not have done so by specifically
providing for it. The fact that legislature specifically provided
for periods covered by orders of stay or injunction clearly
shows that no other period was intended to be excluded and
that there is no scope for providing any other period of
limitation. The maxim 'actus curiae neminem gravabit'
highlighted by the Full Bench of the Madras High Court has
no application to the fact situation of this case.
17. The view expressed in Narasimhaiah's case (supra) and
Nanjudaiah's case (supra), is not correct and is over-ruled
while that expressed in A.S. Naidu's case (supra) and Oxford's
case (supra) is affirmed.”
In Padma Sundara Rao (supra), this court considered the
period of limitation for issuance of declaration under section 6 of
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the Act of 1894. It was observed that the language of section 6 was
plain and unambiguous; there was no scope for reading something
into it, as had been done in N. Narasimhaiah v. State of Karnataka,
(1996) 3 SCC 88. In State of Karnataka v. D.C. Nanjudaiah, (1996)
10 SCC 619, the period had been stretched further, so as to have
the time period run from date of service of the High Court’s order.
This Court, in Padma SundaraRao (supra), held that such a view
could not be reconciled with the language of section 6(1), and in
this regard, further observed, that explanation to section 6 excluded
only that period during which any action or proceeding, initiated in
pursuance of the notification issued under section 4 (1), had been
stayed by an order of a court. When the legislature has specifically
provided for the periods covered by the order of stay and injunction,
the Court observed no other period could be said to be intended to
be excluded, by providing time period to run from date of service of
the High Court’s order; in that, it was not open to the court to add
to that period.
112. The question for consideration in Padma Sunder Rao (supra)
was entirely different from what we are concerned with. In the
instant case, the question is not of the exclusion of period, but is of
132
the application of the Common Law maxims, and of what it is that
section 24 of the Act of 2013 intends; the issue before us is not as
to add to the period of limitation, with which the Court in the case
of Padma Sunder Rao (supra) was concerned. Thus, the ratio of the
said decision has a different field to operate on, and consequently,
renders no support to the submission raised on behalf of the
landowners.
113. Reliance has been placed by land owners in Rana Girders Ltd.
v. Union of India (2013) 10 SCC 746 which is relied upon in Union of
India v. Sicom Limited & Ors. (2009) 2 SCC 121. This court has
observed that the statutory provision would prevail upon the
common law principles thus:
“9. Generally, the rights of the crown to recover the debt
would prevail over the right of a subject. Crown debt means
the debts due to the State or the king; debts which a
prerogative entitles the Crown to claim priority for before all
other creditors. [See Advanced Law Lexicon by P. Ramanatha
Aiyar (3rd Edn.) p. 1147]. Such creditors, however, must be
held to mean unsecured creditors. Principle of Crown debt as
such pertains to the common law principle. A common law
which is a law within the meaning of Article 13 of the
Constitution is saved in terms of Article 372 thereof. Those
principles of common law, thus, which were existing at the
time of coming into force of the Constitution of India are
saved by reason of the aforementioned provision. A debt
which is secured or which by reason of the provisions of a
statute becomes the first charge over the property having
regard to the plain meaning of Article 372 of the Constitution
of India must be held to prevail over the Crown debt which is
133
an unsecured one.
10. It is trite that when a Parliament or State Legislature
makes an enactment, the same would prevail over the
common law. Thus, the common law principle which was
existing on the date of coming into force of the Constitution
of India must yield to a statutory provision. To achieve the
same purpose, the Parliament as also the State Legislatures
inserted provisions in various statutes, some of which have
been referred to hereinbefore providing that the statutory dues
shall be the first charge over the properties of the tax-payer.
This aspect of the matter has been considered by this Court in
a series of judgments.” (Emphasis supplied)
114. There is no dispute with the aforesaid proposition; and, in our
opinion, the statutory provisions, contained in section 24 of the Act
of 2013, do not exclude the principles of common law which we
have held applicable. The principles that can be excluded are only
those in respect to which, provision has been made in the statute
itself or the applicability is ousted by implication.
115. The afore-extracted observations in respect of the principle of
interpretation that if something is expressed in a provision,
anything contrary is impliedly excluded, are themselves based on
the maxim "expressio unius est exclusio alterius". This maxim
has been held to have limit of operation and is not of universal
application in Mary Angel v. State of Tamil Nadu (1999) 5 SCC 209.
Thus, mere fact that in some of the provisions there is a mention
134
about period of stay being excluded, cannot be taken to be
conclusive that in other provisions with respect to the effect of stay
not to be considered or common law maxims have no applicability
in the context of Section 24(2) of the 2013 Act. The Court in Mary
Angel has observed :
“19. Further, for the rule of interpretation on the basis of the
maxim "expressio unius est exclusio alterius", it has been
considered in the decision rendered by the Queen's Bench in
the case of Dean v. Wiesengrund (1955) 2 QBD 120. The
Court considered the said maxim and held that after all it is
more than an aid to construction and has little, if any, weight
where it is possible, to account for the "exclusiounius" on
grounds other than intention to effect the "exclusioalterius".
Thereafter, the Court referred to the following passage from
the case of Colquhoon v. Brooks (1887) 19 QBD 400 wherein
the Court called for its approval-"the maxim"
'expressiouniusestexclusioalterius' has been pressed upon us. I
agree with what is said in the Court below by Wills J, about
this maxim. It is often a valuable servant, but a dangerous
master to follow in the construction of statutes of documents.
The exclusio is often the result of inadvertence or accident,
and the maxim ought not to be applied, when its application
having regard to the subject matter to which it is to be
applied, leads to inconsistency or injustice. In my opinion, the
application of the maxim here would lead to inconsistency
and injustice, and would make Section 14(1) of the Act of
1920 uncertain and capricious in its operation."(emphasis
supplied)
116. In Assistant A.C.E., Calcutta versus National Tobacco Co. Ltd. of
India Ltd, (1972) 2 SCC 560, it was held:
“30. The question whether there was or was not an implied
power to hold an enquiry in the circumstances of the case
before us, in view of the provisions of Section 4 of the Act
135
read with Rule 10-A of the Central Excise Rule, was not
examined by the Calcutta High Court because it erroneously
shut out consideration of the meaning and applicability of
Rule 10A. The High Court's view was based on an application
of the rule of construction that where a mode of performing a
duty is laid down by law it must be performed in that mode or
not at all. This rule flows from the maxim : "Expressio unius
est exclusion alterius." But, as we pointed out by Wills, J., in
Colquohoun v. Brooks (1888) 2 1. Q.B. D. 52 this maxim "is
often a valuable servant, but a dangerous master ...." The rule
is subservient to the basic principle that Courts must
endeavour to ascertain the legislative intent and purpose, and
then adopt a rule of construction which effectuates rather than
one that may defeat these. Moreover the rule of prohibition by
necessary implication could be applied only where a specified
procedure is laid down for the performance of a duty.
Although Rule 52 makes an assessment obligatory before
goods are removed by a manufacturer, yet, neither that rule
nor any other, rule, as already indicated above, has specified
the detailed procedure for an assessment. There is no express
prohibition anywhere against an assessment at any other time
in the circumstances of a case like the one before us where no
"assessment", as it is understood in Jaw, took place at all. On
the other hand, Rule 10A indicates that there are residuary
powers of making a demand in special circumstances not
foreseen by the framers of the Act or the rules. If the assessee
disputes the correctness of the demand an assessment
becomes necessary to protect the interests of the assessee. A
case like the one before us falls more properly within the
residuary class of unforeseen cases. We think that, from the
provisions of Section 4 of the Act read with Rule 10A, an
implied power to carry out or complete an assessment, not
specifically provided for by the rules, can be inferred. No
writs of prohibition or mandamus were, therefore, called for
in the circumstances of the case.”
Thus, the Common Law principles, as discussed by us, cannot
be ousted, to do complete justice to parties and to prevent
miscarriage of justice, within purview of section 24 of the Act of
2013.
136
DOCTRINE OF IMPOSSIBILITY
117. In several cases it is often seen that the landowners are not
ready to accept the compensation even though they have been
offered the same; they have either refused to accept or have filed
writ applications questioning the land acquisitions. Further, it is
also observed, that repeatedly, successive writ applications have
also been filed by the persons who have purchased the property
after issuance of notification under section 4 and, in some
instances, even after passing of the award, possession taken and
when the land has absolutely vested in the State Government, that
such persons are calling into question the land acquisition. We
have come across several cases when the challenges to acquisition
have been negatived right up to this court but, undeterred by the
same, fresh round of litigation is, thereafter, started again, with the
cause again being agitated either by the same persons or by some
other such purchasers. It has come to our notice that now, after the
coming into force of the Act of 2013, unsavory attempts are being
made to grossly misuse the process of law by moving such
petitions, and asserting therein that though they themselves might
137
not have accepted the compensation, and have refused to accept
the same, but, since it has ‘not been paid to them’, by making
deposit in court, or they have remained in the actual possession of
the land, though Panchnama of taking possession might have been
drawn, as such, land acquisition has lapsed. The aforementioned
assertions are being made; notwithstanding even earlier judicial
finding that possession had been taken by drawing Panchnama etc.
If section 24 is interpreted in the method and manner so as to
reopen all the cases, notwithstanding the fact that the land owners,
or as the case may be their successors-in-interest are themselves
responsible for not accepting or illegally refusing to accept the
compensation, or that they have, in an illegal manner, re-entered
into possession of land, then it becomes, and it has, in fact,
become, virtually impossible for the State Governments to save and
carry into effect the much-needed acquisition of the land, at the
cost of public interest, leaving it with no viable legal defense with
which to save the acquisition in such proceedings made decades
before.
118. Shri Patwalia has pressed into service the doctrine of ‘lax
non cogit ad impossibilia’ and has urged us to consider the scope
138
and application of the same. He argued that a law does not expect
the State authorities to do what cannot possibly be performed by
owing to the adamant attitude and conduct of such landowners; it
is a settled proposition of law that law does not expect a party to do
the impossible. It was urged that the maxim ‘impossibilium
nullaobligatio est’ would come to the rescue of State authorities in
such cases. The doctrine has been dealt with by this Court in
Chander Kishore Jha v. Mahabir Prasad (1999) 8 SCC 266 thus:
“13. In our opinion insofar as an election petition is
concerned, proper presentation of an election petition in the
Patna High Court can only be made in the manner prescribed
by Rule 6 of Chapter XXI-E. No other mode of presentation
of an election petition is envisaged under the Act or the Rules
thereunder and therefore, an election petition could, under no
circumstances, be presented to the Registrar to save the
period of limitation. It is a well-settled salutary principle that
if a statute provides for a thing to be done in a particular
manner, then it has to be done in that manner and in no other
manner. [See with advantage: Nazir Ahmad v. King Emperor;
Rao Shiv Bahadur Singh and Anr. v. State of Vindhya Pradesh
1954 CriLJ 910 State of Uttar Pradesh v. Singhara Singh and
Ors. [1964] 4 SCR 485. An election petition under the Rules
could only have been presented in the open Court upto
16.5.1995 till 4.15 P.M. (working hours of the Court) in the
manner prescribed by Rule 6 (supra) either to the Judge or the
Bench as the case may be to save the period of limitation.
That, however, was not done. However, we cannot ignore that
the situation in the present case was not of the making of the
appellant. Neither the designated election Judge before whom
the election petition could be formally presented in the open
Court nor the Bench hearing civil applications and motions
was admittedly available on 16.5.1995 after 3.15 P.M., after
the Obituary Reference since admittedly the Chief Justice of
the High Court had declared that "the Court shall not sit for
the rest of the day" after 3.15 P.M. Law does not expect a
139
party to do the impossible-Impossible nulla obligation est--As
in the instant case, the election petition could not be filed on
16.5.1995 during the Court hours, as far all intent and
purposes, the Court was closed on 16.5.1995 after 3.15 P.M.”
119. In Mohd Gazi v. State of Madhya Pradesh (2000) 4 SCC 342
this court has laid down thus:
“6. In the facts and circumstances of the case the maxim of
equity, namely, actus curiae neminem gravabit - an act of the
Court shall prejudice no man, shall be applicable. This maxim
is founded upon justice and good sense which serves a safe
and certain guide for the administration of law. The other
maxim is, lex non cogit ad impossibilia - the law does not
compel a man to do which he cannot possibly perform. The
law itself and its administration is understood to disclaim as it
does in its general aphorisms, all intention of compelling
impossibilities, and the administration of law must adopt that
general exception in the consideration of particular cases. The
applicability of the aforesaid maxims has been approved by
this Court in Raj Kumar Day and Ors. v. Tarapada Day and
Ors. [1988] 1 SCR 118 and Gursharan Singh and Ors. v.
NDMC and Ors. [1996] 1 SCR 1154.”
120. Shri Patwalia has also pressed into service the maxim of
Roman Law namely, ‘Nemo Tenetur ad Impossibilia’ (no one is
bound to do an impossibility). Claimants/ landowners are filing
successive applications/ litigations for obtaining interim stay that
has been granted. There is no way to make them ready to accept
the compensation as once they accept the compensation their right
to question the acquisition would stand wiped off. They could not
even claim higher compensation in Reference Court, in case they
140
accept the compensation without protest. It is only after accepting
the compensation under protest that they can seek reference under
section 18 of the Act of 1894.
121. Learned Counsel has relied upon decision in Industrial Finance
Corporation of India Ltd. v. Cannanore Spinning and Weaving Mills
Ltd. (2002) 5 SCC 54 in which the Court observed:
“30. The Latin Maxim referred to the English judgment "lax
non cogit ad impossibilia" also expressed as "impotentia
excusat legem" in common English acceptation means, the
law does not compel a man to do that which he cannot
possibly perform. There ought always thus to be an invincible
disability to perform the obligation and the same is akin to the
Roman Maxim "nemo tenetur ad impossibilia" In Broom's
Legal Maxims the state of the situation has been described as
below:-
"It is, then, a general rule which admits of ample
practical illustration, that impotentiaexcusatlegem;
where the law creates a duty or charge, and the party is
disabled to perform it, without any default in him, and
has no remedy over, there the law will in general
excuse him (t) : and though impossibility of
performance is, in general, no excuse for not
performing an obligation which a party has expressly
undertaken by contract, yet when the obligation is one
implied by law, impossibility of performance is a good
excuse. Thus in a case in which consignees of a
cargo were prevented from unloading a ship
promptly by reason of a dock strike, the Court, after
holding that in the absence of an express agreement to
unload in a specified time there was implied obligation
to unload within a reasonable time, held that the
maxim lax non cogit ad impossibilia applied, and
Lindley, L.J., said: "We have to do with implied
obligations, and I am not aware of any case in which
an obligation to pay damages is ever cast by
141
implication upon a person for not doing that which is
rendered impossible by causes beyond his control".
(emphasis supplied)
122. In HUDA v. Babeswar Kanhar (2005) 1 SCC 191 this court has
held:
“5. What is stipulated in Clause-4 of the letter dated
30.10.2001 is a communication regarding refusal to accept
the allotment. This was done on 28.11.2001. Respondent No.
1 cannot be put to loss for the closure of the office of HUDA
on 01.12.2001 and 02.12.2001 and the postal holiday on
30.11.2001. In fact he had no control over these matters. Even
the logic of Section 10 of the General Clauses Act, 1897 can
be pressed into service. Apart from the said Section and
various provisions in various other Acts, there is the general
principle that a party prevented from doing an act by some
circumstances beyond his control, can do so at the first
subsequent opportunity (see Sambasiva Chari v. Ramaswami
Reddi (1898) (8) Madras Law Journal 265). The underlying
object of the principle is to enable a person to do what he
could have done on a holiday, on the next working day.
Where, therefore, a period is prescribed for the performance
of an act in a court or office, and that period expires on a
holiday, then the act should be considered to have been done
within that period if it is done on the next day on which the
court or office is open. The reason is that law does not compel
the performance of an impossibility. (See Hossein Ally v.
Donzelle) ILR 5 Cal 906. Every consideration of justice and
expediency would require that the accepted principle which
underlies Section 10 of the General Clauses Act should be
applied in cases where it does not otherwise in terms apply.
The principles underlying are lex non cogit ad impossibilia
(the law does not compel a man to do the impossible) and
actus curiae neminem gravabit (the act of Court shall
prejudice no man). Above being the position, there is nothing
infirm in the orders passed by the Forums below. However,
the rate of interest fixed appears to be slightly on the higher
side and is reduced to 9% to be paid with effect from
03.12.2001, i.e., the date on which the letter was received by
HUDA.”
(emphasis supplied)
142
123. In Re: Presidential Poll, (1974) 2 SCC 33 this court has
observed:
“…………
(v) The maxim of law impotentia excusat legem is intimately
connected with another maxim of law lex non cogit ad
impossibilia. Impotentia excusat legem is that when there is a
necessary or invincible disability to perform the mandatory
part of the law that impotentia excuses, The law does not
compel one to do that which one cannot possibly perform.
"Where the law creates a duty or charge, and the party is
disabled to perform it, without any default in him, and has no
remedy over it, there the law will in general excuse him."
Therefore, when it appears that the performance of the
formalities prescribed by a statute has been rendered
impossible by circumstances over which the persons
interested had no control, like the act of God, the
circumstances will be taken as a valid excuse. Where the act
of God prevents the compliance of the words of a statute, the
statutory provision is not denuded of its mandatory character
because of supervening impossibility caused by the act of
God. (Sec Broom's Legal Maxims 10th Edition at pp.
1962-63 and Craies on Statute Law 6th Ed. p. 268)”.
(emphasis supplied)
124. In Standard Chartered Bank v. Directorate of Enforcement, AIR
2005 (2) SC 2622, this court held that there is an acceptable legal
maxim that law does not compel a man to do that which cannot
possibly be performed “impotentia excusat legem”. Basic
principle of law is that law compels no impossibility. It was urged
that in case the landowners create such circumstances, which
143
renders impossible performance of the statutorily prescribed
formalities, such landowners couldn’t take advantage of their own
act or wrong.
125. In our opinion, the maxims regarding the impossibility of
performance of an act may not be strictly applicable, as acts, under
section 31 or 24, were capable of being performed but authorities
were disabled to perform them as no fault on their part. However,
the effect of Court orders, or the conduct of the
landowners/claimants/ beneficiaries, is required to be considered,
it was not an ‘impossibility’ to perform the acts in question by their
very nature but the aforesaid aspect is relevant and underlying
principle of inability to perform has to be considered in the
backdrop of fact whether it was in the control or capacity of
authority to perform actions which were possible to be performed
but when it was not possible to perform or were incapacitated to
perform. In such event person responsible for interdicting cannot
ask him to be put in advantageous position for non-compliance of
an act, which possibly would have been performed, but for such
action.
144
The maxim “nullus commodum capere potest de injuria
sua propria” i.e. ‘No man can take advantage of his own wrong’.
126. The author Broom, in Legal Maxims, has discussed the
maxim, and observed:
“Tender: Again, where a creditor refuses a tender sufficient in
amount, and duly made, he cannot afterwards, for purposes of
oppression or extortion, avail himself of such refusal; for,
although the debtor still remains liable to pay whenever
required so to do, yet the tender operates in bar of any claim
for damages and interest for not paying or for detaining the
debt, and also of the costs of an action brought to recover the
demand (y).”
A “tender” of the amount to be paid operates as a bar upon
any claim for damages and interest.
127. Thus, in the context of the factual and legal scenario of the
land acquisition proceedings, and of the conduct of the
landowners/claimants, with which we are presently concerned,
when once “tender” of the amount had been made, in any of the
prescribed modes, which met with refusal to accept it and/or by the
conduct of indulging in incessant litigation which, in some
instances, culminated into a stay/interim order, the party which
thus refused to accept the amount, indulging instead in the ‘theater
145
of the absurd’, cannot turn around and contend that the other
party should now be visited with the penalty for non-payment. The
author Broom, in regard to the maxim, has remarked thus:
“Further, we may remark that the maxim which precludes a
man from taking advantage of his own wrong is, in principle,
closely allied to the maxim, ex dolo malo non oritur action,
which is likewise of general application, and will be treated of
hereafter in Chapter IX. The latter maxim is, indeed,
included in that above noticed; for it is clear, that since a man
cannot be permitted to take advantage of his own wrong, he
will not be allowed to found a claim upon his own iniquity:
nemo ex proprio dolo consequitur actionem; and, as before
observed, frustra legis auxilium quaerit qui in legem
committit (g)”
DOCTRINE OF ACTUS CURIAE NEMINEM GRAVABIT.
128. Coupled with aforesaid maxim we have to consider
applicability of maxim ‘actus curiae neminem gravabit’ to the
question.
In the book titled “Selection of Legal Maxims” by Herbert
Broom, the author about the said maxim has observed:
“This maxim “is founded upon justice and good sense;
and affords a safe and certain guide for the
administration of the law” (b). In virtue of it, where a
case stands over for argument on account of the
multiplicity of business in the Court, or for judgment
from the intricacy of the question, the party ought not
to be prejudiced by that delay, but should be allowed
to enter up his judgment retrospectively to meet the
justice of the case (c); and, therefore, if one party to an
action die during a curia advisari vult, judgment may
be entered nunc pro tunc, for the delay is the act of the
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Court, for which neither party should suffer(d).”
129. It is settled proposition of law that no litigant can derive the
benefit of pendency of a case in a court of law. In case any interim
order is passed during the pendency of litigation it merges in the
final order. In case the case is dismissed the interim order passed
during its pendency is nullified automatically. It is also settled that
a party cannot be allowed to take benefit of his own wrong as
‘commodum ex injuria sua nemo habere debet’ i.e. convenience
cannot accrue to a party from his own wrong. “No person ought to
have advantage of his own wrong.” In case litigation has been filed
without any basis and interim order is passed it would be giving
illegal benefit or wrongful gain for filing untenable claim. This Court
in Mrutunjay Pan v. Narmada Bala Sasmal & Anr. AIR 1961 SC 1353
has observed :
“…….The following three conditions shall be satisfied before
S.90 of the Indian Trusts Act can be applied to a case: (1) the
mortgage shall avail himself of his position as mortgagee; (2)
he shall gain an advantage; and (3) the gaining should be in
derogation of the right of the other persons interested in the
property. The section, read with illustration ©, clearly lays
down that where an obligation is cast on the mortgagee and in
breach of the said obligation he purchases the property for
himself, he stands in a fiduciary relationship in respect of the
property so purchased for the benefit of the owner of the
property. This is only another illustration of the well-settled
principle that a trustee ought not to be permitted to make a
profit out of the trust. The same principle is comprised in the
147
latin maxim commodum convenience cannot accrue to a party
from his own wrong. To put it in other words, no one can be
allowed to benefit from his own wrongful act……..”
(emphasis supplied)
130. It was submitted on behalf of the landowners that once the
court finds prima facie case and interim order is granted, the
litigant couldn’t be said to be at fault. A merit ultimately examined
finally in the case and is found to be meritless. In such
circumstances the maxim ‘actus curiae neminem gravabit’ comes
to the rescue of the opposite party who has suffered due to interim
order and was unable to take steps. The principle that the act of the
court shall prejudice no one is clearly applicable in such a case. The
court is under an obligation to undo a wrong done to a party by the
act of the court and to make restitution under inherent powers.
Thus any undeserved or unfair advantage gained by a party
invoking the jurisdiction of the court must be neutralized, as
institution of litigation cannot be permitted to confer any advantage
on a suitor from the delayed action by the act of the court. Nor it
was so contemplated by Section 24 of Act of 2013. It is not the
policy of law that those who are litigating, obtained interim orders
though ultimately their claim may not be tenable. Gain due to
delay or tainted act is not permissible and sufferance of person who
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has abided by law is not permissible. The provisions of section 24
aim only at expeditious disposal of acquisition authorities, lethargy
of authorities for five years or more is not tolerated by legislature
the provision does not provide cover or protect such situation of
pendency at litigation and does not confer rights on litigants.
131(a). This Court in GTC Industries Ltd. v. Union of India (1998)
3 SCC 376 has observed that while vacating stay it is court’s duty
to account for the period of delay and to settle equities, the court
observed:
“16. Section 11AA of the Central Excises and Salt Act, 1944
was added on 26th of May, 1995 by the Finance Act, 1995.
This section provides, inter alia, for interest on delayed
payment of duty. Where a person chargeable with duty
determined under sub-section (2) of Section 11A fails to pay
such duty within three months from the date of such
determination, he shall pay, in addition to the duty, interest at
such rate not below 10% and not exceeding 30% per annum as
is for the time being fixed by the board on such duty from the
date immediately after the expiry of the said period of three
months till the date of payment of such duty. Prior to the
insertion of Section 11AA, there was no specific provision in
the Central Excises and Salt Act, 1944 under which the
department could recover interest on delayed payment of duty.
But this Court had, in suitable cases, directed payment of
interest. Two such decisions have been brought to our notice.
In the case of KashyapZip Ind vs. Union of India & Ors. 1993
(64) ELT 161(SC), the recovery of disputed duty had been
stayed by an interim order of the High Court in the writ
petition. While dismissing the writ petition and revoking the
Stay order, the High Court directed the appellant to pay
interest at 17.5% per annum from the date of the order of Stay
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till recovery. This Court reduced the rate of interest to 12% per
annum and on the facts and circumstances directed that this
amount should be recovered from 1st of January, 1985 till
payment, this being the year in which the matter was Finally
decided by this Court as a result of which the writ petition
came to be dismissed by the High Court.” (emphasis supplied)
131(b). This Court in Jaipur Municipal Corpn. v. C.L. Mishra
(2005) 8 SCC 423 has observed that interim order merges in final
order, it cannot have independent existence, cannot survive beyond
is. Thus, no benefit of interim order can be taken.
131(c). This Court in Ram Krishna Verma v. State of U.P. (1992) 2
SCC 620, relying upon earlier decision in Grindlays Bank Ltd. v.
Income Tax Officer, Calcutta (1980) 2 SCC 191, held that no one can
suffer from the act of the court and in case an interim order has
been passed and petitioner takes advantage thereof and ultimately
petition is found to be without merit and is dismissed, the interest
of justice requires that any undeserved or unfair advantage gained
by a party invoking the jurisdiction of the court must be
neutralized.
131(d). This Court in Mahadeo Savlaram Shelke v. Pune
Municipal Corporation (1995) 3 SCC 33 has observed that the court
can under inherent jurisdiction ‘ex debito justitiae’ has a duty to
150
mitigate the damage suffered by the defendants by the act of the
court. Such action is necessary to put a check on abuse of process
of court.
131(e). In Amarjeet Singh v. Devi Ratan & Ors. (2010) 1 SCC 417
this Court in Ramakrishna Verma has held that no person can
suffer from the act of court and unfair advantage of interim order
must be neutralized, the court observed:
“In Ram Krishna Verma v. State of U.P., this Court examined
the similar issue while placing reliance upon its earlier
judgment in Grindlays Bank Ltd. v. ITO, (1980) 2 SCC 191,
and held that no person can suffer from the act of the Court
and in case an interim order has been passed and the Petitioner
takes advantage thereof and ultimately the petition is found to
be without any merit and is dismissed, the interest of justice
requires that any underserved or unfair advantage gained by a
party invoking the jurisdiction of the Court must be
neutralized.”
(emphasis supplied)
131(f). This Court has considered the maxim of ‘actus curiae
neminem gravabit’ in Karnataka Rare Earth & Anr. v. Senior
Geologist, Department of Mines & Geology & Anr. (2004) 2 SCC 783,
it was emphasized that parties should be placed in the same
position they would have been but for courts order and observed :
“10. ….the doctrine of actus curiae neminem gravabit and
held that the doctrine was not confined in its application only
to such acts of the Court which were erroneous; the doctrine is
applicable to all such acts as to which it can be held that the
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Court would not have so acted had it been correctly apprised
of the facts and the law. It is the principle of restitution which
is attracted. When on account of an act of the party, persuading
the Court to pass an order, which at the end is held as not
sustainable, has resulted in one party gaining advantage which
it would not have otherwise earned, or the other party has
suffered an improvement which it would not have suffered but
for the order of the Court and the act of such party, then the
successful party finally held entitled to a relief, assessable in
terms of money at the end of the litigation, is entitled to be
compensated in the same manner in which the parties would
have been if the interim order of the Court would not have
been passed. The successful party can demand (a) the delivery
of benefit earned by the opposite party under the interim order
of the Court, or (b) to make restitution for what it has lost.
11. In the facts of this case, in spite of the judgment of the
High Court, if the appellants would not have persuaded this
Court to pass the interim orders, they would not have been
entitled to operate the mining leases and to raise and remove
and disposed of the minerals extracted. But for the interim
orders passed by this Court, there is no difference between the
appellants and any person raising, without any lawful
authority, any mineral from any land, attracting applicability of
Sub-section (5) of Section 21. As the appellants have lost from
the Court they cannot be allowed to retain the benefit earned
by them under the interim orders of the Court. The High Court
has rightly held the appellants liable to be placed in the same
position in which they would have been if this Court would not
have protected them by issuing interim orders. All that the
State Government is demanding from the appellants is the
price of the minor minerals. Rent, royalty or tax has already
been recovered by the State Government and, therefore, there
is no demand under that Head. No penal proceedings, much
less any criminal proceedings, have been initiated against the
appellants. It is absolutely incorrect to contend that the
appellants are being asked to pay any penalty or are being
subjected to any penal action. It is not the case of the
appellants that they are being asked to pay a price more than
what they have realised from the exports or that the price
appointed by the respondent State is in any manner arbitrary or
unreasonable………..”
(emphasis supplied)
152
131(g). The principle “Actus Curia Neminem Gravabit” is
essence of administration of law and good sense. It has been
considered in A.R. Antulay v. R.S. Nayak and Ors., AIR 1988 SC
1531 thus:
“83. This case has caused us considerable anxiety. The
appellant-accused has held an important position in this
country, being the Chief Minister of a premier State of the
country. He has been charged with serious criminal offences.
His trial in accordance with law and the procedure established
by law would have to be in accordance with the 1952 Act.
That could not possibly be done because of the directions of
this Court dated 16th February 1984, as indicated above. It
has not yet been found whether the appellant is guilty or
innocent. It is unfortunate, unfortunate for the people of the
State, unfortunate for the country as a whole, unfortunate for
the future working of democracy in this country which,
though is not a plant of an easy growth yet is with deep root
in the Indian polity that delay has occurred due to procedural
wrangles. The appellant may be guilty of grave offences
alleged against him or he may be completely or if not
completely to a large extent, innocent. Values in public life
and perspective of these values in public life have undergone
serious changes and erosion during the last few decades.
What was unheard of before is common place today. A new
value orientation is being undergone in our life and in our
culture. We are at the threshold of the cross-roads of values. It
is, for the sovereign people of the country to settle those
conflicts yet the Courts have vital roles to play in such
matters. With the avowed object of speedier trial the case of
the appellant had been transferred to the High Court but on
grounds of expediency of trial, he cannot be subjected to a
procedure unwarranted by law, and contrary to the
constitutional provisions. The appellant may or may not be an
ideal politician. It is a fact, however, that the allegations have
been brought against him by a person belonging to a political
party opposed to his but that is not the decisive factor. If the
appellant Shri Abdul Rehman Antulay has infringed law, he
must be dealt with in accordance with the law. We proclaim
and pronounce that no man is above the law, but at the same
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time reiterate and declare that no man can be denied his rights
under the Constitution and the laws. He has a right to be dealt
with in accordance with the law and not in derogation of it.
this Court, in its anxiety to facilitate the parties to have a
speedy trial gave directions on 16th February 1984 as
mentioned hereinbefore without conscious awareness of the
exclusive jurisdiction of the Special Courts under the 1952
Act and that being the only procedure established by law,
there can be no deviation from the terms of Article 21 of the
Constitution of India. That is the only procedure under which
it should have been guided. By reason of giving the directions
on 16th February 1984 this Court had also unintentionally
caused the appellant the denial of rights under Article 14 of
the Constitution by denying him the equal protection of law
by being singled out for a special procedure not provided for
by law. When these factors are brought to the notice of this
Court, even if there are any technicalities this Court should
not feel shackled and decline to rectify that injustice or
otherwise the injustice noticed will remain forever a blot on
justice. It has been said long time ago that "Actus Curiae
Neminem Gravabit"- an act of the Court shall prejudice no
man. This maxim is founded upon justice and good sense and
affords a safe and certain guide for the administration of the
law.
104. This being the apex Court, no litigant has any
opportunity of approaching any higher forum to question its
decisions. Lord Buck-master in 1917 A.C. 170 stated:
All rules of court are nothing but provisions intended to
secure proper administration of justice. It is, therefore,
essential that they should be made to serve and be subordinate
to that purpose.
this Court in Gujarat v. Ram Prakash [1970]2SCR875
reiterated the position by saying:
Procedure is the handmaid and not a mistress of law, intended
to subserve and facilitate the cause of justice and not to
govern or obstruct it, like all rules of procedure, this rule
demands a construction which would promote this cause.
Once judicial satisfaction is reached that the direction was not
open to be made and it is accepted as a mistake of the court, it
154
is not only appropriate but also the duty of the Court to rectify
the mistake by exercising inherent powers. Judicial opinion
heavily leans in favour of this view that a mistake of the
Court can be corrected by the Court itself without any fetters.
This is on the principle as indicated in Alexander Rodger's
case (supra). I am of the view that in the present situation, the
Court's inherent powers can be exercised to remedy the
mistake. Mahajan, J. speaking for a four-Judge Bench in
Kishan Deo v. Radha Kissen [1953]4SCR136 stated:
The Judge had jurisdiction to correct his own error without
entering into a discussion of the grounds taken by the
decree-holder or the objections raised by the
judgment-debtors.”
131(h).The Constitution Bench in Sarah Mathew v. Institute of
Cardio Vascular Diseases, (2014) 2 SCC 62, has considered the
aforesaid maxim; it observed:
“39. As we have already noted in reaching this conclusion,
light can be drawn from legal maxims. Legal maxims are
referred to in Bharat Kale, Japani Sahoo and Vanka
Radhamanohari (Smt.). The object of the criminal law is to
punish perpetrators of crime. This is in tune with the well
known legal maxim 'nullum tempus aut locus occurritregi',
which means that a crime never dies. At the same time, it is
also the policy of law to assist the vigilant and not the sleepy.
This is expressed in the Latin maxim 'vigilantibus et non
dormientibus, jura subveniunt'. Chapter XXXVI of the Code
of Criminal Procedure which provides limitation period for
certain types of offences for which lesser sentence is provided
draws support from this maxim. But, even certain offences
such as Section 384 or 465 of the Indian Penal Code, which
have lesser punishment may have serious social
consequences. Provision is, therefore, made for condonation
of delay. Treating date of filing of complaint or date of
initiation of proceedings as the relevant date for computing
limitation under Section 468 of the Code is supported by the
legal maxim 'actus curiae neminem gravabit' which means
that the act of court shall prejudice no man. It bears repetition
to state that the court's inaction in taking cognizance i.e.
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court's inaction in applying mind to the suspected offence
should not be allowed to cause prejudice to a diligent
complainant. Chapter XXXVI thus presents the interplay of
these three legal maxims. Provisions of this Chapter,
however, are not interpreted solely on the basis of these
maxims. They only serve as guiding principles.”
(emphasis supplied)
132. Landowners have also placed reliance on Suptd. of Taxes,
Dhubri & Ors. v. Assam Jute Supply Ltd & Ors. (1976) 1 SCC 766:
“17. The first contention on behalf of the State that it became
impossible for the State to issue notice under Section 7(2) of
the New Act within two years of the expiry of the period of
return is unsound on principle and facts. The maxim lex non
cogit ad impossibilia means that the law does not compel a
man to do that which he cannot possibly perform. In the
present appeals, the applications were moved in the High
Court for stay of proceedings. The respondents challenged the
validity of the Act, and, therefore, asked for an injunction
restraining the State from taking proceedings under the Act.
At no stage, did the State ask for variation or modification of
the order of injunction. It is well known that if it is brought to
the notice of a court that proceedings are likely to be barred
by time by reason of any order of injunction or stay the court
passes such suitable or appropriate orders as will protect the
interest of the parties and will not prejudice either party. Even
when certificate to appeal to this Court was granted on 1
August 1963, the State did not ask for any order for stay of
operation of the judgment. That is quite often done. For the
first time, on 10 August 1964 the State filed an application for
stay of operation of the judgment of the High Court. The State
did not take steps at the appropriate time. This Court on 28
October 1964 granted an interim order staying the operation
of the High Court judgment. The interim order was made
absolute on 28 January 1965 with certain conditions. The
State cannot take advantage of its own wrong and lack of
diligence. The State cannot contend that it was impossible to
issue any notice within the period mentioned in Section 7(2)
of the New Act. The State did not endeavour to obtain
appropriate orders to surmount the difficulties by reason of
156
the injunction against taking steps within the time
contemplated in Section 7(2) of the New Act. The State is
guilty of default. The State had remedies open to take steps by
asking for modification of the order. The State had to assert
the right that the State was entitled to demand taxes and the
respondent was liable to pay the same. The State followed the
policy of inactivity. Inactivity is not impossibility. The order
injunction is not to be equated with an act of God or an action
of the enemy of the State or a general strike.”
In the aforesaid case, there was the fault on part of the State.
The State failed to assert rights. The State was guilty of defaults
and did not take steps within time contemplated under section 7(2)
of the said Act. The case turned on its own facts.
133. Reliance has also been placed in this regard on Neeraj Kumar
Sainy & Ors. v. State of UP & Ors., (2017) SCC Online SC 258,
wherein this court has observed:
“31. It is noticeable from the aforesaid passage that the
interpretation was made in accordance with the Code and the
legal maxim was taken as a guiding principle. Needless to
say, it is well settled in law that no one should suffer any
prejudice because of the act of the court. The authorities that
we have referred to dealt with the different factual
expositions. The legal maxim that has been taken recourse to
cannot operate in a vacuum. It has to get the sustenance from
the facts. As is manifest, after the admissions were over as per
the direction of this Court, the Appellants, who seemed to
have resigned to their fate, woke up to have control over the
events forgetting that the law does not assist the non-vigilant.
One cannot indulge in luxury of lethargy, possibly nurturing
the feeling that forgetting is a virtue, and thereafter, when the
time has slipped through, for it waits for none, wake up and
take shelter under the maxim "actus curiae neminem
gravabit". It is completely unacceptable.”
157
The case pertains to lethargy that would depend on facts of a
case to what extent benefit can be derived from legal principles.
134. An incumbent must succeed or fail in final decision in a
pending litigation on what case he has set up in the petition. In
case of possession has continued under the cover of the court's
order or compensation could not be disbursed due to the courts
order in our considered opinion the provision contained in Section
24 (2) cannot be invoked in such a situation, as such a situation is
not covered under the provisions of section 24(2), as holding
otherwise would amount to giving a litigant premium for his dilatory
tactics in spite of there is no merit in his challenge to acquisition. In
such an event no incumbents can be permitted to urge though I
might have obtained stay restraining you from taking possession,
though I might have refused to receive compensation or otherwise
due to the court’s proceedings, it was not paid/accepted. Now you
must suffer due to said act of mine. This would be against all
canons of justice and settled propositions of law in Uma Devi v.
State of Karnataka (2006) 6 SCC 1 where this court has directed as
one-time measure regularization of those incumbents only, those
158
who have served for more than ten years without cover of the
court's order. It was also based upon aforesaid principles that no
one can be permitted to take advantage of the courts cover to put
the other party in disadvantageous position.
135. The common law principles are in fact rules of equity, justice,
and sound logic. In the absence of there being prohibition in the
law, these principles would be attracted. The efficacy and binding
nature of such common law principles cannot be diminished or
whittled down in the absence of any express prohibition in law.
They are interpretation of section 24 of Act of 2013.
136. The question then arises as to what the position would be in
case State authorities were, by an order of the court, restrained
from taking possession, though they would have otherwise taken
the possession in the absence of such an order; and, ultimately,
there is no merit found in the lis in which challenge to acquisition
had been raised and interim order had been passed. The question is
whether the provisions of Section 24 (2) contemplate such a
situation, and whether such period is to be excluded from within
the purview of Section 24 of the Act of 2013, where the authorities
159
have been, during the interregnum of a litigation, brought at the
instance of landowner/beneficiary, restrained by the act of the
court, interdicting the steps which would have been taken by the
authorities but for such an interim order or conduct of the litigant.
137. In case of possession could not be taken, or compensation
could not be paid or deposited, due to cover of courts’ order or
conduct of landowner, such cases provision of lapse cannot be
invoked. Section 24(2), a policy of the law is not to benefit a litigant
or confer undeserving benefit by involving in the lis and to reap
fruits on the basis of possession on illegal basis without any right
and often lis is filed in land acquisition cases one after the other
and intendment of law is not to treat law-abiding incumbents
differently. Operation of law and beneficial provisions of law in the
Act of 2013 are not meant to benefit litigants and to permit them to
reap the fruits of unworthy or frivolous litigation; and, if there is
any merit in such a lis, the challenge therein must stand or fall on
its own footing, irrespective of, and apart from, the coming into
force of the 2013 Act. Litigation cannot be permitted to become
lucrative industry for the unworthy litigant; it cannot be permitted
to be device providing for fruits in respect of a meritless lis.
160
138. The maxims nullus commodum capere potest de injuria sua
propria and actus curiae neminem gravabit etc. come into play while
interpreting the provisions of section 24 including the principle of
restitution. They are not excluded from the purview of section 24 of
the Act of 2013.
PRINCIPLE OF RESTITUTION
139. While construing provisions of section 24(2) applicable in case
of lis, we have to keep in consideration the principle of restitution
which enjoins a duty upon the courts to do complete justice to the
party at the time of final decision. Successful party at the end of
the litigation has to be placed as far as possible at the same place
unless it would have been had the interim order not being passed.
In doing away the effect of interim order by resorting to fact of
restitution is in fact obligation of the court.
140(a). In South Eastern Coal Field Ltd. v. State of Madhya
Pradesh & Ors. (2003) 8 SCC 648 this court held that no party can
take advantage of litigation; it has to disgorge the advantage gained
due to delay in case lis is lost, the court has observed:
161
"26. In our opinion, the principle of restitution takes care of
this submission. The word 'restitution' in its etymological
sense means restoring to a party on the modification,
variation or reversal of a decree or order, what has been lost
to him in execution or decree or order or the court or indirect
consequence of a decree or order (See Zafar Khan and Ors. v.
Board of Revenue, U.P., and Ors., : [1985] 1 SCR 287. In law,
the term 'restitution' is used in three senses; (i) return or
restoration of some specific thing to its rightful owner or
status; (ii) compensation for benefits derived from a wrong
done to another; (iii) compensation or reparation for the loss
caused to another.
(See Black's Law Dictionary, Seventh Edition, p.1315).
The Law of Contracts by John D. Calamari & Joseph M.
Perillo has been quoted by Black to say that 'restitution' is an
ambiguous term, sometimes referring to the disgorging of
something which has been taken and at times referring to
compensation for injury done. "Often, the result in either
meaning of the term would be the same. ..... Unjust
impoverishment, as well as unjust enrichment, is a ground for
restitution. If the defendant is guilty of a non-tortuous
misrepresentation, the measure of recovery is not rigid but, as
in other cases of restitution, such factors as relative fault, the
agreed upon risks, and the fairness of alternative risk
allocations not agreed upon and not attributable to the fault of
either party need to be weighed."
The principle of restitution has been statutorily recognized in
Section 144 of the Code of Civil Procedure, 1908. Section
144 of the C.P.C. speaks not only of a decree being varied,
reversed, set aside or modified but also includes an order on
par with a decree. The scope of the provision is wide enough
so as to include therein almost all the kinds of variation,
reversal, setting aside or modification of a decree or order.
The interim order passed by the Court merges into a final
decision. The validity of an interim order, passed in favour
of a party, stands reversed in the event of final decision
going against the party successful at the interim stage.
Unless otherwise ordered by the Court, the successful party at
the end would be justified with all expediency in demanding
compensation and being placed in the same situation in which
it would have been if the interim order would not have been
162
passed against it. The successful party can demand (a) the
delivery of benefit earned by the opposite party under the
interim order of the court, or (b) to make restitution for what
it has lost; and it is the duty of the court to do so unless it
feels that in the facts and on the circumstances of the case, the
restitution would far from meeting the ends of justice, would
rather defeat the same. Undoing the effect of an interim order
by resorting to principles of restitution is an obligation of the
party, who has gained by the interim order of the Court, so as
to wipe out the effect of the interim order passed which, in
view of the reasoning adopted by the court at the stage of
final decision, the court earlier would not or ought not to have
passed. There is nothing, wrong in an effort being made to
restore the parties to the same position in which they would
have been if the interim order would not have existed.
27. Section 144 of the C.P.C. is not the fountain source of
restitution; it is rather a statutory recognition of a pre-existing
rule of justice, equity and fair play. That is why it is often
held that even away from Section 144 the Court has inherent
jurisdiction to order restitution so as to do complete justice
between the parties.
In Jai Berham v. Kedar Nath Marwari (1923) 25 BOMLR
643, their Lordships of the Privy council said: "It is the duty
of the Court under Section 144 of the Civil Procedure Code to
place the parties in the position which they would have
occupied but for such decree or such part thereof as has been
varied or reversed. Nor indeed does this duty or jurisdiction
arise merely under the said section. It is inherent in the
general jurisdiction of the Court to act rightly and fairly
according to the circumstances towards all parties involved.
Cairns, L.C., said in Rodger v. Comptoir d'Escompte de Paris,
(1871) L.R. 3: "One of the first and highest duties of all
Courts is to take care that the act of the Court does no injury
to any of the suitors and when the expression, the act of the
Court is used, it does not mean merely the act of the primary
Court, or of any intermediate Court of appeal, but the act of
the Court as a whole from the lowest court which entertains
jurisdiction over the matter up to the highest Court which
finally disposes of the case". This is also on the principle that
a wrong order should not be perpetuated by keeping it alive
and respecting it, A.A. Nadar v. S.P. Rathinasami, (1971) 1
MLJ 220 . In the exercise of such inherent power the Courts
163
have applied the principles of restitution to myriad situations
not strictly falling within the terms of Section 144.
28. That no one shall suffer by an act of the court is not a rule
confined to an erroneous act of the court; the 'act of the court'
embraces within its sweep all such acts as to which the court
may form an opinion in any legal proceedings that the court
would not have so acted had it been correctly apprised of the
facts and the law. The factor attracting applicability of
restitution is not the act of the Court being wrongful or a
mistake or error committed by the Court; the test is whether
on account of an act of the party persuading the Court to pass
an order held at the end as not sustainable, has resulted in one
party gaining an advantage which it would not have otherwise
corned, or the other party has suffered an impoverishment
which it would not have suffered but for the order of the
Court and the set of such party.
The quantum of restitution, depending on the facts and
circumstances of a given case, may take into consideration
not only what the party excluded would have made but also
what the party under obligation has or might reasonably have
made. There is nothing wrong in the parties demanding being
placed in the same position in which they would have been
had the court not intervened by its interim order when at the
end of the proceedings the court pronounces its judicial
verdict which does not match with and countenance its own
interim verdict. Whenever called upon to adjudicate, the court
would act in conjunction with what is the real and substantial
justice. The injury, if any, caused by the act of the court shall
be undone and the gain which the party would have earned
unless it was interdicted by the order of the court would be
restored to or conferred on the party by suitably commanding
the party liable to do so. Any opinion to the contrary would
lead to unjust if not disastrous consequences. Litigation may
turn into a fruitful industry. Though litigation is not gambling
yet there is an element of chance in every litigation.
Unscrupulous litigants may feel encouraged to approach the
Courts, persuading the court to pass interlocutory orders
favourable to them by making out a prima facie case when the
issues are yet to be heard and determined on merits and if the
concept of restitution is excluded from application to interim
orders, then the litigant would stand to gain by swallowing
the benefits yielding out of the interim order even though the
164
battle has been lost at the end. This cannot be countenanced,
we are, therefore, or the opinion that the successful party
finally held entitled to a relief assessable in terms of money at
the end of the litigation, is entitled to be compensated by
award of interest at a suitable reasonable rate for the period
for which the interim order of the court withholding the
release of money had remained in operation.”
(emphasis supplied)
140(b). The doctrine of restitution in common law principle lies in
conscience of court, it had also been discussed in State of Gujarat v.
Essar Oil Ltd., (2012) 3 SCC 522; it was held that:
“61. The concept of restitution is virtually a common law
principle and it is a remedy against unjust enrichment or
unjust benefit. The core of the concept lies in the conscience
of the Court which prevents a party from retaining money or
some benefit derived from another which he has received by
way of an erroneous decree of Court. Such remedy in English
Law is generally different from a remedy in contract or in tort
and falls within a third category of common law remedy
which is called quasi-contract or restitution.
62. If we analyze the concept of restitution one thing emerges
clearly that the obligation to restitute lies on the person or the
authority that has received unjust enrichment or unjust benefit
(See Halsbury's Laws of England, Fourth Edition, Volume 9,
page 434).
63. If we look at Restatement of the Law of Restitution by
American Law Institute (1937 American Law Institute
Publishers, St. Paul) we get that a person is enriched if he has
received a benefit and similarly a person is unjustly enriched
if the retention of the benefit would be unjust. Now the
question is what constitutes a benefit. A person confers
benefit upon another if he gives to the other possession of or
some other interest in money, land, chattels, or performs
services beneficial to or at the request of the other, satisfies a
debt or a duty of the other or in a way adds to the other's
security or advantage. He confers a benefit not only where he
adds to the property of another but also where he saves the
other from expense or loss. Thus the word "benefit" therefore
165
denotes any form of advantage (page 12 of the Restatement of
the Law of Restitution by American Law Institute).
64. Ordinarily in cases of restitution, if there is a benefit to
one, there is a corresponding loss to other and in such cases;
the benefiting party is also under a duty to give to the losing
party, the amount by which he has been enriched."
(emphasis supplied)
140(c). In A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu
Madalaya Nandhavana Paripalanai Sangam, (2012) 6 SCC 430, by
relying upon the decision rendered in Indian Council for Enviro-Legal
Action v. Union of India [(2011) 8 SCC 161]. The jurisdiction to
restitution is inherent in every court. Court has to neutralize
advantage of litigation. The person on right side of law should not
be frustrated. The wrongful gain of frivolous litigation has to be
eradicated if faith of people in judiciary has to be sustained Court
has to adopt pragmatic approach. The doctrine of restitution has
been considered thus:
“37. This Court in another important case in Indian Council
for Indian Council for Enviro-Legal Action v. Union of India
and Ors. (2011) 8 SCC 161 (of which one of us, Bhandari, J.
was the author of the judgment) had an occasion to deal with
the concept of restitution. The relevant paragraphs of that
judgment dealing with relevant judgments are reproduced
hereunder:
170. This Court in Grindlays Bank Limited v. Income
Tax Officer, Calcutta (1980) 2 SCC 191 observed as
under:
When passing such orders the High Court draws on its
166
inherent power to make all such orders as are
necessary for doing complete justice between the
parties. The interests of justice require that any
undeserved or unfair advantage gained by a party
invoking the jurisdiction of the court, by the mere
circumstance that it has initiated a proceeding in the
court, must be neutralised. The simple fact of the
institution of litigation by itself should not be
permitted to confer an advantage on the party
responsible for it.
171. In Ram Krishna Verma and Ors. v. State of U.P.
and Ors. (1992) 2 SCC 620 this Court observed as
under:
The 50 operators including the Appellants/ private
operators have been running their stage carriages by
blatant abuse of the process of the court by delaying
the hearing as directed in JeevanNathBahl's case and
the High Court earlier thereto. As a fact, on the expiry
of the initial period of grant after Sept. 29, 1959, they
lost the right to obtain renewal or to ply their vehicles,
as this Court declared the scheme to be operative.
However, by sheer abuse of the process of law, they
are continuing to ply their vehicles pending hearing of
the objections. This Court in Grindlays Bank Ltd. v.
Income-tax Officer - [1990] 2 SCC 191 held that the
High Court while exercising its power under Article
226 the interest of justice requires that any undeserved
or unfair advantage gained by a party invoking the
jurisdiction of the court must be neutralised. It was
further held that the institution of the litigation by it
should not be permitted to confer an unfair advantage
on the party responsible for it. In the light of that law
and in view of the power under Article 142(1) of the
Constitution this Court, while exercising its
jurisdiction would do complete justice and neutralise
the unfair advantage gained by the 50 operators
including the Appellants in dragging the litigation to
run the stage carriages on the approved route or area or
portion thereof and forfeited their right to hearing of
the objections filed by them to the draft scheme dated
Feb. 26, 1959.
167
172. This Court in Kavita Trehan v. Balsara Hygiene
Products (1994) 5 SCC 380 observed as under:
The jurisdiction to make restitution is inherent in every
court and will be exercised whenever the justice of the
case demands. It will be exercised under inherent
powers where the case did not strictly fall within the
ambit of Section 144. Section 144 opens with the
words "Where and in so far as a decree or an order is
varied or reversed in any appeal, revision or other
proceeding or is set aside or modified in any suit
instituted for the purpose,.". The instant case may not
strictly fall within the terms of Section 144, but the
aggrieved party in such a case can appeal to the larger
and general powers of restitution inherent in every
court.
173. This Court in Marshall Sons and Company (I)
Ltd. v. Sahi Oretrans (P) Ltd. and Anr. (1999) 2 SCC
325 observed as under:
From the narration of the facts, though it appears to us,
prima facie, that a decree in favour of the Appellant is
not being executed for some reason or the other, we do
not think it proper at this stage to direct the
Respondent to deliver the possession to the Appellant
since the suit filed by the Respondent is still pending.
It is true that proceedings are dragged for a long time
on one count or the other and on occasion become
highly technical accompanied by unending prolixity, at
every stage providing a legal trap to the unwary.
Because of the delay, unscrupulous parties to the
proceedings take undue advantage and person who is
in wrongful possession draws delight in delay in
disposal of the cases by taking undue advantage of
procedural complications. It is also known fact that
after obtaining a decree for possession of immovable
property, its execution takes long time. In such a
situation for protecting the interest of judgment
creditor, it is necessary to pass appropriate order so
that reasonable mesneprofit which may be equivalent
to the market rent is paid by a person who is holding
over the property. In appropriate cases, Court may
appoint Receiver and direct the person who is holding
168
over the property to act as an agent of the Receiver
with a direction to deposit the royalty amount fixed by
the Receiver or pass such other order which may meet
the interest of justice. This may prevent further injury
to the Plaintiff in whose favour decree is passed and to
protect the property including further alienation.
174. In Padmawati v. Harijan Sewak Sangh CM
(Main) No. 449 of 2002 decided by the Delhi High
Court on 6.11.2008, the court held as under:
‘6. The case at hand shows that frivolous defences and
frivolous litigation is a calculated venture involving no
risks situation. You have only to engage professionals
to prolong the litigation so as to deprive the rights of a
person and enjoy the fruits of illegalities. I consider
that in such cases where Court finds that using the
Courts as a tool, a litigant has perpetuated illegalities
or has perpetuated an illegal possession, the Court
must impose costs on such litigants which should be
equal to the benefits derived by the litigant and harm
and deprivation suffered by the rightful person so as to
check the frivolous litigation and prevent the people
from reaping a rich harvest of illegal acts through the
Court. One of the aims of every judicial system has to
be to discourage unjust enrichment using Courts as a
tool. The costs imposed by the Courts must in all cases
should be the real costs equal to deprivation suffered
by the rightful person.’
We approve the findings of the High Court of
Delhi in the aforementioned case.
175. The High Court also stated: (Padmavati case
[(2008) 154 DLT 411], DLT pp. 414-415, para 9)
"9. Before parting with this case, we consider it
necessary to observe that one of the main reasons for
over-flowing of court dockets is the frivolous litigation
in which the Courts are engaged by the litigants and
which is dragged as long as possible. Even if these
litigants ultimately loose the lis, they become the real
victors and have the last laugh. This class of people
who perpetuate illegal acts by obtaining stays and
169
injunctions from the Courts must be made to pay the
sufferer not only the entire illegal gains made by them
as costs to the person deprived of his right and also
must be burdened with exemplary costs. Faith of
people in judiciary can only be sustained if the persons
on the right side of the law do not feel that even if they
keep fighting for justice in the Court and ultimately
win, they would turn out to be a fool since winning a
case after 20 or 30 years would make wrongdoer as
real gainer, who had reaped the benefits for all those
years. Thus, it becomes the duty of the Courts to see
that such wrongdoers are discouraged at every step and
even if they succeed in prolonging the litigation due to
their money power, ultimately they must suffer the
costs of all these years-long litigation. Despite settled
legal positions, the obvious wrongdoers, use one after
another tier of judicial review mechanism as a gamble,
knowing fully well that dice is always loaded in their
favour, since even if they lose, the time gained is the
real gain. This situation must be redeemed by the
Courts".
184. In Ouseph Mathai and Ors. v. M. Abdul Khadir
(2002) 1 SCC 319 this Court reiterated the legal
position that: (SCC p.328, para 13)
’13. …[the] stay granted by the Court does not confer
a right upon a party and it is granted always subject to
the final result of the matter in the Court and at the risk
and costs of the party obtaining the stay. After the
dismissal, of the lis, the party concerned is relegated to
the position which existed prior to the filing of the
petition in the Court which had granted the stay. Grant
of stay does not automatically amount to extension of a
statutory protection.
188. In a relatively recent judgment of this Court in
Amarjeet Singh and Ors. v. Devi Ratan and Ors.
(2010) 1 SCC 417 the Court in para 17 of the judgment
observed as under: (SCC pp.422-23)
’17. No litigant can derive any benefit from mere
pendency of case in a court of law, as the interim order
170
always merges in the final order to be passed in the
case and if the writ petition is ultimately dismissed, the
interim order stands nullified automatically. A party
cannot be allowed to take any benefit of its own
wrongs by getting an interim order and thereafter
blame the court. The fact that the writ is found,
ultimately, devoid of any merit, shows that a frivolous
writ petition had been filed. The maxim actus curiae
neminem gravabit, which means that the act of the
court shall prejudice no one, becomes applicable in
such a case. In such a fact situation the court is under
an obligation to undo the wrong done to a party by the
act of the court. Thus, any undeserved or unfair
advantage gained by a party invoking the jurisdiction
of the court must be neutralised, as the institution of
litigation cannot be permitted to confer any advantage
on a suitor from delayed action by the act of the
court...’
190. In consonance with the concept of restitution, it
was observed that courts should be careful and pass an
order neutralizing the effect of all consequential orders
passed in pursuance of the interim orders passed by the
court. Such express directions may be necessary to
check the rising trend among the litigants to secure the
relief as an interim measure and then avoid
adjudication on merits.
191. In consonance with the principle of equity,
justice, and good conscience judges should ensure that
the legal process is not abused by the litigants in any
manner. The court should never permit a litigant to
perpetuate illegality by abusing the legal process. It is
the bounden duty of the court to ensure that dishonesty
and any attempt to abuse the legal process must be
effectively curbed and the court must ensure that there
is no wrongful, unauthorized or unjust gain for anyone
by the abuse of the process of the court. One way to
curb this tendency is to impose realistic costs, which
the Respondent or the Defendant has in fact incurred in
order to defend himself in the legal proceedings. The
courts would be fully justified even imposing punitive
costs where legal process has been abused. No one
should be permitted to use the judicial process for
171
earning undeserved gains or unjust profits. The court
must effectively discourage fraudulent, unscrupulous
and dishonest litigation.
192. The court's constant endeavour must be to ensure
that everyone gets just and fair treatment. The court
while rendering justice must adopt a pragmatic
approach and in appropriate cases realistic costs and
compensation be ordered in order to discourage
dishonest litigation. The object and true meaning of the
concept of restitution cannot be achieved or
accomplished unless the courts adopt a pragmatic
approach in dealing with the cases.”
(emphasis supplied)
140(d). In Krishnaswamy S. Pd. & Anr v. Union of India & Ors.,
Civil Appeal Nos.3376-3377 of 2000 decided on 21.02.2006 this
Court has considered the question of restitution. This court has
relied upon Eastern Coalfield’s case (supra) and observed:
“The maxim 'actus curiae neminem gravabit' i.e. an act of
Court shall prejudice no man is an important one. The maxim
"is founded upon justice and good sense, and affords a safe
and certain guide for the administration of the law", said
Cresswell J. in Freeman v. Tranah (12 C.B. 406). An
unintentional mistake of the Court which
may prejudice the cause of any party must and alone could be
rectified.
The maxim of equity, namely, actus curiae neminem gravabit:
an act of court shall prejudice no man, is founded upon justice
and good sense which serves a safe and certain guide for the
administration of law. The other relevant maxim is, lex non
cogit ad impossibilia: the law does not compel a man to do
what he cannot possibly perform. The law itself and its
administration is understood to disclaim as it does in its
general aphorisms, all intention of compelling impossibilities,
and the administration of law must adopt that general
exception in the consideration of particular cases. (See: M/s
U.P.S.R.T.C. v. lmtiaz Hussein (2006 (1) 800 380),
172
ShaikhSalim Haji Abdul Khayumsab v. Kumar and Ors. (2006
(1) SCC 46), Mohammod Gazi v. State of M.P. and others
(2000(4) SCC 342) and Gursharan Singh v. New Delhi
Municipal Committee (1996 (2) SCC 459).”
(emphasis supplied)
141. The aforesaid legal exposition also makes it incumbent upon
court not to confer benefit upon an unscrupulous litigant, not to
confer undeserved gain, administration of land does not control
performance of Act which is not possible, attempt to abuse legal
provisions must be thwarted, prolonging of litigation by money
power, dilatory tactics or otherwise not to confer benefit, person
with merits in the case cannot succeed, perpetuation of illegality
cannot be provided shelter by court to unjust enrichment to be
saved, the doctrine of restitution compels court to not to provide
benefit to such litigants of provisions of section 24 of Act of 2013.
EFFECT OF REPEAL:
142. The Act of 2013 has repealed the Act of 1894. The repealing
and saving is provided in section 114 of the Act of 2013. The
provisions of section 114, is extracted hereunder:
“114. Repeal and saving.- (1) The Land Acquisition Act, 1894
(1 of 1894) is hereby repealed.
(2) Save as otherwise provided in this Act the repeal under
sub-section (1) shall not be held to prejudice or affect the
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general application of section 6 of the General Clauses Act,
1897 (10 of 1897) with regard to the effect of repeals.”
143. The repeal of the Act of 1894 has been made without prejudice
or affect the general application of section 6 of the General Clauses
Act, 1897 with regard to the effect such repealing provision we have
to consider provisions in Section 6 of the General Clauses Act. It is
extracted hereunder:
“6. Effect of repeal. —Where this Act, or any 1 [Central Act]
or Regulation made after the commencement of this Act,
repeals any enactment hitherto made or hereafter to be made,
then, unless a different intention appears, the repeal shall not
—
(a) revive anything not in force or existing at the time
at which the repeal takes effect; or
(b) affect the previous operation of any enactment so
repealed or anything duly done or suffered thereunder;
or
(c) affect any right, privilege, obligation or liability
acquired, accrued or incurred under any enactment so
repealed; or
(d) affect any penalty, forfeiture or punishment
incurred in respect of any offence committed against
any enactment so repealed; or
(e) affect any investigation, legal proceeding or
remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or punishment
as aforesaid,
and any such investigation, legal proceeding or remedy
may be instituted, continued or enforced, and any such
penalty, forfeiture or punishment may be imposed as if the
repealing Act or Regulation had not been passed.”
174
144. Thus, section 6 of the General Clauses Act provides that
unless a different intention appears, the repeal shall not revive
anything not in force. Section 6(b) provides that it would not affect
any previous operation of any enactment so repealed or anything
duly done or suffered thereunder. Section 6(e) provides that it will
not affect any investigation, legal proceedings or remedy in respect
of any such right, privilege, obligation, liability, penalty, forfeiture or
punishment unless different intention appears, and any such
investigation, legal proceeding or remedy may be instituted, or
continued or enforced, and any such penalty, forfeiture or
punishment may be imposed as if the repealing Act or Regulation
had not been passed. The provisions of section 6 clearly save such
proceedings and pending litigation has to be decided only on the
basis of 1894 Act except as provided specifically in Act of 2013.
VARIOUS DECISIONS:
145(a). In Pune Municipal Corporation (supra), the High Court had
quashed the notification issued under section 4 on 30.9.2004.
Award was passed on 31.1.2008. Writ petitions were filed in the
High Court which was allowed on the ground that for development
175
of "forest garden" acquisition proceedings could not have been
initiated without resolution of the General Body of the Corporation,
not on the ground of section 24(2) of Act of 2013. There was
non-compliance with section 7 and other statutory breaches. The
special leave petitions were filed in this Court in the year 2008.
During pendency, the Act of 2013 came into force and this Court
has taken the view that expression “paid” used in section 24(2)
shall carry dual meaning, i.e.it has been offered to the person
interested and also that such compensation has been deposited in
court. The compensation is paid within the meaning of section 24(2)
when the Collector has offered and in case of refusal deposited the
amount of compensation in court and has discharged his obligation
under Section 31(2). The Court has also laid down that amount of
deposit of compensation in Government Treasury is not equivalent
to the amount of compensation paid to landowners/persons
interested. This Court held that deposit of the amount of
compensation in State revenue is of no avail relying on Ivo Agnelo
Santimano Fernandes v. State of Goa (2011) 11 SCC 506 and Prem
Nath Kapur v. National Fertilizers Corporation of India Ltd. (1996) 2
SCC 71.
176
145(b). In the decision in Ivo Agnelo (supra) it was held that
liability to pay interest subsists until amount is paid to the owner
or deposited in court. Whether the State has deposited the amount
in revenue account and utilized the same as it, was impermissible
hence it could not be said that the amount was deposited as
required under Section 31(2) of the Act of 1894. Reliance was also
placed on the decision in Prem Nath Kapur (supra) wherein this
Court had observed :
“13. Thus we hold that the liability to pay interest on the
amount of compensation determined under Section 23(1)
continues to subsist until it is paid to the owner or interested
person or deposited into court under Section 34 read with
Section 31. Equally, the liability to pay interest on the excess
amount of compensation determined by the Civil Court under
Section 26 over and above the compensation determined by
the Collector/Land Acquisition Officer under Section 11
subsists until it is deposited into court. Propriovigore in case
of further enhancement of the compensation on appeal under
Section 54 to the extent of the said enhanced excess amount
or part thereof, the liability subsists until it is deposited into
court. The liability to pay interest ceases on the date on which
the deposit into court is made with the amount of
compensation so deposited. As held earlier, the computation
of the interest should be calculated from the date of taking
possession till date of payment or deposit in terms of Section
34 or deposit into court in terms of Section 28, as the case
may be.”
177
145(c). The question in aforesaid decisions was only with respect
to liability to pay interest from the date of taking possession till the
amount is paid or deposited. The decisions are only authority with
respect to payment of interest under section 34 read with section
31. In Prem Nath Kapur (supra), the main question was how the
appropriation of amount deposited towards cost price, an additional
amount of interest has to be made. In that context a three-Judge
Bench of this Court had made the discussion. This Court also dealt
with debtor's right to specify how appropriation to be made of
money paid under section 60 of the Contract Act, 1872. The
questions involved in the said cases were different. There was no
such issue involved with regard to the meaning of the word “paid”.
The decision is only on liability to pay interest and is of no utility for
interpretation of section 24(2) as to what is the meaning of the word
"paid" did not arise for consideration in the said decisions. The
provisions of section 24(2) used expression "paid" and "deposited" in
different contexts at different places "paid" in the main section and
"deposited" in proviso. Both are to be given the plain meanings and
it is not open to the court to add or substitute any word in statute.
178
As a matter of fact, the High Court had quashed acquisition in
Pune Municipal Corporation in 2008 as such Act of 2013 was not
attractive. There was no question of complying with section 24 of
Act of 2013.
145(d). The landowners have relied on the decision in Bharat
Kumar v. State of Haryana & Anr. (2014) 6 SCC 586. What is the
meaning of “paid” did not arise for consideration. It was not a case
where amount was tendered or paid under Section 31(1) of the Act
of 1894 and there was refusal and in that case possession had also
not been taken. There was no vesting of the land. The case is
distinguishable. In the said decision various aspects were not urged
for consideration. Thus, it cannot be said to be laying down the law
as to what has not been decided.
145(e). Reliance has also been placed on Bimla Devi & Ors. v.
State of Haryana & Ors. (2014) 6 SCC 583 in which, similarly the
decision in Pune Municipal Corporation (supra) has been followed.
Thus the decision is of no avail in view of the aforesaid discussion.
145(f). In Union of India & Ors. v. Shiv Raj & Ors. (2014) 6 SCC
564, decision in Pune Municipal Corpn. (supra) has been followed. A
179
Circular of Government of India, Ministry of Urban Development
has also been quoted to clarify the statutory provisions of the Act of
2013. A Circular issued by the Government on advice of its law
officer cannot be said to have force of law. It was based on certain
legal opinion. The circular issued cannot be said to have any
binding force with respect to actual legal position. As already
discussed there is no discussion in said case with respect to the
impact of the interim order of stay or litigation which has prevented
the authorities from taking action in Shiv Raj (supra).
145(g). In Magnum Promoters Pvt. Ltd. v. Union of India &Ors.
(2015) 3 SCC 327, Shree Balaji Nagar Residential Association (supra)
and Pune Municipal Corpn. (supra) had been followed, for the
reasons mentioned above, and apart from that, it was found by the
court that possession of the building was not taken and the record
did not indicate that it was ever taken.
145(h). In Karnail Kaur & Ors. v. State of Punjab & Ors. (2015) 3
SCC 206 the Amendment Ordinance to amend the Act of 2013 came
up for consideration. The second proviso to section 24(2) to be
introduced in Act was held to be prospective in operation. The
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correctness of the decision need not be further examined as the
Ordinance itself has lapsed and for various other reason, we are of
opinion that law, as it stands, has to be examined. In Karnail Kaur
(supra), reliance was mainly placed upon Shree Balaji Nagar
Residential Association (supra), Pune Municipal Corpn. (supra),
Bharat Kumar (supra) and Bimla Devi (supra), we have already
discussed the matter following Pune Municipal Corporation (supra).
Radiance Fincap Pvt. Ltd. & Ors. v. Union of India & Ors. (2015) 8
SCC 544 has also been pressed into service, it considered the
second proviso to section 24(2) of the Ordinance that has lapsed.
145(i). In Working Friends Cooperative House Building Society
Ltd. v. State of Punjab & Ors. (2016) 15 SCC 464 again the other
decisions based on Pune Municipal Corporation (supra) referred to
above have been followed. In Working Friends Cooperative House
Building Society Ltd. (supra) compensation was not tendered to the
appellant. When compensation was not tendered as per section 31,
it could not be said that it was paid. To that extent there is no
dispute with respect to applicability of section 24(2). Mere deposit in
treasury or in court was not going to help the authorities as it was
obligatory on them to have tendered the amount unless saved by
181
three out of four exigencies provided in section 31(2) as discussed
above.
145(j). In Delhi Development Authority v. Sukhbir Singh & Ors.
(2016) 16 SCC 258, Pune Municipal Corpn. (supra) has been
followed and deposit in treasury has been held, referable to section
31(1) of the Act of 1894 and not under section 31(2). We agree with
discussion made with respect to section 31(1). In view of the
discussion made with respect to the expressions “paid” and
“tendered” the decision of Pune Municipal Corpn. (supra) cannot be
said to be laying down the correct law. It suffers to that extent from
the same malady as it has simply followed Pune Municipal Corpn.
(supra). In State of Haryana & Anr. v. Devander Sagar & Ors. (2016)
14 SCC 746, this Court has held that the compensation had been
paid; HUDA had taken possession. As per requirement of section
24, award was also passed. The acquisition had been allowed to
become final. Thus challenge to acquisition under the Act of 2013
was repelled.
145(k). In Aligarh Development Authority v. Megh Singh & Ors.
(2016) 12 SCC 504, the award was not passed when the Act of 2013
182
came into force. Thus, it was rightly held by this Court that the
acquisition proceedings would continue but with a rider that the
award will have to be passed and compensation determined under
the provisions of the 2013 Act. This Court has passed the aforesaid
orders in view of the provisions contained in section 24(1)(a) of the
Act of 2013. There is no dispute with the proposition.
145(l). In Sharma Agro Industries v. State of Haryana & Ors.,
(2015) 3 SCC 341, decisions of this Court in Pune Municipal Corpn.
(supra), Bimla Devi (supra), Shree Balaji Residential Association
(supra) and Shiv Raj (supra) have been followed. It proceeds on the
same reasoning as that of Pune Municipal Corpn. (supra).
145(m). In Pawan Kumar Aggarwal v. State of Punjab & Ors. (2016)
7 SCC 614, decision in Karnail Kaur (supra) has been followed. In
that case, there is not much discussion. Only the fact has been
mentioned that the appellant has not been dispossessed, as such
protection under section 24(2) was available.
PRINCIPLE OF ‘PER INCURIAM’:
146. The concept of “per incuriam” signifies those decisions
183
rendered in ignorance or forgetfulness of some inconsistent
statutory provisions, or of some authority binding on the Court
concerned. In order words, the concept means that a given decision
is in disregard of the previous decisions of the Court itself, or that it
was rendered in ignorance of the terms of an applicable statute or
of a rule having the force of law.
147(a). In practice, per incuriam, is taken to mean per ignoratium,
as observed by this Court in Mamleshwar Prasad v. Kanahaiya Lal,
(1975) 2 SCC 232, thus:
“5. A litigant cannot play fast and loose with the Court. His
word to the Court is as good as his bond and we must,
without more ado, negative the present shift in stand by an
astute discovery of a plea that the earlier judgment was
rendered per incuriam.
6. The wisdom which has fallen from Bowen, L.J. in Ex Parte
Pratt 52 Q.B. 334, though delivered in a different context, has
wider relevance to include the present position. The learned
Lord Justice observed :
“There is a good old-fashioned rule that no one has a
right to conduct himself before a tribunal as if he
accepted its jurisdiction, and then afterwards, when he
finds that it has decided against him, to turn round and
say, "You have no jurisdiction".
7. Certainty of the law, consistency of rulings and comity of
courts- all flowering from the same principle-coverage to the
conclusion that a decision once rendered must later bind like
cases. We do not intend to detract from the rule that, in
exceptional instances, whereby obvious inadvertence or
oversight a judgment fails to notice a plain statutory provision
184
or obligatory authority running counter to the reasoning and
result reached, it may not have the sway of binding
precedents. It should be a glaring case, an obtrusive omission.
No such situation presents itself here and we do not embark
on the principle of judgment per incuriam.”
147(b). In A.R. Anutulay v. R.S. Nayak, (1988) 2 SCC 602, this
Court has observed:
“42. It appears that when this Court gave the aforesaid
directions on 16th February 1984, for the disposal of the case
against the appellant by the High Court, the directions were
given oblivious of the relevant provisions of law and the
decision in Anwar Ali Sarkar's case (supra). See Halsbury's
Laws of England, 4th End, Vol. 26, page 297, para 578 and
page 300, the relevant notes 8, 11 and 15; Dias on
Jurisprudence, 5th Edn., pages 128 and 130; Young v. Bristol
Aeroplane Co. Ltd. [1944] 2 AER 293. Also see the
observations of Lord Goddard in Moore v. Hewitt [1947] 2
A.E.R. 270-A and Penny v. Nicholas [1950] 2 A.E.R. 89. "per
incuriam" are those decisions given in ignorance or
forgetfulness of some inconsistent statutory provision or of
some authority binding on the Court concerned, so that in
such cases some part of the decision or some step in the
reasoning on which it is based, is found, on that account to be
demonstrably wrong. See Morelle v. Wakeling [1955] 1 All
E.R. 708. Also, see State of Orissa v. The Titaghur Paper
Mills Co. Ltd. [1985]3SCR26 . We are of the opinion that in
view of the clear provisions of Section 7(2) of the Criminal
Law Amendment Act, 1952 and Articles 14 and 21 of the
Constitution, these directions were legally wrong.”
47. In support of the contention that a direction to delete
wholly the impugned direction of this Court be given,
reliance was placed on Satyadhvan Ghoshal v. Deorajini Devi
[1960] 3 SCR 590 . The ratio of the decision as it appears
from pages 601 to 603 is that the judgment which does not
terminate the proceedings, can be challenged in an appeal
from final proceedings. It may be otherwise if subsequent
proceedings were independent ones.”
(emphasis supplied)
185
147(c). In State of Uttar Pradesh v. Synthetics and Chemicals Ltd.,
(1991) 4 SCC 139, as to per incuriam this court has observed:
“40. 'Incuria literally means 'carelessness'. In practice per in
curium appears to mean per ignoratium.' English Courts have
developed this principle in relaxation of the rule of stare
decisis. The 'quotable in law' is avoided and ignored if it is
rendered, in ignoratium of a statute or other binding
authority'. 1944 1KB 718 Young v. Bristol Aeroplane Ltd..
Same has been accepted, approved and adopted by this Court
while interpreting Article 141 of the Constitution which
embodies the doctrine of precedents as a matter of law. In
Jaisri Sahu v. Rajdewan Dubey AIR (1962) SC 83 this Court
while pointing out the procedure to be followed when
conflicting decisions are placed before a bench extracted a
passed from Halsbury’s Laws of England incorporating one of
the exceptions when the decisions of an appellate court is not
binding.”
147(d). In Municipal Corporation of Delhi v. Gurnam Kaur, (1989)
1 SCC 101, it was held that decision of ignorance of rule is per
incuriam,the court has observed:
“11. ....A decision should be treated as given per incur am
when it is given in ignorance of the terms of a statute or of a
rule having the force of a statute......”
147(e). In Narmada Bachao Andolan (III) v. State of Madhya
Pradesh, AIR 2011 SC 1989, this court has observed:
“61. Thus, "per incuriam" are those decisions given in
ignorance or forgetfulness of some statutory provision or
186
authority binding on the Court concerned, or a statement of
law caused by inadvertence or conclusion that has been
arrived at without application of mind or proceeded without
any reason so that in such a case some part of the decision or
some step in the reasoning on which it is based, is found, on
that account to be demonstrably wrong.”
(emphasis supplied)
148. To refer the case to larger Bench, reliance was placed by the
landowners on Sant Lal Gupta v. Modern Coop. Societies Ltd. 2010
13 SCC 336 laying down thus:
“17. A coordinate bench cannot comment upon the
discretion exercised or judgment rendered by another
coordinate bench of the same court. The rule of precedent is
binding for the reason that there is a desire to secure
uniformity and certainty in law. Thus, in judicial
administration precedents which enunciate rules of law form
the foundation of the administration of justice under our
system. Therefore, it has always been insisted that the
decision of a coordinate bench must be followed. (Vide:
Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel
and Ors. AIR 1968 SC 372; Sub-Committee of Judicial
Accountability v. Union of India and Ors. (1992) 4 SCC 97;
and State of Tripura v. Tripura Bar Association and Ors.
(1998) 5 SCC 637).
18. In Rajasthan Public Service Commission and Anr. v.
Harish Kumar Purohit and Ors. (2003) 5 SCC 480, this Court
held that a bench must follow the decision of a coordinate
bench and take the same view as has been taken earlier. The
earlier decision of the coordinate bench is binding upon any
latter coordinate bench deciding the same or similar issues. If
the latter bench wants to take a different view than that taken
by the earlier bench, the proper course is for it to refer the
matter to a larger bench.”
149. It was contended on behalf of the landowners that since the
187
decisions of Pune Municipal Corporation as well as of Shivraj case
(supra) are of Three Judges bench then propriety requires that the
case should be referred to a Larger Bench. With respect to Shivraj
(supra) it is apparent that no view has been expressed by the
Division Bench making reference itself, as observed that upon
reading the decision of this court in Union of India & Ors. v. Shivraj
& Ors. (2014) 6 SCC 564, they have not found any view on the
question arising namely whether the period during which interim
stay has been enjoyed should be extended while considering the
provisions of Section 24(2) of the Act of 2013. Division Bench of
this court in order dated 12.1.2016, while making reference has
rightly observed thus:
“We have considered the views expressed in Sree Balaji
Nagar Residential Association (supra) and Union of India
&Ors. v. Shiv Raj and others (supra). At the outset, we clarify
that upon reading the decision of the three Judge Bench of
this Court in Union of India and other versus Shiv Raj and
others, we do not find any view of the bench on the question
arising, namely, whether the period during which the award
had remained stayed should be excluded for the purposes of
consideration of the provisions of Section 24(2) of the Act of
2013. Insofar as the decision of the coordinate bench of this
Court in Sree Balaji Nagar Residential Association (supra) is
concerned, having read and considered paragraphs 11 and 12
thereof, as extracted above, it is our considered view that the
legal effect of the absence of any specific exclusion of the
period covered by an interim order in Section 24(2) of the Act
of 2013 requires serious reconsideration having regard to the
fact that it is an established principle of law that the act of the
court cannot be understood to cause prejudice to any of the
188
contesting parties in a litigation which is expressed in the
maxim “actus curiae neminem gravabit”.
150. In Pune Municipal Corporation (supra) the land acquisition
had been quashed by the High Court in the year 2008. Most of the
special leave petitions were filed in this court in the year 2008. The
High Court has quashed the acquisition proceedings and has
directed restoration of the possession. When the High Court has
quashed the acquisition, there was no room for this court to
entertain the submissions based upon section 24(2) of the Act of
2013. There was no question of payment of compensation to the
owners or depositing it in the court as land acquisition itself had
been quashed in 2008. There was no subsisting acquisition and
award. When Act of 2013 came into force thus no question could
have been raised as to non-compliance with section 24 for five years
or more. Thus, there was no question of taking possession or
payment of compensation as per provisions contained in section
24(2). The provisions contained in section 24 could not be said to
be applicable after quashing/lapse of the proceedings. Thus, when
the provisions of section 24 were not attracted to the fact situation
of the case in Pune Municipal Corporation (supra), the decision
cannot be said to be an authority on a question which, in fact, did
189
not arise for consideration of this court. Thus, the decision
rendered on a question which was not germane to the case cannot
be said to be a binding precedent it is obiter dicta and thus has to
be ignored.
151. When the High Court has quashed the land acquisition in
Pune Municipal Corporation (supra), as we have held that period of
interim stay has to be excluded once the High Court has quashed
the land acquisition in case it was illegally quashed, the maxim
actus curiae neminem gravabit would come to the rescue for the
acquiring body and it could not have said that acquisition had
lapsed, thus there was no lapse under section 24(2). There was no
question of taking possession or payment of compensation once the
acquisition had been quashed. This court in Pune Municipal
Corporation (supra) had not dwelled upon the merit of the decision
of the High Court quashing the land acquisition and has outrightly
decided the case on the basis of section 24(2). It obviously had no
application to the fact situation of the case. As such a decision
cannot be said to be an authority on the aforesaid.
152. With respect to the decision of this court in Pune Municipal
190
Corporation (supra) we have given deep thinking whether to refer it
to further Larger Bench but it was not considered necessary as we
are of the opinion that Pune Municipal Corporation (supra) has to be
held per incuriam, inter alia for the following reasons:
1. The High Court has quashed land acquisition, in Pune
Municipal Corporation case (supra), as such provisions of
section 24(2) of the Act of 2013 could not be said to be
applicable. It was not surviving acquisition then compliance of
section 24(2) by taking possession or by payment of
compensation for five years or more did not arise as
acquisition had been quashed by the High Court in 2008.
2. It was not held in Pune Municipal Corporation (supra) that High
Court has illegally set aside the acquisition. In case, High
Court had set aside the acquisition in an illegal manner then
also maxim ‘actus curiae neminum gravabit’ would have
come to the rescue to save acquisition from being lapsed and a
period spent in appeal in this Court was to be excluded.
3. The provisions of Section 24(2) could not be said to be
applicable to the case once acquisition stood quashed in 2008
191
by the High Court. Thus, there was no occasion for this court
to decide the case on aforesaid aspect envisaged under section
24(2) of the Act of 2013.
4. That statutory rules framed under section 55 of Act of 1894
and orders having statutory force issued under, constitutional
provisions or otherwise by various State Governments were
not placed for consideration before this court in Pune
Municipal Corporation case (supra)
5. Provisions of section 34 prevailing practice of deposit, and
binding decisions thereunder section 34 of the Act of 1894
were not placed for consideration of this court while deciding
the case.
6. The proviso to section 24(2) was not placed for consideration
which uses different expression ‘deposited' than ‘paid' in main
section 24(2) which carry a different meaning.
7. What is the meaning of expression ‘paid' as per various
binding decisions of this court when the obligation to pay is
complete as held in Straw Board Manufacturing Co. Ltd.,
Saharanpur v. Gobind (supra), Management of Delhi Transport
Undertaking v. The Industrial Tribunal, Delhi & Anr. (supra),
192
Indian Oxygen Ltd. v. Narayan Bhoumik (supra) and the
Benares State Bank Ltd. v. The Commissioner of Income Tax,
Lucknow, (supra) and other decisions were not placed for
consideration.
8. The binding decisions of the court as to the consequence of
non-deposit in Hissar Improvement v. Smt. Rukmani Devi &
Anr. (supra), Kishan Das & Ors. v. State of U.P. & Ors. (supra)
and Seshan & Ors. v. Special Tehsildar & Land Acquisition
Officer, SPICOT, Pudukkottai (supra) etc. were not placed for
consideration while deciding the case.
9. The maxim “nullus commodum capere potest de injuria
sua propria” i.e. no man can take advantage of his own
wrong of filing litigation and effect of refusal to receive
compensation was not placed for consideration while deciding
the aforesaid case.
10. There is no lapse of acquisition due to the non deposit of
amount under the provisions of Act of 1894 or Act of 2013. In
this regard, the provision of section 77 and 80 relating to
payment and deposit under Act of 2013 which corresponds to
section 31 and 34 were not placed for consideration of this
193
court while rendering the aforesaid decision.
11. The past practice for more than a century, of deposit in
treasury, as per rules/ orders and decisions were not placed
for consideration. It was not open to invalidate such deposits
made in treasury without consideration of the provisions,
prevailing practice, and decisions under the Act of 1894.
The decision rendered in Pune Municipal Corporation (supra),
which is related to Question No.1 and other decisions following,
the view taken in Pune Municipal Corporation (supra) are per
incuriam. The decision in Shree Balaji (supra) cannot be said to
be laying down good law, is overruled and other decisions
following the said decision to the extent they are in conflict with
this decision, stand overruled. The decision in DDA v. Sukhbir
Singh (supra) is partially overruled to the extent it is contrary to
this decision. The decisions rendered on the basis of Pune
Municipal Corporation (supra) are open to be reviewed in
appropriate cases on the basis of this decision.
CONCLUSIONS :
153. Our answers to the questions are as follows:
194
Q. No. I :- The word ‘paid’ in section 24 of the Act of 2013 has the
same meaning as ‘tender of payment’ in section 31(1) of the Act of
1894. They carry the same meaning and the expression ‘deposited’
in section 31(2) is not included in the expressions ‘paid’ in section
24 of the Act of 2013 or in ‘tender of payment' used in section 31(1)
of the Act of 1894. The words ‘paid'/tender' and ‘deposited' are
different expressions and carry different meanings within their fold.
In section 24(2) of the Act of 2013 in the expression ‘paid,' it is
not necessary that the amount should be deposited in court as
provided in section 31(2) of the Act of 1894. Non-deposit of
compensation in court under section 31(2) of the Act of 1894 does
not result in a lapse of acquisition under section 24(2) of the Act of
2013. Due to the failure of deposit in court, the only consequence at
the most in appropriate cases may be of a higher rate of interest on
compensation as envisaged under section 34 of the Act of 1894 and
not lapse of acquisition.
Once the amount of compensation has been unconditionally
tendered and it is refused, that would amount to payment and the
obligation under section 31(1) stands discharged and that amounts
to discharge of obligation of payment under section 24(2) of the Act
195
of 2013 also and it is not open to the person who has refused to
accept compensation, to urge that since it has not been deposited in
court, acquisition has lapsed. Claimants/landowners after refusal,
cannot take advantage of their own wrong and seek protection
under the provisions of section 24(2).
Q. No. II :- The normal mode of taking physical possession under
the land acquisition cases is drawing of Panchnama as held in
Banda Development Authority (supra).
Q. No. III :- The provisions of section 24 of the Act of 2013, do not
revive barred or stale claims such claims cannot be entertained.
Q. No. IV :- Provisions of section 24(2) do not intend to cover the
period spent during litigation and when the authorities have been
disabled to act under section 24(2) due to the final or interim order
of a court or otherwise, such period has to be excluded from the
period of five years as provided in section 24(2) of the Act of 2013.
There is no conscious omission in section 24(2) for the exclusion of
a period of the interim order. There was no necessity to insert such
a provision. The omission does not make any substantial difference
as to legal position.
196
Q. No. V :- The principle of actus curiae neminem gravabit is
applicable including the other common law principles for
determining the questions under section 24 of the Act of 2013. The
period covered by the final/ interim order by which the authorities
have been deprived of taking possession has to be excluded. Section
24(2) has no application where Court has quashed acquisition.
The questions referred to are answered accordingly.
……………………………….J.
(ARUN MISHRA)
……………………………….J.
(ADARSH KUMAR GOEL)
NEW DELHI;
FEBRUARY 8, 2018.
197
O R D E R
We unanimously agree to the answers given to all the
questions i.e. Nos.I to V, except to the aspect decided by
majority whether Pune Municipal Corporation & Anr. v.
Harakchand Misirimal Solanki, 2014 (3) SCC 183, is per
incuriam or not. As the majority has taken the view that it is
per incuriam, it is declared to be per incuriam. The questions
referred stand answered in terms of majority judgment.
Hence, ordered accordingly.
Mattes may now be listed on 16.2.2018 for orders
before an appropriate Bench, subject to the orders of the
Hon’ble the Chief Justice of India.
.........……………….................J.
[ARUN MISHRA]
..........……….………...............J.
[ADARSH KUMAR GOEL]
...………......…………..............J.
[MOHAN M. SHANTANAGOUDAR]
New Delhi;
8
th February, 2018.
198
