INDORE DEVELOPMENT AUTHORITY versus MANOHARLAL & ORS. ETC.

[2020] 3 S.C.R. 1

INDORE DEVELOPMENT AUTHORITY

MANOHARLAL & ORS. ETC.

(S.L.P. (C) Nos. 9036-9038 of 2016)

MARCH 06, 2020

[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN,M. R. SHAH AND S. RAVINDRA BHAT, JJ.]

Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013: Legislativehistory of the Act of 2013 – Purpose of its enactment – Salientfeatures – Departure from old Land Acquisition Act in 2013 Actrelating to Social Impact Assessment, Rehabilitation and ResettlementScheme – Discussed .

Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013: s.24(2) –Twin requirement for the lapse – Firstly, physical possession hasnot been taken and secondly compensation has not been paid –Whether the conditions are cumulative i.e. both are to be fulfilledfor lapsing of acquisition proceedings or the conditions are inalternative (“either/or”) – Held: s.24(2) of the Act of 2013 dealswith situation only where the award has been made five years ormore before the commencement of the Act, but physical possessionof the land has not been taken, nor compensation has been paid –As regards the collation of the words used in s.24(2), two negativeconditions have been prescribed – General rule of statutoryinterpretation of positive and negative conditions are that positiveconditions separated by ‘or’ are read in the alternative but negativeconditions connected by ‘or’ are construed as cumulative and ‘or’is read as ‘nor’ or ‘and’ i.e. the expression ‘or’ has to be read asconjunctive and conditions of both the clauses must be fulfilled –Thus, the word ‘or’ used in s.24(2) between possession andcompensation has to be read as ‘nor’ or as ‘and’ – This would meanthat the deemed lapse of land acquisition proceedings under s.24(2)takes place where due to inaction of authorities for five years ormore prior to commencement of the Act of 2013, the possession ofland has not been taken nor compensation has been paid – Thus,

Aeven if one condition is satisfied, there is no lapse – Interpretationof statutes.

Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013: s.24(2) –Interpreting “or” under s.24(2) of the Act of 2013 disjunctively –BEffect of – Held: It would result in an anomalous situation, because,once compensation has been paid to the landowner, there is noprovision for its refund – In case physical possession is with thelandowner; and compensation has been paid, there is no provisionin the Act for disgorging out the benefit of compensation – In theabsence of any provision for refund in the Act of 2013, the StateCcannot recover compensation paid – The landowner would beunjustly enriched – This could never have been the legislative intentof enacting s.24(2) of the Act of 2013 – The principle of restitution,unless provided in the Act, cannot be resorted to by the authoritieson their own – Absence of provision for refund in the Act of 2013Dreinforces conclusion that the word “or” has to be read asconjunctively and has to be read as “and” – Doctrine of unjustenrichment and principle of restitution.

Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013: s.24(2) –EPurpose of – Held: To punish acquiring authority for its lethargy innot taking physical possession nor paying compensation aftermaking award five years or more before commencement of Act of2013 in pending proceedings providing they would lapse.

Right to Fair Compensation and Transparency in LandFAcquisition, Rehabilitation and Resettlement Act, 2013: s.24 – Vestedright under – Held: s.24 of the Act of 2013 does not intend to takeaway vested rights – This is because there is no specific provisiontaking away or divesting title to the land, which had originally vestedwith the State, or divesting the title or interest of beneficiaries orthird-party transferees of such land which they had lawfullyGacquired, through sales or transfers.

Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013: proviso tos.24(2) – Whether proviso is part of s.24(2) or s.24(1)(b) – Held:The proviso is part of the scheme of s.24(2) – The entire provisionH

of s.24(2), including the proviso, operates when there is inactionfor period of five years or more, as contemplated therein.

Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013: s.24(2) –Applicability to pending proceedings – Held: s.24(2) shall apply tothe proceeding which is pending as on the date on which the Act of2013, has been brought into force and it does not apply to theconcluded proceedings – s.24(2) is not tool to revive concludedproceedings and to question the validity of acquisition proceedingsdue to which possession were taken decades ago, or to questionthe manner of deposit of amount in the treasury – The Act of 2013never intended revival of such claims – s.24(2) only contemplateslethargy/inaction of the authorities to act for five years or more.

Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013: s.24(2) –Whether gives rise to fresh cause of action – Held: s.24(2) of theAct of 2013 does not give rise to new cause of action to questionthe legality of concluded proceedings of land acquisition – s.24does not revive stale and time-barred claims and does not reopenconcluded proceedings nor allow landowners to question the legalityof mode of taking possession to reopen proceedings or mode ofdeposit of compensation in the treasury instead of court to invalidateacquisition.

Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013: s.24(2) –Exclusion of period of interim order(s) – Held: Any court’s interimorder cannot be said to be inaction of the authorities or agencies;thus, time period is not to be included for counting the 5 yearsperiod as envisaged in s.24(2).

Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013: s.24(2) andits proviso – The expression ‘paid’ in the main part of s.24(2) doesnot include deposit of compensation in court – The consequenceof non-deposit is provided in proviso to s.24(2) in case it has notbeen deposited with respect to majority of land holdings then allbeneficiaries (landowners) as on the date of notification for landacquisition under s.4 of the Act of 1894 shall be entitled to

ABC

Acompensation in accordance with the provisions of the Act of 2013– In case the obligation under s.31 of the Act of 1894 has not beenfulfilled, interest under s.34 of the said Act can be granted – Non-deposit of compensation (in court) does not result in the lapse ofland acquisition proceedings – In case of non- deposit with respectto the majority of holdings for five years or more, compensationBunder the Act of 2013 has to be paid to the “landowners” as on thedate of notification for land acquisition under s.4 of the Act of1894.Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013: s.24(2) –CWhen compensation, tendered, as provided in s.31(1) of the Act of1894, but not paid/deposited in court – Whether acquisition lapse– Held: In case person has been tendered the compensation asprovided under s.31(1) of the Act of 1894, it is not open to him toclaim that acquisition has lapsed under s.24(2) due to non-paymentDor non-deposit of compensation in court – The obligation to pay iscomplete by tendering the amount under s.31(1) – Land ownerswho had refused to accept compensation or who sought referencefor higher compensation, cannot claim that the acquisitionproceedings had lapsed under s.24(2) of the Act of 2013 – LandAcquisition Act, 1894 – s.31(1).ELand Acquisition: Mode of taking possession – Whenpossession of large area of land is to be taken, then it is permissibleto take possession by drawing Panchnama – Possession.

Possession: Concept of possession – Held: PossessionFcomprises the right to possess and to exclude others, essential isanimus possidendi – Possession depends upon the character of thething which is possessed – If the land is not capable of any use,mere non-user of it does not lead to the inference that the owner isnot in possession – The established principle is that the possessionfollows title – Possession comprises of the control over the propertyG– The element of possession is the physical control or the powerover the object and intention or will to exercise the power – Corpusand animus are both necessary and have to co-exist.

Delay/laches: In matters of land acquisition, delay is fatal inquestioning the land acquisition proceedings – In case possessionH

has not been taken in accordance with law and vesting is not inaccordance with s.16, proceedings before courts are to be initiatedwithin reasonable time, not after the lapse of several decades –Land Acquisition Act, 1894 – s.16.

Interpretation of Statutes: Addition or substraction of word(s)in statute – Power of Courts – Held: While interpreting thestatutory provisions, addition or subtraction in the legislation isnot permissible – It is not open to the court to either add or subtracta word – There cannot be any departure from the words of law, asobserved in legal maxim “A Verbis Legis Non Est Recedendum” –Legal maxim.

Interpretation of Statutes: When two different expressions areused in the same provision of statute, there is presumption thatthey are not used in the same sense.

Interpretation of statutes: Proviso to provision – Thefunction of the proviso is to explain or widen the scope – The provisocannot travel beyond the provision to which it is attached.

Interpretation of Statutes: Colon (punctuation mark) –Significance of its use – The use of the colon is to introduce sub-clause that follows logically from the text before it – Right to FairCompensation and Transparency in Land Acquisition, Rehabilitationand Resettlement Act, 2013 – s.24(2).

Judicial Notice: Judicial notice is taken of the fact that in noother Government security, rate of interest is higher on the amountbeing invested under ss.32 and 33 of the Act of 1894 – Higher rateof interest is available under s.34 to the advantage of landowners– Land Acquisition Act, 1894.

Repeal: Applicability of the General Clauses Act – Held: Whenrepeal is followed by fresh enactment on the same subject, theprovisions of the General Clauses Act would undoubtedly requirean examination of the language of the new enactment if it expressesan intent different from the earlier repealed Act – The enquiry wouldnecessitate the examination if the old rights and liabilities are keptalive or whether the new Act manifests an intention to do away withor destroy them – If the new Act manifests different intentions, theapplication of the General Clauses Act will stand excluded – GeneralClauses Act.

AWords and phrases: Word ‘paid’, tender’, ‘vesting’ – Meaningof, discussed.

Words and phrases: Word ‘paid’ and ‘deposited’ – Distinctionbetween – Dictionary meaning and meaning in the context of s.24(2)of Right to Fair Compensation and Transparency in LandBAcquisition, Rehabilitation and Resettlement Act, 2013.

Words and phrases: Concept of vesting – Discussed.

Answering the reference, the Court

HELD: 1. The Act of 2013 repeals and replaces the LandCAcquisition Act, 1894, general law for acquisition of land of publicpurposes, which had been in force for almost 120 years, with aview to address certain inadequacies and/ or shortcomings in thesaid Act. The Act of 2013 is prospective and saves proceedingsalready initiated under the Land Acquisition Act, 1894 before itsrepeal, subject to provisions of Section 24 of the Act of 2013,Dwhich begins with non-obstante clause and overrides all otherprovisions of the Act of 2013. [Paras 6, 7][58 B-D]

2. Scope of Section 24

2.1 Section 24 begins with non-obstante clause, overridingall other provisions of the Act of 2013 including Section 114 ofEthe Act of 2013, dealing with repeal and saving. In terms of Section114 of the Act of 2013, the general application of Section 6 of theGeneral Clauses Act, 1897, except otherwise provided in theAct, has been saved. Section 6(a) of the General Clauses Act,1897 provides that unless different intention appears, the repealFshall not revive anything not in force or existing at the time whenthe repeal has been made. The effect of the previous operationof any enactment so repealed or anything duly done or sufferedthereunder is also saved by the provisions contained in Section6(b). As per Section 6(c), the repeal shall not affect any right,privilege, obligation or liability acquired, accrued, or incurred.G[Para 94][115 E-G]

2.2 Section 24(1)(a) of the Act of 2013 read with the non-obstante clause provides that in case of proceedings initiated

under the Act of 1894 the award had not been made under Section11, then the provisions of the Act of 2013, relating to thedetermination of compensation would apply. However; theproceedings held earlier do not lapse. In terms of Section 24(1)(b),where award under Section 11 is made, then such proceedingsshall continue under the provisions of the Act of 1894. Itcontemplates that such pending proceedings, as on the date onwhich the Act of 2013 came into force shall continue, and takento their logical end. However, the exception to Section 24(1) (b)is provided in Section 24(2) in case of pending proceedings; incase where the award has been passed five years or more priorto the commencement of the Act of 2013, the physical possessionof the land has not been taken, or the compensation has not beenpaid, the proceedings shall be deemed to have lapsed, and suchproceedings cannot continue as per the provisions of Section24(1)(b) of the Act of 2013. [Para 95][115 G-H][116 A-C]

Principles of Statutory Interpretation (14[th] Edition) by JusticeG.P. Singh – referred to

2.3 As regards the collation of the words used in Section24(2), two negative conditions have been prescribed. Thus, evenif one condition is satisfied, there is no lapse, and this logicallyflows from the Act of 1894 read with the provisions of Section 24of the Act of 2013. Any other interpretation would entail illogicalresults. Thus, for lapse of acquisition proceedings initiated underthe old law, under Section 24(2), if both steps have not been taken,i.e., neither physical possession is taken, nor compensation ispaid, the land acquisition proceedings lapse. [Paras 99, 101][119G-H][122 B-C]

Patel Chunibhai Dajibha, etc. v. NarayanraoKhanderao Jambekar and Anr. AIR 1965 SC 1457 :[1965] SCR 328; Punjab Produce & Trading Co. v.Commissioner of Income Tax, West Bengal, [1971] SCR977 – relied on

Brown & Co. v. Harrison (1927) All ER Rep 195;Federal Steam Navigation Co. Ltd. v. Department ofTrade and Industry 1974 (1) WLR 505 – referred to

A2.4 Section 24(2) of the Act of 2013 is penal provision - topunish the acquiring authority for its lethargy in not taking physicalpossession nor paying the compensation after making the awardfive years or more before the commencement of the Act of 2013in pending proceedings, providing that they would lapse. Theexpression “where an award has been made, then the proceedingsBshall continue” used in Section 24(1)(b) of the Act of 1894 meansthat proceedings were pending in praesenti as on the date ofenforcement of the Act of 2013 are not concluded proceedings,and in that context, an exception has been carved out in section24(2). [Para 112][131 A-C]

M/s. Ranchhoddas Atmaram and Anr. v. The Union ofIndia and Ors. AIR 1961 SC 935 : [1961] SCR 718;Prof. Yashpal & Ors. v. State of Chhattisgarh & Ors.(2005) 5 SCC 420 : [2005] 2 SCR 23; Joint Directorof Mines Safety v. Tandur and Nayandgi Stone QuarriesD(P) Ltd (1987) 3 SCC 308 : [1987] 2 SCR 911; SameeKhan v Bindu Khan (1998) 7 SCC 59 : [1998] 1 Suppl.SCR 244; State of Bombay v. R.M.D. Chamarbaugwala[1957] 1 SCR 874; Tilkayat Shri Govindlalji Maharajetc. v State of Rajasthan & Ors AIR 1963 SC 1638 :[1964] SCR 561 – relied on

Pooran Singh v. State of M.P [1965] 2 SCR 853; SriNasiruddin v. State Transport Appellate Tribunal (1975)2 SCC 671 : [1976] 1 SCR 505; Municipal Corporationof Delhi v. Tek Chand Bhatia (1980) 1 SCC 158 : [1980]1 SCR 910; State of Punjab v. Ex-Constable Ram SinghF(1992) 4 SCC 54 : [1992] 3 SCR 634 – referred to

Marsey Docks and Harbour Board v. Coggins andGriffith (Liverpool) Ltd. LR (AC) Vol.XIII 1888 595;Re Hayden Pask v. Perry (1931) 2 Ch.333;Metropolitan Board of Works v. Street Bros (1881) VIIIQBD 445 – referred to

2.5 When considering the scheme of the Act of 1894, oncethe award was made under Section 11, the Collector may,undertake possession of the land which shall thereupon vestabsolutely in the Government free from all encumbrances. SectionH16 of the Act of 1894 enables the Collector to take possession of

acquired land, when an award is made under Section 11. Clearly,there can be lapse of proceedings under the Act of 1894 onlywhen possession is not taken. The provisions in Section 11A ofthe Act of 1894 states that the Collector shall make an awardwithin period of two years from the date of the publication ofthe declaration under Section 6 and if no award is made withintwo years, the entire proceedings for acquisition of the land shalllapse. The period of two year excludes any period during whichinterim order granted by the Court was in operation. Once anaward is made and possession is taken, by virtue of Section 16,land vests absolutely in the State, free from all encumbrances.Vesting of land is automatic on the happening of the two exigenciesof passing award and taking possession, as provided in Section16. [Paras 114, 115][131 F-H][132 C-E]2.6 The scheme of the Act of 1894 is clear that when theaward is passed under Section 11, thereafter possession is takenas provided under Section 16, land vests in the State Government.Under Section 12(2), notice of the award has to be issued bythe Collector. Taking possession is not dependent upon payment.Payment has to be tendered under Section 31 unless the Collectoris “prevented from making payment,” as provided under section31(2). In case of failure under Section 31(1) or 31(3), also Collectoris not precluded from making payment, but it carries interestunder Section 34 @ 9% for the first year from the date it ought tohave been paid or deposited and thereafter @ 15%. Thus, onceland has been vested in the State under Section 16, in case offailure to pay the compensation under Section 31(1) to depositunder Section 31(2), compensation has to be paid along withinterest, and due to non-compliance of Section 31, there is nolapse of acquisition. The same spirit has been carried forward inthe Act of 2013 by providing in Section 24(2). Once possessionhas been taken though the payment has not been made, thecompensation has to be paid along with interest as envisagedunder section 34, and in case, payment has been made,possession has not been taken, there is no lapse under Section24(2). In case where possession has been taken under the Actof 1894 as provided by Section 16 or 17(1) the land vestsabsolutely in the State, free from all encumbrances, ifcompensation is not paid, there is no divesting there will be no

Alapse as compensation carries interest @ 9% or @ 15% asenvisaged under Section 34 of the Act of 1894. Proviso to Section24(2) makes some wholesome provision in case the amount hasnot been deposited with respect to majority of landholdings, insuch an event, not only those persons but all the beneficiaries,though for minority of holding compensation has been paid, shallBbe entitled to higher compensation in accordance with theprovisions of the Act of 2013. The expression used is “allbeneficiaries specified in the notification for acquisition underSection 4 of the said Land Acquisition Act”, i.e., Act of 1894,means that the persons who are to be paid higher compensationCare those who have been recorded as beneficiaries as on thedate of notification under Section 4. The proviso gives effect to,and furthers the principle that under the Act of 1894, the purchasesmade after issuance of notification under Section 4 are void. Assuch, the benefit of higher compensation under the proviso toSection 24(2) is intended to be given to the beneficiariesDmentioned in the notification under Section 4 of the Act of 1894.[Para 118][133 D-H][134 A-D]

2.7 The benefits under the Act of 2013 envisage that wherethe award had not been made, or award has been made, butpossession has not been taken (because once possession is taken,

Eland is vests in the State) there can be lapse of acquisition. Nodoubt that payment is also to be made: that issue is taken care ofby the provision of payment of interest under Section 34: also, incase of non-deposit- in respect of majority of holdings in givenaward, higher compensation under the Act of 2013 has to be paidFto all beneficiaries as on the date of notification under Section 4issued under the Act of 1894. There is nothing in the Statementof Objects and Reasons making specific reference to non-paymentof compensation where an award has been made, and possessionhas been taken. While interpreting the provisions of an Act, thecourt to consider the objects and reasons of the legislature, whichGthe legislature had in mind also emphasised that once vesting iscomplete, there is no divesting. [Para 120][134 G-H][135 A-C]

Workmen of Dimakuchi Tea Estate v. Management ofDimakuchi Tea Estate [1958] SCR 1156; Mukesh K.

Tripathi v. Senior Divisional Manager, LIC & Ors.(2004) 8 SCC 387 : [2004] 4 Suppl. SCR 127 – reliedon

2.8 Interpreting “or” under Section 24(2) of the Act of 2013disjunctively, would result in an anomalous situation - because,once compensation has been paid to the landowner, there is noprovision for its refund. In case physical possession is with thelandowner; and compensation has been paid, there is no provisionin the Act for disgorging out the benefit of compensation. In theabsence of any provision for refund in the Act of 2013, the Statecannot recover compensation paid. The landowner would beunjustly enriched. This could never have been the legislativeintent of enacting Section 24(2) of the Act of 2013. The principleof restitution, unless provided in the Act, cannot be resorted toby the authorities on their own. The absence of provision forrefund in the Act of 2013 reinforces conclusion that the word“or” has to be read as conjunctively and has to be read as “and.”[Para 132][150-E][151 A-B]

C. Padma & Ors. v. Dy. Secretary & Ors (1997) 2 SCC627 : [1996] 9 Suppl. SCR 158; Northern Indian GlassIndustries v. Jaswant Singh & Ors (2003) 1 SCC 335 :[2002] 3 Suppl. SCR 534; Milkfood Ltd. v. GMC IceCream (P) Ltd 2004 (7) SCC 288 : [2004] 3 SCR 854 –referred to

3. In re: Vesting and divesting

Once the land vests in the State, it cannot be divested, evenif there is some irregularity in the acquisition proceedings. Thereis nothing in the Act of 1894 to show that non-compliance thereofwill be fatal or will lead to any penalty. Once vesting takes place,and is with possession, after which person who remains inpossession is only trespasser, not in rightful possession andvesting contemplates absolute title, possession in the State.[Paras 141, 147][160-H][161-A][163 F-G]

State of Punjab v. Sadhu Ram 1996 (7) JT 118; StarWire (India) Ltd. v. State of Haryana & Ors (1996) 11SCC 698 : [1996] 7 Suppl. SCR 6; Market Committeev. Krishan Murari (1996) 1 SCC 311 : [1995] 4 Suppl.

SCR 787; Puttu Lal (dead) by L.Rs. v. State of U.P. &Anr (1996) 3 SCC 99 : [1996] 2 SCR 638; The Fruit &Vegetable Merchants Union v. The Delhi ImprovementTrust [1957] SCR 01; 147 VKNM Vocational HigherSecondary School v. State of Kerala (2016) 4 SCC 216 :[2016] 1 SCR 343; May George v. Special Tahsildar &Ors. (2010) 13 SCC 98 : [2010] 7 SCR 204;P. Chinnanna & Ors. v. State of A.P. & Ors. (1994) 5SCC 486 : [1994] 2 Suppl. SCR 426; Satendra PrasadJain & Ors. v. State of U.P & Ors (1993) 4 SCC 369 :[1993] 2 Suppl. SCR 336; Tika Ram and Ors. v. Stateof Uttar Pradesh & Ors. (2009) 10 SCC 689 : [2009]14 SCR 905; Pratap & Anr. v. State of Rajasthan &Ors (1996) 3 SCC 1 : [1996] 2 SCR 1088; Awadh BihariYadav & Ors. v. State of Bihar & Ors (1995) 6 SCC 31: [1995] 3 Suppl. SCR 197 – relied on

Commissioner of Sales Tax, U.P. v. Modi Sugar Mills[1961] 2 SCR 189; Dattatraya Moreshwar v. The Stateof Bombay and Ors., AIR 1952 SC 181 : [1952] SCR612; State of U.P. and Ors. v. Babu Ram Upadhya, AIR1961 SC 751 : [1961] SCR 679; Raza Buland SugarCo. Ltd., Rampur v. Municipal Board, Rampur, AIR 1965SC 895 : [1965] SCR 970; State of Mysore v. V.K.Kangan, AIR 1975 SC 2190 : [1976] 1 SCR 369;Sharif -Ud- Din v. Abdul Gani Lone, AIR 1980 SC 303 :[1980] 1 SCR 1177; Balwant Singh and Ors. v. AnandKumar Sharma and Ors., (2003) 3 SCC 433 : [2003] 1SCR 653; Chandrika Prasad Yadav v. State of Biharand Ors., AIR 2004 SC 2036 : [2004] 3 SCR 834;M/s. Rubber House v. Excellsior Needle Industries Pvt.Ltd., AIR 1989 SC 1160 : [1989] 1 SCR 986; B.S.Khurana and Ors. v. Municipal Corporation of Delhiand Ors., (2000) 7 SCC 679 : [2000] 3 Suppl.SCR 357; State of Haryana and Anr. v. RaghubirDayal,(1995) 1 SCC 133 : [1994] 5 Suppl. SCR 448;GullipilliSowria Raj v. Bandaru Pavani @ GullipiliPavani, (2009) 1 SCC 714 : [2008] 17 SCR 35 –referred to

Braithwaite & Co. v. E.S.I.C [1968] 1 SCR 771 –referred to

4. In re: Vested rights under Section 24 of the Act of 2013

Section 24 of the Act of 2013 does not intend to take awayvested rights. This is because there is no specific provision takingaway or divesting title to the land, which had originally vestedwith the State, or divesting the title or interest of beneficiaries orthird-party transferees of such land which they had lawfullyacquired, through sales or transfers. When repeal is followed bya fresh enactment on the same subject, the provisions of theGeneral Clauses Act would undoubtedly require an examinationof the language of the new enactment if it expresses an intentdifferent from the earlier repealed Act. The enquiry wouldnecessitate the examination if the old rights and liabilities arekept alive or whether the new Act manifests an intention to doaway with or destroy them. If the new Act manifests differentintentions, the application of the General Clauses Act will standexcluded. [Paras 148, 149][164 F-G][166 A-C]

State of Haryana v. Hindustan Construction Co. Ltd(2017) 9 SCC 463 : [2017] 9 SCR 482 – relied on

Zile Singh v. State of Haryana (2004) 8 SCC 01 : [2004]3 Suppl. SCR 400; CIT v. Sarkar Builders (2015) 7SCC 579 : [2015] 7 SCR 56; Jawaharmal v. State ofRajasthan [1966] 1 SCR 890; Rai Ramkrishna v. Stateof Bihar [1964] 1 SCR 897; K.S. Paripoornan v. Stateof Kerala & Ors (1994) 5 SCC 593 : [1994] 3 Suppl.SCR 405 – relied on

Yamashita-Shinnihon Steamship Co. Ltd.v L’officeChefifien Des Phosphates & Anr [1994] 1 A.C. 486;Lauri v. Renad (1892) 3 Ch. 402; Gloucester Union v.Woolwich Union (1917) 2 K.B. 374; The King v. TheGeneral Commissioners of Income Tax for Southampton(1916) 2 K.B. 249 – referred to

Bennion, Statutory Interpretation, 5[th] Edition (2012) –referred to

A5. In re: Legislative History of Act of 2013

The Land Acquisition, Rehabilitation and Resettlement Bill,2011 (Bill No.77 of 2011) was introduced in the Parliament. Section24(1), as introduced originally, contained provision with respectto award, which has not been made, but it was later on amended,Band now as provided in Section 24(1)(a), there is no lapseand only higher compensation is available in case award has notbeen passed. The earlier Section 24(2) contained only theprovision with respect to possession of the land that has not beentaken. Earlier, there was no time limit prescribed, and it wasproposed that the process for acquisition of land shall lapse.CDebates in the Lok Sabha on 29.8.2013, were referred to duringthe hearings, to cite various reasons given in respect of thequestion why effect should be given retrospectively in caseswhere acquisition has not been completed. While replying to thedebate, the Minister concerned had stated that there would beDlapse only if in case possession has not been taken andcompensation has not been paid. The emphasis right from thebeginning was on possession. Thus, from the perusal of debatetoo, it is apparent that the word “or” had been understood as“and”. [Paras 161, 162, 164, 165][178 D-E][179 B-D][180 B-C][180 G-H]E

Tinsukhia Electric Supply Company Ltd. v. State of Assam& Ors., (1989) 3 SCC 709 : [1989] 2 SCR 544; C.I.T.v. Hindustan Bulk Carriers, (2003) 3 SCC 57 : [2002]5 Suppl. SCR 387; Balram Kamanat v. Union of India(2003) 7 SCC 628 : [2003] 3 Suppl. SCR 24; New IndiaFAssurance Co. v. Nulli Nivelle, (2008) 3 SCC 279 :[2007] 13 SCR 598; H.S. Vankani v. State of Gujarat,(2010) 4 SCC 301 : [2010] 3 SCR 485; State of Gujarat& Anr. v. Hon’ble Mr. Justice R.A. Mehta (Retd.) andOrs., (2013) 3 SCC 1 : [2013] 1 SCR 1 – referred to

G6. In Re: Objectives of the Act

The Act of 2013 has been enacted considering thedifficulties caused by the operation of the earlier laws and tosubserve the public interest. Thus, the Court should interpret itin the context of the attendant circumstances. At the same time,Hthe court should not, while ostensibly adopting purposive or

liberal interpretation, affect matters which have become final, orstale. [Para 166][181 D-E]

Burrakur Coal Co. Ltd. v. Union of India [1962]1 SCR 44;A. Thangal Kunju Musaliar v. M.Venkatachalam Potti [1955] SCR 1196; Arnit Das v.State of Bihar (2000) 5 SCC 488; Popat BahiruGovardhane & Ors. v. Special Land Acquisition Officer& Anr., (2013) 10 SCC 765 : [2013] 8 SCR 241 – reliedon

Bhavnagar University v. Palitana Sugar Mill (P) Ltd.& Ors., (2003) 2 SCC 111 : [2002] 4 Suppl. SCR 517 –referred to

7. In Re: proviso to Section 24(2): Whether the proviso ispart of section 24(2) or Section 24(1).

7.1 When reading the word “or” as ‘and’ in the main part ofsection 24(2), it is clear that the proviso has to stay as part ofsection 24(2) where it has been placed by the legislature, andonly then it makes sense. If ‘or’ used in-between two negativeconditions of ‘possession has not been taken’ or ‘compensationhas not been paid,’ disjunctively, in that case, the proviso cannotbe operative and would become otiose and would make no senseas part of Section 24(2). In case of amount not having been paidthe acquisition has to lapse, though possession (of the land) hasbeen taken would not be the proper interpretation of the mainpart, when “or” is read conjunctively, section 24(2) provided forlapse in case where possession has not been taken, norcompensation has been paid, in such case proviso becomesoperative in given exigency of not depositing amount with respectto majority of landholdings. [Para 171][184 D-F]

7.2 reading of section 24(2) shows that in case possessionhas been taken even if the compensation has not been paid, theproceedings shall not lapse. In case payment has not been madenor deposited with respect to the majority of the holdings in theaccounts of the beneficiaries, then all the beneficiaries specifiedin the notification under Section 4 of the Act of 1894 shall get theenhanced compensation under the provisions of the Act of 2013.Section 24(2) not only deals with failure to take physical

Apossession but also failure to make payment of compensation. Ifboth things have not been done, there is lapse of the acquisitionproceeding. Once an award has been passed and possession hasbeen taken, there is absolute vesting of the land, as such highercompensation follows under the proviso, which is beneficial toholders. In case where both the negative conditions have notBbeen fulfilled, as mentioned in section 24(2), there is lapse.Thus, the proviso is wholesome provision and is, in fact, partof section 24(2); it fits in the context of section 24(2) as depositis related with the payment of compensation and lapse is provideddue to non-payment along with not taking possession for fiveCyears or more whereas for non-deposit higher compensation isprovided. [Para 172][184 F-H][185 A-D]7.3 When considering the provisions of section 24(1)(b)where an award has been passed under section 11 of the Act of1894, such proceedings shall continue under the provisions ofDthe said Act as if it has not been repealed. The only exceptioncarved out is the period of 5 years or more and that too byproviding non-obstante clause in Section 24(2) to anythingcontained in section 24(1). The non-obstante clause qualifies theproviso also to Section 24(2). It has to be read as part of Section24(2) as it is an exception to Section 24(1)(b). Section 24(1)(b) isEa self-contained provision, and is also part of the non-obstanteclause to the other provisions of the Act as provided in sub-section(1). Parliament worked out an exception, by providing non-obstante clause in section 24(2), to Section 24(1). Compensationis to be paid under Section 24(1)(b) under the Act of 1894 andFnot under the Act of 2013. As such Section 24 (2) is an exceptionto section 24(1)(b) and the proviso is also an exception which fitsin with non-obstante clause of Section 24(2) only. Any otherinterpretation will be derogatory to the provisions contained inSection 24(1)(b) which provides that the pending proceedingsshall continue under the Act of 1894 as if it had not been repealed,Gthat would include the part relating to compensation too. Even ifthere is no lapse of proceedings under section 24(1)(a), onlyhigher compensation follows under Section 24(1)(a). [Para173][185 D-H][186-A]

Delhi Metro Rail Corporation Ltd. v. Tarun Pal Singh& Ors. (2018) 14 SCC 161 : [2017] 14 SCR 202 171 –relied on

Delhi Development Authority v. Virender Lal Bahri &Ors. – referred to

7.4 Punctuation used in Section 24(2):

Parliament has used the full stop (.) after section 24(1) andcolon (:) after section 24(2). It cannot be gainsaid that punctuationplays vital role, particularly when an attempt is made to relocateany part of the provision. The use of the colon is to introduce asub-clause that follows logically from the text before it. Thoughas the interpretation of the provision of Section 24(2) and itsproviso needs no further deliberation regarding its placement,the same is to be read as proviso to Section 24(2) and not Section24(1)

(b) Use of punctuation colon reinforces conclusion andpunctuation mark has been an accepted method of statutoryinterpretation when such problem arises. Though sometimespunctuation can be ignored also but not generally. The full stopafter section 24(1)(b) expresses deliberate intent to end aparticular sentence and detach it from the next part. It is clearthat the colon (:) has reference to the previous statement andenlarges the same and extends the meaning of the sentence. Thecolon indicates that the text is intrinsically linked to the previousprovision preceding it, i.e., Section 24(2) in this case and notsection 24(1). The colon indicates that what follows. The colonproves, explains, defines describes or lists elements of whatprecedes it. In case the proviso is bodily lifted and placed aftersection 24(1)(b), section 24(2) will end with “colon,” which isnever done to end provision. [Paras 174, 176][186 D-G][187D-E]

Falcon Tyres Ltd. v. State of Karnataka (2006) 6 SCC530 : [2006] 3 Suppl. SCR 734; Aswini Kumar Ghosh& Anr v Arabinda Bose & Anr [1953] SCR 1; JamshedGuzdar v. State of Maharastra (2005) 2 SCC 591 :[2005] 1 SCR 223 – relied on

DEF

AState of Gujarat v. Reliance Industries Ltd. (2017) 16SCC 28 : [2017] 13 SCR 25; State of West Bengal v.Swapan Kumar Guha and Ors (1982) 1 SCC 561 :[1982] 3 SCR 121 – referred to

Marshall v. Cottingham [1982] Ch 82; Dingmar v.BDingmar 2007 (2) All ER 382; Kennedy v InformationCommissioner and another (Secretary of State for Justiceintervening) [2012] 1 WLR 3524; Taylor v. Caribou102 Me. 401, 67 A.2 (1907) – referred to

‘Full Stop’ and ‘Colon’, Vepa P. Sarathi in the InterpretationCof Statutes, Fifth Edition; Bennion on Statutory Interpretation –referred to

7.5 The provision of section 24(1)(a) is clear that if an awardhas not been passed, higher compensation to follow. No lapse isprovided. In case award has been passed within the windowDperiod of section 24(1)(b), inter alia, the provisions forcompensation would be that of the Act of 1894. The only exceptionto section 24(1) is created by the non-obstante clause in section24(2) by providing that in case the requisite steps have not beentaken for 5 years or more, then there is lapse as negativecondition. The proviso contemplates higher compensation, inEcase compensation has not been paid, and the amount has notbeen deposited with respect to the majority of the holdings, to allthe beneficiaries under the Act of 2013, who were holding landon the date of notification under Section 4. If the proviso is added,section 24(1)(b) will destroy the very provision of section 24(1)(b)Fproviding proceedings to continue under the Act of 1894, whichis not the function of the proviso to substitute the main Sectionbut to explain it. It is not to cause repugnancy with the mainprovision. The function of the proviso is to explain or widen thescope. It is settled proposition of law that the proviso cannottravel beyond the provision to which it is attached. The provisoGwould travel beyond the Act of 1894 as it is the intention of section24(1)(b) the proceedings to govern by the Act of 1894. Thus, theproviso has no space to exist with section 24(1) (b), and it hasrightly not been attached by Parliament, with Section 24(2) andhas been placed at the right place where it should have been.HThe proviso is part of the scheme of section 24(2), and the entire

provision of section 24(2), including the proviso, operates wheninaction is there for period of 5 years or more, as contemplatedtherein. [Paras 185, 186][197 D-H][198-A][198 C-D]

8. In re: Proviso to be read as part of provision it isappended

proviso has to be construed as part of the clause towhich it is appended. proviso is added to principal provisionto which it is attached. It does not enlarge the enactment. Incase the provision is repugnant to the enacting part, the provisocannot prevail. The proviso cannot nullify the provision of Section24(1)(b) nor can it set at naught the real object of the enactment,but it can further by providing higher compensation, thus dealingwith matters in Section 24 (2). Therefore, in effect, where awardis not made [Section 24 (1)(a)] as well as where award is madebut compensation is not deposited in respect of majority of thelandowners in notification (for acquisition) [i.e. proviso to Section24 (2)] compensation is payable in terms of the new Act, i.e., Actof 2013. For the said reasons, considering the placement of theproviso, semi-colon having been used at the end of section 24(2),considering the interpretation of section 24(1)(b) and therepugnancy which would be caused in case the proviso is liftedwhich is not permissible and particularly when reading the word‘or’ as ‘nor’ in section 24(2), it has to be placed where thelegislature has legislated it, it has not been wrongly placed aspart of section 24(2) but is intended for beneficial results of highercompensation for one and all where there is no lapse, but amountnot deposited as required. [Paras 190, 196, 197][200 B-C][207 C-F]State of Rajasthan v. Leela Jain & Ors [1965] 1SCR 276; Sales-tax Officer, Circle 1, Jabalpur v.Hanuman Prasad [1967] 1 SCR 831; Commissioner ofCommercial Taxes, Board of Revenue, Madras and Anr.v. Ramkishan Shrikishan Jhaver etc AIR (1968) SC 59 :[1968] SCR 148; S. Sundaram Pillai & Ors. v. V.R.Pattabiraman & Ors (1985) 1 SCC 591 : [1985] 2SCR 643; Ishverlal Thakorelal Almaula v. MotibhaiNagjibhai [1966] 1 SCR 367; Haryana StateCooperative Land Development Bank Ltd. v. Haryana

AState Cooperative Land Development Banks EmployeesUnion & Anr. (2004) 1 SCC 574 : [2003] 6 Suppl. SCR1039; Shimbhu & Anr. v. State of Haryana, (2014) 13SCC 318 : [2013] 14 SCR 136; Kedarnath JuteManufacturing Co. Ltd. v. The Commercial Tax Officerand Ors., [1965] 3 SCR 626; Shah Bhojraj Kuverji OilBMills & Ginning Factory v. Subhash Chandra YograjSinha, AIR 1961 SC 1596; Dwarka Prasad v. DwarkaDas Saraf, (1976) 1 SCC 128 : [1976[ 1 SCR 277; TheCommissioner of Income-tax, Mysore, Travancore-Cochin and Coorg, Bangalore v. The Indo MercantileCBank Ltd., [1959] (Supp) 2 SCR 256; Romesh KumarSharma v. Union of India and Ors. (2006) 6 SCC 510 :[2006] 4 Suppl. SCR 227; Motiram Ghelabhai v. JaganNagar & Ors (1985) 2 SCC 279 : [1985] 2 SCR 1051;Madhu Gopal v. VI Additional District Judge & Ors.(1988) 4 SCC 644 : [1988] 3 Suppl. SCR 276; TheDKing v. Dominion Engineering Co. Ltd. AIR (34) 1947PC 94 – relied on

Craies on Statute Law, 7[th] Edn. - referred to

9. In re: What is the meaning to be given to the word “paid”Eused in section 24(2) and “deposited” used in the proviso tosection 24(2)

9.1 The provisions of Section 31 of the Act of 1894 areattracted to the interpretation of provisions of section 24(2) tofind out the meaning of the words ‘paid’ and ‘deposited’. SectionF31(1) makes it clear that on passing of award compensation hasto be tendered to the beneficiaries and Collector shall pay it tothem. The payment is provided only in section 31(1). Theexpression ‘tender’ and pay to them in section 31(1) cannotinclude the term ‘deposited.’Section 31(2) of the Act of 1894deals with deposit in case Collector is ‘prevented’ from makingGpayment by one or more contingencies mentioned in section31(2). The deposit follows if the Collector is prevented frommaking payment. In case Collector is prevented from makingpayment due to contingencies, such refusal to receive the amount,or if there be no person competent to alienate the land, or ifHthere is dispute as to the title to receive the compensation or

as to the apportionment of it, he (i.e. the Collector) may withholdit or in case there is dispute as to apportionment, he may ask theparties to get decision from the Reference Court i.e., civil courtand to clear the title. In such exigencies, the amount ofcompensation is required to be deposited in the court to whichreference would be submitted under section 18. Section 31(2)requires deposit in case of reference under section 18 and notthe reference, which may be sought under section 30 or section28A of the Act of 1894. [Paras 198, 199][208 B-F]

9.2 Section 24(2) deals with the expression wherecompensation has not been paid. It would mean that it has notbeen tendered for payment under section 31(1). Though the word‘paid’ amounts to completed event, however, once payment ofcompensation has been offered/tendered under section 31(1), theacquiring authority cannot be penalized for non-payment as theamount has remained unpaid due to refusal to accept, by thelandowner and Collector is prevented from making the payment.Thus, the word ‘paid’ used in section 24(2) cannot be said toinclude within its ken ‘deposit’ under section 31(2). For that,special provision has been carved out in the proviso to section24(2), which deals with the amount to be deposited in the accountof beneficiaries. Two different expressions have been used insection 24. In the main part of section 24, the word ‘paid’ and inits proviso ‘deposited’ have been used. [Para 200][208 F-H][209-A]9.3 The consequence of non-deposit of the amount has beendealt with in section 34 of the Act of 1894. As per section 24(2),if the amount has not been paid nor possession has been taken,it provides for lapse. Whereas the proviso indicates amount hasnot been deposited with respect to majority of land holdings ina case initiated under the Act of 1894 for 5 years or more. Theperiod of five years need not have been specified in the provisoas it is part of section 24(2) and has to be read with it. Two differentconsequences of non-deposit of compensation are: (i) highercompensation in case where possession has been taken,payment has been made to some and amount has not beendeposited with respect to majority of the holdings, (ii) in case

Athere is no lapse, the beneficiaries would be entitled to interestas envisaged under section 34 from the date of taking possessionat the rate of 9% per annum for the first year and after that @15% per annum. [Para 201][209 B-D]

9.4 The word “paid” in Section 31(1) to the landownerBcannot include in its ambit the expression “deposited” in court.Deposit cannot be said to be payment made to landowners.Deposit is on being prevented from payment. However, in casethere is tender of the amount that is to mean amount is madeavailable to the landowner that would be discharge of theobligation to make the payment and in that event such personCcannot be penalised for the default in making the payment. Indefault to deposit in court, the liability is to make the payment ofinterest under Section 34 of Act of 1894. The concept of “deposit”is different and quite apart from the word “paid”, due to which,lapse is provided in Section 24 of Act of 2013. In the case of non-Ddeposit for the majority of landholdings, higher compensationwould follow as such word “paid” cannot include in its ambit word“deposited”. To hold otherwise would be contrary to provisionscontained in Section 24(2) and its proviso carrying differentconsequences. [Paras 203, 204][209 G-H][210-A][210 D-E]

E9.5 There is breach of obligation to deposit even if it istaken that amount to be deposited in the reference court inexigencies being prevented from payment as provided in Section31(2). The default will not have the effect of reopening theconcluded proceedings. The legal position and consequencewhich prevailed from 1893 till 2013 on failure to deposit was onlyFthe liability for interest and all those transactions were neversought to be invalidated by the provisions contained in Section24. It is only in the case where in pending proceeding for aperiod of five years or more, the steps have not been taken fortaking possession and for payment of compensation, then thereGis lapse under section 24(2). In case amount has not beendeposited with respect to majority of land holdings, highercompensation has to follow. [Para 205][210 F-H][211-A]

9.6 When amount has been tendered, the obligation hasbeen fulfilled by the Collector. Landowners cannot be forced to

receive it. In case person has not accepted the amount andwants to take the advantage of non-payment, though the amounthas remained due to his own act, it is not open to him to contendthat amount has not been paid to him, as such, there should belapse of the proceedings. Even in case when offer for paymenthas been made but not deposited, liability to pay amount alongwith interest subsist and if not deposited for majority of holding,for that adequate provisions have been given in the proviso alsoto Section 24(2). The scheme of the Act of 2013 in Sections 77and 80 is also the same as that provided in Sections 31 and 34 ofthe Act of 1894. [Para 206][211 B-D]

9.7 Judicial notice is taken of the fact in no otherGovernment security rate of interest is higher on the amountbeing invested under sections 32 and 33 of the Act of 1894. Higherrate of interest is available under section 34 to the advantage oflandowners. [Para 207][211 E-F]

9.8 Under the old regime, it was open to the Collector tofix convenient date or dates for announcement of award, andtender payment. In the event of refusal by the landowner toreceive, or in other cases, such as absence of the true owner, orin case of dispute as to who was to receive it, no doubt, the statuteprovided that the amount was to be deposited with the court: asit does today, under Section 77. Yet, neither during the time whenthe Act of 1894 was in operation, nor under the Act of 2013, theentire acquisition does not lapse for non-deposit of thecompensation amount in court. Thus, it would be incorrect toimply that failure to deposit compensation [in court, under Section31 (2)] would entail lapse, if the amounts have not been paid forfive years or more prior to the coming into force of the Act of2013. Such an interpretation would lead to retrospectiveoperation, of provision, and the nullification of acquisitionproceedings, long completed, by imposition of norm or standard,and its application for time when it did not exist. If the expression“deposited” is held to be included in the expression “paid” usedin Section 24(2) of the Act of 2013, inconsistency and repugnancywould be caused as between the proviso and the main sub-section,which has to be avoided and the non-compliance of the provisionsof Section 31(2) is not fatal. Even if the amount has not been

Adeposited, higher compensation has to follow in the exigencyproviso to Section 24(2). It is apparent that “tender” of the amountsaves the party tendering it from the consequence to be visitedon non-payment of the amount. [Paras 208, 209, 211][211 G-H][212-A-D][212-F]

BThe Straw Board Manufacturing Co. Ltd., Saharanpurv. Gobind [1962] (Supp 3) SCR 318; The Managementof Delhi Transport Undertaking v. The IndustrialTribunal, Delhi & Anr [1965] 1 SCR 998; IndianOxygen Ltd. v. Narayan Bhoumik (1968) 1 PLJR 94;The Benares State Bank Ltd. v. The Commissioner ofCIncome Tax, Lucknow (1969) 2 SCC 316 : [1970] 1SCR 669; Bharat Aluminium Company v. KaiserAluminium Technical Services Inc. (2012) 9 SCC 552 :[2012] 12 SCR 327; The Member, Board of Revenue v.Arthur Paul Benthall [1955] 2 SCR 842; CommissionerDof Income Tax, New Delhi v. M/s. East West Import andExport (P) Ltd (1989) 1 SCC 760 : [1989] 1 SCR 570– relied on

Crawford v. Spooner (1846) 6 Moore PC 1; LordHoward de Walden v. IRC & Anr (1948) 2 AER 825 –Ereferred to

9.9 Two different expressions have been used in Section24(2). The expression “paid” has been used in Section 24(2) andwhereas in the proviso “deposited” has been used.

“Paid” cannot include “deposit”, or else Parliament wouldFhave used different expressions in the main sub-section and itsproviso, if the meaning were to be the same. The Court cannotadd or subtract any word in the statute and has to give plainmeaning and when compensation has not been paid under Section24(2), it cannot mean compensation has not been deposited asGused in the proviso. While interpreting the statutory provisions,addition or subtraction in the legislation is not permissible. Therecannot be any departure from the words of law, as observed inlegal maxim “A Verbis Legis Non Est Recedendum”. There is aconscious omission of the word “deposit” in Section 24(2), whichhas been used in the proviso. Parliament cannot be said to haveHused the different words carrying the same meaning in the sameprovision, whereas words “paid” and “deposited” carry totallydifferent meaning. Payment is actually made to the landownerand deposit is made in the court, that is not the payment made tothe landowner. It may be discharge of liability of payment ofinterest and not more than that. Applying the rule of literalconstruction also natural, ordinary and popular meaning of thewords “paid” and “deposited” do not carry the same meaning;the natural and grammatical meaning has to be given to them.[Para 215][214 F-H][215 A-D]

Principles of Statutory Interpretation by Justice G.P. Singh– referred to

9.10 When two different expressions are used in the sameprovision of statute, there is presumption that they are notused in the same sense. [Para 216][216 G-H][217-A]

10. In re: Rules framed under Section 55 and the StandingOrders issued by State Governments

10.1 Rules and the Standing Orders are binding on theconcerned Authorities and they have to follow them. They depositthe amounts in court only when reference (for highercompensation) is sought, not otherwise. Even if person refusesto accept it and the amount is deposited in court or even it is nottendered, only higher interest follows under Section 34. OnceRules have prevailed since long and even if it is assumed thatdeposit in court is mandatory on being prevented from paymentas envisaged under Section 31(1), the only liability to make thepayment of higher interest is fastened upon the State. The liabilityto pay the amount with interest would subsist. When amountsare deposited in court, there would occur procedural irregularityand the adverse consequence envisaged is under Section 34 ofthe Act of 1894. The consequence of non-deposit in the court isthat the amount of the landowner cannot be invested in theGovernment securities as envisaged under Sections 32 and 33of the Act of 1894, in which interest is not more 15 per cent.Thus, no prejudice is caused to the landowners rather they standto gain and still payment is safe as it is kept in the court.Acquisition cannot be invalidated, only higher compensation wouldfollow in case amount has not been deposited with respect to

EFGH

Amajority of land holdings, all the beneficiaries would be entitledfor higher compensation as envisaged in the proviso to Section24(2). [Para 229][227 G-H][228 A-D]

10.2 It is clear that once land is acquired, award passedand possession has been taken, it has vested in the State. It hadBbeen allotted to beneficiaries. considerable infrastructure couldhave been developed and third-party interest had alsointervened. The land would have been given by the acquiringauthorities to the beneficiaries from whose schemes the land hadbeen acquired and they have developed immense infrastructure.Merely by deposit of amount in treasury instead of court wouldCnot invalidate all the acquisitions, which have taken place. [Para241][235 G-H][236-A]10.3 The proviso to Section 24(2) of the Act of 2013, intendsthat the Collector would have sufficient funds to deposit it withrespect to the majority of landholdings. In case compensationDhas not been paid or deposited with respect to majority of landholdings, all the beneficiaries are entitled for higher compensation.In case money has not been deposited with the Land AcquisitionCollector or in the treasury or in court with respect to majority oflandholdings, the consequence has to follow of higherEcompensation as per proviso to Section 24(2) of the Act of 2013.Even otherwise, if deposit in treasury is irregular, then the interestwould follow as envisaged under Section 34 of Act of 1894. Section24(2) is attracted if acquisition proceeding is not completed within5 years after the pronouncement of award. Parliament consideredthe period of 5 years as reasonable time to complete theFacquisition proceedings i.e., taking physical possession of theland and payment of compensation. It is the clear intent of theAct of 2013, that provision of Section 24(2) shall apply to theproceeding which is pending as on the date on which the Act of2013, has been brought into force and it does not apply to theGconcluded proceedings. Section 24(2) is not tool to revive thoseproceedings and to question the validity of taking acquisitionproceedings due to which possession in 1960s, 1970s, 1980s weretaken, or to question the manner of deposit of amount in thetreasury. In case such landowners were interested in questioningthe proceedings of taking possession or mode of deposit withH

the treasury, such challenge was permissible within the timeavailable with them to do so. [Para 242][236 B-H]

Jankinath Sarangi v. State of Orissa (1969) 3 SCC 392;Sunil Kumar Banerjee v. State of West Bengal and Ors.(1980) 3 SCC 304 : [1980] 3 SCR 179; State of AndhraPradesh v. Thakkidiram Reddy (1998) 6 SCC 554 :[1998] 3 SCR 1088; Ram Deen Maurya (Dr.) v. Stateof Uttar Pradesh and Ors (2009) 6 SCC 735 : [2009] 6SCR 703; Rai Vimal Krishna and Ors. v. State of Bihar& Ors. (2003) 6 SCC 401 : [2003] 1 Suppl. SCR 358;Hissar Improvement v. Smt. Rukmani Devi and Anr(1990) Supp SCC 806; Kishan Das v. State of U.P(1995) 6 SCC 240 : [1995] 3 Suppl. SCR 584; D-BlockAshok Nagar (Sahibabad) Plot Holders’ Assn. v. Stateof U.P. (1997) 10 SCC 77 : [1997] 3 SCR 1096 – reliedon

Howard v. Secretary of State for the Environment, (1975)Q.B. 235; Belvedere Court Management Ltd. v.Frogmore Developments Ltd. (1996) 3 W.L.R. 1008 –referred to

11. Mode of taking possession under the Act of 1894

11.1 Section 16 of the Act of 1894 provided that possessionof land may be taken by the State Government after passing of anaward and thereupon land vest free from all encumbrances in theState Government. Similar are the provisions made in the case ofurgency in Section 17(1). The word “possession” has been usedin the Act of 1894, whereas in Section 24(2) of Act of 2013, theexpression “physical possession” is used. What wascontemplated under the Act of 1894, by taking the possessionmeant only physical possession of the land. Taking over thepossession under the Act of 2013 always amounted to taking overphysical possession of the land. When the State Governmentacquires land and draws up memorandum of taking possession,that amounts to taking the physical possession of the land. Onthe large chunk of property or otherwise which is acquired, theGovernment is not supposed to put some other person or thepolice force in possession to retain it and start cultivating it tillthe land is used by it for the purpose for which it has been acquired.

AThe Government is not supposed to start residing or to physicallyoccupy it once possession has been taken by drawing the inquestproceedings for obtaining possession thereof. Thereafter, if anyfurther retaining of land or any re-entry is made on the land orsomeone starts cultivation on the open land or starts residing inthe outhouse, etc., is deemed to be the trespasser on land whichBis in possession of the State. [Paras 244, 245][237 G-H][238-A][238 C-F]

11.2 The concept of possession is complex one. It comprisesthe right to possess and to exclude others, essential is animuspossidendi. Possession depends upon the character of the thingCwhich is possessed. If the land is not capable of any use, merenon-user of it does not lead to the inference that the owner is notin possession. The established principle is that the possessionfollows title. Possession comprises of the control over theproperty. The element of possession is the physical control orDthe power over the object and intention or will to exercise thepower. Corpus and animus are both necessary and have to co-exist. [Para 247][239 A-C]

Superintendent and Remembrancer of Legal Affairs,West Bengal v. Anil Kumar Bhunja & Ors. (1979) 4 SCCE274 : [1980] 1 SCR 323; Ram Dass v. Davinder (2004)3 SCC 684; Bhinka & Ors. v. Charan Singh [1959](Suppl 2) SCR 798; V. Chandrasekaran & Anr. v.Administrative Officer & Ors (2012) 12 SCC 133 :[2012] 10 SCR 603 – relied on

FS.M. Yaqub v. T.N. Basu AIR 1949 Pat 146 – referredto Kynoch Limited v. Rowlands (1912) 1 Ch 527 –referred to

Mitra’s “Law of Possession and Ownership of Property”,2[nd] Edn.; Words and Phrases, Permanent Edition, West PublishingGCo.; Jowitt’s Dictionary of English Law, Ed. 1969 – referred to

11.3 It is apparent that vesting is with possession and thestatute has provided under Sections 16 and 17 of the Act of 1894that once possession is taken, absolute vesting occurred. It is anindefeasible right and vesting is with possession thereafter. Thevesting specified under section 16, takes place after various steps,H

such as, notification under section 4, declaration under section6, notice under section 9, award under section 11 and thenpossession. The statutory provision of vesting of propertyabsolutely free from all encumbrances has to be accorded fulleffect. Not only the possession vests in the State but all otherencumbrances are also removed forthwith.

The title of the landholder ceases and the state becomesthe absolute owner and in possession of the property. Thereafterthere is no control of the land-owner over the property. He cannothave any animus to take the property and to control it. Even if hehas retained the possession or otherwise trespassed upon it afterpossession has been taken by the State, he is trespasser andsuch possession of trespasser enures for his benefit and on behalfof the owner. The word ‘vest’ has to be construed in the contextin which it is used in particular provision of the Act. Vesting isabsolute and free from all encumbrances that includes possession.Once there is vesting of land, once possession has been taken,section 24(2) does not contemplate divesting of the property fromthe State. [Paras 256, 258][245 E-H][246 G-H][247-A]Larsen & Toubro Ltd. v. State of Gujarat (1998) 4SCC 387 : [1998] 2 SCR 339; B.R. Enterprises v. Stateof U.P. and Ors., (1999) 9 SCC 700 : [1999] 2 SCR1111; Kailash Nath Agarwal and Ors. v. PradeshiyaIndustrial & Investment Corporation of U.P. Ltd. andAnr., (2003) 4 SCC 305 : [2003] 1 SCR 1159; DLFQutab Enclave Complex Educational Charitable Trustv. State of Haryana and Ors., (2003) 5 SCC 622 : [2003]2 SCR 1; Sita Ram Bhandar Society, New Delhi v.Lieutenant Governor, Government of NCT, Delhi andOrs., (2009) 10 SCC 501 : [2009] 14 SCR 507;Balmokand Khatri Educational and Industrial Trust,Amritsar v. State of Punjab & Ors (1996) 4SCC 212 : [1996] 2 SCR 643; P.K. Kalburqi v. State ofKarnataka and Ors. (2005) 12 SCC 489; NationalTextile Corporation Ltd. v. Nareshkumar BadrikumarJagad & Ors 2011 (12) SCC 695 : [2011] 14 SCR 472;M. Venkatesh and Ors. v. Commissioner,Bangalore Development Authority, etc. (2015) 17SCC 1 : [2015] 15 SCR 499; Ram Singh v.

AJammu Development Authority (2017) 13 SCC 474 –relied on

Ramesh Bejoy Sharma v. Pashupati Rai (1979) 4SCC 27 : [1980] 1 SCR 6; Maguni Charan Dwivedi v.State of Orissa (1976) 2 SCC 134 : [1976] 3 SCR 76;BSri Tarkeshwar Sio Thakur Jiu v. Dar Dass Dey & Co.(1979) 3 SCC 106; Karanpura Development Co. v.Union of India (1988) Supp. SCC 488 – distinguished

Municipal Corporation of Greater Bombay &Corporation & Anr (2001) 8 SCC 143 : [2001] 2 Suppl.CSCR 50; NAL Layout Residents Association v. BangaloreDevelopment Authority Ors. v. Hindustan Petroleum(2018) 12 SCC 400 : [2017] 13 SCR 1053 – referred

Richardson v. Robertson, (1862) 6 LT 75 – referred toD

11.4 Under the Act of 1894, when possession is taken afteraward is passed under section 16 or under section 17 before thepassing of the award, land absolutely vests in the State on drawingof Panchnama of taking possession, which is the mode of takingpossession. Thereafter, any re-entry in possession or retainingEthe possession is wholly illegal and trespasser’s possession inuresfor the benefit of the owner and even in the case of open land,possession is deemed to be that of the owner. When the land isvacant and is lying open, it is presumed to be that of the owner.Mere re-entry on Government land once it is acquired and vestsabsolutely in the State (under the Act of 1894) does not confer,Fany right to it and Section 24(2) does not have the effect ofdivesting the land once it vests in the State. [Para 272][255 G-H][256 A-C]

Raghbir Singh Sehrawat v. State of Haryana (2012) 1SCC 792 : [2011] 14 SCR 1113 – Not correct law

GKashi Bai v. Sudha Rani Ghose (2012) 5 SCC 370 :[2012] 3 SCR 841 – relied on

11.5 The court is alive to the fact that there are largenumber of cases where, after acquisition, land has been handedover to various corporations, local authorities, acquiring bodies,H

etc. After depositing compensation (for the acquisition) thosebodies and authorities have been handed possession of lands.They, in turn, after development of such acquired lands havehanded over properties; third party interests have intervenedand now declaration is sought under the cover of section 24(2) toinvalidate all such actions. As already held, section 24 does notintend to cover such cases at all and such gross misuse of theprovisions of law must stop. Title once vested, cannot beobliterated, without an express legal provision; in any case, evenif the landowners’ argument that after possession too, in case ofnon-payment of compensation, the acquisition would lapse, werefor arguments’ sake, be accepted, these third party owners wouldbe deprived of their lands, lawfully acquired by them, withoutcompensation of any sort. [Para 277][258-H][259 A-C]

Velaxan Kumar v Union of India (2015) 4 SCC 325;Narmada Bachao Andolan v. State of M.P. (2011) 7SCC 639 : [2011] 6 SCR 443 – overuled

Maria Margadia Sequeria v Erasmo Jack De Sequeria(2012) 5 SCC 370 : [2012] 3 SCR 841; NationalThermal Power Ltd v Mahesh Dutta (2009) 8 SCC339 : [2009] 10 SCR 1084; V. Chandrasekaran & Anr.v. Administrative Officer & Ors. (2012) 12 SCC 133 :[2012] 10 SCR 603 – relied on

12. The effect of interim order of Court

12.1 There are two requirements under Section 24(2), whichare to be met by the Authorities, where award has been made 5years or more prior to the commencement of the Act of 2013, ifthe physical possession of the land has not been taken norcompensation has been paid. If possession has been taken,compensation has to be paid by the acquiring authorities. Thetime of five years is provided for authorities to take action, not tosleep over the matter. Lapse is provided only in case of defaultby Authorities acquiring the land, not caused by any other reasonor order of the court. When the interpretation of the provision isclear, there was no necessity for Parliament to make such aprovision under Section 24(2) for exclusion of the period of theinterim order. Though it has excluded the period of interim order

Afor making declaration under the proviso to Sections 19(7) andexclusion has also been made for computation of the period underSection 69 of the Act of 2013, it is due to the necessity to provideso in view of the language of the provision. The provisions ofSection 24 cast an obligation upon the Authorities to take stepsmeaning thereby that it is open to them to take such steps, andBinaction or lethargy on their part has not been countenanced byParliament. Resultantly, lapse of proceedings takes place. [Para282][261 C-H][262-A]

State of Rajasthan & Ors. v. Khandaka Jain Jewellers(2007) 14 SCC 339 : [2007] 12 SCR 105; PadmaCSundara Rao (Dead) & Ors. v. State of T.N. & Ors.,(2002) 3 SCC 533 : [2002] 2 SCR 383; Union of Indiav. SICOM Ltd (2009) 2 SCC 121 : [2008] 17 SCR 120– referred to

12.2 It is not the intendment of the Act of 2013 that thoseDwho have litigated should get benefits of higher compensation ascontemplated under Section 24 benefit is conferred on allbeneficiaries. It is not intended by the provisions that in piecemealthe persons who have litigated and have obtained the interimorder should get the benefits of the provisions of the Act of 2013.EThose who have accepted the compensation within 5 years andhanded over the possession too, are to be benefited, in caseamount has not been deposited with respect to majority ofholdings. There are cases in which projects have come up in partand as per plan rest of the area is required for planneddevelopment with respect to which interim stays have beenFobtained. It is not the intendment of the law to deliver advantageto relentless litigants. It cannot be said hence, that it was due tothe inaction of the authorities that possession could not be takenwithin 5 years. Public policy is not to foment or foster litigationbut put an end to it. In several instances, in various High CourtsGwrit petitions were dismissed by single judge Benches and thewrit appeals were pending for long time and in which, withrespect to part of land of the projects, efforts were made to obtainthe benefit of Section 24(2). Parliament did not intend to conferbenefits to such litigants for the aforementioned reasons.Litigation may be frivolous or may be worthy. Such litigants haveHto stand on the strength of their own case and in such caseprovisions of Section 114 of the Act of 2013 and Section 6 of theGeneral Clauses Act, 1897, are clearly attracted and suchproceedings have to be continued under the provisions of theold Act that would be in the spirit of Section 24(1)(b) itself of theAct of 2013. Section 6(b) of the General Clauses Act, 1897,provides that repeal will not affect the previous operation of anyenactment so repealed or anything duly done or sufferedthereunder. Section 6(c) states that repeal would not affect anyright, privilege, obligation or liability acquired, accrued orincurred under any enactment so repealed. When there is aprovision itself in Section 24(1)(b) of continuance of theproceedings where award has been passed under the Act of 1894,for the purposes of Section 24 as provided in Section 24(b), theprovisions of Section 114 is clearly attracted so as the provisionsof Section 6 of the General Clauses Act, 1897, to the extent ofnon obstante clause of Section 24, where possession has not beentaken nor payment has been made, there is lapse, that too bythe inaction of the Authorities. Any court’s interim order cannotbe said to be inaction of the authorities or agencies; thus, timeperiod is not to be included for counting the 5 years period asenvisaged in Section 24(2). [Para 287][263 F-H][264 A-G]

Union of India and Ors. v. Modi Rubber Ltd (1986) 4SCC 66 : [1986] 3 SCR 587 – relied on

Syndicate Bank v. Prabha D. Naik and Anr (2001) 4SCC 713 : [2001] 2 SCR 714 – held inapplicable

Madan Singh Shekhawat v. Union of India (1999) 6SCC 459; State of U.P. and Ors. v. Hindustan AluminiumCorpn. and Ors. (1979) 3 SCC 229 : [1979] 3SCR 709; M. Pentiah v. Muddala Veeramallappa [1961]2 SCR 295; Hameedia Hardware Stores v. B. MohanLal Sowcar (1988) 2 SCC 513 : [1988] 3 SCR 384 –referred to

Seaford Court Estates Ltd. v. Asher (1949) 2 K.B. 481– referred to

[2020] 3 S.C.R.

A12.3 In cases where some landowners have chosen to takerecourse to litigation (which they have right to) and haveobtained interim orders on taking possession or orders of statusquo, as matter of practical reality it is not possible for theauthorities or State officials to take the possession or to makepayment of the compensation. In several instances, such interimBorders also impeded the making of an award. Now, so far as awards(and compensation payments, pursuant to such proceedings wereconcerned) the period provided for making of awards under theAct of 2013 could be excluded by virtue of Explanation to Section11A. Thus, no fault of inaction can be attributed to the authoritiesCand those who had obtained such interim orders, cannot benefitby their own action in filing litigation, which may or may not bemeritorious. Apart from the question of merits, when there is aninterim order with respect to the possession or order of statusquo or stay of further proceedings, the authorities cannot proceed;nor can they pay compensation. Their obligations are intertwinedDwith the scheme of land acquisition. It is observed that authoritiesmay wait in the proceedings till the interim order is vacated. [Para297][272-B-E]

Abhey Ram (Dead) by L.Rs. and Ors. v. Union of Indiaand Ors (1997) 5 SCC 421 : [1997] 3 SCR 931; OmEParkash v. Union of India and Ors. (2010) 4 SCC 17 :[2010] 2 SCR 447; Suresh Chand v. Gulam Chisti(1990) 1 SCC 593 : [1990] 1 SCR 186; Shyam Sunderand Ors. v. Ram Kumar and Anr. (2001) 8 SCC 24 :[2001] 1 Suppl. SCR 115 – relied onFUnion of India v. Shiv Raj (2014) 6 SCC 564 : [2014]8 SCR 751; Karnail Kaur v State of Punjab (2015) 3SCC 206; Rajive Chowdhrie HUF v State (NCT) of Delhi(2015) 3 SCC 541 – distinguished

Union of India and Ors. v. North Telumer Colliery &GOrs (1989) 3 SCC 411 : [1989] 3 SCR 455 – referredto

12.4 There is no dispute with the proposition that casusomissus cannot be applied by the court and in case of clearnecessity, the court has to interpret the law, if the provision ofH

law is misused and subjected to abuse of process of law. It is forthe legislature to amend, modify and repeal law, if deemednecessary. Because of the interpretation of the provisions ofSection 24 itself, casus omissus is not applied in this case. [Para309][281 A-B]

State of Karnataka v. D.C. Nanjudaiah (1996) 10SCC 619 : [1996] 5 Suppl. SCR 222; Rana GirdersLtd. v. Union of India (2013) 10 SCC 746 : [2013] 14SCR 58 – referred to

12.5 There is no doubt that common law principles have tobe weighed upon the statutory provision and latter has to prevail,but the statutory provision itself makes it clear that in the instantmatter such period has to be excluded, thus, the principles ofcommon law also apply with full force. The maxim “lex non cogitad impossibilia” means that the law does not expect theperformance of the impossible. There are cases in whichcompensation was tendered, but refused and then deposited inthe treasury. There was litigation in court, which was pending (orin some cases, decided); earlier references for enhancement ofcompensation were sought and compensation was enhanced.There was no challenge to acquisition proceedings or takingpossession etc. In pending matters in this Court or in the HighCourt even in proceedings relating to compensation, Section 24(2) was invoked to state that proceedings have lapsed due tonon-deposit of compensation in the court or to deposit in thetreasury or otherwise due to interim order of the court needfulcould not be done, as such proceedings should lapse. [Paras 311,312][311 D-E][283 C-F]

Mary Angel and Ors. v. State of T.N. (1999) 5SCC 209 : [1999] 3 SCR 594; Chander Kishore Jha v.Mahabir Prasad (1999) 8 SCC 266 : [1999] 2 Suppl.SCR 754; Mohammed Gazi v. State of M.P. & Ors.(2000) 4 SCC 342 : [2012] 3 SCR 841; IndustrialFinance Corporation of India Ltd. v. CannanoreSpinning & Weaving Mills Ltd. & Ors. (2002) 5 SCC54 : [2002] 2 SCR 1093; HUDA and Anr. v. Dr.Babeswar Kanhar & Anr (2005) 1 SCC 191 : [2004] 6Suppl. SCR 282 – referred to

A12.6 Another Roman Law maxim “nemo tenetur adimpossibilia”, means no one is bound to do an impossibility.Though such acts of taking possession and disbursement ofcompensation are not impossible, yet they are not capable of lawperformance, during subsistence of court’s order; the orderhas to be complied and cannot be violated. Thus, on equitableBprinciples also, such period has to be excluded. The maximactus curiae neminem gravabit is founded upon the principle thatdue to court proceedings or acts of court, no party should suffer.If any interim orders are made during the pendency of thelitigation, they are subject to the final decision in the matter. InCcase the matter is dismissed as without merit, the interim orderis automatically dissolved. In case litigation has been filedfrivolously or without any basis, iniquitously in order to delay andby that it is delayed, there is no equity in favour of such person.Such cases are required to be decided on merits. It is not thepolicy of law that untenable claims should get fructified due toDdelay. Similarly, sufferance of person who abides by law is notpermissible. The Act of 2013 does not confer the benefit onunscrupulous litigants, but it frowns upon the lethargy of theofficials to complete the requisites within five years. [Paras 314,318, 319][284 D-E][287 F-H][288-A][288 B-C]

Ere Presidential Poll (1974) 2 SCC 33 : [1975] 1SCR 504; Standard Chartered Bank v. Directorate ofEnforcement (2005) 4 SCC 530 : [2005] 1 Suppl.SCR 49 – relied on

Superintendent of Taxes v. Onkarmal Nathmal TrustF(1976) 1 SCC 766 : [1975] Suppl. SCR 365 –distinguished

Neeraj Kumar Sainy v. the State of U.P. (2017) 14SCC 136 : [2017] 4 SCR 881 – held inapplicable

GMrutunjay Pani and Anr. v. Narmada Bala Sasmal andAnr AIR 1961 SC 1353 : [1962] SCR 290 – referredto

Sambasiva Chari v. Ramasami Reddi ILR (1899) 22Mad 179; G.T.C. Industries Ltd. v. Union of India (1998)3 SCC 376; Jaipur Municipal Corporation v. C. L.H

Mishra (2005) 8 SCC 423; Grindlays Bank Ltd. v. C.I.T(1980) 2 SCC 191 : [1980] 2 SCR 765; MahadeoSavlaram Shelke v. Pune Municipal Corporation (1995)3 SCC 33 : [1995] 1 SCR 543; Amarjeet Singh andOrs. v. Devi Ratan and Ors (2010) 1 SCC 417 : [2009]15 SCR 1010; Karnataka Rare Earth and Anr. v. SeniorGeologist, Department of Mines & Geology (2004) 2SCC 783 : [2004] 1 SCR 965; Assistant Collector ofCentral Excise v. National Tobacco Company of IndiaLtd. (1972) 2 SCC 560 : [1973] 1 SCR 822; KarnatakaState v. Union of India (1977) 4 SCC 608 : [1978] 2SCR 1 – referred to

Colquhoun v. Brooks (1889) 21 QBD 52 – referred to

Lewis Sutherland’s Statutory Construction (2[nd] ed.);Maxwell on the Interpretation of Statutes (12[th] Edition) by P. St.J. Langon – referred to

13. In Re: Principle of Restitution:

The principle of restitution is founded on the ideal of doingcomplete justice at the end of litigation, and parties have to beplaced in the same position but for the litigation and interim order,if any, passed in the matter. wrong-doer or in the presentcontext, litigant who takes his chances, cannot be permitted togain by delaying tactics. It is the duty of the judicial system todiscourage undue enrichment or drawing of undue advantage, byusing the court as tool. Thus, the period for which the interimorder has operated under Section 24 has to be excluded forcounting the period of 5 years under Section 24(2). [Paras 332,335, 336][298 G-H][306 E-F][307 D-E]

State of Gujarat & Ors. v. Essar Oil Ltd. & Anr (2012)3 SCC 522 : [2012] 2 SCR 1127; A. Shanmugam v.Ariya Kshatriya Rajakula Vamsathu MadalayaNandhavana Paripalanai Sangam (2012) 6 SCC 430 :[2012] 4 SCR 74; Indian Council for Enviro-LegalAction v. Union of India, (2011) 8 SCC 161 : [2011] 9SCR 146; Grindlays Bank Ltd. v. CIT, (1980) 2SCC 191; Ram Krishna Verma v. the State of U.P. (1992)2 SCC 620 : [1992] 2 SCR 378; Marshall Sons & Co.

38SUPREME COURT REPORTS

[2020] 3 S.C.R.

A(I) Ltd. v. Sahi Oretrans (P) Ltd. and Anr., (1999) 2SCC 325 : [1999] 1 SCR 311; Kalabharati Advertisingv. Hemant Vimalnath Narichania (2010) 9 SCC 437 :[2010] 10 SCR 971; Krishnaswamy S. Pd. v. Union ofIndia (2006) 3 SCC 286 : [2006] 2 SCR 390 – reliedonB14. Whether Section 24 revives stale and barred claim

14.1 The legality of concluded cases cannot be questionedunder the guise of Section 24(2) as it does not envisage or conferany such right to question the proceedings and the acquisitionsChave been concluded long back, or in several rounds of litigation,rights of the parties have been settled. The challenge to theacquisition proceedings cannot be made within the parametersof Section 24(2) once panchnama had been drawn of takingpossession, thereafter re-entry or retaining the possession is thatof the trespasser. The legality of the proceedings cannot beDchallenged belatedly, and the right to challenge cannot be revivedby virtue of the provisions of Section 24(2). [Paras 340, 342][309F-G][312 F-G]Shiv Kumar and Ors. v. Union of India and Ors 2019(13) SCALE 698; Mahavir and Ors. v. Union of IndiaE(2018) 3 SCC 588 : [2017] 11 SCR 553; Hari Singhand Ors. v. State of U.P. and Ors AIR 1984 SC 1020 :[1984] 3 SCR 417; State of T.N. and Ors. v. L. Krishnan& Ors (1996) 1 SCC 250 : [1995] 4 Suppl. SCR 663;Municipal Corporation of Greater Bombay v. IndustrialFDevelopment Investment Co. Pvt. Ltd (1996) 11 SCC501 : [1996] 5 Suppl. SCR 551; Hindustan Zinc Ltd. v.Bhagwan Singh Bhati and Ors., (2008) 3 SCC 462 :[2008] 4 SCR 616; Govt. of A.P. and Ors. v. KollutlaObi Reddy and Ors., (2005) 6 SCC 493 : [2005] 2 Suppl.SCR 513; Jasveer Singh and Anr. v. State of UttarGPradesh & Ors. (2017) 6 SCC 787 : [2017] 3 SCR921; Swaika Properties Pvt. Ltd. and Ors. v. State ofRajasthan and Ors (2008) 4 SCC 695 :[2008] 2 SCR521; Haryana State Handloom and HandicraftsCorporation Ltd. and Ors. v. Jain School Society (2003)H12 SCC 538; Urban Improvement Trust, Udaipur vs.

Bheru Lal and Ors (2002) 7 SCC 712 : [2002] 2 Suppl.SCR 512; Vishwas Nagar Evacuee Plot PurchasersAssociation & Ors. v. Under Secretary, Delhi Admn. &Ors. (1990) 2 SCC 268; U.P. State Jal Nigam and Anr.v. Jaswant Singh and Anr (2006) 11 SCC 464 : [2006]8 Suppl. SCR 916; Rabindranath Bose and Ors. v.Union of India and Ors (1970) 1 SCC 84 : [1970] 2SCR 697; Dharappa v. Bijapur Coop. Milk ProducersSocieties Union Ltd (2007) 9 SCC 109 : [2007] 5SCR 729; State of Karnataka v. Laxuman (2005) 8SCC 709 : [2005] 4 Suppl. SCR 535 – relied on

State of Assam v. Bhaskar Jyoti Sarma and Ors (2015)5 SCC 321 : [2014] 14 SCR 1451 – referred to

14.2 There has to be legal certainty where infrastructurehas been created or has been developed partially, and investmentshave been made, especially when land has been acquired longback. It is the duty of the Court to preserve the legal certainty.The doctrine of laches would always preclude an indolent party,who chooses not to approach the court, or having approachedthe court, allows an adverse decision to become final, to re-agitatethe issue of acquisition of his holding. Doing so, especially incases, where the title has vested with the State, and thereafterwith subsequent interests, would be contrary to public policy.[Para 353][322 D-G]

Vodafone International Holdings B.V. v. Union of Indiaand Ors (2012) 6 SCC 613 : [2012] 1 SCR 573; A.P.State Financial Corp. v. Garware Rolling Mill (1994) 2SCC 647 – relied on

Mathura Prasad Bajoo Jaiswal and Ors. v. DossibaiN.B. Jeejeebhoy (1970) 1 SCC 613 : [1970] 3 SCR830; Canara Bank v. N.G. Subbaraya Setty and Anr(2018) 16 SCC 228 : [2018] 3 SCR 884; Anil KumarGupta v. the State of Bihar (2012) 12 SCC 443; RamChand and Ors. v. Union of India (1994) 1 SCC 44 :[1993] 2 Suppl. SCR 558 – referred to

British Railway Board v. Pickin (1974) AC 765 – referred to

A14.3 Section 24 cannot be used to revive dead and staleclaims and concluded cases. They cannot be inquired into withinthe purview of Section 24 of the Act of 2013. The provisions ofSection 24 do not invalidate the judgments and orders of theCourt, where rights and claims have been lost and negatived.There is no revival of the barred claims by operation of law. Thus,Bstale and dead claims cannot be permitted to be canvassed onthe pretext of enactment of Section 24. In exceptional cases, whenin fact, the payment has not been made, but possession has beentaken, the remedy lies elsewhere if the case is not covered bythe proviso. It is the Court to consider it independently not underCsection 24(2) of the Act of 2013. [Para 359][325 C-E]15. Section 101 provides that in case land is not utilized forfive years from the date of taking over the possession, the sameshall be returned to the original owner or owners or their legalheirs, as the case may be, or to the Land Bank of the appropriateDGovernment by reversion in the manner as may be prescribedby the appropriate Government. Section 24 deals with lapse ofacquisition. Section 101 cannot be said to be applicable to anacquisition made under the Act of 1894. The provision of lapsehas to be considered on its own strength and not by virtue ofSection 101 though the spirit is to give back the land to theEoriginal owner or owners or the legal heirs or to the Land Bank.Return of lands is with respect to all lands acquired under theAct of 2013 as the expression used in the opening part is “Whenany land, acquired under this Act remains unutilized”. Lapse, onthe other hand, occurs when the State does not take steps inFterms of Section 24(2). The provisions of Section 101 cannot beapplied to the acquisitions made under the Act of 1894. [Paras360, 361][325 E-F][326 A-C]

Pune Municipal Corporation & Anr v HarakchandMisrimal Solanki & Ors (2014) 3 SCC 183 : [2014] 1GSCR 783; Sree Balaji Nagar Residents Association vState of Tamil Nadu (2015) 3 SCC 353 : [2014] 7SCR 799 – overuled

Yogesh Neema & Ors v State of Madhya Pradesh (2016)6 SCC 387; Entertainment Network (India) Ltd. v. Super

Cassette Industries Ltd. (2008) 13 SCC 30 : [2008] 9SCR 165; Southern Electricity Supply Co. of OrissaLtd. v. Sri Seetaram Rice Mill (2012) 2 SCC 108 : [2011]15 SCR 211; D. Saibaba v. Bar Council of India & Ors(2003) 6 SCC 186 : [2003] 3 SCR 1209; Governmentof Andhra Pradesh & Ors v. Smt. P. Laxmi Devi (2008)4 SCC 720 : [2008] 3 SCR 330; Indore DevelopmentAuthority v Shailendra (dead) through Lrs. & Ors.(2018) SCC Online SC 100; N. Kannadasan v. AjoyKhose & Ors (2009) 7 SCC 1 : [2009] 7 SCR 668;Ram Narain v. Stte of U.P. AIR 1957 SC 18 : [1956]SCR 664; Harbhajan Singh v. Press Council of India(2002) 3 SCC 722 : [2002] 2 SCR 369; Collector ofCentral Excise v. Elphinstone Spg.&Wvg.Mills Co.Ltd.(1971)1 SCC 337 : J.Dalmia v Commissioner of IncomeTax AIR 1964 SC 1866 : [1964] SCR 579; MobiloxInnovations (P) Ltd v. Kirusa Software (P)L t d(2018) 1 SCC 353 : [2017] 10 SCR 1006; Sri K.CGajapatiNarayan Deo v. State of Orissa [1954]SCR 11; Jagannath Temple Managing Committee v.Siddha Math (2015) 16 SCC 542 : [2015] SCR 46;Gulam Mustafa v. State of Maharashtra, (1976) 1 SCC800 : [1977] 1 SCR 875; Chandragauda RamgondaPatil and Anr. v. State of Maharashtra and Ors., (1996)6 SCC 405; Banda Development Authority v. Moti LalAgarwal (2011) 5 SCC 394 : [2011] 7 SCR 435;Balwant Narayan Bhagde v. M.D. Bhagwat, (1976) 1SCC 700 : [1975] Suppl. SCR 250; State of T.N. v.Mahalakshmi Ammal, (1996) 7 SCC 269 : [1995] 5Suppl. SCR 451; T.N. Housing Board v. A. Viswam,(1996) 8 SCC 259 : [1996] 2 SCR 402; Om PrakashVerma & Ors. v. State of Andhra Pradesh and Ors,(2010) 13 SCC 158 : [2010] 15 SCR 302; A.R. Antulayvs R.S.Nayak & Ors [1988] Suppl 1 SCR 01; CardioVascular Diseases (2014) 2 SCC 62 : [2013] 12SCR 674; Dau Dayal v State of U.P. [1959] Supp 1SCR 639; South Eastern Coal Field Ltd v State of M.P.& Ors. (2003) 8 SCC 648 : [2003] 4 Suppl. SCR 651;Dev Sharan v State of Uttar Pradesh (2011) 4

SCC 769 : [2011] 3 SCR 728; Radhey Shyam v State ofUP. (2011) 5 SCC 553 : [2011] 8 SCR 359; BharatSewak Samaj v. Lieutnant Governor & Ors. (2012) 12SCC 675; Madhav Rao Scindhia v. Union of India(1971) 1 SCC 85 : [1971] 3 SCR 9 (11 Judges); Smt.Parayankandiyal Eravath v. K. Devi (1996) 4 SCC 76: [1996] 2 Suppl. SCR 1 (2 Judges); Bharat Kumar vState of Haryana (2014) 6 SCC 586; Bimla Devi v Stateof Haryana (2014) 6 SCC 583; State of Haryana vVinod Oil and General Mills (2014) 15 SCC 410 :[2014] 13 SCR 524; Sita Ram v State of Haryana (2015)3 SCC 597; Ram Kishan v State of Haryana (2015) 4SCC 347; Competent Automobiles Co. Ltd v Union ofIndia AIR 2015 SC 3186 : [2015] SCR 237; Govt ofNCT of Delhi v Jagjit Singh AIR 2015 SC 2683 : [2015]SCR 692; Karan Singh v State of Haryana (2014) 5SCC 738; Shashi Gupta & Ors. v. State of Haryana(2016) 13 SCC 380; Delhi Development Authority vSukhbir Singh (2016) 16 SCC 258 : [2016] 5 SCR 227;Ivo Agnelo Santimano Fernandes v. State of Goa (2011)11 SCC 506 : [2011] 2 SCR 1142; Pratap Singh v. Stateof Jharkhand (2005) 3 SCC 551 : [2005] 1 SCR 1019;Central Railway Workshop v. Vishwanath (1969) 3SCC 95; [1970] 2 SCR 726; M/s International Ore andFertilisers (india) Pvt. Ltd. vs. Employee State Insurance(1987) 4 SCC 203 : [1987] 3 SCR 981; Seksaria Cottonmills v. State of Bombay[1953] SCR 325;Superintendent v. Anil Kumar (1979) 4 SCC 274 :[1980] 1 SCR 323; B. Gangadhar v. Rajalingam (1995)5 SCC 238 : [1995] 1 Suppl. SCR 535; GuruchandSingh v. Kamla Singh (1976) 2 SCC 152 : [1976] 1SCR 739 (67); Mohan Lal v. State of Rajasthan (2015)6 SCC 222 : [2015] 5 SCR 435; The Commissioner ofSales Tax v. Parson Tools and Plants (1975) 4 SCC 22;G. Narayanswami v. G. Pannerselvam (1972) 3SCC 71; Kuldip Nayar vs Union Of India (2006) 7 SCC1 : [2006] 5 Suppl. SCR 1; Naga People’s Movementof Human Rights vs. Union of India (1998) 2 SCC 109 :[1997] 5 Suppl. SCR 469; R.S. Nayak v A.R. Antulay

(1984) 2 SCC 183 : [1984] 2 SCR 495; Life InsuranceACorporation v D. J. Bahadur (1981) 1 SCC 315 : [1981]1 SCR 1083; B. Premanand v. Mohan Koikal (2011) 4SCC 266 : [2011] 3 SCR 932; Martin Burn Ltd vCorporation of Calcutta[1966] 1 SCR 543;Commissioner of Agricultural Income Tax v KeshabBChandra Mandal [1950] SCR 435; State of Maharastrav Nanded Parbhani Sangh (2000) 2 SCC 69 : [2000] 1SCR 357; Mohd. Kavi v. Fatmabal Ibrahim (1997) 6SCC 71; M.V. Javali v Mahajan Borewell & Co. Ltd(1997) 8 SCC 72 : [1997] 4 Suppl. SCR 320; SMSPharmaceuticals Ltd. v. Neeta Bhalla (2005) 8 SCC 89 :C[2005] 3 Suppl. SCR 371; State of Punjab v. MoharSingh [1955] 1 SCR 893; J.K.Cotton Spg. & Wvg.MilsLtd. v. Union of India (1987) Supp SCC 350 : [1988]SCR 700; Bengal Immunity Co.Ltd. v. State of Bihar[1955] 2 SCR 603;MIG Cricket ClubDv.AbhinavSahakar Education Society, (2011) 9 SCC 97: [2011] 11 SCR 141; Ishwar Singh Bindra & Ors vState of UP [1969] 1 SCR 219 – referred to

Giward de Walden (Lord) v. IRS (1948) 2 ALL ER 825(HL); Secretary of State for Social Security v Tunnicliffe[1991] 2 All ER 712; Howard de Walden (Lord) v. IRC,(1948) 2 All ER 825 (HL); Green v. PremierGlynrhonwy State Co. L.R (1928) 1 KB 561 – referredto

[2020] 3 S.C.R.

INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL

[2020] 3 S.C.R.

[1990] 1 SCR 186[2001] 1 Suppl. SCR 115[2014] 8 SCR 751(2015) 3 SCC 206(2015) 3 SCC 541[2014] 7 SCR 799[1989] 3 SCR 455[1996] 5 Suppl. SCR 222[2013] 14 SCR 58[1999] 3 SCR 594[1999] 2 Suppl. SCR 754[2000] 2 SCR 871[2002] 2 SCR 1093[2004] 6 Suppl. SCR 282[1975] 1 SCR 504[2005] 1 Suppl. SCR 49[1962] SCR 290(1998) 3 SCC 376(2005) 8 SCC 423[1980] 2 SCR 765[1995] 1 SCR 543[2009] 15 SCR 1010[2004] 1 SCR 965[1975] Suppl. SCR 365[2017] 4 SCR 881[1978] 2 SCR 1[2003] 4 Suppl. SCR 651

[2020] 3 S.C.R.

CIVIL APPELLATE JURISDICTION: Special Leave Petition(Civil) Nos. 9036-9038 of 2016.

From the Judgment and Order dated 30.11.2015 of the High Courtof Madhya Pradesh, Bench at Indore in Writ Appeal Nos. 514, 799 and772 of 2006.

With

Civil Appeal Nos. 4835 of 2015, 19356, 19362, 19361, 19358,19357, 19360, 19359, 19363, 19364, 19412 of 2017, S.L.P.(C) Nos. 30577-30580 of 2015, 9798-9799, 17088-17089, 37375, 37372, 16573-16605.34752-34753 of 2016, 15890, 33022, 33114, 33127 of 2017, 30452 of2018, 16051 of 2019, M.A. No. 1423 of 2017 in C.A. No. 12247 of2016. M.A. No.1787 of 2017 in C.A. No. 10210 of 2016, M.A. No.1786 of 2017 in C.A. No. 10207 of 2016, M.A. No. 45 of 2018 in C.A.No. 6239 of 2017, Diary No. 23842 of 2018, C.C. No.15967 of 2016.

Tushar Mehta, SG, Ms. Pinki Anand, ASG, B.K. Satija, AjayBansal, AAGs, R. Balasubramanian, Shyam Divan, Manoj Swarup, GopalSankarnarayanan, Anoop George Chaudhari, Ms. June Chaudhari, GuruKrishna Kumar, V. Shekhar, K.S. Namdar, Shekhar Naphade, PriteshKapoor, Rameshwar Singh Malik, Dhruv Mehta, Anukul ChandraPradhan, K. Shashi Kiran Shetty, Mohan Parasaran, Jayanth Muthraj,K. Radhakrishnan, Sr. Advs., Kanu Agarwal, Manan Popli, RajeevRanjan, Shantnu Sharma, Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms.Puja Singh, Ashwani Kumar Dhatwalia, Ms. Garima Prashad, SumitTeterwal, Ms. Saudamini Sharma, Ms. Snidha Mehra, Ms. Kriti Dua,Hemant Arya, Ms. Tanisha Samanta, Chakitan V.S. Papta, Ms. AshitaGoyal, Ankur Talwar, Prashant Singh, Raj Bahadur Yadav, Vinod Kumar,Ashwani Kumar, Ms. Peeha Verma, Ravinder Nain, Aayush Agarwala,Anuj Agarwala, Abhinav Malhotra, Sudipto Sircar, Bhav Ratan, PramodB. Agarwala, Siddharth Batra, Gaurav Agrawal, Avishkar Singhvi, Harsh

AParashar, Nipun Katyal, Ms. Tanvi Bhatnagar, Rahul Kaushik, DhruvSurana, R. Anand Padmanabhan, Aravind C., Shashi Bhushan Kumar,Rajeev Kumar Dubey, Kamalendra Mishra, Hitesh Kumar Sharma,S. K. Rajora, Akhileshwar Jha, Ms. Sandya Sharma, Ravindra KeshavraoAdsure, Sagar N. Pahune Patil, Ms. S. Lakshmi Iyer, Abhikalp PratapSingh, Ms. Aishwarya Dash, Durgesh Gupta, A.P. Mayee, A. Rajarajan,BSanjeev Kumar Choudhary,

Jitesh Malik, Ms. Beena, Satish Kumar, Siddharth Batra, Ms.Garima Sehgal, Ms. Sugandha Sharma, Ram Sankar, Om Prakash KumarSrivastava, Ashish Chaubey, G. Chitrakala, Ms. Maafi, R.K.V. Suhas,R.V. Kameshwaran, Mahesh Thakur, B.S. Srinivas, Mrs. Vipasha Singh,CSharan Thakur, Siddharth Thakur, Vijay Kumar Pardesi, Shailesh Madiyal,Sudhanshu Parkash, Kartik Anand, Ms. Sheffali Chaudhary, ZohebHossain, Ms. Adeeba Mujahid, Ms. Aditi Dani, Ashwin Kumar DS, PiyushGoyal, Vivek Gurnani, Agni Sen, Sanjeev Menon, Ms. Purbita Mitra,Ms. A. Jaswanthi, K.V. Vijayakumar, Anandh Kannan, Deepak Goel,DKamal Kumar Pandey, Baldev Atreya, Ajay Kumar Singh, Ms. NeelumGoel, Gaurav Yadava, Mrs. Veena Bansal, Sanjay Kumar Visen, PrashantBhushan, Omanakuttan K.K., Ms. Anannya Ghosh, Abhimanue Shrestha,Pallav Mongia, Abhisth Kumar, Ms. Jaikriti S. Jadeja, Yashraj SinghDeora, Ashok Arora, Dr. Sushil Balwada, Vivek Mishra, Ms. ManshaShukla, Chandan Kumar, Madhu Prakash, Rituraj Biswas, RiturajEChoudhary, Hemant Kushwaha, Chand Qureshi, Rajat Verma, HirenDasan, Sanjay Kapur, Ms. Megha Karnwal, Bharath Gangadharan,Harshal Narayan, V.M. Khanna, Ms. Shubhra Kapur, Pramod Dayal,Ms. Shashi Kiran, Dr. Satish Chandra, Ms. Usha Mishra, Manoj Jain,Shankar Chillarge (for M/s. Lawyer’s Knit & Co.), Ms. RachanaFSrivastava, Vishnu B. Saharya, Viresh B. Saharya (for M/s. Saharya &Co.), Ms. Rashmi Nandakumar, Ms. Ayushma Awasthi, ShankarNarayanan, Dr. D.V. Rao, B.V. Balaram Das, Kunal Verma, VinayKumar Shailendra, Ms. Deepika V. Marawaha, Chandra BhushanPrasad, Siddhartha Chowdhury, Muhammad Ali Khan, Omar Hoda,Sparsh Prasad, Anurag Singh, Gaurav Goel, S.K. Raut, R.K. Dudeja,GSachin Gupta, Rameshwar Prasad Goyal, Ms. Pratibha Jain, VikasKumar, Ajay Choudhary, M. Ram Babu, Vikrant Yadav, Puneet Chugh,Sudarsh Menon, Ravindra A. Lokhande, Samarandra Beura, Ram Gupta,Keshav Ranjan, Manish Paliwal, Senthil Jagadeesan, Ambhoj KumarSinha, R.V. Kameshwaran, Vikas Mehta, Apoorv Khator, VasanthHBharani, Mithun Shashank, Abhinav Ramkrishna, Arun K. Sinha,

Paramasivam, M. Yogesh Kanna, Munawwar Naseem, C.L. Sahu,Satish Kumar, Rajesh Mahale, Ritesh Khatri, Mrs. Balvinder Kaur Brar,Rajesh Kumar Jha, Dr. M.S. Verma, Ms. Ranjana Vohra, Rakesh KumarYadav, Ms. Alpana Malik, Dinesh K. Mudgal, Ms. Shashi Singh, RajnishKumar Jha, Yash Pal Dhingra, Divyakant Lahoti, Manish Kaushik, Ms.Amrita Grover, Parikshit Ahuja, Kartik Lahoti, Ms. Praveena Bisht,Madhur Jhavar, Rajiv Kataria, Ms. Debjani Das P. (for M/s. Delhi LawChambers), K. Parameshwar, P.V. Dinesh, Ms. Sindhu T.P., Mukund P.Unny, Aniruddha Deshmukh, Rajesh Srivastava, Ms. Suresh Kumari,Yatin M. Jagtap, Rabin Majumder, Sourav Roy, Harsh Anand, GauravMajumdar, Ms. Devika Khanna, Yash Ahlawat, Mrs. V.D. Khanna,Manish K. Bishnoi, M/s. S. Narain & Co., Shree Pal Singh, BalajiSrinivasan, Anupam Raina, Sunando Raha, Arindam Das, Kunal Malik,Dr. Sumant Bharadwaj, Ms. Mridula Ray Bhardwaj, Amol Chitravanshi,Ms. Rinchen Wangmo, Vedant Bharadwaj, Sangam Lal Pandey, BiswajitDas, Hardeep Singh, Anamika Sharma, Abhigya, Varinder KumarSharma, Varun Thakur, S. Sharma, Ms. Mandakini Singh, Ms. SukhmaniBajwa, Syed Imtiyaz Ali, Ali Safeer Farooqui, Aftab Ali Khan, M.Z.Chaudhry, Ms. Mumtaz Alam Siddiqui, Keshav Thakur, Arvind KumarK., Aniruddha P. Mayee, R.M. Bhangde, Shivkant Mishra, Hara PrasadSahu, Vishal Arun Mishra, Pawan Kumar, Pranay Kumar M., Ms. BinuTamta, Dhruv Tamta, Pankaj Pandey, Advs. for the appearing parties.

The Judgment of the Court was delivered by

ARUN MISHRA, J.

1. The correct interpretation of Section 24 of the Right to FairCompensation and Transparency in Land Acquisition, Rehabilitation andResettlement Act, 2013 (for short, ‘the Act of 2013’), is the subjectmatter of reference to this five -Judge Bench of this Court.

2. three- Judge Bench of this Court in Pune MunicipalCorporation & Anr v Harakchand Misrimal Solanki & Ors[1],interpreted Section 24 of the Act of 2013. The order reported as YogeshNeema & Ors v State of Madhya Pradesh[2], two--judge Bench,however doubted the decision in Sree Balaji Nagar ResidentsAssociation v State of Tamil Nadu[3] (which had followed PuneMunicipal Corporation (supra) and also held that Section 24 (2) of

1 (2014) 3 SCC 183

2 (2016) 6 SCC 387

3 (2015) 3 SCC 353

Athe Act of 2013 does not exclude any period during which the landacquisition proceeding might have remained stayed on account of stayor injunction granted by any court) and referred the issue to largerBench. Later, in another appeal (arising out of S.L.P. (C) No.2131 of2016 (Indore Development Authority v Shailendra (dead) throughLrs. & Ors.[4]) the matter was referred to larger Bench on 7.12.2017;Bthe Court noticed that:

“cases which have been concluded are being revived. In spiteof not accepting the compensation deliberately and statementare made in the Court that they do not want to receive thecompensation at any cost, and they are agitating the matterCtime and again after having lost the matters and whenproceedings are kept pending by interim orders by filingsuccessive petitions, the provisions of section 24 cannot beinvoked by such landowners.”

3. The Court noticed that the reference to larger Bench wasDpending, and had been made in Yogesh Neema (supra). The Court alsofelt that several other issues arose which it outlined, but were notconsidered in Pune Municipal Corporation (supra). The Courttherefore, stated that the matter should be considered by larger Benchand referred the case to Hon’ble the Chief Justice of India for appropriateEorders. Indore Development Authority v Shailendra (hereafter, “IDAv Shailendra”) Bench of three Judges was of the view that thejudgment in Pune Municipal Corporation (supra) did not considerseveral aspects relating to the interpretation of Section 24 of the Act of2013. Since Pune Municipal Corporation (supra) was judgment bya Bench of coordinate strength, two learned judges in IDA v ShailendraFopined prima facie that decision appeared to be per incuriam.

4. Later, in Indore Development Authority v Shyam Verma &Ors (SLP No. 9798 of 2016) considered it appropriate to refer the matterto Hon’ble the Chief Justice of India to refer the issues to be resolved bya larger Bench at the earliest. Yet again in State of Haryana v MaharanaGPratap Charitable Trust (Regd) & Anr (CA No.4835 of 2015) referredthe matter to Hon’ble the Chief Justice of India to constitute an appropriateBench for consideration of the larger issue. These batch appeals werereferred to five Judge Bench, which after hearing counsel, framed thefollowing questions, which arise for consideration:

H4 2018 SCC Online SC 100

“1. What is the meaning of the expression paid’/tender’ inSection 24 of the Right to Fair Compensation andTransparency in Land Acquisition, Rehabilitation andResettlement Act, 2013 (Act of 2013') and Section 31 of theLand Acquisition Act, LA (Act of 1894')? Whether non-depositof compensation in court under section 31(2) of the Act of1894 results into lapse of acquisition under section 24(2) ofthe Act of 2013. What are the consequences of non- depositin Court especially when compensation has been tenderedand refused under section 31(1) of the Act of 1894 and section24(2) of the Act of 2013? Whether such persons after refusalcan take advantage of their wrong/conduct?

2. Whether the word or’ should be read as conjunctive ordisjunctive in Section 24(2) of the Act of 2013?

3. What is the true effect of the proviso, does it form part ofsub-Section (2) or main Section 24 of the Act of 2013?

4. What is mode of taking possession under the LandAcquisition Act and true meaning of expression the physicalpossession of the land has not been taken occurring in Section24(2) of the Act of 2013?

5. Whether the period covered by an interim order of Courtconcerning land acquisition proceedings ought to be excludedfor the purpose of applicability of Section 24(2) of the Act of2013 ?

6. Whether Section 24 of the Act of 2013 revives barred andstale claims? In addition, question of per incuriam and otherincidental questions also to be gone into.”

5. Question nos.1 to 3 are interconnected and concern the correctinterpretation of Section 24(2) of the Act of 2013. Following questionsare required to be gone into to interpret the provisions of Section 24(2)of the Act of 2013:

(i)Whether the word “or” in Section 24(2) of the Act of 2013used in between possession has not been taken orcompensation has not been paid to be read as “and”?

(ii)Whether proviso to Section 24(2) of the Act of 2013 has tobe construed as part thereof or proviso to Section 24(1)(b)?

A(iii) What meaning is to be given to the word “paid” used inSection 24(2) and “deposited” used in the proviso to Section24(2)?

(iv) What are the consequences of payment not made?

(v) What are the consequences of the amount not deposited?

(vi) What is the effect of person refusing to accept thecompensation?

6. The Act of 2013 repeals and replaces the Land AcquisitionAct, 1894, general law for acquisition of land of public purposes, whichChad been in force for almost 120 years, with view to address certaininadequacies and/ or shortcomings in the said Act.

7. The Act of 2013 is prospective and saves proceedings alreadyinitiated under the Land Acquisition Act, 1894 before its repeal, subjectto provisions of Section 24 of the Act of 2013, which begins with non-Dobstante clause and overrides all other provisions of the Act of 2013.

8. On behalf of the Union, the States and various acquiring bodiesand development authorities, Mr. Tushar Mehta, learned Solicitor General(who led the arguments, hereafter “SG”), Ms. Pinky Anand, learnedAdditional Solicitor General (hereafter “ASG”), Mr. Anoop Chaudharyand Mr. Jayant Muthuraj, learned Senior Counsel, Ms. Shashi Kiran,EMs. Rachna Srivastava, Mr. R.M. Bhangade and Mr. Rajesh Mahale,learned counsel, made their submissions.

9. The learned SG, arguing that this Court should overrule theratio in Pune Municipal Corporation (supra) and other judgmentswhich followed it, contended that the Court did not consider the variousFinterpretations of Section 31 of the (repealed) Land Acquisition Act,(“LA Act” hereafter). He urged that the provisions of the Act of 2013,vis-à-vis the timelines and consequences that would ensue if theacquisition proceeding prolongs, were not examined. He highlighted thatSection 24 is transitional provision and such provisions should be givenGan interpretation which accords with legislative intent, rather than so asto impose hitherto absent standards, upon past proceedings, orproceedings initiated under the previous regime, but which have notworked themselves out. He urged that there is presumption in favourof restricted retrospective applicability of any provision in an enactmentunless contrary intention appears. It is submitted that designedly, it isHthe stage of passing of award under Section 11 of the LA Act, that

represents the determinative factor in the segregation for the applicabilityof the provisions of the Act of 2013 or the LA Act. It is urged that theopening part of the provision in Section 24(1) is non-obstante clauseproviding for limited overriding effect of the Land Acquisition Act, incase of the contingencies mentioned in Section 24 (1) (a) and (b) of theAct of 2013.

10. Section 24 (1) (a) contemplates that where no award underSection 11 of the LA Act has been made, but proceedings had beeninitiated under said Act, provisions of the Act of 2013 would apply limitedto the determination of compensation. In other words, the entire exercisede novo, under the Act of 2013, will not be required to be undertaken.Therefore, Section 24 (1) (a) contemplates limited applicability of theAct of 2013. Section 24 (1) (b) stipulates that where an award underSection 11 of the LA Act has been made, the entire proceedings wouldcontinue under that law and the provisions of the Act of 2013 would beinapplicable. Section 24 (1) (b) is the larger umbrella clause under Section24, which protects the vested rights of the parties under the LA Act ifthe stage of passing of award has been crossed. It is argued that theumbrella clause Section 24 (1) (b), is followed by Section 24(2) - whichprovides for the exclusionary clause. Section 24 (2), the learned SGhighlighted, is the only lapsing clause under the provision whichbrings in the rigours of the Act of 2013 in totality by mandating theland acquisition to be initiated de novo.

11. It is urged that Section 24 (2) opens with non obstanteclause carving out an exception only from Section 24 (1). It visualizesthat land acquisition proceedings which had been initiated under the LAAct, an award under Section 11 of the LA Act had been made.Consequently, Section 24 (2) has no relation to Section 24 (1) (a) as itdoes not contemplate an award under Section 11 of the LA Act at all. Itis, therefore, limited exception to Section 24 (1) (b). Section 24 (2)consequently is umbilically related to Section 24 (1) (b) as an exception,wherein land acquisition proceedings would lapse in certain contingencieseven when an award under Section 11 of the LA Act had been made.

12. It is submitted that the contingencies for lapsing in Section24(2), are subject to an award under Section 11 of the LA Act beingmade five years prior to the commencement of the Act of 2013 (whichis 1.1.2014). If the award is so made, two contingencies result in completelapse -: (a) Physical possession of the land has not been taken; or (b)

Acompensation has not been “paid”. The provision for lapse, per Section24(2) is, by its nature, vital provision, inviting serious consequences, incase those contingencies arise. It is the interpretation of these“contingencies” that requires further consideration. The “contingencies”ought to be interpreted in manner which saves the past transactions tothe extent they can be saved as it is clearly not the intention of the Act ofB2013 to tide over all past transactions.

13. The learned SG argued that the proviso to Section 24(2) furthercarves out an exception to Section 24(2) viz, in case the award has beenmade and compensation in respect of majority of landholdings hasnot been deposited in the account of the beneficiaries, no lapsing willCtake place, but all the beneficiaries specified in the notification foracquisition shall be entitled to compensation in accordance with theprovisions of the Act of 2013.

14. Therefore, if only minority of the claimants are disbursedwith the compensation, such claimants would get benefit of compensationDunder the Act of 2013 to limited extent without lapsing. Thus, it is clearthat even if the acquisition does not lapse, all the beneficiaries to whomthe compensation is payable would be entitled to compensation underthe Act of 2013.

15. It is submitted that Section 24(1)(a) and Section 24(2) areEbalancing provisions controlling the extent of retrospectivity and curtailingthe effacement of rights. Such balance of protecting acquisitions underthe LA Act in some defined circumstances whilst providing the enhancedcompensation provisions under the Act of 2013 under some definedcircumstances is the “middle path” that Parliament adopted. It isFcontended that Section 24(2) is, therefore, controlled by the provisomandating again further middle path consciously chosen by Parliament.

16. It is argued that while providing for transitory provision orsituations resulting into “lapsing” of all the steps already taken under theAct under repeal, the legislature always envisages several contingenciesGwhich emerge out of its day-to-day experience. The manner in whichsection 24[2] and the proviso attached therewith are drafted clearlydiscloses that Parliament intended certain inevitable contingencies whichfrequently arose in land acquisition proceedings. It was urged illustratively,that often, land acquired belongs to benami owners, who cannot putforward title, or claim compensation or identify themselves. In suchH

situations, it may not be possible for an acquiring authority to “pay”[which, as plain language indicates, would mean setting apart for beingtaken by the entitled persons as explained hereafter] to “all” land holders/entitled persons. However, as is clear from the proviso to Section 24[2],if it can be shown that the amount is deposited for majority of share-holding, the acquisition would be saved and cannot lapse; the onlyconsequence would be the determination of benefits under the Act of2013. Parliamentary intent in the proviso clearly appears to be to ascertainthe stage up to which the land acquisition proceedings under LA Acthave reached. If nobody is paid the compensation or compensation isnot taken by everyone though tendered and/or kept ready, the legislaturecontemplates such situation to be reversible one and, therefore,provides for lapsing of all previous stages prior to “non-payment”.However, if it can be demonstrated that though - (1) compensation wastendered to all; (2) some of them [for whatever reason] did not take thecompensation; and (3) compensation is deposited in case of majority ofthe land holdings [viz. setting apart the share of such persons and makingit available for them to take it], then, neither proceedings would lapsenor the compensation will be required to be determined under the Act of2013. In substance, therefore, the legal situation would be akin to theone contemplated under Section 24[1][b] for all practical purposes.

17. It is submitted that during the drafting of the Bill, the legislativeintent and the apprehensions of the stakeholders in the acquisition processis clearly depicted in 31[st] Report of the ‘Standing Committee on RuralDevelopment’ while discussing the ‘The Land Acquisition, Rehabilitationand Resettlement Bill, 2011’ which was the precursor to the Act of 2013.The learned SG relied on extracts of the Standing Committee Reports,the draft Bill, various comments from government and public agenciesand departments and other stakeholders, the stage(s) during whichamendments were proposed to the draft provisions (of Section 24) andits culmination into the present form and structure.18. The learned SG argued that the amendments proposed by theMinister while introducing the Bill - to incorporate an explanation, as towhat constitutes “deposit” was not accepted in the legislative wisdom ofthe Lok Sabha and the Bill so passed consciously did not incorporate theExplanation (in the form of Proviso to Section 24(2)) providing for anextensive and artificial meaning of the word paid. Further, reference to“bank” account was also consciously not incorporated thereby leaving

Athe expression “to pay” and “to deposit” with its natural meaning andleaving it to the discretion of the acquiring authorities to deposit thecompensation amount even in the treasury. It is possible that thelegislature may have considered the reality of 2012-13 where crores ofpeople did not have bank accounts. It was also urged that the rejectionof the amendment is in consonance with the apprehensions expressedBby other stakeholders and ministries at the said time. After the said Billwas passed in the Lok Sabha, amendments were proposed and acceptedby the Rajya Sabha, giving the provision its final form. Further, it is clearthat the effort at the time was towards the drafting of balancingprovision which protects the acquisitions from lapsing and at the sameCtime provides enhanced compensation under the new Act dependingupon the stage up to which the acquisition has progressed. This was thegenesis behind Section 24(1)(a) and proviso to Section 24(2) which protectacquisitions from lapsing whilst providing for higher compensation underthe Act of 2013 to the land owners under limited defined circumstances.

It is submitted that it is necessary to read the proviso to Section 24(2)Dalong with the same provision and not Section 24(1)(b) as the formerwould be in accord with Parliamentary intent.

19. It was submitted that Section 24(2) intended limitedretrospective operation: yet such retrospectivity operated and has to beconstrued narrowly considering the nature and width of Section 24(2)Eand the drastic consequences flowing from it. It is submitted that thefield of retrospectivity to be given under Section 24 needs to be consideredin the context of legislative intention manifested from Section 114 of theAct of 2013 and Section 6 of the General Clauses Act, 1897. Both Section114 (of the Act of 2013) and Section 6 of the 1897 Act clearly point to aFnarrow interpretation of Section 24 with the object of saving on-goingacquisition proceedings as far as possible. The learned SG referred tothe provisions of UK’s Interpretation Act, 1978; he also relied onBennion’s Statutory Interpretation Bennion’s Fifth Edition, (2012) IndianReprint, which reads as under:

G“Where, on weighing of the factors, it seems that someretrospective effect was intended, the general presumptionagainst retrospectively indicates that this should be kept toas narrow compass as will accord with the legislativeintention”

20. Reliance was placed on Secretary of State for Social Securityv Tunnicliffe[5], to the effect that:

“Parliament is presumed not to have intended to alter the lawapplicable to past events and transactions in manner whichis unfair to those concerned in them, unless contraryintention appears”.

The learned SG also referred to the later judgment of the Houseof Lords which dealt with the said question. It is submitted that sitting ina combination of eight judges, in Yamashita-Shinnihon Steamship Co.Ltd.v L’office Chefifien Des Phosphates & Anr[6], where it was heldthat retrospective application of statute can be made only when it doesnot visit anyone with unfairness. The learned SG referred to Zile Singhv. State of Haryana[7] where three-judge Bench held that retrospectivityshould not be presumed to have been given to provision, unless it saysso clearly, or through necessary implication. The guidance was given toconstrue provisions for determining whether such intention is expressed,in given case.21. It was urged that this Court, after assessing the unintendedand absurd results that an amendment may result in, purposefullyinterpreted the provisions to be prospective in operation. It was alsoemphasized that Section 24(2) is retrospective in nature and cannot be

5 [1991] 2 All ER 712

6 [1994] 1 A.C. 486, where it was held that:“The rule that person should not be held liable or punished forconduct not criminal when committed is fundamental and of longstanding. It is reflected in the maxim nullum crimen nulla poena sinelege. It is protected by article 7 of the European Convention for theProtection of Human Rights and Fundamental Freedoms (1953) (Cmd.8969).The rule also applies, but with less force, outside the criminalsphere.It is again expressed in maxims, lex prospicit non respicit andomnis nova constitutio futuris temporibus formam imponere debet nonpraeteritis. The French Civil Code provides that “La loi ne dispose quepour l’avenir; elle n’a point d’effet retroactif:”

But both these passages draw attention to an important point, that the exceptiononly applies where application of it would not cause unfairness or injustice.This is consistent with the general rule or presumption which is itself basedon considerations of fairness and justice, as shown by the passage in Maxwellquoted, ante, p. 494C–E, and recently emphasised by Staughton L.J in Secretaryof State for Social Security v. Tunnicliffe [1991] 2 All E.R 712, 724..”

7 (2004) 8 SCC 01

Aheld to be prospective; nevertheless, the extent of retrospectivity oughtto be narrowly construed while interpreting, given the harsh consequencesthat it results in particularly against projects of public interest. Reliancewas placed on CIT v. Sarkar Builders[8].

22. It is submitted that apart from the above, this Court hasBconsistently ruled on principles guiding the retrospective operation ofstatutes. Though there is no bar against retrospective operation yet thisCourt considered the practical realities before analysing the extent ofretrospective operation of the statutes. Reliance in this regard is placedon Jawaharmal v. State of Rajasthan[9] and Rai Ramkrishna v. Stateof Bihar[10].C

23. The learned SG next submitted that spate of decisions ofthis Court had followed the ratio in Pune Municipal Corporation(supra). Emphasizing that the overall interpretation of Section 24 of theAct of 2013 has to accord with its scheme, it was stated that the objectof that provision was not only to declare that certain acquisitions lapsed.DLearned counsel, in this context, highlighted that Section 24 (1) (a) infact saves acquisition proceedings, where awards were not made beforethe advent of the Act of 2013, by declaring that the award would bemade under that Act and compensation payable, in accordance with itsprovisions. Section 24 (1) (b) on the other hand contemplates making ofEaward, under the old (LA) Act, but significantly states that all further“proceedings” after the award would be taken under the new Act. Itwas highlighted here, that Parliament clearly intended that thecompensation determined under the old Act had to be paid in terms ofthe new Act, which is under Section 77. The learned SG submitted thatgiven these aspects, which are expressed in Section 24 (1), the nonFobstante clause and the following provisions of Section 24 (2) have tobe interpreted contextually, and in purposive manner. It was submittedthat Parliament did not intend that settled matters should be undone, andwhatever had attained finality, in acquisition matters, should not be re-opened. He cited the decisions of this Court reported as SouthernGElectricity Supply Co. of Orissa Ltd. v. Sri Seetaram Rice Mill[11];Tinsukhia Electric Supply Company Ltd v. State Of Assam & Ors[12];

8 2015 (7) SCC 5799 1966 (1) SCR 89010 1964 (1) SCR 89711 (2012) 2 SCC 108H12 (1989) 3 SCC 709 @ para 118-121

Commissioner of Income Tax v. Hindustan Bulk Carriers[13]; D.Saibaba v. Bar Council of India & Ors[14]; Balram Kamanat v. Unionof India[15]; New India Assurance Co. v. Nulli Nivelle[16]; Governmentof Andhra Pradesh & Ors v. Smt. P. Laxmi Devi[17]; EntertainmentNetwork (India) Ltd. v. Super Cassette Industries Ltd.[18]; N.Kannadasan v. Ajoy Khose & Ors[19]; H.S Vankani v. State ofGujarat,[20]; State of Madhya Pradesh v. Narmada Bachao Andolan& Ors.[21]

24. It was submitted that hitherto, in accord with Pune MunicipalCorporation (supra) and Balaji Nagar Residential Assn. v. State ofTamil Nadu[22]most decisions had accepted that the expression “or”-(occurring in Section 24 (2)), where an award has been made under theold Act, 5 years before the commencement of the Act of 2013 “but thephysical possession of the land has not been taken or thecompensation has not been paid” – is to be read disjunctively, i.e.,that if either condition is satisfied, the acquisition would lapse. However,submitted the learned SG, the true and correct interpretation of the term“or” would be that it ought to be construed as conjunctive word.

25. Learned counsel next submitted that the expression “paid”should be construed reasonably and not in literal manner, as was donein Pune Municipal Corporation (supra). Before the Act of 2013 wasbrought into force, the modes of payment recognized by the law were:tendering payment, payment into court in the event no one entitled toalienate the property received it and payment into court upon disputesabout the entitlement to receive payment. These three situations werevisualized in Section 31 (2) of the old Act. It was emphasized that theconsequence of lapse of acquisition was never contemplated, in the eventof refusal to accept payment, or absence of anyone entitled to receive it,or in the contingency of dispute regarding entitlement to receive theamount. This clearly meant that while payment of compensation was

13 (2003) 3 SCC 57 @ para 14-2114 (2003) 6 SCC 186 para 16-18

15 (2003) 7 SCC 628 para 2416 (2008) 3 SCC 279 @ para 51-54

17 (2008) 4 SCC 720 para 41 & 42

18 (2008) 13 SCC 30 para 132-137

19 (2009) 7 SCC 1 para 54-67

20 (2010) 4 SCC 301 para 43-48

21 (2011) 7 SCC 639 para 78-8522 2015 (3) SCC 353

Aessential and mandatory, the mode of payment was not mandatory. If,for instance, the amount was tendered and not received, but instead, thelandowner refused it, the appropriate government could well deposit it inthe treasury, in accordance with prevailing financial rules, to facilitatedisbursement, as and when the landowner or the one entitled to receiveit, came forward and established entitlement. In such event, the onlyBconsequence of non-deposit (in court, under Section 31) meant that higherinterest as mandated by Section 34 was to be paid.

26. The context of Section 24, learned counsel urged, is to providefor transitory provision viz. to take care of the pending land acquisitionproceedings which are ongoing under the LA Act when the Act of 2013Cis brought into force w.e.f. 1.1.2014. The purpose and object of makingthis provision is to balance the competing rights of public projects vis-à-vis holders of the land. The object and purpose was to ensure that whereacquisition proceedings under LA Act have reached an advanced stageand investment of public money had already been made, firstly, the lapsingDof such ongoing projects should be avoided and secondly as far aspossible, the land owners also can, without disturbing the process ofacquisition, be given the compensation under the Act of 2013.27. It was reiterated that the legislature knows about the groundrealities faced in land acquisition proceedings. There are very few casesEwhere one or two land parcels are acquired in isolation. Mostly,acquisitions take place of bigger tracts of land involving more than oneparcel of land and more than one person “entitled to compensation”.When Parliament provided for transitory provision in relation toacquisitions under the old Act, it did not contemplate the possibility of theentire payment procedure to all being not processed given the practicalFsituations arising in all such proceedings. Parliament is also presumed tobe aware of the fact that in almost all cases of acquisition, the proceedingsare stiffly opposed and in most of the cases, the tender of compensationis also opposed under wrong and misplaced notion that the acceptanceof the tender may be treated as acquiescence with the quantum beingGtendered.

28. The learned counsel argued that Parliament did not expectthe acquiring authority to perform an impossible task of forcing paymentto the land owners unwilling, for any reason to accept it. The legislature,therefore, does not use the expression of the land owners havingH“accepted” the payment. It merely uses the expression “paid”. The

legislature clearly tries to balance the rights of land owners only in onecontingency viz. in post award scenario and the award having beenmade five years prior to 1.1.2014, when the amount is not “deposited” inthe accounts of the majority of the beneficiaries.

29. It was urged that on true construction and taking the literal,natural and grammatical meaning of the provisions in the context referredabove and keeping in mind the object it can safely be concluded that thewords “paid” and “deposit” are expressions of the same act namelymaking the amount available (i.e. tendering) for being taken by thoseentitled to it. It was urged that if this interpretation is not given then therefusal by few persons or few persons being untraceable in the acquisitionof vast tract of land would result in the drastic consequence of lapsingof the acquisition proceedings.

30. It was urged by the learned ASG and Mr. Muthuraj, learnedsenior counsel that the legislature cannot be presumed to intend such ananomalous situation. The only way in which the object behind section 24can be achieved is to give natural meaning to the words and expressionsused keeping the object in mind and treating the words “paid” and“deposit” as connoting expression of the very same Act depending uponthe fact situation in each case. Learned counsel submitted that by usingthe terms “paid” and “deposit”, Parliament consciously left leeway tosave the drastic consequence of lapsing by dealing with particularsituation in light of fact situation emerging in each case. Not treating“paid” and “deposit” as synonymous or the “deposit” so as to keep itavailable being the next step after “pay”, would lead to disastroussituations as the acquiring authority may have acquired vast tract of landand may have put substantial portion from it to public use by constructinginfrastructural projects. Such disastrous situation /consequence wouldnever have been anticipated or envisaged by the legislature. Learnedcounsel also referred to various Standing Orders, framed as part of thefinancial code of several States, which provided for procedure to depositmoney in the treasury, when landowners refused to accept compensation,or were untraceable, at the time the amount was to be tendered.

31. It is submitted by the learned ASG that this Court should notassume any omission or add or amend words to the statute. It is submittedthat plain and unambiguous construction has to be given without additionand substitution of the words. It is submitted that when literal readingproduces an intelligible result it is not open to read words or add words

Ato statute. In support of this proposition, reliance was placed on somedecisions[23]. It was therefore submitted that the word “paid” does notand cannot mean actual de-facto payment as it would amount to addingwords which do not exist in the provision. Similarly, the word “deposit”cannot mean “deposit in the Court” as that was never the legislativeintent nor can it be deduced from any accepted interpretive process.

32. It was submitted that this Court, whilst interpreting Section 24of the Act of 2013, for the first time in Pune Municipal Corporation[supra] and subsequent judgments, presumed that the word “paid”occurring in Section 24(2) of the Act of 2013 would have to be interpretedas per Section 31 of the LA Act. It is submitted that the said presumptionCneither has any justification nor any such justification is examined in thesaid judgments. It is submitted that the said presumption has resulted ingrave consequences without ascertaining the conscious omissions onthe part of the Legislature. The learned SG illustrated how the terms“paid” and “deposit” have been used in different senses under the LADAct and in the Act of 2013.

33. Learned counsel submit that firstly, Section 31 of the LA Actis pari materia to Section 77 of the Act of 2013. There is neither anyjustification nor any requirement of interpreting Section 24 of the Act of2013 in the shadow of Section 31 of the LA Act. It is submitted that if asEan alternative argument it is assumed that the expressions “paid”/ “tender”and the expression “deposited” have both been used consciously in Section31, as is the reason of drafting Section 24(2), an anomalous situationoccurs. In the proviso to Section 24(2) of the Act of 2013, expressionused is compensation has not been “deposited” “in the account of thebeneficiaries”, which is separate from the “deposit in Court” envisagedFunder Section 31(2) of the LA Act. It is submitted that the expression“bank account” has not been used in Section 31 of the LA Act at all andthe expression “in the Court” has not been used in Section 24(2) of theAct of 2013 at all. The said omissions carry weight and cannot be ignored.

34. It is urged that if Section 24 of the Act of 2013 intended toGattract the rigours and technicalities of Section 31 of the LA Act, itwould have used the requisite phrase. It is submitted that the term Section31 of the LA Act is conspicuous by its absence in Section 24 of the Act

23 BALCO v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552; Howard deWalden (Lord) v. IRC, (1948) 2 All ER 825 (HL); V.L.S. Finance Ltd. v. Union of India,H(2013) 6 SCC 278; and Ram Narain v. State of U.P., AIR 1957 SC 18.

of 2013. Parliament intentionally used the phrases “paid” and “deposit”not in terms of their meanings under Section 31 so as to avoid the rigoursof the said provision and to keep the practical exigencies of land acquisitionin mind, more particularly when Section 24 of the Act of 2013 is merelya transitory provision. It was argued that it is settled canon ofinterpretation that when the Legislature uses two different phrases, themeaning they carry would be different. Harbhajan Singh v. PressCouncil of India,[24] is relied on.35. It is submitted that Section 24(1) begins with non-obstanteclause, providing for limited overriding effect of the LA Act in case ofthe contingencies mentioned in Section 24 (a) and (b). Section 24 (1) (a)contemplates that where land acquisition proceedings were initiated underthe LA Act but no award was passed till the date the new Act came intoforce viz. 1.1.2014, acquisition proceedings could continue, howevercompensation will have to be determined under the Act of 2013. Section24 (1) (b) provides that where an award under Section 11 of the LA Acthas been made, the entire proceedings would continue under the Act of1894, as if it were not repealed. Section 24(2) provides for an exclusionaryclause which mandates the land acquisition proceedings to be lapsedand initiated de novo.

36. It was submitted that the requirements for lapsing (ofacquisition) in Section 24(2), are subject to an award under Section 11 ofthe LA Act being made five years prior to the commencement of theAct of 2013 viz. 1.1.2014. If the award is made and the following twosituations occurred, the proceedings will lapse; one, physical possessionhas not been taken or (to be read as “and”) and two, compensation hasnot been paid.

37. Elaborating on the expressions “paid”/”tender” it was urgedby learned counsel that the meaning of expression “tender” is that whena person has tendered the amount and made it unconditionally availableand the landowner has refused to receive it, the person who has tenderedthe amount cannot be saddled with the liability, which is to be visited fornon-payment of the amount. Reliance is placed on the meaning of theterm in Black’s Law Dictionary.

38. It is apparent from aforesaid that “tender” may save thetendering party from the penalty for non-payment or non-performance

24 (2002) 3 SCC 722

Aif another party is unjustifiably refusing the tender. The expression “paid”would mean in Section 31(1) of the LA Act and Section 24(2) of the Actof 2013 as soon as it is offered and made unconditionally available.Merely, if landowner refuses to accept it, it cannot be said that it hasnot been paid. Once amount has been tendered that would amount topayment. Thus, the term “paid” does not mean actual payment to beBmade but whatever is possible for an incumbent to make the payment isonly contemplated. “Paid” does not mean receipt or deposited in court.There may be refusal to receive an amount in spite of its tender. Thus, inview of the decisions of this Court in Benares State Bank Ltd.v.CIT, [25]Collector of Central Excise v. Elphinstone Spg.&Wvg.Mills Co.Ltd.[26]Cand J.Dalmia v Commissioner of Income Tax[27], the provisions of Section24(2) should be construed as tender of the amount.

39. It is submitted that the three Judge Bench in judgment in PuneMunicipal Corporation (supra), while deciding the expression“compensation has not been paid”, held that for the purposes ofDSection 24(2), the compensation shall be regarded as “paid”:

“if the compensation has been offered to the person interestedand such compensation has been deposited in the court wherereference under Section 18 can be made on happening ofany of the contingencies contemplated under Section 31(2)Eof the Land Acquisition Act. In other words,the compensationmay be said to have been”paid”within the meaning of Section24(2) when the Collector (or for that matter Land AcquisitionOfficer) has discharged his obligation and deposited theamount of compensation in court and made that amountavailable to the interested person to be dealt with as providedFin Sections 32 and 33.”40. It was argued that the conclusion in Pune MunicipalCorporation (supra) that deposit of the amount of compensation in theGovernment treasury cannot amount to the said sum (amount ofcompensation) “paid” to the landowners or persons interested. ThisGview was taken without dwelling on the legal connotation of the expression“paid” in Section 24(2). In the process, it has also not taken into accountthe binding law as held in Dalmia’s case and Benares State Bank’s25 (1969) 2 SCC 31626 (1971)1 SCC 337H27 (1964) 53 ITR 83 [AIR 1964 SC 1866]

case. Though Section 34 of the LA Act was mentioned in passing para16, however it has not at all been considered. It is very crucial provision,which deals with the consequences of compensation not having beendeposited. Further, submit counsel, the matter relates to payment ofcompensation from out of Government funds. Handling of Governmentfunds has to be strictly in accordance with the Standing Orders issuedby the States. The effect of those Standing Orders has also not beenconsidered in the judgment in Pune Municipal Corporation (supra).The said judgment, therefore, having been rendered without taking intoconsideration the aforesaid judgments, Section 34 of the LA Act and theStanding Orders is, in the submission of the counsel, per incuriam.

41. It is submitted that another aspect which arises is, whetherprejudice or injustice would be caused in case the amount is not depositedin the court and is deposited in the treasury, particularly when theprovision contained in Section 31 of the LA Act has to be read conjointlywith those in Section 34. By reason of Section 34, (of the LA Act) onecould claim interest - at higher rate in case amounts were not depositedunder Section 31(2) if the authorities were at fault.

42. Arguing about whether the expression “or” should be read asconjunctive or disjunctive, it was argued that after the stage of section11 under the LA Act, there are two possibilities. The requisite authoritymay take possession of the land in terms of Section 16 of the LA Act orthe said authority may proceed to tender payment under Section 31 ofthe LA Act. The said two possibilities may be conducted simultaneouslyor one after the other, there is no embargo in the LA Act regarding thesame.

43. It is submitted that Section 24(2), while providing for lapsing,uses the two phrases concerning possession of the land and the tenderingof payment with the disjunctive word “or” thereby making it mandatoryfor the acquiring authority to satisfy both contingencies in order to avoidlapsing. It is submitted that the same would be against the legislativeintention of limited lapsing. Further, the said interpretation would beagainst the purport of the possession and the title “being vested” in theacquiring authority by virtue of the interpretation of section 16 in the LAAct [as dealt with the latter part of the submissions]. It is submitted thatthe intention of the Legislature could not have been to divest the acquiringauthority of the land after the said has been vested “free from allencumbrances”. In line with the same, it is submitted that the word

A“or” may be read as “and” so as to limit the lapsing only in cases whereboth, payment has not been made (subject to proviso) and possessionhas not been taken.

44. Reliance is placed on the judgments reported as Ishwar SinghBindra v State of UP[28], where this Court approved and extractedBpassages from Maxwell on Interpretation and Stroud’s JudicialDictionary to the effect that generally, the conjunctive “and” is used ina cumulative sense, requiring the fulfilment of all the conditions that itjoins together, and herein it is the antithesis of “or” and that however,sometimes, even in such connection, it is, by force of its contents, readas “or”. Similarly, Maxwell accepted that “to carry out the intentionCof the legislature it is occasionally found necessary to read theconjunctions ‘or’ and ‘and’ one for the other”. Learned counsel alsorelied on Mobilox Innovations (P) Ltd v Kirusa Software (P) Ltd[29]which held that:“38....Even otherwise ,the word “and” occurring in SectionD8(2)(a)must be read as “or” keeping in mind the legislativeintent and the fact that an anomalous situation would arise ifit is not read as “or” if read as “and”, disputes would onlystave off the bankruptcy process if they are already pendingin suit or arbitration proceedings and not otherwise. ThisEwould lead to great hardship; in that dispute may arise afew days before triggering of the insolvency process, in whichcase, though dispute may exist, there is no time to approacheither an Arbitral Tribunal or court...”

Learned counsel also relied on several other decisions in supportFof the same proposition (i.e. that the disjunctive “or” has to be readcontextually, and if need arises as “and”, i.e., as conjunctive).[30]

28 1969 (1) SCR 219

29 (2018)1SCC 353

30 Brown v Harrison 1927 All ER 195 @ pp. 203, 204 (CA); Ranchhodddas AtmaramG& Anr v Union of India 1961 (3) SCR 718; State of Bombay v R.M.D. Chamarbaugwala1957 (1) SCR 874 (hereafter “RMDC”); Patel Chunibhai Dajibha v Narayanrao, 1965(2) SCR 328; Punjab Produce & Trading Co. v. Commissioner of Income Tax, WestBengal, 1971 SCR 977; Ishwar Singh Bindra & Ors v State of UP 1969 (1) SCR 219;Joint Director of Mines Safety v Tandur and Nayandgi Stone Quarries (P0 Ltd 1987 (3)SCC 308; Samee Khan v Bindu Khan 1998 (7) SCC 59. Prof. Yashpal & Ors v State ofHChhatisgarh & Ors 2005 (5) SCC 420

45.Highlighting that the placement of the proviso (following Section24 (2)) is significant, and not accidental, it was argued that the field ofoperation of the proviso is immediately preceding provision, i.e. Section24 (2) and not Section 24 (1) (b). It is submitted that the proviso toSection 24 (2) contemplates situation where with respect to majorityof the holdings, compensation not deposited in the account of landowners(even though there being tendering of payment to all land owners andphysical possession being taken), the benefits of the Act of 2013 qua thecompensation would follow. It is argued that if the said proviso is notinterpreted to be proviso to Section 24(2), valuable benefit extendedby Parliament would evaporate. Learned counsel contended that thesaid proviso provides for enhanced benefit even if the twin conditions ofSection 24 (2) are met. Therefore, the said proviso saves the landacquisition and furthers the purpose and the object of giving benefit ofcomputation of compensation to all landholders. Therefore, it is evidentthat the proviso is appropriately treated as proviso to Section 24 (2)and cannot be read as proviso to Section 24 (1) (b) of the Act of 2013. Itwas argued that Parliamentary intent is clearly discernible, because ofthe colon (a punctuation mark) occurring at the end of Section 24 (2),which means that the proviso constitutes an exception to that provision.Reference was made to Aswini Kumar Ghosh & Anr v ArabindaBose & Anr[31](where it was held that “...Punctuation is after all aminor element in the construction of statute and very little attentionis paid to it by English Courts. ......When statute iscarefully punctuated and there is doubt about its meaning, weightshould undoubtedly be given to the punctuation.”). Reliance wasalso placed on Jamshed Guzdar v State of Maharastra.[32]

46. It was argued by Ms. Pinky Anand, learned ASG, that paymentof compensation is not sine qua non for vesting in terms of Section 16of the old LA Act. It is urged, in this context, that the old Act did notprovide any time line for depositing compensation; nor even for takingover of possession. Ordinarily, the repeal provision under the Act of2013 (Section 114) would prevail; however, Section 24 carves out animportant, albeit limited scope from the repeal clause. Section 24 (2)freshly introduces the concept of lapsing, in relation to acquisitionsthat were initiated under the old Act. Necessarily, lapsing is to beconsidered as narrow concept. Supporting the learned SG’s argument

31 1953 SCR 132 2005 (2) SCC 591

CDE

Athat “or” is to be read conjunctively, she highlighted that by reason ofSection 16 of the old Act, title vested in the State, upon taking ofpossession. Divesting under old Act was impermissible. It was urgedthat were the court to accept an interpretation, that either non-paymentof compensation, or taking of possession – under Section 24 (2), wouldresult in lapsing of acquisition, as held in Pune Municipal CorporationB(supra) and other decisions, land vested in the State, and conveyed tothird parties (either as allottees of housing schemes or public sectorundertakings, for one development project or another, or for publicpurposes such as construction of roads, bridges and other public works)would be divested.

47. Under Section 16 of the LA Act once award is made andpossession of land is taken, then the land vests absolutely with theGovernment. Therefore, the word deemed to lapse in Section 24(2) shouldnot be interpreted to mean divesting of land from the Government whichis already vested in the Government and moreover in the absence of anyprovision of divesting in the 1894 Act. In this context, the observationsDin Bengal Immunity Co. Ltd. v. State of Bihar[33] that the legislature ispresumed to be acquainted with the construction which the courts haveput upon the words, and when legislature repeats the same words. ThisCourt had, in that judgment, quoted with approval the previous decisionin Sri K.C Gajapati Narayan Deo v, State of Orissa[34] that

“Section of the Act empowers the State Government todeclare, by notification, that the estate described in thenotification has vested in the State free from allencumbrances. ….. The consequences of vesting ether by Issueof notification or as result of surrender are described inFdetail in Section 5 of the Act. It would be sufficient for ourpresent purpose to state that the primary consequence is thatall lands comprised in the estate including communal lands,non-ryoti lands, waste and trees orchards pasture lands,forests, mines and minerals, quarries, rivers and streams, tanks,water channels, fisheries, ferries, hats and bazars, andGbuildings or structures together with the land on which theystand shall, subject to the other provisions of the Act, vestabsolutely in the State Government free from all encumbrancesand the intermediary shall cease to have any interest in them.”

33 (1955) 2 SCR 603H34 1954 SCR 11

Learned counsel also relied on the judgment of this Court inJagannath Temple Managing Committee v. Siddha Math[35], at para53, that “it is settled principle of law that once property is vestedby an Act of legislature, to achieve the laudable object, the samecannot be divested by the enactment of any subsequent general lawand vest such property under such law.”

48. It was urged that serious consequences arise when conditionnos. (ii) and (iii) are to be read as not conjunctive or disjunctive. Theword used to connect these two conditions is “or”; if it is not readconjunctively, disastrous consequence leading to absurd result wouldemanate. Once possession is taken over vesting occurs under Section16 of the LA Act. Section 24(2) contains no stipulation that such vestingof title of land stands nullified or divested. If the intention of Parliamentwas to divest the State of its title that had to be stated in plain and clearlanguage. It was emphasized that the conjunctive use of “or” in Section24 (2) would have not only momentous consequences to the State, butinnocent third parties, who would be exposed to the risk of being divestedtitle to the lands and properties, perfected by them, as allottees orsubsequent purchasers. Merely because person who has receivedcompensation clungs on to the possession of the land and the same shalllead to lapsing cannot be the intention of Parliament. Similarly, one whoreceived compensation, is not obliged to return the money to the State inthe event of lapsing under Section 24(2) of the Act of 2013. It wasurged, therefore, that absence of provision to return the compensationreceived to Government convincingly points to Parliamentary intent that“or” should be read as “and”; thus, only if neither possession is taken (ofacquired lands) nor is compensation paid, (i.e., tendered to the party orparties) would the acquisition under the LA Act lapse. Learned counselalso relied on several decisions in this context.[36]

49. It was highlighted by M/s Bhangde, Mr. Rajesh Mahale, andMs. Shashi Kiran, that the consequence of literally interpreting Section24 (2) as to mean that the conditions are disjunctive (either that “or”should be read as such) are too drastic and severe. Learned counsel

35 (2015) 16 SCC 542 @ para 53

36 Northern Indian Glass Industries v. Jaswant Singh and Ors., (2003) 1 SCC 335;Gulam Mustafa v. State of Maharashtra, (1976) 1 SCC 800; Sita Ram Bhandar Society,New Delhi v. Lieutenant Governor, Government of NCT, Delhi and Ors., (2009) 10SCC 501 and Chandragauda Ramgonda Patil and Anr. v. State of Maharashtra andOrs., (1996) 6 SCC 405

Apointed out that as result of allegations of non-payment of compensation,lands which had been vested in the State and were subsequently madeover to the requisitioning agencies, and in respect of which title hadpassed multiple times to other parties, now are exposed to the threat ofdivesting of title. Learned counsel submitted that deeming fiction cannotbe taken to this extent; such disastrous consequences could not haveBbeen attributed by Parliament, because even if such were the intent,there has to be mechanism to restitute those likely to be affected.Besides, the legality of such law, divesting or taking away the title ofsuch innocent third-party purchasers, would be suspect, because thereis absolutely no provision for restitution or any form of compensation inCtheir favour.50. On the question relating to the mode of taking possession, itwas argued that when the State is involved in taking possession of theproperty acquired, it can take possession by drawing panchnama.The normal rule of State possessing the land through some persons wouldDnot be applicable in such cases. On open land, possession is deemed tobe of the owner. The way the State takes possession of large chunk ofproperty acquired is by drawing memorandum of taking possession asState is not going to put other persons in possession or its police force orgoing to cultivate it or start residing or physically occupy it after displacingwho were physically in possession as in the case of certain private persons,Ein case they re-enter in possession of open land, start cultivation orresiding in the house. Lawful possession is deemed to be of the State. Anumber of decisions that accepted the mode of drawing panchnama bythe State consistently to be mode of taking possession were cited. InBanda Development Authority v. Moti Lal Agarwal[37] this CourtFobserved that preparing panchnama is sufficient to constitute takingof possession. If acquisition is of large tract of land, it may not bepossible to take physical possession of each and every parcel of the landand it would be sufficient that symbolic possession is taken by preparingan appropriate document in the presence of independent witnesses and

getting their signatures. Even subsequent utilisation of portion of acquiredGland for public purpose was still sufficient to prove taking possession.

51. It is submitted that when the State acquires land and has drawnmemorandum of taking possession that is the way the State takespossession of large tract of land acquired, it ought not necessarily to37 (2011)5 SCC 394 (hereafter referred to as “Banda Development Authority”)H

physically occupy such land after forcefully displacing those physicallyin possession. Possession in law is deemed to be physical possession forthe State. This Court in number of decisions has accepted the mode ofdrawing panchnama by the State consistently to be mode of takingpossession. It is submitted that this Court in T.N. Housing Board v. A.Viswam[38] held that recording of memorandum/panchnama by the LandAcquisition Officer in the presence of witnesses signed by them wouldconstitute taking possession of land.

Also, reliance is placed on other decisions.[39]

52. Dealing next with the manner by which the period covered byan interim order of Court ought to be excluded for the purpose ofapplicability of Section 24 (2) of the Act of 2013, it is argued that asettled proposition of law is that an act of Court should not prejudiceany party. In view of the maxim actus curae neminem gravabit oreven in its absence, any interimorder granted by the court cannot prejudiceany rights of the parties. It is argued that for proper working of thejustice delivery system, once the court passes an order stayingdispossession, the State cannot take possession of the land. If an orderof the Court disables person to take any action, the doctrine nemotentur ad impossible would be applicable that is, the law in generalexcuses party which is disabled to perform duty and impossibility ofperformance of duty is good excuse. Further, the Latin maxim lexnoncogitad impossibilia, that is, the law does not compel man to do thatwhich he cannot possibly perform. Since, it becomes impossible for theState to take possession, for the duration stay or interim order is inoperation, the consequence of an interim order cannot be used againstthe State. Reliance for this legal position is placed on the judgments inA.R. Antulay vs R.S.Nayak & Ors[40], Sarah Mathew v Institute ofCardio Vascular Diseases[41] and in Dau Dayal v State of U.P[42]. InA.R.Antulay (supra) it was held that no party is prejudiced by the court’smistake. Therefore, urged counsel, in cases where conduct of acquisition

38 (1996) 8 SCC 259

39 Balwant Narayan Bhagde v. M.D. Bhagwat, (1976) 1 SCC 700; State of T.N. v.Mahalakshmi Ammal, (1996) 7 SCC 269; T.N. Housing Board v. A. Viswam, (1996) 8SCC 259 and Om Prakash Verma & Ors. v. State of Andhra Pradesh and Ors, (2010)13 SCC 158.

40 1988 Suppl (1) SCR 01

41 2014 (2) SCC 62

42 1959 Supp (1) SCR 639

Aproceedings were held up after the passing of an award, due to theinterim order of any court, in the absence of any specific provision tothat effect, party who cannot perform its duties, and but for the order,could have performed its stipulated task, within the time assigned, shouldnot be placed at disadvantage, as that would amount to granting apremium for one’s wrongdoing, or rank speculation. It is urged, therefore,Bthat it is imperative that the period during which the State or the acquiringauthority was prohibited/ injuncted by an interim order of the court fromtaking possession has to be excluded. This principle, submit learnedcounsel, is based on settled common law principles. These are in factrules of equity, justice and sound logic. In the absence of their being aCprohibition in the law these principles would be attracted. The efficacyand binding nature of such common law principles cannot be diminishedor whittled down in the absence of any express prohibition in law. Coupledwith the aforesaid principle is also principle of restitution. An interimorder passed by the Court merges into the final decision, goes againstthe party successful at the interim stage. Unless otherwise ordered byDthe court, the successful party at the end of the litigation would be justifiedin being placed in the same place in which it would have been, had theinterim order not been passed. Undoing the effect of an interim order byresorting to the principle of restitution is in fact an obligation of the court.The above principles have been culled out and applied by this Court inEthe judgment in South Eastern Coal Field Ltd v State of M.P. & Ors.[43].Learned counsel argued that general common law rules of equity, justiceand sound logic would certainly apply. It is submitted that similarly, thedoctrine of restitution has been discussed in several other judgments ofthis Court including State of Gujarat v Essar Oil Ltd[44]. It is, thus,submitted that the mere absence of an express provision under SectionF24(2) – to exclude the period during which an interim order operates,which prevents the making of an award, or taking over of possession ofacquired land, would not in law imply that such restitutionary and equitableprinciples would be inapplicable.

Contentions on behalf of landownersG

53. Mr. Shyam Divan, learned senior counsel, led the argumentson behalf of landowners. He urged that the Act of 2013 is new,transformative and radical measure. The new law is welfare state

43 2003 SCC 648H44 2012 (3) SCC 522

law, not colonial law - unlike the Act of 1894. Mr. Divan submitted thatthe Act of 1894 resulted in several rounds of repeated litigation on variousaspect, such as payment of compensation, lack of legislatively mandatedtimelines for completion of acquisition proceedings, etc. This also resultedin amendments to the Act of 1894 (notably, the amendments of 1967 and1984) which, to some extent, sought to grant relief to landowners.However, these too got mired in litigation. Learned counsel relied on thejudgments, reported as Dev Sharan v State of Uttar Pradesh[45]andRadhey Shyam v State of UP[46]. Repeated litigation was the result of anunfair legal regime. It was submitted that such judgments of this Courthighlighted that the Act of 1894 was enacted more than 116 years ago tofacilitate acquisition of land and immovable properties for constructionof roads, canals, railways, etc. This law was frequently used in the post-independence era for different public purposes like laying of roads,construction of bridges, dams and buildings of various publicestablishments/institutions, planned development of urban areas, providingof houses to different sections of the society and for developing residentialcolonies/sectors. In the recent years, there is acquisition of large tractsof land in rural parts of the country in the name of development and theirtransfer to private entrepreneurs, who utilize it to construction of multi-storied complexes, commercial centres and for setting up industrial units.Similarly, large scale acquisitions were made on behalf of companies byinvoking the provisions contained in Part VII of the Act. Resultantly,such acquisition led to deprivation of the source of livelihood of landowners, engaged in agricultural operations and other ancillary activitiesin rural areas. large number of these people are unaware of, andunable to assert their rights, and secure fair compensation. The unrestand inequity which arose out of these deprivations, impelled the State toenact modern law, which ensured not only fair compensation, but otherrights such as rehabilitation, employment, higher solatium and guaranteeagainst deprivation of certain kinds of lands. Thus, the Act of 2013 ushereda new regime that starts from fresh direction. Learned counsel alsorelied on Bharat Sewak Samaj v. Lieutnant Governor & Ors.,[47]tosay that the provisions of the Act of 1894 were outdated and were misusedand were oppressive to the interest of the landowners. Hence, the Actof 2013 was enacted and that this Court ought to interpret in the spirit of

45 (2011) 4 SCC 769

46 (2011) 5 SCC 553

47 2012 (12) SCC 675

ABCDEFG

Athe new beneficial legislation. Learned counsel urged that the benefitsso conferred should not be taken away by this Court by narrowlyinterpreting its provisions.

54. Mr. Divan relied on the Statement of Objects and Reasons ofthe Act of 2013 to say that the new law was framed, in recognition ofBconcerns expressed by the property owners of forcible acquisition withoutfollowing due process and without paying appropriate compensationaffecting livelihood of such owners, many times, who are small propertyowners or persons having small agricultural holdings and having beendependant on the said holdings, the new Act is made. The Act aims toprovide just and fair compensation, make adequate provision forCrehabilitation and resettlement for the affected persons in the family,determination of compensation package on scientific methods. It wasurged that being welfare legislation, the Act of 2013 constitutes awholesome rejection of the colonial approach. Learned counsel urgedthat under the new Act, unlike the Act of 1894, Social Impact AssessmentD(SIA) report has to be prepared, under Section 7, as an integralcomponent of acquisition proceedings. If acquisition is not resorted to, ina time frame, the acquisition lapses; likewise, the new Act contemplatesthe preparation of rehabilitation scheme, which would note the (a)particulars of lands and immovable properties being acquired of eachaffected family; (b) livelihoods lost in respect of landless who are primarilyEdependent on the lands being acquired; (c) list of public utilitiesGovernment buildings, amenities and infrastructural facilities which areaffected or likely to be affected, where resettlement of affected familiesis involved and (d) details of any common property resources beingacquired.F

55. Learned senior counsel argued that Section 24 constitutes anexception to the general rule, i.e., lapsing of all acquisition proceedings,by reason of repeal of the Act of 1894, and operation of Section 114.Therefore, Section 24 has to be given effect to strictly, given thatParliamentary intent was to ensure that acquisition proceedings did notGresult in oppression and hardship. It was argued that having regard tothis salient feature, the provision (Section 24) should be literally construed.Learned counsel submitted that the objective of new Act must be kept inmind to understand the scope of Sections 11, 11 (A), 12, 31 and 34 of the1894 Act, on the one hand, and provisions of Section of 24 of the Act of2013 on the other. Furthermore, it was argued that the non-obstanteH

clause must be allowed to operate with full vigour in its own field. It wasstressed that such provision is equivalent to saying that in spite of theprovision or Act mentioned in the non-obstante clause, the enactmentfollowing it, will have its full operation of that, the provision indicated inthe non-obstante clause will not be an impediment for the operation ofthe enactment. Decisions in this regard were cited by counsel.[48]

56. Mr. Divan relied upon the three stages preceding the Act of2013 to urge that there was no doubt in the mind of Parliament, thatlapsing of acquisition proceedings was intended to ensue, in the eventcompensation were not paid; or possession were not taken, in respect ofawards made five years prior to coming into force of the Act of 2013. Itwas argued that Section 24 should be given plain and literal construction,except to the extent that the term “paid” occurring in Section 24(2)would also cover cases where deposit is made before the ReferenceCourt in situations covered by Section 31(2) of the 1894 Act. Elaboratingon this, it is urged that the first decision of this Court, i.e., Pune MunicipalCorporation (supra) took note of Section 24(2) in the context of pre-existing law. The Court was alive to the fact that under the Act of 1894,where payment of compensation was tendered and the land ownerrefused to accept the amount, the State is nevertheless obliged to ensurethat at all times, the amount should be made available, in place or anaccount, not within its control. It was urged, therefore, that actual tenderof the amount of compensation is sine qua non for the act of paymentto be completed. It was considered that in that event, the land ownerdoes not accept the amount, it should be deposited with the Court, aneutral and independent authority to whom the land owner or anyoneclaiming under him can approach and draw the amount. It was submittedthat this obligation cannot be brushed aside because aside from thequestion of acceptance of compensation without prejudice, even at alater stage, the land owner might wish to reconsider the compensationand avail of the amount.

57. Learned counsel submitted that the obligation to deposit theamount in the Reference Court is an independent and absolute one inthat it is irrespective of whether the land owner sought reference forhigher compensation to the Court (under the Act of 1894). Learnedcounsel urged this Court to accept this interpretation, which according

48 Madhav Rao Scindhia v. Union of India 1971 (1) SCC 85 (11 Judges); Smt.Parayankandiyal Eravath v. K. Devi (1996) 4 SCC 76 (2 Judges).

Ato him, would give full effect to the intention of Parliament, i.e., to saveintention of Parliament. It was again highlighted that Parliamentaryintention was firstly to repeal the previous law to limited extent andsave ongoing acquisition proceedings – in terms of Section 24(1) andusher new regime, i.e. Section 24(2) whereby indolence on the part ofthe State agencies either with respect to payment of compensation orBwith respect to taking over of possession, resulting in the lapse ofacquisition proceedings itself. Learned counsel relied upon the decisionsof this Court which followed and applied the law declared in PuneMunicipal Corporation[49].58. It was argued that the submissions on behalf of the State andCthe development authorities that “payment” included deposit with thetreasury or some other authority other than the Reference Court, couldnot have been termed as compliance with the Act of 1894. Here, it wasurged that Parliament was acutely alive of the fact that the previousland acquisition regime resulted in injurious and unconscionable delaysDin payment of compensation. Furthermore, even after awards were made,possession was never taken. This led to great deal of uncertainty asfar as the land owners were concerned because they could not moveahead in their life without compensation nor could they take any steps toacquire new lands or properties. It was precisely to address this mischief,rather widespread one, that the Parliament wished to enact “brightEline approach” whereby all acquisitions which did not culminate either inpayment of compensation or taking over of possession in respect ofawards made five or more years prior to 1.1.2014 had to lapse. It wassubmitted that Section 24(1) provided limited window in that it savedsome acquisitions, i.e., notably where awards had been made but furtherFproceedings had not been taken or where awards had not been made in

49 Bharat Kumar v State of Haryana (2014) 6 SCC 586 (hereafter “Bharat Kumar”);Bimla Devi v State of Haryana (2014) 6 SCC 583 @ para 3; Union of India v Shiv Raj(2014) 6 SCC 564 at para 22; Sree Balaji Nagar Residential Association (supra) at para14; State of Haryana v Vinod Oil and General Mills 2014 (15) SCC 410 at para 21; SitaRam v State of Haryana (2015) 3 SCC 597 at paras 19, 21; Ram Kishan v State ofGHaryana (2015) 4 SCC 347 at paras 8, 9, 12; Velaxan Kumar v Union of India 2015 (4)SCC 325 at paras 15, 16, 17 (hereafter “Velaxan”); Karnail Kaur v State of Punjab(2015) 3 SCC 206 at paras 17, 18, 23; Rajive Chowdhrie HUF v State (NCT) of Delhi(2015) 3 SCC 541 at para 1; Competent Automobiles Co. Ltd v Union of India AIR2015 SC 3186 at para 4; Govt of NCT of Delhi v Jagjit Singh AIR 2015 SC 2683 at para3; Karan Singh v State of Haryana 2014 (5) SCC 738 at para 5; Shashi Gupta & Ors.v. State of Haryana 2016 (13) SCC 380 at para 5; Delhi Development Authority vHSukhbir Singh (2016) 16 SCC 258 at para 1 (hereafter “Sukhbir”).both cases less than 5 years prior to 1.1.2014. It was only in these twolimited instances that acquisition proceedings were allowed to continueor preserved. Thus, Parliamentary intent was that in cases of all awardsmade five years or more prior to the coming into force of the Act, ifcompensation was not paid or possession of the acquired land not taken,automatically, as matter of law there was to be lapse (of suchacquisitions). This legal consequence crystallised and was in consonancewith the other provisions of the Act of 2013. Arguing that if one were totake into account this perspective, there can be no doubt that theexpression “paid” cannot mean anything other than tendering ofcompensation and in the event of its refusal, or the three contingenciescontemplated under Section 31(2) of the Act of 1894, it is deposited inCourt. If these eventualities were not fulfilled and the amounts weremerely kept back with the Government by it, any compliance with somenorms evolved as part of the treasury or financial code there could havebeen no payment or deposit in the eyes of law. Learned counsel submittedthat this Court should affirm the decision in Sukhbir Singh. It was alsosubmitted that unless Section 31 of the 1894 Act which postulates theperformance of public duty in particular manner and (through stipulatedthree eventualities), such duty could be said to be fulfilled only and onlyif that procedure were followed. Learned counsel relied upon thejudgment in Bharat Kumar, which noted that Section 24(2) has abeneficial intent and begins with non-obstante clause. Therefore, urgedcounsel, literal meaning is to be preferred. It was highlighted that Section24(2) achieved two-fold purpose, i.e., to preserve acquisitionproceedings initiated before the commencement of the Act and secondly,conferring rights upon the land owners and other parties which did nothitherto exist. Since these rights relate to the right to property which isguaranteed by Article 300A of the Constitution, full effect must be givento them rather than the construction which would destroy its very purpose.In support of this argument, learned counsel relied upon Union of Indiav. Shivraj[50].

59. Learned counsel submitted that the decision in Pune MunicipalCorporation (supra) was itself conscious of Section 31 and thecontingencies or eventualities contemplated under Section 31(2). Thatapart, it also relied upon Ivo Agnelo Santimano Fernandes v. State ofGoa[51], to say that the State cannot be – in the event of non-acceptance

50 (2014) 6 SCC 564.

51 (2011) 11 SCC 506

CDEF

Aof the compensation by the land owner or its inability to locate the landowner or in the event of dispute – keep the compensation amount withitself and claim it to be part of same general treasury amount and proceedto utilise it. It was submitted that precisely to deal with this practice, theappeal provided that non-payment of compensation – and in the event ofany of the contingencies accruing in Section 31(2) of the 1894 Act, theBfailure to deposit it with the Reference Court would result in lapse ofentire acquisition itself. It was submitted that this interpretation is notonly literal but followed the objective and purpose sought to be achievedby the Parliament through the provision. Learned counsel urged thisCourt that the literal interpretation in this case would also accrue with anCequitable interpretation and ensure that the real benefit of the new lawwould accrue to land owners deprived of their properties and livelihoodsfor long periods without payment of compensation. Learned counsel,therefore, urged that the beneficial interpretation adopted by this Courtin Velaxan Kumar (supra) should be accepted. Rajive ChowdhurieHUF (supra)[52], it was argued, while interpreting Section 24 of the ActDof 2013 Act, the Court should not in the guise of an interpretative exercisedon the cap of legislature. It was submitted as to the State’s argumentthat the disjunctive “or” in Section 24(2) should not be read as conjunctive“and”. It was argued in this regard that in all the three drafts that the Bill(which ultimately culminated in the Act of 2013) went through[53], theEexpression used consistently was “but the physical possession”. Inthe three stages, the intent was to normally ensure that the acquisitionproceedings pending for long time were to lapse. It was emphasisedthat in the first version, i.e., the Bill introduced on 5.9.2011, all acquisitionswere deemed to have lapsed regardless of whether the award was madeor not, if possession were not taken and also in those cases where theFawards were not made. Therefore, this Court should be cautious ininterpreting the disjunctive “or” in any manner other than in the literalsense.

60. The three broad situations covered under Section 24 are (i)cases where the land acquisition process shall be deemed to have lapsed;G

52 (2015) 3 SCC 541

53 Land Acquisition Rehabilitation and Resettlement Bill 2011 – introduced in LokSabha on 05.07.2011; Right to Fair Compensation and Transparency in Land AcquisitionRehabilitation and Resettlement Bill, 2013 as passed by the Lok Sabha on 29.08.2013and the Right to Fair Compensation and Transparency in Land Acquisition RehabilitationHand Resettlement Act 2013 (as passed by both Houses of Parliament on 05.09.2013).

(ii) cases where the landholders are entitled to compensation inaccordance with the provisions of the Act of 2013; and (iii) cases wherethe land acquisition proceedings continue under the 1894 Act as if it hadnot been repealed. It was urged that the first set of cases are coveredby Section 24(2). The two conditions to be fulfilled as on 1.1.2014 totrigger the deeming provision into operation, according to Mr. Divan, arefirstly, there must be an award under section 11 of the 1894 Act whichhas been made five years or more prior to the commencement of theAct of 2013 (i.e., an award made on or before 1.1.2009); and secondlyeither physical possession of the land has not been taken from thelandowner or compensation had not been paid as required under the Actof 1894.61. It was argued that the second set of cases, where enhancedcompensation has to be paid, under the Act of 2013, are covered underSection 24(1) and the proviso to Section 24. Section 24(1) provides thatwhere proceedings have not reached the stage of an award under section11 of the 1894 Act, the provisions to determine compensation under theAct of 2013 apply. Further, the proviso to Section 24 provides forcompensation in terms of the Act of 2013 where the following conditionsare fulfilled, firstly an award has been made under section 11 of the1894 Act; and secondly, compensation in respect of the majority of theland holdings has not been paid to the landowners. It was submitted thatthe “majority” is required to be reckoned with reference to the awardpassed under the Act of 1894, and that awards contemplated by theproviso are awards made within the period of five years prior to thecommencement of the Act of 2013 i.e., awards made between 1.1.2009and 31.12.2013.

62. Learned counsel stated that the third set of cases is where theland owners do not get any benefit under the Act of 2013 and theacquisition proceeds under the provisions of the Act of 1894. It wasargued that these cases are covered by section 24(1)(b) and to whichneither section 24 (2) nor the proviso applies. This covers situationswhere though an award has been passed five years prior to thecommencement of the Act, neither of the conditions for deemed lapsingare present. Mr. Divan urged that the provisions of the Act of 1894 willcontinue to apply without any benefit in terms of increased compensationwhere an award is passed within 5 years of the commencement of theAct of 2013 but the majority of landholders have been paid.

A63. Mr. Divan then urged that this understanding of the provisionsof Section 24 is based on established rules of interpretation i.e., first, thegolden rule of interpretation requiring the Court to interpret statutoryprovisions literally. Second, the rule of purposive interpretation was tobe used, having regard to the object of the enactment, the purpose of thelaw in seeking to correct historical injustices and the legislative intent toBconfer the benefit of the Act of 2013 on certain landholders affected bythe regime under the Act of 1894. The third rule to be employed, is therule of harmonious interpretation, such that all words of the provisionare given effect and no part of the provision is rendered otiose; fourth,contemporaneous understanding of administrators responsible forCimplementing new law. Also an interpretation in such manner as toavoid inserting words, subtracting words, and avoids anomalies orabsurdities was necessary. Lastly it was urged that giving deemingprovision its natural effect, which in this case results in rule ofinterpretation that the provisions of beneficent legislation ought to beinterpreted in the case of ambiguity in favour of the citizens.[54]D

64. It was submitted that the interpretation of Section 24 outlinedabove gives the plain and natural meaning to the key expressions used insection 24 - “physical possession”, “paid”, and “deemed to have lapsed”.He further argued that since Section 24 of the Act of 2013 must be readwith section 31 of the Act of 1894, the expression “tender” is also relevantEand the interpretation he has advanced is consistent with the naturalmeaning of “tender”.

65. Learned counsel for the landowners urged that the words‘paid’ and ‘deposited in the account of the beneficiaries’ are twopermissible modes of making compensation available to landowners.FMr. Divan contended that these are two modes of paying the money tothe landowners. ‘Paid’, it was urged, means paid. It does not mean adeposit in treasury. He further submitted that ‘deposit in the account ofthe beneficiaries’ does not mean deposit in the treasury. He arguedthat there was no reason to depart from the rule of literal interpretation,Gand the manner of payment, as held in Pune Municipal Corporation(supra), is to be strictly in terms of Section 31 of the Act of 1894 as it is54 Counsel cited Pratap Singh vs. State of Jharkhand (2005) 3 SCC 551 (5 Judges);Central Railway Workshop vs. Vishwanath (1969) 3 SCC 95; and M/s International Oreand Fertilisers (india) Pvt. Ltd. vs. Employee State Insurance (1987) 4 SCC 203 inHsupport of the rule of beneficial construction of welfare and remedial statute.

an expropriatory legislation. It was contended as to the learned SolicitorGeneral’s submission that payment in terms of Section 24 is compliedwith if the amount is tendered to the landowners, overlooks the obligationof payment in terms of Section 24 is only met if the amount is actuallypaid to the landowners. On the occurrence of the contingenciesmentioned in Section 31(2) of the Act of 1894, it ought to be deposited inthe Reference Court as defined under Section 3(d) of the Act of 1894.He submitted that tendering money is not payment and Section 31(1) ofthe Act of 1894 uses the words ‘tender’ and ‘paid’ to convey differentmeanings and obligations. Mr. Divan argued that the judgments cited bythe learned Solicitor General in this regard essentially deal with labourlaws, and are inapplicable as these statutes did not contain provisionsuch as Section 31 of the Act of 1894, which strictly and preciselyprescribes what is to be done in the event when the payment is notaccepted.

66. It was argued that no rules under the Act of 1894 contemplatedeposit in the treasury. Learned counsel submitted that standing orders,which are merely administrative instructions issued for conductingmonetary transactions of the State, have in some cases been confusedto be Rules framed under Section 55 of the Act of 1894. The Rules orthe Standing Orders have not been produced and no evidence has beenfurnished of compliance with the requirements of Section 55, such asnotification in the Gazette. All learned counsel submitted that in anycase, delegated/subordinate legislation cannot be inconsistent with, or inany manner depart from the express and precise language of the parentenactment. Again, it was submitted that the State’s argument with respectto deposit of compensation amounts in the treasury, is untenable, for twostrong reasons: one, that Section 31 itself directed the compensation tobe deposited in the court. In the teeth of this express position, the Statecannot be heard to say that it could nevertheless “deposit” the amount inthe treasury, which is nothing but keeping the money with itself. It wassecondly urged, that even otherwise, the Act of 1894 visualized that inregard to matters not provided expressly, rules could be made (Section55).

67. Learned counsel submitted that the State’s argument regardingthe interpretation of ‘physical possession’ to be possession as per theratio in Banda Development Authority (supra), is incorrect. It wassubmitted that it is important to take note of the conscious inclusion of

Athe word ‘physical’ in relation to possession. An important distinction isrequired to be drawn in respect of de jure / constructive / deemedpossession and ‘physical’ possession. Even if it is conceded that drawingof Panchnama is valid mode of initially taking possession of vasttracts of vacant land, the intention of the legislature is that over periodof five years, such possession must transform to evident and demonstrableB‘physical’ possession i.e., the manifestation of actual control and dominionover the subject land(s). Learned counsel relied on several decisions insupport of their argument that “physical possession” should be construedas actual physical possession, and not constructive, or de jurepossession, which in most cases is possession on paper.[55]C68. Arguing next regarding the interpretation of the proviso toSection 24, it was stated that the same is to be read as proviso toSection 24 and not Section 24 (1) (b). Mr. Divan submitted that provisomay in certain cases operate as an independent provision, and the provisoto Section 24 is stand-alone provision which operates on its own terms.DTo the extent it is linked to any provision in Section 24, it is linked toSection 24(1)(b) since it permits enhanced compensation (in particularcontingency of non-payment to majority of the landowners) even if anaward may have been passed as contemplated in Section 24(1)(b). Mr.Divan placed reliance on the reasons given in the judgment of DelhiDevelopment Authority v. Virendra Lal Bahri, [SLP [C] No.37375/E2016].

69. All counsel for landowners submitted that there is no validreason to exclude from the period of 5 years under section 24(2), thetime during which landowner had the benefit of an interim order of acourt. In support of this argument, it was argued firstly, that ParliamentFdid not expressly exclude such period in Section 24. Second, where inthe Act of 2013, the legislature did want to exclude the period of stayor injunction, it has done so by using express words such as in the provisoto Section 19 and the explanation to Section 69 of the Act of 2013. Third,he submitted that the maxim “actus curiae neminem gravabit” whichGmeans that “the act of court shall prejudice no one” has no application

55 Seksaria Cotton mills v. State of Bombay 1953 SCR 325 Para 21; Superintendent v.Anil Kumar (1979) 4 SCC 274 (Paras11-16); B. Gangadhar v. Rajalingam (1995) 5SCC 238 (Para 5-6) Guruchand Singh v. Kamla Singh (1976) 2 SCC 152 (Paras 21-24).Mohan Lal v. State of Rajasthan (2015) 6 SCC 222 (2 Judges)HPara 11 to 15 endorsing contextual interpretation of the term

here, as this is maxim which is applied generally as principle ofequity in individual cases to ensure that there is no injustice. The maximrarely, if ever, is applied to interpret statute. Mr. Divan submitted thatthis Court has declined to rely on this maxim in at least two reporteddecisions - Padma Sundar Rao v. State of Tamil Nadu[56] and State ofRajasthan & Ors. v. Khandaka Jain Jewellers[57]. Mr. Divan furtherplaced reliance on Snell’s Equity (33rd Edition, 2015), which states thatthe maxim of equity is not specific rule of principle of law. It is astatement of broad theme which underlies equitable concepts andprinciples and as result, the utility of equitable maxims is limited. Itfurther states that the maxim may provide some limited assistance tocourt in two broad types of situation:

“The first is when there is some uncertainty as to the scope ofa particular rule of principle, and court has to fall back onmore basic principles to resolve that uncertainty. The secondis when court is exercising an equitable discretion, and seeksto structure that exercise by referring to broader, underlyingprinciples.”

70. Learned counsel further placed reliance on three-judge Benchdecision of this Court in The Commissioner of Sales Tax v. ParsonTools and Plants[58], where it was held that:

‘If the Legislature wilfully omits to incorporate something ofan analogous law in subsequent statute, or even if there isa casus omissus in statute, the language of which is otherwiseplain and unambiguous, the Court is not competent to supplythe omission by engrafting on it or introducing in it, underthe guise of interpretation, by analogy or implication,something what it thinks to be general principle of justiceand equity.’

It was submitted that there is no occasion for excluding time spenton litigation. Parliament could have specified particular date such as1.1.2009 as the cut-off point under section 24(2). Had date been sospecified, there would have been no occasion to exclude time. Insteadof specifying particular date, the Legislature in the Act of 2013prescribed the cut-off point with reference to the commencement of the

56 (2002) 3 SCC 53357 (2007) 14 SCC 33958 (1975) 4 SCC 22

ABC

AAct. This method of specifying the cut-off point would not attract themaxim “actus curiae neminem gravabit”. It was argued that theoccasion for excluding time would arise only where there is startingpoint and statutory period to complete the task. In such provisions, itmay be reasonable to provide for the exclusion of time by appropriatelanguage in the section. Here, where cut-off date is prescribed and asBsuch there is no starting point and period for completion of the task, thenotion of excluding time spent in litigations is an alien concept. It was,therefore, submitted that it is not the court’s business to stretch the wordsused by the Legislature to fill in gaps or omit words used in the provisionsof an Act, i.e., to fill in an obvious and conscious exclusion of aCcontingency, or casus omissus. In support of this submission, learnedcounsel relied on decisions of this Court.[59] It was also argued that thisCourt should not also exclude any period or periods, spent in litigation,when interim orders were operating, because, firstly, in each suchinstance, the landowners were aggrieved by different kinds of arbitrarybehaviour, such as not providing opportunity of mandatory hearing (underDan absolutely absurd rejection of objections; failure to take note of actualdevelopmental needs, and taking of lands, unconnected with publicpurpose, or obvious instances of expropriation of utilities and amenitiessuch as schools, community assets, etc. These led the courts, on primafacie consideration to assess the merit in the challenge and grant interimEorders. Such instances could not be called as frivolous litigation,warranting exclusion of time, to deprive the benefit of lapsing, enjoinedby the new law. Secondly, it was argued that repeated attempts weremade in Parliament to amend the law, to exclude the time, in the mannersought by the State, by use of the maxim actus curiae neminem gravabit.However, such amendment could not pass muster.F

71. Learned counsel contended that Parliament’s intent is to confera benefit on landholders who were impacted by the erstwhile unfairregime. Urging that under the old law, landholders, to protect their assetsfrom expropriation of their land at paltry amounts, were compelled to

use legitimate systems of securing redress by filing cases in court, counselGurged that the correct approach, is to view litigation as necessity underan unjust former regime and not exclude the period spent under litigationin such an unfair regime. He further urged that the deeming provisionwith its clear and verifiable benchmarks on the five-year cut-off period,

59 G. Narayanswami v. G. Pannerselvam (1972) 3 SCC 717 and Kuldip Nayar vs UnionHOf India (2006) 7 SCC 1- both decisions of Constitution Benches.

physical possession and payment is easy to operate. Introducing notionssuch as exclusion of time due to pending litigation would complicate theworking of the statute.

72. Learned counsel urged that Section 24(2) uses the expression“or”. The Legislature intended the two conditions separated by the word“or” to be alternative conditions. Four situations arise where theconditions are disjunctive: firstly, when physical possession is with theState and compensation is with the citizen, there is no deemed lapse;secondly, when physical possession is with the citizen and compensationis with the State, there is no need for restitution as the State has retainedthe compensation amount; thirdly, when physical possession is with thecitizen, and the compensation is also with the citizen, in such scenarios,the citizen must return the compensation. It was urged that where theState has paid the money by deposit in the Reference Court and themoney was lying with the Court, the State may withdraw the money ondeemed lapsing. However, if the State were to decide to acquire theland afresh, the compensation already paid may be adjusted; and furthersince inherent in the notion of lapsing is the requirement for restitution,the State can recover the compensation, inter alia by framing suitablerules. The citizen cannot retain compensation “had and received” sincethis would amount to unjust enrichment. It was submitted that where thephysical possession as well as compensation are with the State, i.e.,where the State has taken possession without paying compensation asrequired under the Act of 1894, there is no absolute vesting free from allencumbrances as contemplated under Section 16. In the absence ofvesting, the State is required to restore possession to the citizen.

73. Learned counsel argued that having regard to the unfairworking of the Act of 1894, giving effect to the legislative intent byreading the expression “or” as “or” is the correct interpretation withbeneficent consequences for the landowner. The learned counselsubmitted that reading the expression “or” as “and” not only does violenceto the plain language of section 24(2) but it also reduces the deemingprovision down to vanishing point. Should conjunctive reading of theconditions be combined with exclusion of the time spent in litigation ordue to stay, then the whole of section 24(2) will be robbed of contentsince it will apply to very rare cases. It was further submitted that Section24 does not lay down any specific conditionality in terms of how farback in time the awards contemplated under section 24(2) could have

Abeen made. The deeming provision under Section 24(2) operates w.e.f.1.1.2014 and its effect would cover all cases that fulfil the conditionsprovided in the statute. Learned counsel cited decisions in support of theinterpretation that “or” should be construed disjunctively, not conjunctivelyas “and”.[60]

B74. Learned counsel stressed that there are no vested rightscreated in the State in any case till compensation has been paid andpossession has been taken. The Act of 2013 is beneficial legislationand radical departure from the previous unjust and oppressive regime.It intends to confer significant benefits to the landowners and makes theexercise of the power of eminent domain compatible with ourCconstitutional values. It ought to therefore be given an interpretationwhich favours the landowners. Finally, he argued that the decision inIndore Development Authority (supra) erroneously upset consistentline of decisions which began with Pune Municipal Corporation(supra). Subsequent decisions of this Court following Pune MunicipalDCorporation (supra) have also considered host of arguments/issuesand there is no compelling reason to make departure. He submittedthat even larger Bench of this Court is bound to pay due deference tothe principle of Stare Decisis.75. Supplementing the submissions, Mr. Dinesh Dwivedi, learnedEsenior counsel for the landowners, argued that the meaning of the phrase“compensation has not been paid” should be considered, given that inSection 24(2) “paid” is not used. The phrase “has not been” is used inrespect of both “possession” as well as “paid”. Therefore, it must meanthe same in both respects. The important factors to be borne in mind –and to distinguish the phrase “paid” from “deposit”, is whether in theFcourt under Section 31 (2) or in the treasury under Section 31(1). It isurged that an analysis of Sections 17 (3A) & (3B), 31 (1) & (2) andSection 28 read with Section 34 of the Act of 1894 shows that theseprovisions clearly distinguish between tender, paid or deposit whetherin the court or the treasury.G76. Learned counsel argued that three different words used in thesame Act, in various provisions of the Act, cannot mean the same. Itfollows also from the reading of Section 19(1)(c) and (cc). In both these

60 Naga People’s Movement of Human Rights vs. Union of India (1998) 2 SCC 109 (5Judges); R.S. Nayak v A.R. Antulay 1984 (2) SCC 183; and Life Insurance CorporationHv D. J. Bahadur 1981 (1) SCC 315.

provisions word “tender” is used in contrast to word “paid” while wordpaid is used in contrast to word “deposit”. The word “deposit”,wherever used, is in the context of “deposit in Court” only not treasury.The expression “tender payment” under Section 17 (3A) and Section31(1) of the Act of 1894 were followed by the words “pay it to them”.Therefore, tender cannot mean “paid”. It is urged that these terms fallin Part V of the Act, titled as “Payment”. The term “pay it to them”under Section 31 after “tender” must mean an additional action or step.When after “tender” an effort is made “to pay” the compensation andthe same is accepted by the beneficiary, it becomes “paid”. The“deposit” under Section 31(2) only comes in when the beneficiarydeclines payment. This clearly implies that “tender of payment” cannotbe equated with “pay it to them” or “deposit in Court” under Section31(1) and 31 (2). It is argued that what follows is that tender of paymentby itself is not enough. The State’s interpretation is contested as incorrectbecause if tender is equal to being paid then why does legislature providefor “deposit in court”. The amount is deemed to be paid on tender andthe obligation to pay is discharged then the question is why require“deposit in Court”. Learned counsel argued that “Tender” can neverbe deemed as “paid”: This is not only evident from reading of Section19(c) where the term “paid or tendered” is depicted as alternates.Similarly, “paid or deposited” are used alternately. Likewise, Sections17(3)(b), 19(cc) and 34 use these words alternately. As said above if“tender” would amount to “paid” and then the compensation would bedeemed to be paid, resulting in discharge of obligation to pay, then whydeposit in court under Section 31(2) to make it “custodia legis”. Section31(2) would become redundant in most of the cases.

77. Learned counsel conceded that there is no doubt that on adecline of payment by the beneficiary it has to be mandatorily depositedin Court under Section 31(2). The provision uses the phrase “shalldeposit” and this gives valuable right to the payee, not only of interestin the event it is not “deposited in court” but also right to seekinvestment of compensation under Section 33. These statutory rightsare adversely affected if “deposit” is not in “court”. Therefore, it isamply clear that “deposit in treasury is not an option available. It cannotbe substitute for “deposit in Court”. Besides Section 31(1) and 31(2) of the Act of 1894 present complete code for payment and there isno gap or uncovered area to permit rules to supplement. Any deposit intreasury was in breach of Section 31 and therefore, impermissible. Also,

Amost of the States had no rules under Section 55. In this context,executive instructions cannot prevail over law. Law can never beinterpreted with the aid of subordinate legislation or executive instructions.It was further submitted that Sections 17(3A) and (3B), 28, 31, 33 and34 of the Act of 1894 are clear pointer that “tender” is not “paid”and neither is “deposit”. Likewise, these provisions frequently use wordsB“paid or deposited” which shows they are different. Deposit cannot be,therefore, equated with paid as they are more than once separated byword ‘or’.

78. It was contended that the scheme of the Act of 1894 wasclear and categorical that the amount of compensations when acceptedCby the beneficiary is deemed to be “paid” for interest to stop running.The running of interest under Section 34 denotes non-discharge ofobligation to pay, otherwise why pay interest? The “deposit in Court”may stop running of interest and therefore, may for this purpose betaken to be paid, but when it comes to actual meaning in the aboveDprovisions, “paid and deposit” are invariably separated by the use ofword “or” in between them. Therefore, it is submitted that when Section24(2) of the New Act uses the phrase “compensation has not been paid”it uses the terminology of the proviso to Section 34(proviso) and musthave the same meaning “has not been paid” cannot be read as “has notbeen deposited”. If this is the right interpretation than the coverage ofESection 24(2) also expands to cover those cases in which thecompensation has not been actually paid but has been deposited in theCourt. This would also be in keeping with the legislative policy containedin the Preamble, to give just and fair compensation to those whose landshave been acquired as per the Old Act. Coverage of the New Act is co-Frelated to persons whose “land has been acquired”. The policy of Section24 also reflects this expansive liberal approach of “just and faircompensation”. Section 24 would therefore have to be seen in the lightof this liberal policy intent.

79. It was urged that these States’ arguments regarding revival ofGclaims or resulting in impossible situations causing irreparable harm arenot very relevant once the legislative policy is clear. The provision has tobe interpreted in manner that it subserves the legislative policy intentof giving just and fair compensation to those whose lands were acquired(possession taken) under the Act of 1894. Once the legislative policy orintent is clear then the objections relating to harsh consequences are notH

really relevant. It was stated that State may be put into difficult situation,but the solution too is provided in the last part of Section 24(2) whichreflects the words “if it so chooses”, it can acquire afresh under Section24. Learned counsel relied on Padma Sunder Rao (supra); PopatBahiru Govardhane v. Land Acquisition Officer[61]and B. Premanandv. Mohan Koikal[62]. It was urged that the legislative policy may causehardship or difficulties to some or the State may be put to an impossiblesituation; yet cannot take away from Parliamentary intent. Parliamenthas enough wisdom to know these difficulties, the law prevailing earlieror the ground realities. It would be deemed to be not only aware of thedifficulties, but also to have assessed them while framing the liberalisedpolicy. The question is one of intent. The intent has to be seen primarilyfrom the words used in the text. It is only if such intent is not clear thatcourts have to see them with the aid of the context. The difficulties aswell as harsh consequences cannot be utilized to assess the intentembedded in the provision if they are clear, otherwise from the text, orthe context. Not only has Parliament not provided any clause creatingany kind of exception, or extension of five years in cases of litigatingland oustees who may have an interim orders in their favour, stalling theacquisition or payment of compensation. All that the provision says is“or compensation has not been paid”. The projected policy intent isbroad and unencumbered by any exception. This is clearest indicatorof legislative intent to cover all such cases that may cause hardship tothe State or may be due to the fault of Court or the litigious land oustee.The intent is clear and therefore, has to be read apart from difficulties orhardships.

80. It is submitted that the State’s contention with regard to adifferential approach for possession and compensation is irrational andis against the very grain of Section 24(2) and is also unreasonable anddiscriminatory. It is unreasonable because there are hardly any caseswhere compensation may have been paid, yet possession may not havebeen taken. Most of the cases are under Section 17(1) where possessionis invariably taken while compensation remains unpaid as award is notmade. By reading word ‘or’ as ‘and’, the words “or the compensationhas not been paid” become otiose or redundant. Parliament could haveonly said that lapsing would occur only if possession has not been taken,because if possession is taken then there would never be lapsing and

61 2003 (10) SCC 765

62 (2011) 4 SCC 266

Athere would be no need to consider “or” as “and”. Therefore, such aninterpretation (i.e., reading “or” conjunctively) is contrary to every ruleof interpretation and contrary to the Legislative policy indicated in thePreamble of giving just and fair compensation in cases of earlieracquisitions, which includes cases where possession has been taken.

B81. Learned counsel urged that Section 24(2) would becomediscriminatory if “or” is read as “and”. For this, it would be necessary toanalyse Section 24(1)(a). Section 24(1)(a) applies to situation wherethere is no award made till the commencement of the New Act. Noaward primarily means “compensation has not been paid”. Importantlyin case under Section 17 of the Act of 1894, which is most frequentlyCutilised, possession may be taken before award is made or compensationis paid. In other words, Section 24(1)(a) does visualize or cover caseswhere possession may have been taken but “compensation has notbeen paid”. It, therefore, requires re-determination of compensationunder Sections 26-30 of the New Act. The problems of who to pay theDenhanced compensation, as referred above, would also arise in thissituation. Yet Parliament has ignored these difficulties and provided forredetermination. Section 24(1)(a) may travel back to period of five yearsor more, or may be 10-15 years as in case of Section 24(2). It would notbe reasonable to restrict the retrospectivity of Section 24(1)(a) with theaid of Section 11A of the old Act, to 2 years before commencement. ItEwould be incorrect because then one would be ignoring Explanation toSection 11A (proviso). The said Explanation visualises indefinite extensionof the period of award from 2 years. It would not be, therefore, reasonableto exclude such cases where though possession may have been taken,but compensation may not have been paid for very long period of timeFupto commencement of the new Act. Section 24(1)(a) does not containany provision like Section 25 (proviso), Section 19(7)(proviso) and Section69(2)(explanation) and therefore, is wide in its coverage in the absenceof exceptions as above.

82. Learned counsel urged that Section 24(2) is special provisionGgiving higher benefit because in the cases covered by Section 24(2)“compensation has not been paid” despite award. Would it be rational toread Section 24(2) in such manner that deprives it of its value andworth and makes it ineffective. Section 24(2) would become ineffectiveas whole because there would be rarest of the rare cases, where boththe conditions would be fulfilled. The experience shows in vast majorityH

of cases of acquisition under the old Act, possession is taken while award& compensation come much later. This is because Sections 9 & 17(6)of the Act of 1894 were used in vast majority of acquisitions and theLegislature was aware of it. The law does not compel doing of an actthat is impossible. It is emphasized that the principle does not apply asthe new Act is not requiring any such performance. The new Act afterrecognising the past, is providing new solutions, rights and benefits. Section24(2) by itself does not compel performance of an impossible act. Thisprinciple could have been relevant during earlier Act but is hardly relevantfor interpreting the scope of Section 24(2) of the New Act. Section 24clearly postulates that even though the Act may be impossible ofperformance, or results in undue advantage to the beneficiary despitehis fault in declining, yet benefit of Section 24(2) may be given withoutcreating any exception. There is no constitutional restriction on theLegislature that such cases or situations have to be excluded. Thelegislature can provide benefit in the same manner to all, difficultiesapart. Reliance is placed on certain decisions in support of thisproposition.[63] Therefore, such interpretation which excludes the benefitsunder Section 24(2) by resorting to such arguments of difficulties ismeaningless. The giving of benefit to all by ignoring above circumstanceis neither illegal nor unjust. It is neither anomalous nor absurd. It is urgedthat what the court feels is not important; what is relevant is the view ofthe legislature, to be culled out from the reading of only the text or thecontext; not in any other manner. For this rule, reliance was placed onMohd. Kavi v. Fatmabal Ibrahim[64] and other decisions.

83. Other learned senior counsel, i.e M/s Dushyant Dave, GopalShankarnarayan, Siddharth Luthra, Nakul Dewan, Manoj Swaroop,Anukul Chandra Pradhan supplemented the submissions of Mr. Divanand Mr. Dwivedi. It was argued by them that this Court should notdepart from the rule of literal interpretation, because that would be bothbeneficial and purposive, given the oppressive nature of the Act of 1894.In this context, it was submitted that the expressions “paid” and “or”should be construed in the manner that Parliament intended, having regardto the overall intent of ensuring the acquisition proceedings, where either

63 Martin Burn Ltd v Corporation of Calcutta 1966 (1) SCR 543; Commissioner ofAgricultural Income Tax v Keshab Chandra Mandal 1950 SCR 435; and State ofMaharastra v Nanded Parbhani Sangh 2000 (2) SCC 69.

64 1997 (6) SCC 71 and M.V. Javali v Mahajan Borewell & Co. Ltd 1997 (8) SCC 72;and Nanded Parbhani Sangh (supra); and SMS Pharmaceuticals Ltd. v. Neeta Bhalla(2005) 8 SCC 89.

Acompensation was not paid, or possession was not taken, in respect ofawards made before 1.1.2009, should lapse. It was submitted that thereis no insurmountable difficulty or impossibility, even if possession is taken(but compensation not paid) and even if vesting occurs, Section 24(2) ofthe new Act expressly provides for lapsing. The remedy in that case, forthe appropriate Government is the option of going through the acquisitionBagain using emergency provisions. In that event, the authorities wouldhave to provide for rehabilitation and enhanced compensation. In anycase, the court always has the option in such cases where third partyrights have ensued to do complete justice, by duly compensating thosewhose land is acquired, without disturbing the possession of third partyCwho has been given the land.84. The learned counsel submit that this Court should base itselfon the approach to interpret Section 24 of the Act of 2013 is that it is asavings clause with an exclusionary deeming provision. It is urged thatthe words “physical possession” under Section 24(2) should be read toDreflect the actual state of affairs as on the date when the Act of 2013came into force, i.e., there was actual physical possession of the land.This would also be the case in relation to the term “compensation notpaid” under Section 24(2), where compensation would either have hadto be paid or deposited in court; and that use of the term “or” signifiesthat the two conditions set out above are disjunctive. It is argued thatESection 114 consists of two sections (1) repeal clause set out in Section114 (1); and (2) savings clause set out in Section 114(2). It is contendedthat there is distinction in the manner in which repealing clause isconstrued as compared to the manner in which savings clause isconstrued. While repealing clause, followed by new legislation onFthe same subject-matter would result in line of enquiry about whatrights are obliterated under the old Act by the new Act, savings clausewould be construed in manner that resurrects provision, which wouldotherwise be obliterated on account of the repeal. In relation to repealclause, the effect of obliterating the provisions of the previous enactment

would be as if it never existed, except for vested rights, which would beGprotected under Section 6 of the General Clauses Act. Section 6 of theGeneral Clauses Act, thus operated as savings clause. Learned counselrely on the judgment of this court in State of Punjab v. Mohar Singh[65]that the effect of repealing statute was said to be to obliterate it as

completely from the records of Parliament as if it had never been passed,except for the purpose of those actions, which were commenced,prosecuted and concluded while it was an existing law and that:

“A repeal therefore without any saving Clause would destroyany proceeding whether not vet begun or whether pending atthe time of the enactment of the Repealing Act and not alreadyprosecuted to final judgment so as to create vested right”.

85. Submitting that the effect of Section 6 of the General ClausesAct, is that unless the contrary intention appears, the repeal does notaffect the previous operation of the repealed enactment or anything dulydone or suffered under it and any investigation, legal proceeding or remedymay be instituted, continued or enforced in respect of any right, liabilityand penalty under the repealed Act as if the Repealing Act had not beenpassed. However, in case of the Act of 2013, it is urged that Parliamentaryintent was not to simply let Section 6 of the General Clauses Act operateas the savings provision. Apart from Section 6, the intent, evident fromSection 114(2), was to set out specific provision which would saveproceedings. It was submitted that those would be provisions that wouldotherwise not have been saved by the General Clauses Act.86. It is in this background that Section 24 of the Act of 2013 mustbe interpreted. While the Respondent accepts that Section 24 could havebeen more clearly worded to reflect the legislative intent as savingsprovision, to fully appreciate the operation of Section 24 (1)(b) as aclassical savings provision which saves proceedings under the Act of1894 if an award had been made under Section 11, in manner as if theAct of 1894 had not been repealed. Section 24(1)(a) deals with situationwhere no award has been made and in providing for determination ofcompensation in terms of the Act of 2013 naturally would mean thatproceedings under the Act of 1894 would be revived, save and excepton the issue of computation of compensation. Having revived proceedingsunder Section 24(1), Section 24(2) provides for deemed lapsing througha non-obstante provision for an award made five years or prior to thedate of the commencement of the Act of 2013. This creates legalfiction which, as held by this court in J.K.Cotton Spg. & Wvg.Mils Ltd.v. Union of India,[66] is:

66 1987 Supp SCC 350

EFG

A“...an admission of the non-existence of the fact deemed...Thelegislature is quite competent to enact deeming provisionfor the purpose of assuming the existence of fact whichdoes not really exist.”

Learned counsel also placed reliance on the decision of theBConstitution Bench in Bengal Immunity Co.Ltd. v. State of Bihar[67] tothe following effect:

“[l]egal fictions are created only for some definitepurpose”and referred to the decision East End DwellingsCo.Ltd.v. Finsbury Borough Council,1952 AC 109 atCparagraph 71,which reads as follows:

“if you are bidden to treat an imaginary state of affairs asreal,you must surely, unless prohibited from doing so,alsoimagine as real the consequences and incidents which,ifthe putative state of affairs had in fact existed,mustDinevitably have flowed from or accompanied it.One ofthese in this case is emancipation from the 1939 level ofrents.The statute says that you must imagine certain stateof affairs;it does not say that having done so,you mustcause or permit your imagination to boggle when it comesto the inevitable corollaries of that state of affairs.”E(Emphasis Supplied)

87. Other decisions of this Court were also relied on, in thiscontext.[68] Learned counsel stated that given that it is legal fiction whichleads to deemed lapsing of proceedings under the Act of 1894,Parliamentary intent under Section 24(2) ought to be construed so thatF“physical possession” under Section 24(2) reflects the actual state ofaffairs as on the date when the Act of 2013 came into force; similarly,too the term compensation not paid under Section 24(2). It was stated,that retaining amounts in the treasury, pursuant to executive rules wouldnot suffice for compliance with the payment condition. Learned counselalso urged that this court should interpret “or” as signifying disjunctiveGreading of the two conditions. Comparing this legal fiction created underSection 24(2) with the State’s obligations under the Act of 1894 wouldbe inconsistent with the decisions of this Court, under which legal fictions

67 (1955)2 SCR 603H68 MIG Cricket Club v.AbhinavSahakar Education Society, (2011) 9 SCC 97

are to be read as it is i.e., the state of affairs as plainly set out in the legalfiction. Therefore, the effect of Section 24 (2) is that if either of thesituations are not met, the acquisition proceedings under the Act of 1894lapse and the State can initiate proceedings afresh in accordance withthe Act of 2013. This construction, urge learned counsel is also purposiveand practical. If the State has not taken physical possession of propertyeven if compensation has been paid for over 5 years prior to thecommencement of the Act of 2013, because it no longer serves thepurpose of acquisition, it can drop the proceedings as those would havelapsed. In such an event, the State would naturally be entitled to restitutoryrecovery. However, if the State has failed to take physical possession, itcannot be benefited by its inactions and must restart proceedings underthe Act of 2013. In such case, the compensation paid can always bere-adjusted against compensation determined under the Act of 2013.Arguendo, it is urged that even if Section 114 (2) of the Act of 2013 isconstrued to keep alive the State’s vested rights by virtue of Section 6 ofthe General Clauses Act, such rights are limited by Section 24(1)(a) andSection 24(2) of the Act of 2013. Thus, while ordinarily the acquisitionproceedings that were pending in respect of awards passed under theAct of 1894 would have continued, the legislature by way of creatinga legal fiction, provided for the deemed lapse of these proceedings inrespect of which physical possession has not been taken or compensationnot paid. Learned counsel placed reliance on some decisions of thisCourt.[69]VKNM Vocational Higher Secondary School v. State ofKerala,[70] where it was held that:

“...a vested right can also be taken away by subsequentenactment if such subsequent enactment specifically providesby express words or by necessary intendment. In other words,in the event of the extinction of any such right by expressprovision in the subsequent enactment, the same would loseits value.”

88. It was submitted that in order to determine the accrued rightsand incurred liabilities that have been saved under the Act of 1894, theline of inquiry is not to enquire if the new enactment has by its newprovisions kept alive the rights and liabilities under the repealed law, butwhether it has taken away those rights and liabilities.

69 Jayantilal Amrathlal v. Union of India,(1972) 4 SCC 174, T.S.Baliah v. Income TaxOfficer, Central Circle VI,Madras,1969 (3) SCR 6570 2016 (4) SCC 216.

A89. All learned counsel supported the submission that the provisois not restricted in its operation to Section 24 (2) only and that itsplacement is not determinative. It was emphasized that the proviso doesnot say that higher compensation would be paid, in the contingencyprovided by it, as an option to avoid lapsing. The absence of anyreference to lapsing, or the ingredients of Section 24 (2) clearly meantBthat the benefit of higher compensation in the event majority of thelandowners were not paid compensation (under the old Act) was toenure to all falling in the same class, i.e., those whose lands were subjectedto acquisition, whether five years prior to or less than coming into forceof the Act of 2013.

CRelevant provisions

90. For appreciating the controversy in the present cases, it isessential to extract certain relevant provisions of the Act of 1894 as wellas the Act of 2013. The provisions of the Act of 1894 are reproducedbelow:D

“12 Award of Collector when to be final.

(1) Such award shall be filed in the Collector’s office andshall, except as hereinafter provided, be final and conclusiveevidence, as between the Collector and the persons interested,whether they have respectively appeared before the Collectoror not, of the true area and value of the land, andapportionment of the compensation among the personsinterested.

(2) The Collector shall give immediate notice of his award tosuch of the persons interested as are not present personallyor by their representatives when the award is made.

“17. Special powers in case of urgency. – (1) In cases ofurgency, whenever the appropriate Government, so directs,the Collector, though no such award has been made, may, onthe expiration of fifteen days from the publication of the noticementioned in section 9, sub-section (1), take possession ofany land needed for public purpose. Such land shallthereupon vest absolutely in the Government, free from allencumbrances.

[(3A) Before taking possession of any land under sub-section(1) or sub-section (2), the Collector shall, without prejudiceto the provisions of sub-section (3)-

(a) tender payment of eighty per centum of the compensationfor such land as estimated by him to the persons interestedentitled thereto, and

(b) pay it to them, unless prevented by some one or more ofthe contingencies mentioned in section 31, sub-section (2),and where the Collector is so prevented, the provisions ofsection 31, sub-section (2) (except the second proviso thereto),shall apply as they apply to the payment of compensationunder that section.

(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 Governmentmay direct that the provisions of section 5A shall not apply,and, if it does so direct, declaration may be made undersection 6 in respect of the land at any time after the date ofthe publication of the notification under section 4, sub-section(1).]”

16. Power to take possession.—When the Collector has madean award under section 11, he may take possession of theland, which shall thereupon vest absolutely in theGovernment, free from all encumbrances.

31. Payment of compensation or deposit of same in Court. -(1) On making an award under section 11, the Collector shalltender payment of the compensation awarded by him to thepersons interested entitled thereto according to the award,and shall pay it to them unless prevented by some one or moreof the contingencies mentioned in the next sub-section.

(2) If they shall not consent to receive it, or if there be noperson competent to alienate the land, or if there be anydispute as to the title to receive the compensation or as to theapportionment of it, the Collector shall deposit the amount ofthe compensation in the Court to which reference undersection 18 would be submitted:

Provided that any person admitted to be interested may receivesuch payment under protest as to the sufficiency of the amount:

Provided also that no person who has received the amountotherwise than under protest shall be entitled to make anyapplication under section 18:

Provided also that nothing herein contained shall affect theliability of any person, who may receive the whole or anypart of any compensation awarded under this Act, to pay thesame to the person lawfully entitled thereto.

(3) Notwithstanding anything in this section, the Collectormay, with the sanction of the appropriate Government insteadof awarding money compensation in respect of any land,make any arrangement with person having limited interestin such land, either by the grant of other lands in exchange,the remission of land revenue on other lands held under thesame title or in such other way as may be equitable havingregard to the interests of the parties concerned.

(4) Nothing in the last foregoing sub-section shall be construedto interfere with or limit the power of the Collector to enterinto any arrangement with any person interested in the landand competent to contract in respect thereof.”******

34 Payment of interest

When the amount of such compensation is not paid or depositedon or before taking possession of the land, the Collector shallpay the amount award-ed with interest thereon at the rateof[ 72] [nine per centum] per annum from the time of so takingpossession until it shall have been so paid or deposited:

Provid-ed that if such compensation or any part thereof isnot paid or deposited within period of one year from thedate on which possession is taken, interest at the rate of fifteenper centum per annum shall be payable from the date of expiryof the said period of one year on the amount of compensationor part thereof which has not been paid or deposited beforethe date of such expiry.”

The relevant provisions of the Act of 2013 are as follows:

“24. Land acquisition process under Act No. 1 of 1984 shallbe deemed to have lapsed in certain cases.

(1) Notwithstanding anything contained in this Act, in anycase of land acquisition proceedings initiated under the LandAcquisition Act, 1894,—

(a) where no award under section 11 of the said LandAcquisition Act has been made, then, all provisions of thisAct 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 ofthe said Land Acquisition Act, as if the said Act has not beenrepealed.

(2) Notwithstanding anything contained in sub-section (1),in case of land acquisition proceedings initiated under theLand Acquisition Act, 1894 (1 of 1894), where an award underthe said section 11 has been made five years or more prior tothe commencement of this Act but the physical possession ofthe land has not been taken or the compensation has not beenpaid the said proceedings shall be deemed to have lapsedand the appropriate Government, if it so chooses, shall initiatethe proceedings of such land acquisition afresh in accordancewith the provisions of this Act:

Provided that where an award has been made andcompensation in respect of majority of land holdings hasnot been deposited in the account of the beneficiaries, then,all beneficiaries specified in the notification for acquisitionunder section 4 of the said Land Acquisition Act, shall beentitled to compensation in accordance with the provisionsof this Act.”

114. Repeal and saving.–(1) The Land Acquisition Act, LA (1of LA), is hereby repealed.

(2) Save as otherwise provided in this Act the repeal undersub-section (1) shall not be held to prejudice or affect thegeneral application of section 6 of the General Clauses Act,1897 (10 of 1897) with regard to the effect of repeals.”

Section 6 of the General Clauses Act, 1897 reads as follows:

“Section 6 - Effect of repeal

Where this Act, or any Central Act or Regulation made afterthe commencement of this Act, repeals any enactment hithertomade or hereafter to be made, then, unless different intentionappears, the repeal shall not—

(a) revive anything not in force or existing at the time at whichthe repeal takes effect; or

(b) affect the previous operation of any enactment so repealedor anything duly done or suffered thereunder; or

D(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 inrespect of any offence committed against any enactment sorepealed; or

(e) affect any investigation, legal proceeding or remedy inrespect of any such right, privilege, obligation, liability,penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy maybe instituted, continued or enforced, and any such penalty,Fforfeiture or punishment may be imposed as if the repealingAct or Regulation had not been passed.”

Salient features of the Act of 2013

91. There can no dispute, no two opinions about the fact thatGprovisions of the Act of 2013, were enacted with the object of providingfair compensation and rehabilitating those displaced from their land. TheIntroduction and Statement of Objects and Reasons of the Act of 2013are extracted hereunder:

“INTRODUCTION

The Land Acquisition Act, LA was general law relatingto acquisition of land for public purposes and also forcompanies and for determining the amount of compensationto be made on account of such acquisition. The provisions ofthe said Act was found to be inadequate in addressing certainissues related to the exercise of the statutory powers of theState for involuntary acquisition of private land and property.The Act did not address the issues of rehabilitation andresettlement to the affected persons and their families. Therehad been multiple amendments to the Land Acquisition Act,LA not only by the Central Government but by the StateGovernments as well. However, there was growing publicconcern on land acquisition, especially multi-croppedirrigated land. There was no central law to adequately dealwith the issues of rehabilitation and resettlement of displacedpersons. As land acquisition and rehabilitation andresettlement were two sides of the same coin, singleintegrated law to deal with the issues of land acquisition andrehabilitation and resettlement was necessary.

The Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013addresses concerns of farmers and those whose livelihoodare dependent on the land being acquired, while at the sametime facilitating land acquisition for industrialization,infrastructure and urbanization projects in timely andtransparent manner.

This Act represents change in the legislative approach toland acquisition. It introduces for the first time provisionsfor social impact analysis, recognizes non-owners as affectedpersons, mode of acquisition requiring consent of thedisplaced and statutory entitlements for resettlement. Inaddition, it has restricted the grounds on which land may beacquired under the urgency clause.

STATEMENT OF OBJECTS AND REASONS

The Land Acquisition Act, LA is the general law relating toacquisition of land for public purposes and also for companies

and for determining the amount of compensation to be madeon account of such acquisition. The provisions of the saidAct have been found to be inadequate in addressing certainissues related to the exercise of the statutory powers of theState for involuntary acquisition of private land and property.The Act does not address the issues of rehabilitation andresettlement to the affected persons and their families.

2. The definition of the expression “public purpose” asgiven in the Act is very wide. It has, therefore, becomenecessary to re-define it so as to restrict its scope foracquisition of land for strategic purposes vital to the State,and for infrastructure projects where the benefits accrue tothe general public. The provisions of the Act are also usedfor acquiring private lands for companies. This frequentlyraises question mark on the desirability of such Stateintervention when land could be arranged by the companythrough private negotiations on “willing seller-willingbuyer” basis, which could be seen to be more fairarrangement from the point of view of the land owner. In orderto streamline the provisions of the Act causing less hardshipsto the owners of the land and other persons dependent uponsuch land, it is proposed repeal the Land Acquisition Act, LAand to replace it with adequate provisions for rehabilitationand resettlement for the affected persons and their families.

3. There have been multiple amendments to the LandAcquisition Act, LA not only by the Central Government butby the State Governments as well. Further, there has beenheightened public concern on land acquisition, especiallymulti-cropped irrigated land and there is no central law toadequately deal with the issues of rehabilitation andresettlement of displaced persons. As land acquisition andrehabilitation and resettlement need to be seen as two sidesof the same coin, single integrated law to deal with theissues of land acquisition and rehabilitation and resettlementhas become necessary. Hence the proposed legislationproposes to address concerns of farmers and those whoselivelihoods are dependent on the land being acquired, whileat the same time facilitating land acquisition for

industrialization, infrastructure and urbanization projects ina timely and transparent manner.

4. Earlier, the Land Acquisition (Amendment) Bill, 2007and Rehabilitation and Resettlement Bill, 2007 were introducedin the Lok Sabha on 6th December 2007 and were referred tothe Parliamentary Standing Committee on Rural Developmentfor Examination and Report. The Standing Committeepresented its reports (the 39th and 40th Reports) to the LokSabha on 21st October 2008 and laid the same in the RajyaSabha on the same day. Based on the recommendations ofthe Standing Committee and as consequence thereof, officialamendments to the Bills were proposed. The Bills, along withthe official amendments, were passed by the Lok Sabha on25th February 2009, but the same lapsed with the dissolutionof the 14th Lok Sabha.

5. It is now proposed to have unified legislation dealingwith acquisition of land, provide for just and faircompensation and make adequate provisions forrehabilitation and resettlement mechanism for the affectedpersons and their families. The Bill thus provides for repealingand replacing the Land Acquisition Act, LA with broadprovisions for adequate rehabilitation and resettlementmechanism for the project affected persons and their families.

6. Provision of public facilities or infrastructure oftenrequires the exercise of powers by the State for acquisition ofprivate property leading to displacement of people, deprivingthem of their land, livelihood, and shelter, restricting theiraccess to traditional resource base and uprooting them fromtheir socio-cultural environment. These have traumatic,psychological, and socio-cultural consequences on theaffected population, which call for protecting their rights,particularly in case of the weaker sections of the society,including members of the Scheduled Castes (SCs), theScheduled Tribes (STs), marginal farmers and their families.

7. There is an imperative need to recognise rehabilitationand resettlement issues as intrinsic to the development processformulated with the active participation of affected personsand families. Additional benefits beyond monetary

compensation have to be provided to families affectedadversely by involuntary displacement. The plight of thosewho do not have rights over the land on which they arecritically dependent for their subsistence is even worse. Thiscalls for broader concerted effort on the part of the plannersto include in the displacement, rehabilitation, and resettlementprocess framework, not only for those who directly lose theirland and other assets but also for all those who are affectedby such acquisition. The displacement process often posesproblems that make it difficult for the affected persons tocontinue their traditional livelihood activities afterresettlement. This requires careful assessment of the economicdisadvantages and the social impact arising out ofdisplacement. There must also be holistic effort aimed atimproving the all-round living standards of the affectedpersons and families.

8. National Policy on Resettlement and Rehabilitationfor Project Affected Families was formulated in 2003, whichcame into force with effect from February 2004. Experiencegained in implementation of this policy indicates that thereare many issues addressed by the policy which need to bereviewed. There should be clear perception, through acareful quantification of the costs and benefits that will accrueto society at large, of the desirability and justifiability of eachproject. The adverse impact on affected families-economic,environmental, social and cultural-must be assessed inparticipatory and transparent manner. nationalrehabilitation and resettlement framework thus needs to applyto all projects where involuntary displacement takes place.

9. The National Rehabilitation and Resettlement Policy,2007, has been formulated on these lines to replace theNational Policy on Resettlement and Rehabilitation for ProjectAffected Families, 2003. The new policy has been notified inthe Official Gazette and has become operative with effectfrom the 31st October, 2007. Many State Governments havetheir own Rehabilitation and Resettlement Policies. ManyPublic Sector Undertakings or agencies also have their ownpolicies in this regard.

10. The law would apply when Government acquires landfor its own use, hold and control, or with the ultimate purposeto transfer it for the use of private companies for stated publicpurpose or for immediate and declared use by privatecompanies for public purpose. Only rehabilitation andresettlement provisions will apply when private companies buyland for project, more than 100 acres in rural areas, ormore than 50 acres in urban areas. The land acquisitionprovisions would apply to the area to be acquired but therehabilitation and resettlement provisions will apply to theentire project area even when private company approachesGovernment for partial acquisition for public purpose.

11. “Public purpose” has been comprehensively defined,so that Government intervention in acquisition is limited todefence, certain development projects only. It has also beenensured that consent of at least 80 per cent of the projectaffected families is to be obtained through prior informedprocess. Acquisition under urgency clause has also beenlimited for the purposes of national defence, securitypurposes, and Rehabilitation and Resettlement needs in theevent of emergencies or natural calamities only.

12. To ensure food security, multi-crop irrigated land shallbe acquired only as last resort measure. An equivalent areaof culturable wasteland shall be developed if multi-crop landis acquired. In districts where net sown area is less than 50per cent of total geographical area, no more than 10 per centof the net sown area of the district will be acquired.

13. To ensure comprehensive compensation package forthe land owners, scientific method for calculation of themarket value of the land has been proposed. Market valuecalculated will be multiplied by factor of two in the ruralareas. Solatium will also be increased upto 100 per cent ofthe total compensation. Where land is acquired forurbanization, 20 per cent of the developed land will be offeredto the affected land owners.

14. Comprehensive rehabilitation and resettlement packagefor land owners including subsistence allowance, jobs, house,

one acre of land in cases of irrigation projects, transportationallowance, and resettlement allowance is proposed.

15. Comprehensive rehabilitation and resettlement packagefor livelihood losers, including subsistence allowance, jobs,house, transportation allowance, and resettlement allowanceis proposed.

16. Special provisions for Scheduled Castes and theScheduled Tribes have been envisaged by providing additionalbenefits of 2.5 acres of land or extent of land lost to eachaffected family; one-time financial assistance ofRs. 50,000/-; twenty-five per cent additional rehabilitationand resettlement benefits for the families settled outside thedistrict; free land for community and social gathering andcontinuation of reservation in the resettlement area, etc.

17. Twenty-five infrastructural amenities are proposed tobe provided in the resettlement area including schools andplay grounds, health centres, roads, and electric connections,assured sources of safe drinking water, Panchayat Ghars,Anganwadis, places of worship, burial and cremationgrounds, village level post offices, fair price shops, and seed-cum-fertilizers storage facilities.

18. The benefits under the new law would be available inall the cases of land acquisition under the Land AcquisitionAct, LA, where award has not been made, or possession ofland has not been taken.

19. Land that is not used within ten years in accordancewith the purposes, for which it was acquired, shall betransferred to the State Government’s Land Bank. Upon everytransfer of land without development, twenty per cent of theappreciated land value shall be shared with the original landowners.

20. The provisions of the Bill have been made fullycompliant with other laws such as the Panchayats (Extensionto the Scheduled Areas) Act, 1996; the Scheduled Tribes andOther Traditional Forest Dwellers (Recognition of ForestRights) Act, 2006 and Land Transfer Regulations in FifthScheduled Areas.

21. Stringent and comprehensive penalties both for thecompanies and Government in cases of false information, malafide action, and contravention of the provisions of the proposelegislation have been provided.

22. Certain Central Acts dealing with the land acquisitionhave been enlisted in the Bill. The provisions of the Bill are inaddition to and not in derogation of these Acts. The provisionsof this Act can be applied to these existing enactments by anotification of the Central Government.

23. The Bill also provides for the basic minimumrequirements that all projects leading to displacement mustaddress. It contains saving clause to enable the StateGovernments, to continue to provide or put in place greaterbenefit levels than those prescribed under the Bill.

24. The Bill would provide for the basic minimum that allprojects leading to displacement must address. Social ImpactAssessment (SIA) of proposals leading to displacement ofpeople through participatory, informed and transparentprocess involving all stake-holders, including the affectedpersons will be necessary before these are acted upon. Therehabilitation process would augment income levels and enrichquality of life of the displaced persons, covering rebuildingsocio-cultural relationships, capacity building, and provisionof public health and community services. Adequate safeguardshave been proposed for protecting rights of vulnerablesections of the displaced persons.

25. The Bill seeks to achieve the above objects. The noteson clauses explain the various provisions contained in theBill.”

92. Section 2(2) of the Act of 2013, provides that in the event ofacquisition for private companies, consent of 80% of the affected familieshas to be obtained and for the public-private partnerships, consent of70% of the affected families is required to be taken. In Section 3(c), theterm ‘affected family’ has been widened, which inter alia includesmembers of the Schedule Tribes, forest dwellers, and families whoselivelihood is dependent on forests or water bodies. “Social ImpactAssessment” (“SIA”) has to be prepared, as provided in Sections 4 to 9.

ASpecial provisions to safeguard food security have been made byprohibiting the acquisition of multi-cropped land except in exceptionalcircumstances as enumerated in Section 10. Section 11 is akin to Section4 of the Act of 1894 regarding issuance of preliminary notification. TheSIA report lapses in case preliminary notification under Section 11 is notissued within period of 12 months from the date of the report. ABRehabilitation and Resettlement Scheme (“RR Scheme”) is provided inSections 16 to 18. The Collector has to pass the award under Section23. Section 26 deals with the determination of the market value by theCollector. Section 30 provides for Solatium at 100%. The RR award hasto be passed by the Collector under Section 31, and notice has to beCgiven immediately under Section 37, which is equivalent to Section 12 ofthe Act of 1894. Section 38 provides that Collector has to take possessionafter full payment of compensation has been made as well as rehabilitationand resettlement entitlements are paid or tendered to the entitled persons.Thus, there is departure from Section 16 Act of 1894 in the provisionscontained in Section 38 of the Act of 2013. The Collector has to ensureDunder Section 38 of Act of 2013 that the rehabilitation and resettlementprocess is complete before displacing people. Section 40 deals with urgentcases. The Government may acquire land without making award in thecase of urgency for the defence of India or national security. In otheremergencies arising out of natural calamities or any other emergenciesEspecial provisions under Section 40 may be exercised with the approvalof the Parliament. In such event, the provisions of the Social ImpactAssessment and Rehabilitation and Resettlement Scheme may beexempted. Additional compensation of 75% is payable in such cases.Section 41 contains special provisions for Scheduled Castes andScheduled Tribes by prohibiting acquisition in scheduled areas as far asFpossible. Sections 43 to 50 deal with appointment and constitution of theRehabilitation and Resettlement Authorities and Monitoring Committeesat Project as well as National Levels. Sections 51 to 74 deal with theestablishment of Land Acquisition, Rehabilitation, and ResettlementAuthority. Sections 77 to 80 are pari materia to the provisions containedGin Sections 31 to 34 of the Act of 1894, relating to payment, deposit, andinterest, etc. Section 93 is equivalent to Section 48 of the Land AcquisitionAct. The Government shall be at liberty to withdraw from acquisition ifpossession of land has not been taken. Section 101 provides that land bereturned to the original owner or the Land Bank of the appropriateGovernment if acquired land remains unutilized for period of five years.H

Thus, various departures have been made from the old Land AcquisitionAct, in the Act of 2013 relating to Social Impact Assessment,Rehabilitation and Resettlement Scheme, etc. It ensures highercompensation than the old Act; the public purpose has been defined;consent provisions have also been made. The interest of Scheduled Castesand Scheduled Tribes have been adequately protected. VariousCommittees and Authorities have been constituted. The definition of‘affected families’ has been widened.

93. Undoubtedly the Act of 2013 has provided safeguards, in theform of higher compensation and provisions for rehabilitation, which arenecessary. In that light, the court has to interpret its provisions, to givefull and meaningful effect to the legislative intent keeping in mind thelanguage and tenor of the provisions, it is not for the court to legislate.The Court can only iron out creases to clear ambiguity. The intendedbenefit should not be taken away. At the same time, since the Act of2013, envisages lapse of acquisitions notified (and in many cases,completed by the issuance of the award) due to indolence and inactionon the part of the authorities and therefore, intends acquisition at fasttrack, the full effect has to be given to the provisions contained in Section24.

Scope of Section 24

94. Section 24 begins with non-obstante clause, overriding allother provisions of the Act of 2013 including Section 114 of the Act of2013, dealing with repeal and saving. In terms of Section 114 of the Actof 2013, the general application of Section 6 of the General Clauses Act,1897, except otherwise provided in the Act, has been saved. Section6(a) of the General Clauses Act, 1897 provides that unless differentintention appears, the repeal shall not revive anything not in force orexisting at the time when the repeal has been made. The effect of theprevious operation of any enactment so repealed or anything duly doneor suffered thereunder is also saved by the provisions contained in Section6(b). As per Section 6(c), the repeal shall not affect any right, privilege,obligation or liability acquired, accrued, or incurred.

95. Section 24(1)(a) of the Act of 2013 read with the non-obstanteclause provides that in case of proceedings initiated under the Act of1894 the award had not been made under Section 11, then the provisionsof the Act of 2013, relating to the determination of compensation would

Aapply. However; the proceedings held earlier do not lapse. In terms ofSection 24(1)(b), where award under Section 11 is made, then suchproceedings shall continue under the provisions of the Act of 1894. Itcontemplates that such pending proceedings, as on the date on whichthe Act of 2013 came into force shall continue, and taken to their logicalend. However, the exception to Section 24 (1)(b) is provided in SectionB24(2) in case of pending proceedings; in case where the award has beenpassed five years or more prior to the commencement of the Act of2013, the physical possession of the land has not been taken, or thecompensation has not been paid, the proceedings shall be deemed tohave lapsed, and such proceedings cannot continue as per the provisionsCof Section 24(1)(b) of the Act of 2013.

96. Section 24(2) carves out an exception to Section 24(1)(b),where the award has been passed, and the proceedings are pending, butin such proceedings, physical possession of the land has not been taken,or compensation has not been paid, proceedings shall lapse. There areDtwin requirements for the lapse; firstly, physical possession has not beentaken and, secondly, compensation has not been paid. In case, possessionhas been taken but compensation has been paid, there is no lapse of theproceedings. The question which is to be decided is whether the conditionsare cumulative, i.e both are to be fulfilled, for lapsing of acquisitionproceedings, or the conditions are in the alternative (“either/or”).EAccording to the State and acquiring agencies, in situation wherepossession has been taken, and compensation is not paid, there is nolapse: also in case where compensation has been paid, but possessionnot taken in proceeding pending as on 1.1.2014, there is no lapse. Sinequa non is that proceeding must be pending. They argue that the wordF“or” used in phrase ‘the physical possession of the land has been nottaken, or the compensation has not been paid’, has to be interpreted as“and” as two negative requirements qualify it. Furthermore, argues theState when two negative conditions are connected by “or,” they areconstrued as cumulative, the word “or” is to be read as “nor” or “and.”

Naturally, the landowners argue to the contrary, i.e., that lapse ofGacquisition occurred if compensation were not paid, or possession werenot taken, 5 years before the coming into force of the Act of 2013.

97. It would be useful to notice rules of Statutory Interpretation inthis regard. Principles of Statutory Interpretation (14[th ]Edition) byJustice G.P. Singh, speaks of the following general rule of StatutoryH

Interpretation of positive and negative conditions whenever prescribedby statute:

“…Speaking generally, distinction may be made betweenpositive and negative conditions prescribed by statute foracquiring right or benefit. Positive conditions separatedby ‘or’ are read in the alternative[71] but negative conditionsconnected by ‘or’ are construed as cumulative and ‘or’ isread as ‘nor’ or ‘and’[72].

The above rule of Statutory Interpretation is based upon thedecision of this Court in Patel Chunibhai Dajibha, etc. vs. NarayanraoKhanderao Jambekar and Anr.[73], in which this court held:

“(19) It may be recalled that amendments to S. 32 were madefrom time to time, and the Bombay Act XXXVIII of 1957 addedto sub-s. (1)(b), cl. (iii) and the preceding “or”. It is to benoticed that the conditions mentioned in sub-ss. (1)(a) and(1)(b) are mutually exclusive. In spite of the absence of theword “or” between sub-ss. (1)(a) and (1)(b), the two sub-sections lay down alternative conditions. The tenant must bedeemed to have purchased the land if he satisfies either ofthe two conditions. The appellant is not permanent tenant,and does not satisfy the condition mentioned in sub-s.(1)(a).Though not permanent tenant, he cultivated the lands leasedpersonally, and, therefore, satisfies the first part of thecondition specified in sub-s. (1)(b). The appellant’s contentionis that sub-ss. (1)(b)(i), (1)(b)(ii) and (1)(b)(iii) lay downalternative conditions, and as he satisfies the conditionmentioned in sub-s. (1)(b)(iii), he must be deemed to havepurchased the land on April 1, 1957. Colour is lent to this“”argument by the word or appearing between sub-s.(1)(b)(ii)“”and sub-s.(1)(b)(iii). But, we think that the word or betweensub-ss. (1)(b)(ii) and (1)(b)(iii) in conjunction with the

71 Star Co. Ltd. v. Commr. of Income-tax, AIR 1970 SC 1559: (1970) 3 SCC 864

72 Patel Chunibhai Dajibha v. Narayanrao, 1965 (2) SCR 328; Punjab Produce &Trading Co. v. Commissioner of Income Tax, West Bengal, (1971) 2 SCC 540; Brown &Co. v. Harrison, (1927) All ER Rep 195, pp. 203, 204 (CA).For convenience, the numbers in the extracted portion above have beenrenumbered.

73 AIR 1965 SC 1457

DEF

Asucceeding negatives is equivalent to and should be read as“nor.” In other words, tenant (other than permanenttenant) cultivating the lands personally would become thepurchaser of the lands on April 1, 1957, if on that date neitheran application under S.29 read with S.31 nor an applicationunder S.29 read with S.14 was pending. If an applicationBeither under S.29 read with S.31 or under S.29 read withS.14 was pending April 1, 1957, the tenant would become thepurchaser on “the postponed date”, that is to say, when theapplication would be finally rejected. But if the applicationbe finally allowed, the tenant would not become the purchaser.CThe expression “an application” in the proviso means notonly an application under S.31 but also an application underS.29 read with S.14. If an application of either type waspending on April 1, 1957, the tenant could not become thepurchaser on that elate. Now, on April 1, 1957, the applicationfiled by respondent No.1 under S.29 read with S.31 wasDpending. Consequently, the appellant could not be deemed tohave purchased the lands on April 1, 1957.”

The decision of this Court in The Punjab Produce and TradingCo. Ltd. vs. The C.I.T., West Bengal, Calcutta[74], was relied upon inthe discussion mentioned above, where provisions of Section 23A of theEIncome Tax Act, 1922 and the Explanation (b)(ii) and (iii) came up forconsideration. This Court ruled with respect to “or” and held that it hadto be read as “and” construing negative conditions thus:

“7. On behalf of the assessee good deal of reliance hasbeen placed on decision of this Court in Star Company Ltd. v.FThe Commissioner of Income-tax (Central) Calcutta, (1970)3 SCC 864. In that case, sub-clause (b)(ii) came up forconsideration, and it was held that the two parts of theExplanation contained in that sub-clause were alternative.In other words, if one part was satisfied it was unnecessaryGto consider whether the second part was also satisfied. Thusthe word “or” was treated as having been used disjunctivelyand not conjunctively. The same reasoning is sought to beinvoked with reference to sub-clause (b)(iii).

8. It is significant that the language of sub-clauses (ii) and(iii) of clause (b) is different. The former relates to positivestate of affairs whereas the latter lays down negativeconditions. The word “or” is often used to express analternative of terms defined or explanation of the same thingin different words. Therefore, if either of the two negativeconditions which are to be found in sub-clause (b)(iii) remainsunfulfilled, the conditions laid down in the entire clausecannot be said to have been satisfied. The clear import of theopening part of clause (b) with the word “and” appearingthere read with the negative or disqualifying conditions insub-clause (b)(iii) is that the assessee was bound to satisfyapart from the conditions contained in the other sub-clausesthat its affairs were at no time during the previous yearcontrolled by less than six persons and shares carrying morethan 50 per cent of the total voting power were during thesame period not held by less than six persons. We are unableto find any infirmity in the reasoning or the conclusion of theTribunal and the High Court so far as question 1 isconcerned.”

It was observed that if either of the two negative conditions, whichare to be found in Sub-clause (b)(iii), remains unfulfilled, the conditionslaid down in the entire clause cannot be said to have been satisfied.

98. It would also be useful to note that in Brown & Co. v.Harrison[75], the provisions contained in Carriage of Goods by Sea Act,1924 came up for consideration before the Court of Appeal. The Courtheld that the word “or” in Article IV, R 2 (q), must be read conjunctivelyand not disjunctively. It has been observed that quite commonly collationof the words “or” can be meant in conjunctive sense and certainly wherethe disjunctive use of the word, leads to repugnance or absurdity.

99. In this Court’s considered view, as regards the collation of thewords used in Section 24(2), two negative conditions have beenprescribed. Thus, even if one condition is satisfied, there is no lapse, andthis logically flows from the Act of 1894 read with the provisions ofSection 24 of the Act of 2013. Any other interpretation would entailillogical results. That apart, if the rule of interpretation with respect totwo negative conditions qualified by “or” is used, then “or” should be

Aread as “nor” or “and”. Brown & Co. v. Harrison (supra), ruled thus,about the interpretation of two negative conditions connected by theword “or”:

“…..I think it quite commonly and grammatically can have aconjunctive sense. It is generally disjunctive, but it may beBplain from the collation of words that it is meant in aconjunctive sense, and certainly where the use of the word asa disjunctive leads to repugnance or absurdity, it is quite withinthe ordinary principles of construction adopted by the courtto give the word conjunctive use. Here, it is quite plain thatthe word leads to an absurdity, because the contention putCforward by the shipowners in this matter amounts to this, asmy Lord said, that, if shipowner himself breaks open caseand steals the contents of it, he is exempted from liability underr 2(q) if none of his servants stole the part of the case orbroke it open. That seems to me to be plain absurdity. InDaddition to that, there is repugnancy because it is plainlyrepugnant to the second part of r 2(q). Therefore I say nomore about that.”

100. In Federal Steam Navigation Co. Ltd. v. Department ofTrade and Industry[76], the then House of Lords ruled as follows:

“If all these meanings are rejected, there remains the courseof treating “or” as expressing non-exclusionary alternative– in modern logic symbolised by “v.” In lawyer’s terms, thismay be described as the course of substituting “and” for “or,”rather the course of redrafting the phrase so as to read: “theFowner and the master shall each be guilty,” or, if the phraseof convenience were permitted “the owner and/or the master.”To substitute “and” for “or” is strong and exceptionalinterference with legislative text, and in penal statute,one must be even more convinced of its necessity. It is surgeryrather than therapeutics. But there are sound precedents forGso doing: my noble and learned friend, Lord Morris of Borth-y-Gest, has mentioned some of the best known: they aresufficient illustrations and I need not re-state them. I wouldadd, however, one United States case, civil case, on an Actconcerning seamen of 1915. This contained the words: “Any

H76 1974 (1) WLR 505

failure of the master shall render the master or vessel or theowner of the vessel liable in damages.” District Court inWashington D.C. read “or” as “and” saying that there couldnot have been any purpose or intention on the part of Congressto compel the seamen to elect as to which to pursue and therebyexempt the others from liability – The Blakeley, 234 Fed. 959.Although this was civil, not criminal case, I find theconclusion and the reasoning reassuring.”

101. In M/s. Ranchhoddas Atmaram and Anr. v. The Union ofIndia and Ors.[77], Constitution Bench of this Court observed thatif there are two negative conditions, the expression “or” has to beread as conjunctive and conditions of both the clauses must befulfilled. It was observed:

“(13) It is clear that if the words form an affirmative sentence,then the condition of one of the clauses only need be fulfilled.In such case, “or” really means “either” “or.” In the ShorterOxford Dictionary one of the meanings of the word “or” isgiven as “A particle co-ordinating two (or more) words,phrases or clauses between which there is an alternative.” Itis also there stated, “The alternative expressed by “or” isemphasised by prefixing the first member or adding after thelast, the associated adv. EITHER.” So, even without “either,”“or” alone creates an alternative. If, therefore, the sentencebefore us is an affirmative one, then we get two alternatives,any one of which may be chosen without the other beingconsidered at all. In such case it must be held that penaltyexceeding Rs. 1,000 can be imposed.(14) If, however, the sentence is negative one, then theposition becomes different. The word “or” between the twoclauses would then spread the negative influence over theclause following it. This rule of grammar is not in dispute. Insuch case the conditions of both the clauses must be fulfilledand the result would be that the penalty that can be imposedcan never exceed Rs. 1,000.

(15) The question then really comes to this: Is the sentencebefore us negative or an affirmative one? It seems to us

that the sentence is an affirmative sentence. The substance ofthe sentence is that certain person shall be liable to penalty.That is positive concept. The sentence is therefore notnegative in its import.”

(emphasis supplied)

Thus, for lapse of acquisition proceedings initiated under the oldlaw, under Section 24(2) if both steps have not been taken, i.e., neitherphysical possession is taken, nor compensation is paid, the land acquisitionproceedings lapse. Several decisions were cited at Bar to say that “or”has been treated as “and” and vice versa. Much depends upon theCcontext. In Prof. Yashpal & Ors. v. State of Chhattisgarh & Ors.[78],the expression “established or incorporated” was read as“established and incorporated.” In R.M.D.C (supra), to give effectto the clear intention of the Legislature, the word “or” was read as“and.”

D102. In Ishwar Singh Bindra (supra) it was observed that:

“11. Now if the expression “substances” is to be taken tomean something other than “medicine” as has been held inour previous decision it becomes difficult to understand howthe word “and” as used in the definition of drug in S. 3(b)(i)between “medicines” and “substances” could have beenEintended to have been used conjunctively. It would be muchmore appropriate in the context to read it disconjunctively. InStroud’s Judicial Dictionary, 3rd Edn. it is stated at page 135that “and” has generally cumulative sense, requiring thefulfilment of all the conditions that it joins together, and hereinFit is the antithesis of or. Sometimes, however, even in such aconnection, it is, by force of contexts, read as “or.” Similarly,in Maxwell on Interpretation of Statutes, 11th Edn., it hasbeen accepted that “to carry out the intention of the legislatureit is occasionally found necessary to read the conjunctionsG“or” and “and’ one for the other.”

103. In Joint Director of Mines Safety v. Tandur and NayandgiStone Quarries (P) Ltd[79], “and” was read disjunctively consideringthe legislative intent. In Samee Khan (supra), the term “and” was

78 (2005) 5 SCC 420H79 (1987) 3 SCC 308

construed as “or” to carry out the legislative intention. In MobiloxInnovations Private Limited (supra), similar observations were made.In Green v. Premier Glynrhonwy State Co. L.R[80], it has been laid downthat sometimes word “or” read as “and” and vice versa, but does not doso unless it becomes necessary because “or” does not generally mean“and” and “and” does not generally mean “or”.

104. In R.M.D.C. (supra) the definition under Section 2(1)(d) cameup for consideration. The qualifying clause consisted of two partsseparated from each other by the disjunctive word “or”. Both parts ofthe qualifying clause indicated that each of the five kinds of prizecompetitions that they qualified were of gambling nature. The courtheld considering the apparent intention of the legislature, it has perforceto read the word “or” as “and”. In Tilkayat Shri Govindlalji Maharajetc. v State of Rajasthan & Ors[81], this Court considered the compositionof the Board prescribed under Section 5. The expressions used werenot belonging to professing the Hindu religion or not belonging to thePushti-Margiya Vallabhi Sampradaya. Two negative conditions wereused. This Court has observed that “or” in clause (g) dealing withdisqualification must mean “and”. The relevant portion of the same isextracted hereunder:“(39) …The composition of the Board has been prescribedby Section 5; it shall consist of President, the Collector ofUdaipur District, and nine other members. The proviso to thesection is important: it says that the Goswami shall be one ofsuch members if he is not otherwise disqualified to be memberand is willing to serve as such. Section 5(2) prescribes thedisqualifications specified in clauses (a) to (g) – unsoundnessof mind adjudicated upon by competent court, convictioninvolving moral turpitude; adjudication as an insolvent orthe status of an undischarged insolvent; minority, the defectof being deaf-mute or leprosy; holding an office or being aservant of the temple or being in receipt or any emolumentsor perquisites from the temple; being interested in subsistingcontract entered into with the temple; and lastly, not professingthe Hindu religion or not belonging to the Pushti-MargiyaVallabhi Sampradaya. There can be no doubt that

80 (1928) 1 KB 561

81 AIR 1963 SC 1638

A“or” in clause (g) must mean “and,” for the context clearlyindicates that way. There is proviso to Section 5(2) whichlays down that the disqualification as to the holding of anoffice or an employment under the temple shall not apply tothe Goswami and the disqualification about the religion willnot apply to the Collector; that is to say, Collector will be aBmember of the Board even though he may not be Hindu anda follower of the denomination.Section 5(3) provides thatthe President of the Board shall be appointed by the StateGovernment and shall for all purposes be deemed to be amember. Under Section 5(4) the Collector shall be an ex-Cofficio member of the Board. Section 5(5) provides that allthe other members specified in sub-clause (1) shall beappointed by the State Government so as to securerepresentation of the Pushti-Margiya Vaishnavas from all overIndia. This clearly contemplates that the other members ofthe Board shall not only be Hindus, but should also belong toDthe denomination, for it is in that manner alone that theirrepresentation can be adequately secured.”

(emphasis supplied)

105. In Prof. Yashpal (supra), the word “or” occurring in theEexpression “established or incorporated” was read as “and” so thatthe State enactment did not come in conflict with the Central legislationand create any hindrance or obstacle in the working of the latter. Thiscourt has observed:

“59. Shri Rakesh Dwivedi has also submitted that insofar asFprivate universities are concerned, the word “or” occurringin the expression “established or incorporated” in Sections2(f), 22 and 23 of the UGC Act should be read as “and.” Hehas submitted that the normal meaning of the word“established”is to bring into existence. In order to avoid thesituation which has been created by the impugned enactmentGwhere over 112 universities have come into existence withina short period of one year of which many do not have anykind of infrastructure or teaching facility, it will be inconsonance with the constitutional scheme that only afterestablishment of the basic requisites of university(classrooms, library, laboratory, offices, and hostel facility,

etc.) that it should be incorporated and conferred juristicpersonality. The word “or” is normally disjunctive and “and”is normally conjunctive, but at times, they are read vice versato give effect to the manifest intentions of the legislature, asdisclosed from the context. If literal reading of the wordproduces an unintelligible or absurd result, “and” maybe readfor “or” and “or” mayberead for “and.” (See Principles ofStatutory Interpretation by G.P. Singh, 7th Edn., p. 339 andalso State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957SC 699, AIR at p. 709 and Mazagaon Dock Ltd. v. CIT, AIR1958 SC 861) We are of the opinion that having regard to theconstitutional scheme and in order to ensure that the enactmentmade by Parliament, namely, the University GrantsCommission Act is able to achieve the objective for which ithas been made and UGC is able to perform its duties andresponsibilities, and further that the State enactment does notcome in conflict with the Central legislation and create anyhindrance or obstacle in the working of the latter, it isnecessary to read the expression “established orincorporated” as “established and incorporated” insofar as”the private universities are concerned.

(emphasis supplied)

106. Reference has also been made to Pooran Singh v. State ofM.P[82], in which the Court considered the scheme of the M.V. Act. Themagistrate was bound to issue summons of the nature prescribed bysub-section (1) of Section 130. The Court held that there was nothing inthe sub-section which indicated that he must endorse the summons interms of both the clauses (a) and (b), that he is so commanded would beto convert the conjunction ‘or’ into ‘and’. There is nothing in the languageof the legislature which justifies such conversion and there are adequatereasons which make such an interpretation wholly inconsistent with thescheme of the Act.

107. Reliance has been placed on Sri Nasiruddin v. StateTransport Appellate Tribunal[83]. The word ‘or’ was given grammaticalmeaning. The order states that the High Court shall sit as the new HighCourt and the Judges and Division Bench thereof shall sit at Allahabad

82 1965 (2) SCR 85383 1975 (2) SCC 671

Aor at such other places in the United Provinces as the Chief Justice mayappoint. It was held that the word ‘or’ cannot be read as ‘and’. Theyshould be considered in an ordinary sense. If two different interpretationsare possible, the court will adopt that which is just, reasonable and sensible.The Court observed thus:B“27. The conclusion as well as the reasoning of the High

B“27. The conclusion as well as the reasoning of the HighCourt that the permanent seat of the High Court is atAllahabad is not quite sound. The order states that the HighCourt shall sit as the new High Court and the judges andDivision Bench thereof shall sit at Allahabad or at such otherplaces in the United Provinces as the Chief Justice may, withCthe approval of the Governor of the United Provinces, appoint.The word “or” cannot be read as “and”. If the precise wordsused are plain and unambiguous, they are bound to beconstrued in their ordinary sense. The mere fact that the resultsof statute may be unjust does not entitle court to refuse toDgive it effect. If there are two different interpretations of thewords in an Act, the Court will adopt that which is just,reasonable and sensible rather than that which is none ofthose things. If the inconvenience is an absurd inconvenience,by reading an enactment in its ordinary sense, whereas if it isread in manner in which it is capable, though not in anEordinary sense, there would not be any inconvenience at all;there would be reason why one should not read it accordingto its ordinary grammatical meaning. Where the words areplain, the Court would not make any alteration.”

108. In Municipal Corporation of Delhi v. Tek Chand Bhatia[84],Ffor interpretation of ‘and’ and ‘or’ in the context of the term ‘adulterated’as defined in section 2(i)(f), the Court observed:

“7. We are of the opinion that the High Court was clearlywrong in its interpretation of Section 2(i)(f). On the plainlanguage of the definition section, it is quite apparent thatGthe words “or is otherwise unfit for human consumption” aredisjunctive of the rest of the words preceding them. It relatesto distinct and separate class altogether. It seems to us thatthe last clause “or is otherwise unfit for human consumption”

is residuary provision, which would apply to case notcovered by or falling squarely within the clauses precedingit. If the phrase is to be read disjunctively the mere proof ofthe article of food being “filthy, putrid, rotten, decomposed .. . or insect-infested” would be per se sufficient to bring thecase within the purview of the word “adulterated” as definedin sub-clause (f), and it would not be necessary in such acase to prove further that the article of food was unfit forhuman consumption.

11. In the definition clause, the collection of words “filthy,putrid, rotten, decomposed and insect-infested,” which areadjectives qualifying the term “an article of food,” show thatit is not of the nature, substance, and quality fit for humanconsumption. It will be noticed that there is comma aftereach of the first three words. It should also be noted thatthese qualifying adjectives cannot be read into the last portionof the definition i.e., the word’ “or is otherwise unfit for humanconsumption,” which is quite separate and distinct from others.The word “otherwise” signifies unfitness for humanconsumption due to other causes. If the last portion is meantto mean something different, it becomes difficult to understandhow the word “or” as used in the definition of “adulterated”in Section 2(i)(f) between “filthy, putrid, rotten, etc.” and“otherwise unfit for human consumption” could have beenintended to be used conjunctively. It would be moreappropriate in the context to read it disjunctively. In Stroud’sJudicial Dictionary, 3rd Edn., Vol. 1, it is stated at p. 135:

“And” has generally cumulative sense, requiring thefulfilment of all the conditions that it joins together, and hereinit is the antithesis of “or”. Sometimes, however, even in sucha connection, it is, by force of context, read as “or”.

While dealing with the topic ‘OR is read as AND, and viceversa’, Stroud says in Vol. 3, at p. 2009:

“You will find it said in some cases that ‘or’ means ‘and’; but‘or’ never does mean ‘and’.

ASimilarly, in Maxwell on Interpretation of Statutes, 11th Edn.,pp. 229-30, it has been accepted that “to carry out theintention of the legislature, it is occasionally found necessaryto read the conjunctions ‘or’ and ‘and’ one for the other.”The word “or” is normally disjunctive and “and” is normallyconjunctive, but at times they are read as vice versa. AsBScrutton, L.J. said in Green v. Premier Glynrhonwy State Co.,LR (1928) 1 KB 561, 568: “You do sometimes read “or” as“and” in statute . . . . But you do not do it unless you areobliged, because “or” does not generally mean “and” and“and” does not generally mean “or.” As Lord Halsbury L.C.Cobserved in Mersey Docks & Harbour Board v. Henderson,LR (1888) 13 AC 603, the reading of “or” as “and” is not tobe resorted to “unless some other part of the same statute orthe clear intention of it requires that to be done.” Thesubstitution of conjunctions, however, has been sometimesmade without sufficient reasons, and it has been doubtedDwhether some of the cases of turning “or” into “and” andvice versa have not gone to the extreme limit of interpretation.”109. In State of Punjab v. Ex-Constable Ram Singh[85], ‘or’ wasread as ‘nor’ and not as ‘and’ in the context of Section 2 of the ArmedForces Special Powers Act, 1948. In Naga People’s Movement ofEHuman Rights (supra), the Court held that the language of section 4(a)does not support the said construction.

110. In Marsey Docks and Harbour Board v. Coggins andGriffith (Liverpool) Ltd.[86], the Court observed as follows: (at page603)F

“…unless the context makes the necessary meaning of “or”“and,” as in some instances it does; but I believe it is whollyunexampled so to read it when doing so will upon oneconstruction entirely alter the meaning of the sentence unlesssome other part of the same statute or the clear intention of itrequires that to be done,……It may indeed be doubted whethersome of the cases of turning “or” into “and” and vice versahave not gone to the extreme limit of interpretation, but I thinknone of them would cover this case.”

85 (1992) 4 SCC 54H86 LR (AC) Vol.XIII 1888 595

111. In Re Hayden Pask v. Perry[87], the expression “or their issue”had been considered, and it was observed that the words “or their issue”must be read as words of limitation and not of substitution. The word“or” was construed to mean “and.” The learned SG placed reliance onthe Queen’s Bench decision in Metropolitan Board of Works v. StreetBros[88] to submit that the issue was whether, in terms of its grammaticalmeaning, if two things were prohibited, both were permitted and notmerely permitted in the alternative. It would have been more strictlygrammatical to have written “nor” instead of “or.” The followingdiscussion was made in the decision:

“Dec.13. GROVE, J. The main question before us turns onthe meaning of the word “or,” used in 25 & 26 Vict. c. 102,s.98. Read shortly, s. 98 enacts that no existing road, passageor way, shall be hereafter formed or laid out for carriagetraffic unless such road shall be forty feet wide, or for thepurposes of foot traffic, unless such road be of the width oftwenty feet, or unless such streets respectively shall be openat both ends. The question is whether that word “or” shouldbe read in the disjunctive or conjunctive, or perhaps read aseither “and” or “nor:” I think it means “nor;” that is to say,that the two things comprised in the prohibition are bothprohibited, and not merely prohibited in the alternative. Ifthe sense which I attribute to the word is right, it would havebeen more strictly grammatical to have written “nor” insteadof “or.” But I think that the meaning of the enactment is thatthe road must be of the width specified, and that no roadshall be allowed unless it is of the width specified, nor unlessit is open at both ends. That seems to me to be the object ofthe statute, which was passed for sanitary purposes, and alsofor the purpose of comfort and traffic.

It was contended that the object of the provision is sanitaryonly, and that if street is forty feet wide, or if howevernarrow, it is open at both ends, good ventilation is secured.But very long narrow street would hardly be more salubriouswith both ends open than if one end were closed and the streetwere cul de sac.

87 (1931) 2 Ch.333

88 (1881) VIII QBD 445

Our construction of the Act is according to the ordinaryuse of language, although it may not be strictly grammatical.We might have referred to authorities by good writers, shewingthat where the word “or” is preceded by negative orprohibitory provision, it frequently has different sense fromthat which it has when it is preceded by an affirmativeprovision. For instance, suppose an order that “you musthave your house either drained or ventilated.” The word“or” would be clearly used in the alternative. Suppose again,the order was that “you must have your house drained orventilated,” that conveys the idea to my mind that you musthave your house either drained or ventilated. But supposingthe order were that “you must not have your house undrainedor unventilated.” The second negative words are coupled bythe word “or,” and the negative in the preceding sentencegoverns both. In s. 98 there is negative preceding sentence;“no existing road” shall be formed as street for carriagetraffic unless such road be widened to forty feet, or for thepurposes of foot traffic only unless such road or way bewidened to the width of twenty feet, “or” unless such streetsshall be open at both ends. Probably, if the word “or” in thesentence, “or for purposes of foot traffic only,” had beenwritten “nor,” the language there too would have been moreclear and more decidedly prohibitory; but with regard to thesentence “or unless such streets shall be open at both ends”I think that by reading the word “or” as “nor” we carry outthe intention of the Act, which was to have streets of properwidth and properly opened at both ends, and that there shouldnot be incommodious and unhealthy cross streets which areculs de sac, shut up at one end.

There have been frequently cases on the construction ofstatutes where the Courts have held “or” to mean “and,”taking the rest of the sentence in which the word “or”occurred, the object and intention being prohibition, and thetwo things prohibited being coupled by the word “or.” I thinkthe prohibition in s.98 relates to both the width and openending of streets. The street must be both of the widthprescribed and also open at both ends.”

112. Section 24(2) of the Act of 2013 is, in our opinion, penalprovision - to punish the acquiring authority for its lethargy in not takingphysical possession nor paying the compensation after making the awardfive years or more before the commencement of the Act of 2013 inpending proceedings, providing that they would lapse. The expressionwhere an award has been made, then the proceedings shall continueused in Section 24(1)(b) under the provisions of the Act of 1894 meansthat proceedings were pending in praesenti as on the date of enforcementof the Act of 2013 are not concluded proceedings, and in that context, anexception has been carved out in section 24(2).113. Even if possession has been taken, despite which paymenthas not been made nor deposited, (for the majority of the land-holdings),then all beneficiaries holding land on the date of notification under Section4 of the Act of 1894, are to be paid compensation under the provisions ofthe Act of 2013. Section 24 of the Act of 2013 frowns upon indolenceand stupor of the authorities. The expression “possession of the landhas not been taken” or “compensation has not been paid” indicatesa failure on the part of the authorities to take the necessary steps forfive years or more in pending proceeding under Section 24(1)(b). Section24(2) starts with non-obstante clause overriding what is contained inSection 24(1). Thus, Section 24(2) has to be read as an exception toSection 24(1)(b). Similarly, the proviso has to be read as proviso toSection 24(2) for the several reasons to be discussed hereafter. Parliamentenacted beneficial provision in case authorities delayed in taking of thepossession for more than five years nor paid compensation, meaningthereby acquisition has not been completed. Section 24(2) clearlycontemplates inaction on the part of the authorities not as result of thedilatory tactics and conduct of the landowners or other interested persons.

114. There are other reasons to read the word ‘or’ in Section 24as ‘and.’ When we consider the scheme of the Act of 1894, once theaward was made under Section 11, the Collector may, undertakepossession of the land which shall thereupon vest absolutely in theGovernment free from all encumbrances. Section 16 of the Act of 1894enables the Collector to take possession of acquired land, when an awardis made under Section 11. Section 17(1) of the Act of 1894 confersspecial powers in cases of urgency. The Collector could, on the expirationof 15 days from the publication of notice under Section 9(1), takepossession of any land needed for public purpose and such land was to

Athereupon vest absolutely in the Government, free from all encumbrances.Under Section 17(3A) before taking possession, the Collector had totender payment of 80% of the compensation, as estimated by him andalso had to pay the landowners or to persons interested, unless preventedby exigencies mentioned in Section 31(2). It is also provided in sub-section (3B) of Section 17 of the Act of 1894 that the amount paid orBdeposited under Section 17(3A) shall be taken into account for determiningthe compensation required to be tendered under Section 31.

115. It is apparent from plain reading of Section 16 (of the Actof 1894) that the land vests in the Government absolutely when possessionis taken after the award is passed. Clearly, there can be lapse ofCproceedings under the Act of 1894 only when possession is not taken.The provisions in Section 11A of the Act of 1894 states that the Collectorshall make an award within period of two years from the date of thepublication of the declaration under Section 6 and if no award is madewithin two years, the entire proceedings for acquisition of the land shallDlapse. The period of two year excludes any period during which interimorder granted by the Court was in operation. Once an award is madeand possession is taken, by virtue of Section 16, land vests absolutely inthe State, free from all encumbrances. Vesting of land is automatic onthe happening of the two exigencies of passing award and takingpossession, as provided in Section 16. Once possession is taken underESection 16 of the Act of 1894, the owner of the land loses title to it, andthe Government becomes the absolute owner of the land.116. Payment of compensation under the Act of 1894 is providedfor by Section 31 of the Act, which is to be after passing of the awardunder Section 11. The exception, is in case of urgency under Section 17,Fis where it has to be tendered before taking possession. Once an awardhas been passed, the Collector is bound to tender the payment ofcompensation to the persons interested entitled to it, as found in theaward and shall pay it to them unless “prevented” by the contingenciesmentioned in sub-section (2) of Section 31. Section 31(3) contains aGnon-obstante clause which authorises the Collector with the sanctionof the appropriate Government, in the interest of the majority, by thegrant of other lands in exchange, the remission of land revenue on otherlands or in such other way as may be equitable.

117. Section 31(1) enacts that the Collector has to tender paymentHof the compensation awarded by him to the persons interested entitled

thereto according to the award and shall pay such amount to personinterested in the land, unless he (the Collector) is prevented from doingso, for any of the three contingencies provided by sub-section (2). Section31 (2) provides for deposit of compensation in Court in case State isprevented from making payment in the event of (i) refusal to receive it;(ii) if there be no person competent to alienate the land; (iii) if there isany dispute as to the title to receive the compensation; or (iv) if there isdispute as to the apportionment. In such exigencies, the Collector shalldeposit the amount of the compensation in the court to which referenceunder Section 18 would be submitted.

118. Section 34 deals with situation where any of the obligationsunder Section 31 is not fulfilled, i.e., when the amount of compensationis not paid or deposited on or before taking possession of the land, theCollector shall pay the amount awarded with interest thereon at the rateof 9% per annum from the time of so taking possession until it shall havebeen so paid or deposited; and after one year from the date on whichpossession is taken, interest payable shall be at the rate of 15% perannum. The scheme of the Act of 1894 clearly makes it out that whenthe award is passed under Section 11, thereafter possession is taken asprovided under Section 16, land vests in the State Government. UnderSection 12(2), notice of the award has to be issued by the Collector.Taking possession is not dependent upon payment. Payment has to betendered under Section 31 unless the Collector is “prevented from makingpayment,” as provided under section 31(2). In case of failure underSection 31(1) or 31(3), also Collector is not precluded from makingpayment, but it carries interest under Section 34 @ 9% for the first yearfrom the date it ought to have been paid or deposited and thereafter @15%. Thus, once land has been vested in the State under Section 16, incase of failure to pay the compensation under Section 31(1) to depositunder Section 31(2), compensation has to be paid along with interest,and due to non-compliance of Section 31, there is no lapse of acquisition.The same spirit has been carried forward in the Act of 2013 by providingin Section 24(2). Once possession has been taken though the paymenthas not been made, the compensation has to be paid along with interestas envisaged under section 34, and in case, payment has been made,possession has not been taken, there is no lapse under Section 24(2). Ina case where possession has been taken under the Act of 1894 asprovided by Section 16 or 17(1) the land vests absolutely in the State,free from all encumbrances, if compensation is not paid, there is no

Adivesting there will be no lapse as compensation carries interest @ 9%or @ 15% as envisaged under Section 34 of the Act of 1894. Proviso toSection 24(2) makes some wholesome provision in case the amount hasnot been deposited with respect to majority of landholdings, in such anevent, not only those persons but all the beneficiaries, though for minorityof holding compensation has been paid, shall be entitled to higherBcompensation in accordance with the provisions of the Act of 2013. Theexpression used is “all beneficiaries specified in the notification foracquisition under Section 4 of the said Land Acquisition Act”, i.e., Act of1894, means that the persons who are to be paid higher compensationare those who have been recorded as beneficiaries as on the date ofCnotification under Section 4. The proviso gives effect to, and furthersthe principle that under the Act of 1894, the purchases made after issuanceof notification under Section 4 are void. As such, the benefit of highercompensation under the proviso to Section 24(2) is intended to be givento the beneficiaries mentioned in the notification under Section 4 of theAct of 1894.D

119. It is apparent from the Act of 1894 that the payment ofcompensation is dealt with in Part V, whereas acquisition is dealt with inPart II. Payment of compensation is not made pre-condition for takingpossession under Section 16 or under Section 31 read with Section 34.Possession can be taken before tendering the amount except in the caseEof urgency, and deposit (of the amount) has to follow in case the Collectoris prevented from making payment in exigencies as provided in Section31(3). What follows is that in the event of not fulfilling the obligation topay or to deposit under Section 31(1) and 31(2), the Act of 1894 did notprovide for lapse of land acquisition proceedings, and only increasedFinterest follows with payment of compensation.

120. The terms of object clause No. 18 (of the Statement ofObjects and Reasons) to the Act of 2013 reveals that the option of takingpossession (of acquired land) upon making of an award the new lawwould be available in the cases of land acquisition under the Act of 1894Gwhere award has not been made, or possession of land has not beentaken. It is apparent that the benefits under the Act of 2013 envisagethat where the award had not been made, or award has been made, butpossession has not been taken (because once possession is taken, landis vests in the State) there can be lapse of acquisition. No doubt aboutthat payment is also to be made: that issue is taken care of by the provisionHof payment of interest under Section 34: also, in case of non-deposit- in

respect of majority of holdings in given award, higher compensationunder the Act of 2013 has to be paid to all beneficiaries as on the date ofnotification under Section 4 issued under the Act of 1894. There is nothingin the Statement of Objects and Reasons making specific reference tonon-payment of compensation where an award has been made, andpossession has been taken. While interpreting the provisions of an Act,the court to consider the objects and reasons of the legislature, whichthe legislature had in mind also emphasised that once vesting is complete,there is no divesting as held in Workmen of Dimakuchi Tea Estate v.Management of Dimakuchi Tea Estate[89], thus:“(9) little careful consideration will show, however, thatthe expression “any person” occurring in the third part ofthe definition clause cannot mean anybody and everybody inthis wide world. First of all, the subject matter of dispute mustrelate to (i) employment or non-employment or (ii) terms ofemployment or conditions of labour of any person; thesenecessarily import limitation in the sense that person inrespect of whom the employer-employee relation never existedor can never possibly exist cannot be the subject matter of adispute between employers and workmen. Secondly, thedefinition clause must be read in the context of the subjectmatter and scheme of the Act, and consistently with the objectsand other provisions of the Act. It is well settled that

“the words of statute, when there is doubt about theirmeaning, are to be understood in the sense in which they bestharmonise with the subject of the enactment and the objectwhich the Legislature has in view. Their meaning is found notso much in strictly grammatical or etymological proprietyof language, nor even in its popular use, as in the subject orin the occasion on which they are used, and the object to beattained.”

(Maxwell, Interpretation of Statutes, 9th Edition, p. 55).”

121. In Mukesh K. Tripathi v. Senior Divisional Manager, LIC& Ors.[90], the decision in Workmen of Dimakuchi Estate (supra) wasreiterated, on the issue of discerning the object of an enactment.

89 1958 SCR 1156

90 (2004) 8 SCC 387

A122. Section 24(2) of the Act of 2013 deals with situation onlywhere the award has been made 5 years or more before thecommencement of the Act, but physical possession of the land has notbeen taken, nor compensation has been paid. It does not visualize asituation where possession has been taken under the urgency provisionof Section 17(1), but the award has not been made. In such cases, underBSection 24(1)(a) of the Act of 2013, there is no lapse of entire proceedings:but compensation is to be determined in accordance with the provisionsof the Act of 2013. In case of urgency, possession is usually taken beforethe award is passed. Thus, where no award is passed, where urgencyprovision under Section 17(1) of the Act of 1894 had been invoked,Cthere is no lapse, only higher compensation would follow under Section24(1)(a) even if payment has not been made or tendered under Section17(3A) of the Act of 1894.

123. The provision for lapsing under Section 24 is available onlywhen the award has been made, but possession has not been takenDwithin five years, nor compensation has been paid. In case word ‘or’ isread disjunctively, proceedings shall lapse even after possession has beentaken in order to prevent lapse of land acquisition proceedings, once theland has vested in the Government and in most cases, development hasalready been made. The expressions used in Section 24(2) “possessionof the land has not been taken” and “the compensation has notEbeen paid” are unrelated and carry different consequences under theAct of 1894. As already discussed above, these conditions are merelyexclusive conditions and cannot be used as alternative conditions. Thereis catena of cases where compensation has been paid, but possessionhas not been taken due to one reason or the other for no fault of authorities

For otherwise, and there are cases where possession is taken, butcompensation has not been paid.

124. Section 24 of the Act of 2013 is to be given full effect. Section24(2) has been carved out as an exception to the otherwise generalapplicability of the provisions contained in Section 6 of the GeneralGClauses Act and Section 24(1)(a) and (b) apply to the proceedings whichare pending. Sub-section (2) is an exception to sub-section (1) whichreads: “Notwithstanding anything contained in sub-section (1)”where an award has been made, but possession has not been taken norcompensation has been paid, an exception has been carved in Section24 where an award has been passed, but no steps have been taken toHtake the possession nor payment of compensation has been made inpending proceedings under Section 24(1). The provision has to beconstrued in the spirit behind what is saved under Section 6 (of theGeneral Clauses Act) as provided in Section 114 of the Act of 2013 andthe non-obstante clause in Section 24(2).

125. It was also submitted on behalf of the States that neither atransitory provision nor repealing law could be interpreted so as totake away, disturb or adversely affect rights created by operation oflaw. It cannot divest the State Government of the land absolutely vestedin it. Reliance has been placed on K.S. Paripoornan v. State of Kerala& Ors[91] thus:

“12. It is further necessary to bear in mind that the amendingAct has added, among others, the provisions of Section 23(1-A) and Section 28-A and has amended the provisions ofSection 23(2). It has also made independent transitionalprovision in its Section 30. The relevant provisions of Section30 read as follows:

30. Transitional provisions.— (1) The provisions of sub-section(1-A) of Section 23 of the principal Act, as inserted by clause(a) of Section 15 of this Act, shall apply, and shall be deemedto have applied, also to, and in relation to,—

(a) every proceeding for the acquisition of any land underthe principal Act pending on 30th day of April, 1982 [thedate of introduction of the Land Acquisition (Amendment) Bill,1982 in the House of the People], in which no award hasbeen made by the Collector before that date;

(b) every proceeding for the acquisition of any land underthe principal Act commenced after that date, whether or notan award has been made by the Collector before the date ofcommencement of this Act.

(2) The provisions of sub-section (2) of Section 23 and Section28 of the principal Act, as amended by clause (b) of Section15 and Section 18 of this Act respectively, shall apply, andshall be deemed to have applied, also to, and in relation to,any award made by the Collector or Court or to any order

passed by the High Court or Supreme Court in appeal againstany such award under the provisions of the principal Act afterthe 30th day of April, 1982 [the date of introduction of theLand Acquisition (Amendment) Bill, 1982, in the House of thePeople] and before the commencement of this Act.

The date of the introduction of the Bill of the amending Act is30-4-1982 and the date of its commencement is 24-9-1984.

38. The transitional provision is by its very nature an enablingone and has to be interpreted as such. In the present case, itis made to take care of the period between 30-4-1982 and24-9-1984, i.e., between the date of the introduction of theBill of the amending Act and the date of the commencementof the Act. Since some awards might have been made by theCollector and the reference Court during the said interregnum,the legislature did not want to deprive the awardees concernedeither of the newly conferred benefit of Section 23(1-A) or ofthe increased benefit under Sections 23(2) and 28. The secondobject was to enable the Collector and the Court to give thesaid benefits in the proceedings pending before them wherethey had not made awards. The only limitation that was placedon the power of the Collector in this behalf was that he shouldnot reopen the awards already made by him in proceedingswhich were pending before him on 30-4-1982 to give thebenefit of Section 23(1-A) to such awardees. This was as statedearlier, for two reasons. If the said awards are pending beforethe reference Court on the date of the commencement of theamending Act, viz., 24-9-1984, the reference Court would beable to give the said benefit to the awardees. On the otherhand, if the awardees in question had accepted the awards,the same having become final, should not be reopened. Asregards the increased benefit under Sections 23(2) and 28,the intention of the legislature was to extend it not only to theproceedings pending before the reference Court on 24-9-1984but also to those where awards were made by the Collectorand the reference Courts between 30-4-1982 and 24-9-1984.Hence these awards could not only be reopened but if theywere the subject-matter of the appeal before High Courts or

the Supreme Court, the appellate orders could also bereopened to extend the said benefits.

71. Section 30 of the amending Act bears the heading“Transitional provisions.” Explaining the role of transitionalprovisions in statute, Bennion has stated:

“Where an Act contains substantive, amending or repealingenactments, it commonly also includes transitional provisionswhich regulate the coming into operation of those enactmentsand modify their effect during the period of transition. Wherean Act fails to include such provisions expressly, the court isrequired to draw inferences as to the intended transitionalarrangements as, in the light of the interpretative criteria, itconsiders Parliament to have intended.”

(Francis Bennion: Statutory Interpretation, 2nd Edn., p. 213)

The learned author has further pointed out:

“Transitional provisions in an Act or other instrument areprovisions which spell out precisely when and how theoperative parts of the instrument are to take effect. It isimportant for the interpreter to realise, and bear constantlyin mind, that what appears to be the plain meaning of asubstantive enactment is often modified by transitionalprovisions located elsewhere in the Act.” (p. 213)

Similarly Thornton in his treatise on Legislative Drafting [3[rd]Edn., 1987, p. 319 quoted in Britnell v. Secretary of State forSocial Security, (1991) 2 All ER 726, 730 Per Lord Keith],has stated:

“The function of transitional provision is to make specialprovision for the application of legislation to thecircumstances which exist at the time when that legislationcomes into force.”

For the purpose of ascertaining whether and, if so, to whatextent the provisionsof sub-section (1-A) introduced in Section23 by the amending Act are applicable to proceedings thatwere pending on the date of the commencement of the

-amending Act it is necessary to read Section 23(1A) along-with the transitional provisions contained in subsection (1)of Section 30 of the amending Act.”

(emphasis supplied)

126. For interpretation of repeal and saving clauses, reliance hasBbeen placed on Milkfood Ltd. v. GMC Ice Cream (P) Ltd[92] thus:

“70. Section 85 of the 1996 Act repeals the 1940 Act. Sub-section (2) of Section 85 provides for non-obstante clause.Clause (a) of the said sub-section provides for saving clausestating that the provisions of the said enactments shall applyin relation to arbitral proceedings which commenced beforethe said Act came into force. Thus, those arbitral proceedingswhich were commenced before coming into force of the 1996Act are saved and the provisions of the 1996 Act would applyin relation to arbitral proceedings which commenced on orafter the said Act came into force. Even for the said limitedpurpose, it is necessary to find out as to what is meant bycommencement of arbitral proceedings for the purpose of the1996 Act wherefor also necessity of reference to Section 21would arise. The court is to interpret the repeal and savingsclauses in such manner so as to give pragmatic andpurposive meaning thereto.It is one thing to say thatcommencement of arbitration proceedings is dependent uponthe facts of each case as that would be subject to theagreement between the parties. It is also another thing to saythat the expression “commencement of arbitrationproceedings” must be understood having regard to the contextin which the same is used; but it would be totally differentthing to say that the arbitration proceedings commence onlyfor the purpose of limitation upon issuance of notice andfor no other purpose. The statute does not say so. Even thecase-laws do not suggest the same. On the contrary, thedecisions of this Court operating in the field beginning fromShetty’s Constructions Co. (P) Ltd. v. Konkan Rly.Construction, (1998) 5 SCC 599 are ad idem to the effectthat Section 21 must be taken recourse to for the purpose ofinterpretation of Section 85(2)(a) of the Act. There is no

reason, even if two views are possible, to make departurefrom the decisions of this Court as referred to hereinbefore.

105. In the present matter, one is concerned with transitionalprovision i.e. Section 85(2)(a) which enacts as to how thestatute will operate on the facts and circumstances existingon the date it comes into force and, therefore, the constructionof such provision must depend upon its own terms and noton the basis of Section 21(see Singh, G.P.: Principles ofStatutory Interpretation, 8th Edn., p. 188). In ThyssenStahlunion GMBH v. Steel Authority of India Ltd., (1999) 9SCC 334 Section 48 of the old Act and Section 85(2)(a) ofthe 1996 Act came for consideration. It has been held by thisCourt that there is material difference between Section 48of the 1940 Act, which emphasised the concept of “reference”vis-à-vis Section 85(2)(a) of the 1996 Act which emphasisesthe concept of “commencement”; that there is materialdifference in the scheme of the two Acts; that the expression“in relation to” appearing in Section 85(2)(a) refers todifferent stages of arbitration proceedings under the old Act;and lastly, that Section 85(2)(a) provides for limited repeal ofthe 1940 Act, therefore, I am of the view that one cannotconfine the concept of “commencement” under Section85(2)(a) only to Section 21 of the 1996 Act which inter aliaprovides for commencement of arbitral proceedings from thedate on which request to refer particular dispute is receivedby the respondent. ….

109. To sum up, in this case, the question concernsinterpretation of transitional provisions; that Section 85(2)(a)emphasises the concept of “commencement” whereas Section48 of the 1940 Act emphasised the concept of “reference”;that Section 85(2)(a) provides for implied repeal; that thescheme of the 1940 Act is different from the 1996 Act; thatthe word “reference” in Section 48 of the old Act had differentmeanings in different contexts; and for the said reasons, I amof the view that while interpreting Section 85(2)(a) in the

context of the question raised in this appeal, one cannot relyonly on Section 21 of the 1996 Act.”

(emphasis supplied)

127. Under Section 48 of the Act of 1894, withdrawal of the landacquisition proceedings was permissible only if the possession has notBbeen taken under Section 16 or 17(1). Section 48(1) is extractedhereunder:

“48. Completion of acquisition not compulsory, butcompensation to be awarded when not completed. –

(1) Except in the case provided for in section 36, theGovernment shall be at liberty to withdraw from theacquisition of any land of which possession has not beentaken.

(2) Whenever the Government withdraws from any suchDacquisition, the Collector shall determine the amount ofcompensation due for the damage suffered by the owner inconsequence of the notice or of any proceedings thereunder,and shall pay such amount to the person interested, togetherwith all costs reasonably incurred by him in the prosecutionof the proceedings under this Act relating to the said land.

(3) The provisions of Part III of this Act shall apply, so far asmay be, to the determination of the compensation payableunder this section.”

In case possession has been taken, there cannot be any withdrawalfrom the land acquisition proceedings under the Act of 1894.

128. Various decisions were referred on behalf of the State ofHaryana that once possession has been taken and land has not beenutilised, there cannot be withdrawal from the acquisition of any land.Land cannot be restituted to the owner after the stage of possession isover. Following decisions have been pressed into service:

(a). In Gulam Mustafa & Ors (supra), it was observed:

“5. At this stage Shri Deshpande complained that actuallythe municipal committee had sold away the excess landmarking them out into separate plots for housing colony.Apart from the fact that housing colony is public necessity,

once the original acquisition is valid and title has vested inthe municipality, how it uses the excess land is no concern ofthe original owner and cannot be the basis for invalidatingthe acquisition. There is no principle of law by which validcompulsory acquisition stands voided because long later therequiring authority diverts it to public purpose other thanthe one stated in the Section 6(3) declaration.”

Chandragauda Ramgonda Patil & Anr. (supra) when restitutionof land was sought, on the basis of some Government resolutions, afterpossession had been taken, this observed thus:

“2… Since he had sought enforcement of the said governmentresolution, the writ petition could not be dismissed on theground of constructive res judicata. He also seeks to relyupon certain orders said to have been passed by the HighCourt in conformity with enforcement of the governmentresolution. We do not think that this Court would be justifiedin making direction for restitution of the land to the erstwhileowners when the land was taken way back and vested in theMunicipality free from all encumbrances. We are notconcerned with the validity of the notification in either of thewrit petitions. It is axiomatic that the land acquired for publicpurpose would be utilised for any other public purpose,though use of it was intended for the original public purpose.It is not intended that any land which remained unutilised,should be restituted to the erstwhile owner to whom adequatecompensation was paid according to the market value as onthe date of the notification. Under these circumstances, theHigh Court was well justified in refusing to grant relief inboth the writ petitions.”

(emphasis supplied)

Again, in C. Padma & Ors. v. Dy. Secretary & Ors[93], this courtstated that:

“4. The admitted position is that pursuant to the notificationpublished under Section 4(1) of the Land Acquisition Act, LA(for short “the Act”) in GOR No. 1392 Industries dated17-10-1962, total extent of 6 acres 41 cents of land in

Madhavaram Village, Saidapet Taluk, Chengalpattu Districtin Tamil Nadu was acquired under Chapter VII of the Act forthe manufacture of Synthetic Rasina by Tvl. ReicholdChemicals India Ltd., Madras. The acquisition proceedingshad become final and possession of the land was taken on30-4-1964. Pursuant to the agreement executed by thecompany, it was handed over to Tvl. Simpson and GeneralFinance Co. which is subsidiary of Reichold ChemicalsIndia Ltd. It would appear that at request made by the saidcompany, 66 cents of land out of one acre 37 cents in respectof which the appellants originally had ownership, wastransferred in GOMs No. 816 Industries dated 24-3-1971 infavour of another subsidiary company. Shri Rama VilasService Ltd., the 5th respondent which is also anothersubsidiary of the Company had requested for two acres 75cents of land; the same came to be assigned on leaseholdbasis by the Government after resumption in terms of theagreement in GOMs No. 439 Industries dated 10-5-1985. InGOMs No. 546 Industries dated 30-3-1986, the same cameto be approved of. Then the appellants challenged the originalGOMs No. 1392 Industries dated 17-10-1962 contending thatsince the original purpose for which the land was acquiredhad ceased to be in operation, the appellants are entitled torestitution of the possession taken from them. The learnedSingle Judge and the Division Bench have held that theacquired land having already vested in the State, after receiptof the compensation by the predecessor-in-title of theappellants, they have no right to challenge the notification.Thus the writ petition and the writ appeal came to be dismissed.5. Shri G. Ramaswamy, learned Senior Counsel appearingfor the appellants, contends that when by operation of Section44-B read with Section 40 of the Act, the public purposeceased to be existing, the acquisition became bad andtherefore, the GO was bad in law. We find no force in thecontention. It is seen that after the notification in GOR 1392dated 17-10-1962 was published, the acquisition proceedinghad become final, the compensation was paid to the appellants’father and thereafter the lands stood vested in the State. Interms of the agreement as contemplated in Chapter VII of the

Act, the Company had delivered possession subject to the termsand conditions thereunder. It is seen that one of the conditionswas that on cessation of the public purpose, the lands acquiredwould be surrendered to the Government. In furtherancethereof, the lands came to be surrendered to the Governmentfor resumption. The lands then were allotted to SRVS Ltd.,5th respondent which is also subsidiary amalgamatedcompany of the original company. Therefore, the publicpurpose for which acquisition was made was substituted foranother public purpose. Moreover, the question stood finallysettled 32 years agoand hence the writ petition cannot beentertained after three decades on the ground that eitheroriginal purpose was not public purpose or the land cannotbe used for any other purpose.

6. Under these circumstances, we think that the High Courtwas right in refusing to entertain the writ petition.”

(emphasis supplied)

The decision in Northern Indian Glass Industries v. JaswantSingh & Ors[94] thus:

“9…There is no explanation whatsoever for the inordinatedelay in filing the writ petitions. Merely because full enhancedcompensation amount was not paid to the respondents, thatitself was not ground to condone the delay and laches infiling the writ petition. In our view, the High Court was alsonot right in ordering restoration of land to the respondentson the ground that the land acquired was not used for whichit had been acquired. It is well-settled position in law thatafter passing the award and taking possession under Section16 of the Act, the acquired land vests with the Governmentfree from all encumbrances. Even if the land is not used forthe purpose for which it is acquired, the landowner does notget any right to ask for revesting the land in him and to askfor restitution of the possession. This Court as early as in1976 in Gulam Mustafa v. State of Maharashtra, (1976) 1SCC 800 in para 5 has stated thus: (SCC p. 802, para 5)

“5. At this stage Shri Deshpande complained that actuallythe municipal committee had sold away the excess landmarking them out into separate plots for housing colony.Apart from the fact that housing colony is public necessity,once the original acquisition is valid and title has vested inthe municipality, how it uses the excess land is no concern ofthe original owner and cannot be the basis for invalidatingthe acquisition. There is no principle of law by which validcompulsory acquisition stands voided because long after therequiring authority diverts it to public purpose other thanthe one stated in the Section 6(3) declaration.””

(emphasis supplied)

Sita Ram Bhandar Society, New Delhi (supra)[95] the Courtobserved that:

“28. cumulative reading of the aforesaid judgments wouldreveal that while taking possession, symbolic and notionalDpossession is perhaps not envisaged under the Act but themanner in which possession is taken must of necessity dependupon the facts of each case. Keeping this broad principle inmind, this Court in T.N. Housing Board v. A. Viswam, (1996)8 SCC 259 after considering the judgment in Balwant NarayanBhagde v. M.D. Bhagwat, (1976) 1 SCC 700, observed thatEwhile taking possession of large area of land (in this case339 acres) pragmatic and realistic approach had to betaken. This Court then examined the context under which thejudgment in Narayan Bhagde case had been rendered andheld as under: (Viswam case, SCC p. 262, para 9)

“9. It is settled law by series of judgments of this Court thatFone of the accepted modes of taking possession of the acquiredland is recording of memorandum or panchnama by theLAO in the presence of witnesses signed by him/them and thatwould constitute taking possession of the land as it would beimpossible to take physical possession of the acquired land.GIt is common knowledge that in some cases the owner/interested person may not be cooperative in taking possessionof the land.”

***************

************

H95 (2009) 10 SCC 501

40. In Narayan Bhagde case one of the arguments raised bythe landowner was that as per the communication of theCommissioner the land was still with the landowner andpossession thereof had not been taken. The Bench observedthat the letter was based on misconception as the landownerhad re-entered the acquired land immediately after itspossession had been taken by the Government ignoring thescenario that he stood divested of the possession, underSection 16 of the Act. This Court observed as under:(Narayan Bhagde case, SCC p. 712, para 29)

“29. … This was plainly erroneous view, for the legal positionis clear that even if the appellant entered upon the land andresumed possession of it the very next moment after the landwas actually taken possession of and became vested in theGovernment, such act on the part of the appellant did nothave the effect of obliterating the consequences of vesting.”

To our mind, therefore, even assuming that the appellant hadre-entered the land on account of the various interim ordersgranted by the courts, or even otherwise, it would have noeffect for two reasons,

(1) that the suits/petitions were ultimately dismissed and

(2) that the land once having vested in the Government byvirtue of Section 16 of the Act, re-entry by the landownerwould not obliterate the consequences of vesting.”

This court stated, in Leelawanti & Ors. v. State of Haryana &Ors[96] thus:

“19. If Para 493 is read in the manner suggested by thelearned counsel for the appellants then in all the cases theacquired land will have to be returned to the ownersirrespective of the time gap between the date of acquisitionand the date on which the purpose of acquisition specified inSection 4 is achieved and the Government will not be free touse the acquired land for any other public purpose. Such aninterpretation would also be contrary to the language ofSection 16 of the Act, in terms of which the acquired land

vests in the State Government free from all encumbrances andthe law laid down by this Court that the lands acquired for aparticular public purpose can be utilised for any other publicpurpose.

22. The approach adopted by the High Court is consistentwith the law laid down by this Court in State of Kerala v. M.Bhaskaran Pillai, (1997) 5 SCC 432 and Govt. of A.P. v. SyedAkbar, (2005) 1 SCC 558. In the first of these cases, the Courtconsidered the validity of an executive order passed by theGovernment for assignment of land to the erstwhile ownersand observed: (M. Bhaskaran Pillai case, SCC p. 433,para 4)

“4. In view of the admitted position that the land in questionwas acquired under the Land Acquisition Act, LA by operationof Section 16 of the Land Acquisition Act, it stood vested inthe State free from all encumbrances. The question emergeswhether the Government can assign the land to the erstwhileowners? It is settled law that if the land is acquired for apublic purpose, after the public purpose was achieved, therest of the land could be used for any other public purpose.In case there is no other public purpose for which the land isneeded, then instead of disposal by way of sale to theerstwhile owner, the land should be put to public auction andthe amount fetched in the public auction can be better utilisedfor the public purpose envisaged in the Directive Principlesof the Constitution. In the present case, what we find is thatthe executive order is not in consonance with the provision ofthe Act and is, therefore, invalid. Under these circumstances,the Division Bench is well justified in declaring the executiveorder as invalid. Whatever assignment is made, should be fora public purpose. Otherwise, the land of the Governmentshould be sold only through the public auctions so that thepublic also gets benefited by getting higher value.”

24. For the reasons stated above, we hold that the appellantshave failed to make out case for issue of mandamus to the

respondents to release the acquired land in their favour. Inthe result, the appeal is dismissed without any order as tocosts.”

(emphasis supplied)

129. Section 31 of the Act of 1894 is in pari materia with theprovisions Section 77 of the Act of 2013; Section 34 (of the Act of1894)is pari materia with Section 80 of the Act of 2013. Section 77 of theAct of 2013 deals with payment of compensation or deposit of the samein the Authority. Section 77 is reproduced hereunder:

“77. Payment of compensation or deposit of same inAuthority.–(1) On making an award under section 30, theCollector shall tender payment of the compensation awardedby him to the persons interested entitled thereto according tothe award and shall pay it to them by depositing the amountin their bank accounts unless prevented by some one or moreof the contingencies mentioned in sub-section (2).

(2) If the person entitled to compensation shall not consent toreceive it, or if there be no person competent to alienate theland, or if there be any dispute as to the title to receive thecompensation or as to the apportionment of it, the Collectorshall deposit the amount of the compensation in the Authorityto which reference under section 64 would be submitted:

Provided that any person admitted to be interested may receivesuch payment under protest as to the sufficiency of the amount:

Provided further that no person who has received the amountotherwise than under protest shall be entitled to make anyapplication under sub-section (1) of section 64:

Provided also that nothing herein contained shall affect theliability of any person, who may receive the whole or anypart of any compensation awarded under this Act, to pay thesame to the person lawfully entitled thereto.”

130. The Collector has to tender payment under Section 77(1)and to pay the persons interested by depositing the amount in their bankaccounts unless prevented under Section 77(2) which are the samecontingencies as provided in Section 31(2) mentioned above. Section 80of the Act of 2013 is pari materia to Section 34 of the Act of 1894, isreproduced hereunder:

“80. Payment of interest.–When the amount of suchcompensation is not paid or deposited on or before takingpossession of the land, the Collector shall pay the amountawarded with interest thereon at the rate of nine per cent, perannum from the time of so taking possession until it shall havebeen so paid or deposited:

Provided that if such compensation or any part thereof is notpaid or deposited within period of one year from the dateon which possession is taken, interest at the rate of fifteenper cent, per annum shall be payable from the date or expiryof the said period of one year on the amount of compensationor part thereof which has not been paid or deposited beforethe date of such expiry.”

131. The provisions are identical concerning the rate of interest incase there is failure to make payment of compensation before takingpossession of the land. The award amount has to be paid @ 9% perDannum for the first year and after that @ 15% per annum.

132. Since the Act of 1894 never provide for the lapse in case thecompensation amount was not deposited, non-deposit carried higherinterest. The provisions under the new Act are identical: there is nolapse of any acquisition proceeding by non-compliance with Section 77.EInterpreting “or” under Section 24(2) of the Act of 2013 disjunctively,would result in an anomalous situation - because, once compensationhas been paid to the landowner, there is no provision for its refund.It was fairly conceded on behalf of the landowners that they must returnthe compensation in the case of lapse if possession has not been taken.In case possession is with the landowner and compensation has beenFpaid, according to landowners’ submission, there is deemed lapse underSection 24(2) by reading the word “or” disjunctively. It would then beopen to the State Government to withdraw the money deposited in theReference Court. It was also submitted that it is inherent in the notion oflapse that the State may recover the compensation on the ground ofGrestitution. In our opinion, the submissions cannot be accepted as ananomalous result would occur. In case physical possession is with thelandowner; and compensation has been paid, there is no provisionin the Act for disgorging out the benefit of compensation. In theabsence of any provision for refund in the Act of 2013, the State cannotrecover compensation paid. The landowner would be unjustly enriched.

This could never have been the legislative intent of enacting Section24(2) of the Act of 2013. The principle of restitution, unless provided inthe Act, cannot be resorted to by the authorities on their own. The absenceof provision for refund in the Act of 2013 reinforces our conclusion thatthe word “or” has to be read as conjunctively and has to be read as“and.” The landowners’ argument about the State’s ability to recoversuch amounts, in the absence of any provision, by relying on the principleof restitution, is without merit, because firstly such principle is withoutany legal sanction. The State would have to resort to the remedy of asuit, which can potentially result in litigation of enormous proportions;besides, the landowners can well argue that the property (i.e. the amounts)legally belonged to them and that the limitation for claiming it back wouldhave expired. Several other potential defences would be available, eachof which would result in multifarious litigation. Therefore, the contentionis ex-facie untenable and insubstantial.133. It was submitted that in the case State had taken possessionwithout paying compensation as required under the Act of 1894, therecannot be absolute vesting free from all encumbrances under Section16. It is clear that vesting under Section 16 of the Act of 1894 does notdepend upon payment of compensation. Vesting takes place as soon aspossession is taken after the passing of the award. Undoubtedly,compensation has also to be paid. For that, provisions have been madein Sections 31 and 34 of the Act of 1894. Section 31(1) requires tenderand payment, which is making the money available to the landowner andin case State is prevented: i.e., in case the landowner does not consentto receive it for three other exigencies provided in Section 31(2), theamount has to be deposited in the court. Deposit in the court absolvesthe Government of liability to make payment of interest. However, ifpayment is not tendered under Section 31(1) nor deposited in court asenvisaged under Section 31(2) from the date of taking possession, theinterest for the first year is 9% and thereafter 15% per annum follows.The effect of vesting, under no circumstance, is taken away due to non-compliance of Section 31(1) or 31(2) as the case may be as the paymentis secured along with interest under the provisions of Section 34 readwith Section 31. The State cannot be asked to restore possession oncetaken but in case it fails to make deposit under Section 31(3) or otherwisewith respect to majority of the landholdings, in that exigency, all thebeneficiaries as on the date of notification under Section 4 shall be entitledto higher compensation under the Act of 2013 and there would be nolapse in that case.

A134. The landowners had complained that in some cases, undervarious schemes, close to 80% of the compensation amount was nothanded over to the concerned Collector. It was also submitted that insome of the schemes, 50% beneficiaries, for whose benefit the land hadbeen acquired, had not paid even single rupee. Since this Court is notdeciding individual cases here, what is the effect of the interpretation ofBthe law, in the light of this decision, has to be considered in each andevery case. We refrain from commenting on the merits of the saidsubmissions as we are not deciding the cases on merits in the referencemade to us. Various aspects may arise on the merits of the case as theschemes were framed at different points of time and the dates ofCnotifications under Section 4 issued thereunder, whether there is one ordifferent notifications and various other attendant circumstances haveto be looked into like whether possession has been taken or not, to whatextent compensation has been paid and whether proviso to Section 24(2)is attracted for the benefits of those entitled to it. In case there is failureto deposit the compensation with respect to the majority of the holdings,Dthe facts have to be gauged in individual cases and then decided.In re: Vesting and divesting

135. In Satendra Prasad Jain & Ors. v. State of U.P & Ors[97],the concept of vesting under the Act of 1894 had been taken intoEconsideration. The Government cannot withdraw from acquisition underSection 48, once it has taken the possession. This Court has observedthat once possession has been taken under Section 17(1), prior to themaking of the award, the owner is divested of the title to the land, whichis vested in the Government and there is no provision by which land canbe reverted to the owner. This Court has observed thus:F

“14. There are two judgments of this Court, which we mustnote. In Rajasthan Housing Board v. Shri Kishan, (1993) 2SCC 84 it was held that the Government could not withdrawfrom acquisition under Section 48 once it had taken possessionof the land. In Lt. Governor of H.P. v. Avinash Sharma, (1970)G2 SCC 149 it was held that: (SCC p. 152, para 8)

“… after possession has been taken pursuant to anotification under Section 17(1) the land is vested in theGovernment, and the notification cannot be cancelled under

Section 21 of the General Clauses Act, nor can the notificationbe withdrawn in exercise of the powers under Section 48 ofthe Land Acquisition Act. Any other view would enable theState Government to circumvent the specific provision byrelying upon general power. When possession of the land istaken under Section 17(1), the land vests in the Government.There is no provision by which land statutorily vested in theGovernment reverts to the original owner by mere cancellationof the notification.”

15. Ordinarily, the Government can take possession of theland proposed to be acquired only after an award ofcompensation in respect thereof has been made under Section11. Upon the taking of possession the land vests in theGovernment, that is to say, the owner of the land loses to theGovernment the title to it. This is what Section 16 states. Theprovisions of Section 11-A are intended to benefit thelandowner and ensure that the award is made within periodof two years from the date of the Section 6 declaration. In theordinary case, therefore, when Government fails to make anaward within two years of the declaration under Section 6,the land has still not vested in the Government and its titleremains with the owner, the acquisition proceedings are stillpending and, by virtue of the provisions of Section 11-A,lapse. When Section 17(1) is applied by reason of urgency,Government takes possession of the land prior to the makingof the award under Section 11 and thereupon the owner isdivested of the title to the land which is vested in theGovernment. Section 17(1) states so in unmistakable terms.-Clearly, Section 11A can have no application to cases ofacquisitions under Section 17 because the lands have alreadyvested in the Government and there is no provision in thesaid Act by which land statutorily vested in the Governmentcan revert to the owner.”

(emphasis supplied)

This Court further observed in Satendra Prasad Jain (supra)that even if compensation was not paid to the appellant under Section17(3-A), it could not be said that possession was taken illegally. Vestingis absolute. This Court has observed thus:

A“17. In the instant case, even that 80 per cent of the estimatedcompensation was not paid to the appellantsalthough Section17(3-A) required that it should have been paid beforepossession of the said land was taken but that does not meanthat the possession was taken illegally or that the said landdid not thereupon vest in the first respondent.It is, at anyBrate, not open to the third respondent, who, as the letter ofthe Special Land Acquisition Officer dated June 27, 1990shows, failed to make the necessary monies available andwho has been in occupation of the said land ever since itspossession was taken, to urge that the possession was takenCillegally and that, therefore, the said land has not vested inthe first respondent and the first respondent is under noobligation to make an award.”

(emphasis supplied)

136. In Tika Ram and Ors. v. State of Uttar Pradesh & Ors.[98],Dthe question considered was in case possession is taken, and compensationis not paid, what is the effect? This Court has held that there is no lapseof acquisition and observed thus:

“91. However, the question is as to what happens when suchpayment is not made and the possession is taken. Can theEwhole acquisition be set at naught?

92. In our opinion, this contention on the part of the appellantsis also incorrect. If we find fault with the whole acquisitionprocess on account of the non-payment of 80% of thecompensation, then the further question would be as toFwhether the estimation of 80% of compensation is correct ornot. further controversy can then be raised by the landlordsthat what was paid was not 80% and was short of 80% andtherefore, the acquisition should be set at naught. Such extremeinterpretation cannot be afforded because indeed underGSection 17 itself, the basic idea of avoiding the enquiry underSection 5-A is in view of the urgent needon the part of theState Government for the land to be acquired for anyeventuality discovered by either sub-section (1) or sub-section(2) of Section 17 of the Act.

93. The only question that would remain is that of the estimationof the compensation. In our considered view, even if thecompensation is not paid or is short of 80%, the acquisitionwould not suffer. One could imagine the unreasonablenessof the situation. Now suppose, there is state of emergency ascontemplated in Section 17(2) of the Act and the compensationis not given, could the whole acquisition come to naught? Itwould entail serious consequences.

95. Further, in judgment of this Court in Pratap v. State ofRajasthan, (1996) 3 SCC 1 similar view was reported.Thatwas case under the Rajasthan Urban Improvement Act, 1987,under which the acquisition was made using Section 17 ofthe Act. The Court took the view that once the possession wastaken under Section 17 of the Act, the Government could notwithdraw from that position under Section 18 and even theprovisions of Section 11-A were not attracted.That was ofcourse case where the award was not passed under Section11-A after taking of the possession. clear-cut observationcame to be made in that behalf in para 12, to the effect thatthe non-compliance with Section 17 of the Act, insofar as,payment of compensation is concerned, did not result inlapsing of the land acquisition proceedings.The law laid downby this Court in Satendra Prasad Jain v. State of U.P., (1993)4 SCC 369 was approved. The Court also relied on the decisionin P. Chinnanna v. State of A.P., (1994) 5 SCC 486 and AwadhBihari Yadav v. State of Bihar, (1995) 6 SCC 31 where similarview wastaken regarding the land acquisition proceedingsnot getting lapsed. The only result that may follow by the non-payment would be the payment of interest, as contemplated inSection 34 and the proviso added thereto by the 1984 Act. Inthat view, we do not wish to further refer the matter, assuggested by Shri Trivedi, learned Senior Counsel and ShriQamar Ahmad, learned counsel for the appellants. Therefore,even on the sixth question, there is no necessity of anyreference.”

(emphasis supplied)

It has further been observed that the only result that may followby the non-payment would be the payment of interest as contemplatedin Section 34 of the Act of 1894.

137. In Pratap & Anr. v. State of Rajasthan & Ors[99], this Courtheld that when the possession of land is taken under Section 17(1), theBland vests absolutely in the Government free from all encumbrancesand the Government cannot withdraw from acquisition under Section 48and provisions of Section 11-A of passing the award within two yearswere not attracted. The proceedings would not lapse on failure to makean award within the period prescribed under Section 11-A, oncepossession had been taken. The part payment of compensation wouldCalso not render the possession illegal. This Court observed thus:“12. The provisions of sub-section (4) of Section 52 aresomewhat similar to Section 17 of the Land Acquisition Act,LA. Just as the publication of notification under Section52(1) vests the land in the State, free from all encumbrances,as provided by Section 52(4), similarly when possession ofland is taken under Section 17(1) the land vests absolutely inthe Government free from all encumbrances.A question arosebefore this Court that if there is non-compliance with theprovisions of Section 5-A and an award is not made in respectto the land so acquired, would the acquisition proceedingslapse. In Satendra Prasad Jain v. State of U.P., (1993) 4 SCC369 this Court held that once possession had been taken underSection 17(1) and the land vested in the Government then theGovernment could not withdraw from acquisition underSection 48 and the provisions of Section 11-A were notattracted and, therefore, the acquisition proceedings wouldnot lapse on failure to make an award within the period-prescribed therein. It was further held that noncompliance-of Section 17(3A), regarding part payment of compensationbefore taking possession, would also not render the possessionillegal and entitle the Government to withdraw fromacquisition.The aforesaid principle has been reiterated bythis Court in P. Chinnanna v. State of A.P., (1994) 5 SCC 486and Awadh Bihari Yadav v. State of Bihar, (1995) 6 SCC 31.In view of the aforesaid ratio it follows that the provisions ofSection 11-A are not attracted in the present case and even if

it be assumed that the award has not been passed within thestipulated period, the acquisition of land does not come to anend.

(emphasis supplied)”

138. In Awadh Bihari Yadav & Ors. v. State of Bihar & Ors[100],question was raised with respect to the lapse of acquisition proceedingsin view of the provisions contained in Section 11-A as award had notbeen made within 2 years from the date of commencement of the LandAcquisition Amendment Act, 1984. Possession had been taken by theGovernment under Section 17(1). It was held that it was not open to theGovernment to withdraw from the acquisition. Provisions of Section11-A was not attracted. Following is the relevant portion of theobservations made by this Court:

“8. ..It was contended that in view of Section 11-A of the Actthe entire land acquisition proceedings lapsed as no awardunder Section 11 had been made within 2 years from the dateof commencement of the Land Acquisition Amendment Act,1984. We are of the view that the above plea has no force. Inthis case, the Government had taken possession of the landin question under Section 17(1) of the Act. It is not open tothe Government to withdraw from the acquisition (Section 48of the Act). In such case, Section 11-A of the Act is notattracted and the acquisition proceedings would not lapse,even if it is assumed that no award was made within the periodprescribed by Section 11-A of the Act. ….”

139. In P. Chinnanna & Ors. v. State of A.P. & Ors.[101] questionagain arose with respect to possession taken under Section 17(1) invokingurgency clause, this Court has held that once possession is taken, thereis absolute vesting and subsequent proceedings were void. This Courtstated as follows:

“10. The said provision enables the appropriate Governmentto take possession of the land concerned on the expiration of15 days from the publication of the notice mentioned inSection 9 sub-section (1) notwithstanding the fact that noaward has been made in respect of it. When the possession ofthe land concerned is once taken as provided for thereunder

100 (1995) 6 SCC 31101 (1994) 5 SCC 486

such land is made to vest absolutely in the Government freefrom all encumbrances. It must be noted here that takingpossession of the land concerned and its vesting absolutelyin the Government free from all encumbrances does notdepend upon an award to be made under Section 11, makingof which award alone in the case of ordinary acquisition ofland could have empowered the Collector to take possessionof the land under Section 16 and the taking of whichpossession would have made the land vest absolutely in theGovernment free from all encumbrances. As seen from thejudgment dated 23-8-1982 of the High Court in WP No. 3416of 1978, taking possession of the appellants’ land along withland of others by the Collector on 10-7-1978 under Section17(1) is, in fact, made the basis for its holding that invokingof urgency clause to dispense with Section 5-A enquiry wasmade by the Government mechanically. No doubt, when theHigh Court took the view that acquisition of the landconcerned under Section 17 of the Act was made pursuant toan order of the Government without application of its mind inthe matter of making Section 5-A not to apply, it was open toit to set aside or quash the subsequent acquisition proceedingsexcept Section 4(1) notification which had followed andrestore the ownership of the land to the appellants’ land if ithad to order fresh enquiry on the basis of Section 4(1)notification. Such setting aside or quashing was inevitablebecause the acquisition proceedings had been completedunder Section 17 and the land had vested in the StateGovernment, inasmuch as, without setting aside that vestingof the land in the State Government and restoring the land tothe appellant-owners, that land was unavailable forsubsequent acquisition by following the procedure underSection 5-A, Section 6, Section 11 and Section 16. Thus inthe circumstances of the case in respect of the land of theappellants, when publication of Section 4(1) notification wasmade on 21-7-1977, when declaration under Section 6 waspublished on 21-7-1977 and taking possession of that landunder Section 17(1) by the Collector was made on 10-7-1978and the vesting in the State Government of that land hadoccurred on that day, setting aside by the judgment of theHigh Court in WP No. 3416 of 1978 of merely the directiongiven by the Government relating to non-applicability ofSection 5-A to the land, given on 7-7-1977, in our view, didnot enable to Court to order the starting of fresh proceedingsfor acquisition of the land concerned under Section 5-A,inasmuch as, that land concerned on Section 4(1) notificationhad already become the land of the Government. In this stateof facts, when the previous acquisition of the land of theappellants made under Section 17 of the Act did never stoodaffected. Section 5-A enquiry held and subsequent declarationmade were superfluous proceedings which wereinconsequential. Hence, we feel that there is no need to setaside the impugned declaration inasmuch as the earlieracquisition was complete and had resulted in vesting of theland in the State Government and there was no land availablefor acquisition in the subsequent proceedings which have beencarried pursuant to the judgment of the High Court made inWP No. 3416 of 1978. Therefore, in the stated facts, althoughwe find that no need arises to declare the impugneddeclaration as void we clarify that the earlier proceedingswhich had taken place in respect of the appellants’ land,resulting in its vesting in the State Government free fromencumbrances, has stood unaffected and any award made bythe Collector or be made by him under the L.A. Act shall beregarded as that based on earlier acquisition proceedings.”

140. In May George v. Special Tahsildar & Ors.[102], this Courtconsidered the question to declare provision mandatory, test is to beapplied as to whether non-compliance of the provision could render entireproceedings invalid or not. This Court referred to various decisions (whichare referred to in the footnote[103]) and summarized the position thus:

102 (2010) 13 SCC 98

103Dattatraya Moreshwar v. The State of Bombay and Ors., AIR 1952 SC 181; State ofU.P. and Ors. v. Babu Ram Upadhya, AIR 1961 SC 751; Raza Buland Sugar Co. Ltd.,Rampur v. Municipal Board, Rampur, AIR 1965 SC 895;State of Mysore v. V.K. Kangan,AIR 1975 SC 2190; Sharif-Ud-Din v. Abdul Gani Lone, AIR 1980 SC 303; BalwantSingh and Ors. v. Anand Kumar Sharma and Ors., (2003) 3 SCC 433; BhavnagarUniversity v. Palitana Sugar Mill Pvt. Ltd. and Ors., AIR 2003 SC 511; ChandrikaPrasad Yadav v. State of Bihar and Ors., AIR 2004 SC 2036; M/s. Rubber House v.Excellsior Needle Industries Pvt. Ltd., AIR 1989 SC 1160; B.S. Khurana and Ors. v.Municipal Corporation of Delhi and Ors., (2000) 7 SCC 679; State of Haryana andAnr. v. RaghubirDayal, (1995) 1 SCC 133; and GullipilliSowria Raj v. Bandaru Pavani@ Gullipili Pavani, (2009) 1 SCC 714

“24. In Gullipilli Sowria Raj v. Bandaru Pavani, (2009) 1SCC 714, this Court while dealing with similar issue heldas under (SCC p. 719, para 17)

“17. … The expression ‘may’ used in the opening wordsof Section 5 is not directory, as has been sought to be argued,but mandatory and non-fulfilment thereof would not permit amarriage under the Act between two Hindus. Section 7 of the1955 Act is to be read along with Section 5 in that Hindumarriage, as understood under Section 5, could be solemnisedaccording to the ceremonies indicated therein.”

25. The law on this issue can be summarised to the effect thatin order to declare provision mandatory, the test to be-applied is as to whether noncompliance with the provisioncould render the entire proceedings invalid or not.Whetherthe provision is mandatory or directory, depends upon theintent of the legislature and not upon the language for whichthe intent is clothed. The issue is to be examined having regardto the context, subject-matter and object of the statutoryprovisions in question. The Court may find out as to whatwould be the consequence which would flow from construingit in one way or the other and as to whether the statute providesfor contingency of the non-compliance with the provisionsand as to whether the non-compliance is visited by smallpenalty or serious consequence would flow therefrom and asto whether particular interpretation would defeat or frustratethe legislation and if the provision is mandatory, the act donein breach thereof will be invalid.

27. In G.H. Grant (Dr.) v. State of Bihar, AIR 1966 SC 237,this Court has held that if “person interested” is aggrievedby the fact that some other person has withdrawn thecompensation of his land, he may resort to the procedureprescribed under the Act or agitate the dispute in suit formaking the recovery of the award amount from such person.”

(emphasis supplied)

141. This Court opined, therefore, that once the land vests in theState, it cannot be divested, even if there is some irregularity in the

acquisition proceedings. There is nothing in the Act of 1894 to show thatnon-compliance thereof will be fatal or will lead to any penalty.

142. Now, coming back to the main issue, the legal fiction of lapsing(under Section 24(2) of the Act of 2013) cannot be extended to denudetitle which has already vested in the beneficiaries of the acquisitionCorporation/Local Bodies, etc., and who, in turn, have also conveyedtitle and transferred the land to some other persons after development.In Commissioner of Sales Tax, U.P. v. Modi Sugar Mills[104] the Courthas held that “A legal fiction must be limited to the purpose for whichit has been created and cannot be extended beyond its legitimatefield.” Similarly, in Braithwaite & Co. v. E.S.I.C[105] , this Court heldthat legal fiction is adopted in law for limited and definite purposeonly and there is no justification for extending it beyond the purpose forwhich the legislature has adopted. Lapsing is provided only wherepossession has not been taken nor compensation has been paid, divestingof vested land is not intended nor specifically provided.

143. Black’s Law Dictionary defines “vested” as follows:

“vested, adj. (18c) Having become completed, consummatedright for present or future enjoyment; not contingent;unconditional; absolute 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 rightto present enjoyment, e.g. when I own and occupy Blackacre.But an interest may be vested, even where it does not carry aright to immediate possession if it does confer fixed right oftaking possession in the future.” George Whitecross Paton, ATextbook 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 becominga present estate other than the natural expiration of thoseestates that are prior to it in possession; and second, that itbe theoretically possible to identify who would get the rightto possession if the interest should become present estate atany time.” Thomas F. Bergin 8. Paul C. Haskell, Preface toEstates in Land and Future Interests 66-67 (2d ed. 1984).”

104 1961 (2) SCR 189

105 1968 (1) SCR 771

A144. In Webster’s Dictionary, ‘vested’ is defined as:

“vested adj. [pp. of vest] 1. Clothed; robed, especially inchurch vestments. 2. in law, fixed; settled; absolute; notcontingent upon anything: as, vested interest.”

145. In State of Punjab v. Sadhu Ram[106], it has been observedthat once possession is taken and the award has been passed, no titleremains with the landowner and the land cannot be de-notified underSection 48(1) and observed thus:

“3. The learned Judge having noticed the procedureprescribed in disposal of the land acquired by the Governmentfor public purposes, has held that the said procedure was notfollowed for surrendering the land to the erstwhile owners.The respondent having purchased the land had improved uponthe land and is, therefore, entitled to be an equitable ownerof the land. We wholly fail to appreciate the view taken by theHigh Court. The learned Judge had net referred to the relevantprovisions of the Act and law. It is an undisputed fact thatconsequent upon the passing of the award under Section 11and possession taken of the land, by operation of Section 16of the Act, the right, title and interest of the erstwhile ownerstood extinguished and the Government became absoluteowner of the property free from all encumbrances. Thereby,no one has nor claimed any right, title and interest in respectof the acquired land. Before the possession could be taken,the Government have power under Section 48(1) of the Actto denotify the land. In that event, land is required to besurrendered to the erstwhile owners. That is not the case onthe facts of this case. Under these circumstances, theGovernment having become the absolute owner of the propertyfree from all encumbrances, unless the title is conferred onany person in accordance with procedure known to law, noone can claim any title much less equitable title by remainingin possession. The trial Court as well as the appellate Courtnegative the plea of the respondent that he was inducted intopossession as lessee for period of 20 years. On the otherhand, the finding was that he was in possession as lesseeon yearly basis. Having lawfully come into possession as

H106 1996 (7) JT 118

lessee of the Government, Session 116 of Evidence Act estopshim from denying title of the Government and set it up in thirdparty. By disclaiming Government title, he forfeited even theannual lease. Under these circumstances, having come intopossession as lessee, after expiry and forfeiture of the lease,he has no right. Illegal and unlawful possession of the landentails payment of damages to the Government.”

146. In Star Wire (India) Ltd. v. State of Haryana & Ors[107], itwas observed that once the award has been passed and possession hasbeen taken, the land vests in the State free from all encumbrances. ThisCourt held thus:

“2. This special leave petition arises from the judgment of thePunjab and Haryana High Court made on 25-4-1996 in LPANo. 437 of 1996. Notification under Section 4(1) of the LandAcquisition Act, LA (for short, ‘the Act’) was published on1-6-1976. Declaration under Section 6 of the Act waspublished on 16-2-1977. The award was passed on 3-7-1981.Thereafter, the reference also become final. The petitionerhas challenged the notification, the declaration, and the awardas illegal. It contends that the award does not come in theway of the petitioner in filing the writ petition on 21-1-1994.The High Court has dismissed the writ petition on the groundsof laches.”

147. similar view has been taken in Market Committee v.Krishan Murari[108] and Puttu Lal (dead) by L.Rs. v. State of U.P. &Anr[109]. The concept of ‘vesting’ was also considered in The Fruit &Vegetable Merchants Union v. The Delhi Improvement Trust[110]. Oncevesting takes place, and is with possession, after which person whoremains in possession is only trespasser, not in rightful possession andvesting contemplates absolute title, possession in the State. This courtobserved thus:

“(19) That the word “vest” is word of variable import isshown by provisions of Indian statutes also. For example, S.

107 (1996) 11 SCC 698108 (1996) 1 SCC 311

109 (1996) 3 SCC 99110 1957 SCR 01

56 of the Provincial Insolvency Act (5 of 1920) empowers theCourt at the time of the making of the order of adjudicationor thereafter to appoint receiver for the property of theinsolvent and further provides that “such property shallthereupon vest in such receiver”. The property vests in thereceiver for the purpose of administering the estate of theinsolvent for the payment of his debts after realising his assets.The property of the insolvent vests in the receiver not for allpurposes but only for the purpose of the Insolvency Act andthe receiver has no interest of his own in the property. On theother hand, Ss. 16 and 17 of the Land Acquisition Act (Act 1of LA), provide that the property so acquired, upon thehappening of certain events, shall “vest absolutely in theGovernment free from all encumbrances”. In the casescontemplated by Ss. 16 and 17 the property acquired becomesthe property of Government without any conditions orlimitations either as to title or possession. The legislature hasmade it clear that the vesting of the property is not for anylimited purpose or limited duration. It would thus appear thatthe word “vest” has not got fixed connotation meaning inall cases that the property is owned by the person or theauthority in whom it vests. It may vest in title, or it may vest inpossession, or it may vest in limited sense, as indicated inthe context in which it may have been used in particularpiece of legislation. The provisions of the Improvement Act,particularly Ss. 45 to 49 and 54 and 54-A when they speakof certain building or street or square or other land vestingin municipality or other local body or in trust, do notnecessarily mean that ownership has passed to any of them.”

In re: Vested rights under Section 24 of the Act of 2013

148. This Court is of opinion that Section 24 of the Act of2013 does not intend to take away vested rights. This is becausethere is no specific provision taking away or divesting title to theland, which had originally vested with the State, or divesting thetitle or interest of beneficiaries or third-party transferees of suchland which they had lawfully acquired, through sales or transfers.There is specific provision made for divesting, nor does the Act of2013 by necessary intendment, imply such drastic consequence.Divesting cannot be said to have been intended. Here, the decisionin VKNM Vocational Higher Secondary School v. State of Kerala[111]is relevant; it was observed as follows by this Court:

“21. In our considered view, the above principles laid downby the Constitution Bench of this Court in Garikapati casewill have full application while considering the argument ofthe learned Senior Counsel for the fifth respondent claiminga vested right by relying upon unamended Rule 7-A(3).Principles (i), (iii), (iv) and (v) of the said judgment areapposite to the case on hand. When we make comprehensivereference to the above principles, it can be said that for thelegal pursuit of remedy it must be shown that the variousstages of such remedy are formed into chain or rather asseries of it, which are connected by an intrinsic unity whichcan be called as one proceeding, that such vested right, ifany, should have its origin in proceeding which wasinstituted on such right having been crystallised at the timeof its origin itself, in which event all future claims on thatbasis to be pursued would get preserved till the said right isto be ultimately examined. In the event of such preservationof the future remedy having come into existence and gotcrystallised, that would date back to the date of origin whenthe so-called vested right commenced, that then and then onlyit can be held that the said right became vested right and itis not defeated by the law that prevails at the date of itsdecision or at the date of subsequent filing of the claim. Oneother fundamental principle laid down which is to be bornein mind, is that even such vested right can also be takenaway by subsequent enactment if such subsequent enactmentspecifically provides by express words or by necessaryintendment. In other words, in the event of the extinction ofany such right by express provision in the subsequentenactment, the same would lose its value.”

149. The decision in State of Haryana v. HindustanConstruction Co. Ltd[112], is relied upon to contend that the line ofenquiry is not to enquire if the new enactment has by its new

111 (2016) 4 SCC 216112 (2017) 9 SCC 463

Aprovisions kept alive the rights and liabilities under the repealedlaw or whether it has taken away those rights and liabilities. Whenrepeal is followed by fresh enactment on the same subject, theprovisions of the General Clauses Act would undoubtedly requirean examination of the language of the new enactment if it expressesan intent different from the earlier repealed Act. The enquiry wouldBnecessitate the examination if the old rights and liabilities are keptalive or whether the new Act manifests an intention to do away withor destroy them. If the new Act manifests different intentions, theapplication of the General Clauses Act will stand excluded.

150. We have examined the provisions of Section 24 of theCAct of 2013 in the light of the said pleas and thereafter arrived atour conclusions as to when and to what extent proceedings lapsedor/and were saved and what liabilities have been taken away andto what extent there is obliteration of the rights acquired andliabilities incurred earlier under the Act of 1894 and what is doneDaway or destroyed by the new Act.

151. The Section 24(2) of the Act of 2013 is to be interpretedconsistent with the legislative intent, particularly when it has providedfor the lapse of the proceedings. It has to be interpreted in the light ofprovisions made in Sections 24 and 114 of the Act of 2013 and Section 6Eof the General Clauses Act, what it protects and to what extent it takesaway the rights of the parties. Undoubtedly, Section 24(2) has retroactiveoperation with respect to the acquisitions initiated under the Act of 1894and which are not completed by taking possession nor compensationhas been paid in spite of lapse of 5 years and proceedings are keptpending due to lethargy of the officials. The drastic consequences followFby the provisions contained in Section 24(2) in such cases.152. For considering the legislative intent, Bennion, StatutoryInterpretation, 5[th] Edition (2012) has been referred to, in which it hasbeen observed:

G“Where, on weighing of the factors, it seems that someretrospective effect was intended, the general presumptionagainst retrospectively indicates that this should be kept toas narrow compass as will accord with the legislativeintention.

Principle against doubtful penalisation. It is generalprinciple of legal policy that no one should suffer detrimentby the application of doubtful law. The general presumptionagainst retrospectivity means that where one of the possibleopposing constructions of an enactment would impose an expost facto law, that construction is likely to be doubtful.

If the construction also inflicts detriment, that is secondfactor against it. retrospective enactment inflicts detrimentfor this purpose ‘if it takes away or impairs vested rightacquired under existing laws, or creates new obligation, orimposes new duty, or attaches new disability, in regard toevents already past. The growing propensity of the courts torelate legal principle to the concept of fairness was shown byStaughton LJ when he said:

“In my judgment the true principle is that Parliament ispresumed not to have intended to alter the law applicable topast events and transactions in manner which is unfair tothose concerned in them, unless contrary intentionappears.””

(emphasis supplied)

It has been observed in Bennion, Statutory Interpretation, 5[th]Edition (2012) that when Parliament is presumed not to have intended toalter the law applicable to past events and transactions, which is unfairto those concerned in them unless the contrary intention appears.

153. Another decision in Lauri v. Renad[113], has been referred toin which it was observed that statute is not to be construed so as tohave greater retrospective operation than its language rendersnecessary. Following observations have been relied upon:

“It certainly requires very clear and unmistakable languagein subsequent Act of Parliament to revive or recreate anexpired right. It is fundamental rule of English law that nostatute shall be construed so as to have retrospectiveoperation unless its language is such as plainly to requiresuch construction; and the same rule involves another and

113 (1892) 3 Ch. 402

subordinate rule to the effect that statute is not to beconstrued so as to have greater retrospective operation thanits language renders necessary.”

(emphasis supplied)

154. In Yamashita-Shinnihon Steamship Co. Ltd. (supra) theHouse of Lords has observed that question of the extent of retrospectivitywould also be dependent upon the degree of unfairness it causes to theparties. It has been observed:

“The rule that person should not be held liable or punishedfor conduct not criminal when committed is fundamental andof long standing. It is reflected in the maxim nullum crimennulla poena sine lege. It is protected by article 7 of theEuropean Convention for the Protection of Human Rights andFundamental Freedoms (1953) (Cmd. 8969).

The rule also applies, but with less force, outside the criminalsphere. It is again expressed in maxims, lex prospicit nonrespicit and omnis nova constitutio futuris temporibus formamimponere debet non praeteritis. The French Civil Codeprovides that “La loi ne dipose que pour l’avenir; elle n’apoint d’effet retroactif:”

But both these passages draw attention to an important point,that the exception only applies where application of it wouldnot cause unfairness or injustice. This is consistent with thegeneral rule or presumption which is itself based onconsiderations of fairness and justice, as shown by thepassage in Maxwell quoted, ante, p. 494C-E, and recentlyemphasised by Staughton LJ in Secretary of State for SocialSecurity v. Tunnicliffe [1991] 2 All E.R. 712, 724:

“In my judgment the true principle is that Parliament ispresumed not to have intended to alter the law applicable topast events and transactions in manner which is unfair tothose concerned in them, unless contrary intention appears.It is not simply question of classifying an enactment asretrospective or not retrospective. Rather it may well be a–matter of degree the greater the unfairness, the more it is to

be expected that Parliament will make it clear if that isintended.”

The distinction between rights and procedure, and unfairnessand fairness, may well overlap. Thus, if limitation period isshortened but plaintiff has time to sue before expiry of theshortened period, he is likely to be statute-barred if he doesnot sue within the shortened period (see The Ydun [1899] P.236.); but if limitation period is extended after previousshorter limitation period has already expired, the plaintiff willbe unable to take advantage of the new period because anabsolute defence has by then accrued to the defendant and itwould not be fair to deprive him of it: See Yew Bon Tew v.Kenderaan Bas Mara [1983] 1 A.C. 553 and Maxwell v.Murphy (1957) 96 C.L.R. 261.

Further, Lord Griffiths, Lord Goff of Chieveley and Lord Slynn ofHadley, held as under:

“The principle governing the proper approach to statutoryprovision alleged to have retrospective effect has been statedin number of different ways, but no difference of substanceis revealed by the authorities. Thus:

(1) the principle has been described as “a prima facie rule ofconstruction” (Yew Bon Tew [1983] 1 A.C 553, 558F), “anestablished principle in the construction of statutoryprovisions” (Pearce v. Secretary of State for Defence [1988]A.C 755, 802C) or “a fundamental rule of English law” (Lauriv. Renad [1892] 3 Ch. 402, 421, Maxwell on the Interpretationof Statutes, 12th ed., p. 215, cited with approval in Carson v.Carson and Stoyek [1964] 1 W.L.R 511, 516-517).

(2) The principle is that statute or statutes will not beinterpreted so as to have retrospective operation unless (i)“that result is unavoidable on the language used” (Yew BonTew, at pp. 558F, 563D-E) or “that effect cannot be avoidedwithout doing violence to the language of the enactment: (Inre Athlumney, Ex parte Wilson [1898] 2 Q.B 547, 552) or “itslanguage is such as plainly to require such construction”(Lauri v. Renad, at p. 421); or (ii) “they expressly or bynecessary implication to provide: see Yew Bon Tew, at p. 558F”

(Pearce v. Secretary of State for Defence [1988] A.C 755,802C-D) or “such construction appears very clearly in theterms of the Act, or arises by necessary and distinctimplication” (Maxwell on the Interpretation of Statutes, 12[th]ed., p.215]

(3) “if the enactment is expressed in language which is fairlycapable of either interpretation, it ought to be construed asprospective only” (In re Athlumney, at p. 552).

(4) If the statute does have some retrospective operation onthe basis of the above principles, it is not to be construed ashaving greater retrospective operation “than its languagerenders necessary” (Lauri v. Renad, at p. 421) or “than isnecessary to give effect either to its clear language or to itsmanifest purpose” (Arnold v. Central Electricity GeneratingBoard [1988] A.C 228, 275.

The absence of express limiting words cannot be used as abasis for implying retrospective operation.That would reversethe true presumption. necessary and distinct implicationtypically arises in the context of statute that, by repealing aprevious statute, would leave “lacuna” in the law if thenew statute were not to be construed as having retrospectiveeffect: see, e.g., Food Corporation of India v. MarastroCompania Naviera S.A. [1987] 1 W.L.R. 134, 152. Theparticular problem in the present case is transitional problemonly,applicable only to those arbitrators that are stale as at1 January 1992, in respect of which applications to strikeout are made shortly thereafter. In the future, such claimantswill either continue to be dilatory or not, in which case thereferences will proceed to conclusion. The concern of thelegislature, and the mischief at which the section was aimed,was not limited number of existing stale arbitrations butfuture arbitrations. Moreover, although the mischief at whichthe section was aimed is not to be ignored, one should startby looking at the words themselves: see Chebaro v. Chebaro[1987] Fam. 127, 130, 134-135.

It would be unfair to claimant to give retrospectiveoperation to section 13A. So far as claimants in existing

arbitrations are concerned, they may well have been(correctly) advised prior to 1 January 1992 that they couldproceed slowly with the claim without risk of having theirclaims dismissed by reason of such delay. retrospectiveapplication of the statute would expose him to penalty onthe strength of conduct not susceptible to penalty whencommitted. It would not, however, be unfair to respondentto limit section 13A to delay occurring after 1 January 1992.Even if such delay were causative of prejudice or the risk ofan unfair resolution of the dispute, under the existing lawlaid down in Bremer Vulkan respondent should have beenaware that it was respondent’s obligation (as well as aclaimant’s) to seek directions from the arbitrator to ensure aspeedy resolution of disputes: see the Hannah Blumenthalcase [1983] 1 A.C. 854, 923H. retrospective alteration tothe legitimate expectations of the parties as to theconsequences of their conduct at the time it occurred wouldbe contrary to the principles of legal and commercial certaintythat formed part of the grounds on which the House of Lordsdeclined in Hannah Blumenthal to depart from Bermer Vulkan:see pp. 913C, 917D, 922H.”

(emphasis supplied)

155. Reliance was placed on Gloucester Union v. WoolwichUnion[114], with respect to effect on existing rights wherein followingobservations have been made:

“Before considering the legal effect of art. xxxi. of this Orderit is necessary, we think, to bear in mind that by the commonlaw, upon such division of the parish of Upton St. Leonard’s,any settlement already acquired in that parish would havebeen lost: see Reg v. Tipton Inhabitants 3; Dorking Union v.St. Saviour’s Union. The purpose and effect of par. 1 of art.xxxi is to get rid of this difficulty and preserve the settlementsthat have been already acquired before the commencementof the Order. The purpose and effect of par. 2 is in like mannerto preserve status of irremovability that has been acquiredat that date; and the question raised in this case is whetherpar. 3 of the article is to be construed in all its generality as

applicable to acts or circumstances which have been done oroccurred completely in the past and before the commencementof the Order, so as to create or confer settlement wherenone existed before, or whether, as the appellants contend, itis to be construed as supplemental to pars. 1 and 2 and limitedto the cases where persons are in process of acquiring asettlement or status of irremovability so as to preserve theirinchoate rights. If the words in par. 3 are construed withoutlimitation, then, the residence of the pauper at Chequer’s Rowin Upton St. Leonard’s between 1893 and 1897 being deemedto be residence in Gloucester, settlement in Gloucester isconferred upon him and the respondents succeed. We thinkthis paragraph should be so construed subject to the generalprinciple that statute is prima facie prospective and doesnot interfere with existing rights unless it contains clear wordsto that effect, or unless, having regard to its object, itnecessarily does so, and that statute is not to be construedto have greater to retrospective operation than its languagerenders necessary– see per Lindley LJ in Lauri v. Renad –whatever view may be entertained of the probably intentionof the Legislature, unless some manifest absurdity orinconsistency results from such construction; but we havecome to the conclusion that the construction of the paragraphcontended for by the respondents produces such practicalinconsistency with par. 1 of the same article that it is necessaryto put some limitation upon it. If person had resided beforethe commencement of the Order for two years in that portionof the parish of Upton St. Leonards’ which has been added toGloucester and for one year following in the portion whichremains the parish of Upton St. Leonard’s, he would by thelatter part of par.1 be deemed to have acquired settlementin the parish of Upton St. Leonard’s, but if par.3 is to beapplied to such case his residence in the added portion ofUpton St. Leonard’s is to be deemed to have been residencein the parish of Gloucester; and if so deemed, then he hasnot had three years’ consecutive residence in any one parishand has no settlement – in other words, the effect of par.3 insuch case is to destroy the settlement which is preserved bypar.1 and to restore the common law rule which is intended to

be abolished. The same result would follow in the conversecase where the later period of residence completing the threeyears in the old parish of Upton St. Leonard’s is in the areawhich has been added to the parish of Gloucester.”

(emphasis supplied)

156. In The King v. The General Commissioners of IncomeTax for Southampton[115] it was observed:

“The language of the section shows clearly that Parliamentintended it to have retrospective effect. The object was toprevent loss to the revenue when Commissioners had actedwho were not, under the statutes, the right Commissioners tomake the charge, provided that it was made by theCommissioners for the parish or place in which the personcharged ordinarily resided. That the section was retrospectivein effect was not disputed by Sir Robert Finlay, but he arguedthat the retrospective operation is limited by the language ofthe section and does not extend to charge made in respectof profits derived from foreign possessions or securities unders.108 of the Income Tax Act, 1842. In support of this argumenthe relied upon the express reference in the first sub-sectionof s.32 to s.106, and s.146 of the Income Tax Act, 1842, uponthe omission of any reference in this sub-section to s.108,and upon the repeal in sub-s.2 of s.32 of s.108. He contendedthat if the Legislature had meant to include s.108 in the firstsub-section it would have referred to it in express berms andwould not merely have repealed it by the second sub-section.In the first sub-section mention is made of other sections ofthe Income Tax Acts, but not of s.108. It must be taken, heargued, that Parliament had in mind the difficulties createdby s. 108, which were pointed out in Aramayo’s Case by theHouse of Lords, and that Parliament intended to remove thesedifficulties by the repeal of s.108 so as to prevent its operationin future, but did not mean to change the law as regards actsdone before passing of the statute. The question must dependupon the construction of the language of s.32. The rules tobe applied are well settled. It is fundamental rule of Englishlaw that enactments in statute are generally to be construed

as prospective and intended to regulate future conduct, butthis rule is one of construction only and must yield to theintention of the Legislature: Moon v. Durden, per Parke B. Itis also the law that statute is not to be construed to havegreater retrospective operation than its language rendersnecessary: Lauri v. Renad, per Lindley LJ to ascertain theintention regard should be had to the general scope andpurview of the enactment, to the remedy sought to be applied,to the former state of the law, and to what was in thecontemplation of the Legislature:Pardo v. Bingham per LordHatherly L.C”

(emphasis supplied)

157. In K.S. Paripoornan (supra), it was observed that in thecase of retrospective operation the Court has to consider the effect onexisting rights and obligations and for that purpose, the intention of thelegislature has to be ascertained as indicated in the statute itself. ThisDcourt observed that:

“66. The dictum of Lord Denman, C.J. in R. v. St. Mary,Whitechapel, (1848) 12 QB 120, 127 that statute which isin its direct operation prospective cannot properly be calleda retrospective statute because part of the requisites for itsaction is drawn from time antecedent to its passing, whichhas received the approval of this Court, does not mean that astatute which is otherwise retrospective in the sense that ittakes away or impairs any vested right acquired under existinglaws or creates new obligation or imposes new duty orattaches new disability in respect to transactions orconsiderations already past, will not be treated asretrospective. In Alexander v. Mercouris, (1979) 3 All ER 305Goff, L.J., after referring to the said observations of LordDenman, C.J., has observed that statute would not beoperating prospectively if it creates new rights and dutiesarising out of past transactions. The question whether aparticular statute operates prospectively only or hasretrospective operation also will have to be determined onthe basis of the effect it has on existing rights and obligations,whether it creates new obligations or imposes new duties orlevies new liabilities in relation to past transactions. For that

purpose it is necessary to ascertain the intention of thelegislature as indicated in the statute itself.”

158. In Zile Singh v. State of Haryana & Ors., (supra), thisCourt has observed that the rule against retrospectivity does not extendto protect from the effect of repeal, privilege which did not amountto the accrued right. This court, while dealing with retrospectivity of astatute, observed that retrospectivity must be reasonable and notexcessive or harsh; otherwise, it runs the risk of being struck down forbeing unconstitutional. Following observations have been made:

“15. Though retrospectivity is not to be presumed and ratherthere is presumption against retrospectivity, according to Craies(Statute Law, 7th Edn.), it is open for the legislature to enactlaws having retrospective operation. This can be achieved byexpress enactment or by necessary implication from thelanguage employed. If it is necessary implication from thelanguage employed that the legislature intended particularsection to have retrospective operation, the courts will giveit such an operation. In the absence of retrospectiveoperation having been expressly given, the courts may becalled upon to construe the provisions and answer the questionwhether the legislature had sufficiently expressed thatintention giving the statute retrospectivity. Four factors aresuggested as relevant: (i) general scope and purview of thestatute; (ii) the remedy sought to be applied; (iii) the formerstate of the law; and (iv) what it was the legislaturecontemplated. (p. 388) The rule against retrospectivity doesnot extend to protect from the effect of repeal, privilegewhich did not amount to accrued right. (p. 392)

18. In recent decision of this Court in National AgriculturalCoop. Marketing Federation of India Ltd. v. Union of India,(2003) 5 SCC 23 it has been held

that there is no fixed formula for the expression of legislativeintent to give retrospectivity to an enactment. Every legislationwhether prospective or retrospective has to be subjected tothe question of legislative competence. The retrospectivity isliable to be decided on few touchstones such as: (i) the

Awords used must expressly provide or clearly implyretrospective operation; (ii) the retrospectivity must bereasonable and not excessive or harsh, otherwise, it runs therisk of being struck down as unconstitutional; (iii) where thelegislation is introduced to overcome judicial decision, thepower cannot be used to subvert the decision without removingBthe statutory basis of the decision. There is no fixed formulafor the expression of legislative intent to give retrospectivityto an enactment. validating clause coupled with asubstantive statutory change is only one of the methods toleave actions unsustainable under the unamended statute,Cundisturbed. Consequently, the absence of validating clausewould not by itself affect the retrospective operation of thestatutory provision, if such retrospectivity is otherwiseapparent.”

159. This Court has considered the harsh consequences ofDretrospective operation of the statute in Commissioner of Income Tax-19, Mumbai v. Sarkar Builders[116] and observed thus:

“25. Can it be said that in order to avail the benefit in theassessment years after 1-4-2005, balconies should beremoved though these were permitted earlier? Holding soEwould lead to absurd results as one cannot expect an assesseeto comply with condition that was not part of the statutewhen the housing project was approved. We, thus, find thatthe only way to resolve the issue would be to hold that clause(d) is to be treated as inextricably linked with the approvaland construction of the housing project and an assesseeFcannot be called upon to comply with the said condition whenit was not in contemplation either of the assessee or even thelegislature, when the housing project was accorded approvalby the local authorities.

26. Having regard to the above, let us take note of the specialGfeatures which appear in these cases:

26.1. In the present case, the approval of the housing project,its scope, definition and conditions, are all decided by andare dependent on the provisions of the relevant DC Rules. In

contrast, the judgment in Reliance Jute and Industries Ltd. v.CIT, (1980) 1 SCC 139 was concerned with income tax only.

26.2.The position of law and the rights accrued prior toenactment of the Finance Act, 2004 have to be taken intoaccount, particularly when the position becomes irreversible.

26.3.The provisions of Section 80-IB(10) mention not only aparticular date before which such housing project is to beapproved by the local authority, even date by which thehousing project is to be completed, is fixed. These dates havea specific purpose which gives time to the developers toarrange their affairs in such manner that the housing projectis started and finished within those stipulated dates. Thisplanning, in the context of facts in these appeals, had to bemuch before 1-4-2005.

26.4.The basic objective behind Section 80-IB(10) is toencourage developers to undertake housing projects forweaker sections of society, inasmuch as to qualify fordeduction under this provision, it is an essential conditionthat the residential unit be constructed on maximum built-up area of 1000 sq ft where such residential unit is situatedwithin the cities of Delhi and Mumbai or within 25 km fromthe municipal limits of these cities and 1500 sq ft at any otherplace.

26.5. It is the cardinal principle of interpretation that aconstruction resulting in unreasonably harsh and absurdresults must be avoided.

26.6. Clause (d) makes it clear that housing project includesshops and commercial establishments also. But from the daythe said provision was inserted, they wanted to limit the built-up area of shops and establishments to 5% of the aggregatebuilt-up area or 2000 sq ft, whichever is less. However, thelegislature itself felt that this much commercial space wouldnot meet the requirements of the residents. Therefore, in theyear 2010, Parliament has further amended this provision by-providing that it should not exceed 3% of the aggregate builtup area of the housing project or 5000 sq ft, whichever ishigher. This is significant modification making complete

178SUPREME COURT REPORTS

Adeparture from the earlier yardstick.On the one hand, thepermissible built-up area of the shops and other commercialshops is increased from 2000 sq ft to 5000 sq ft. On the otherhand, though the aggregate built-up area for such shops andestablishment is reduced from 5% to 3%, what is significantis that it permits the builders to have 5000 sq ft or 3% of theBaggregate built-up area, “whichever is higher”. In contrast,the provision earlier was 5% or 2000 sq ft, “whichever isless”.”

(emphasis supplied)

C160. This Court in Jawarharmal (supra) and Rai Ramkrishna(supra), has considered the practical realities before analysing the extentof retrospective operation of the statute. Several decisions were cited inregard to conflict of interest (which are referred to in the footnotehereafter[117]) and it was urged that the rule of construction that is to beadopted is one of purposive interpretation.D

In re: Legislative History of Act of 2013

161. The Land Acquisition, Rehabilitation and Resettlement Bill,2011 (Bill No.77 of 2011) was introduced in the Parliament. The provisionsof Section 24, as introduced in the said Bill, read as under:

E“24. (1) Notwithstanding anything contained in this Act, inany case where notification under section 4 of the LandAcquisition Act, LA was issued before the commencement ofthis Act but the award under section 11 thereof has not beenmade before such commencement, the process shall be deemedFto have lapsed and the appropriate Government shall initiate

117 Southern Electricity Supply Co. of Orissa Ltd. v. Sri Seetaram Rice Mill, (2012) 2SCC 108 @ 19-21; Tinsukhia Electric Supply Company Ltd. v. State of Assam & Ors.,(1989) 3 SCC 709 @ para 118-121; C.I.T. v. Hindustan Bulk Carriers, (2003) 3 SCC 57@ para 14-21; D. Saibaba v. Bar Council of India & Ors., (2003) 6 SCC 186 @ para 16-18; Balram Kamanat v. Union of India, (2003) 7 SCC 628 para 24; New India AssuranceGCo. v. Nulli Nivelle, (2008) 3 SCC 279 @ Para 51-54; Government of Andhra Pradesh&Ors. v. Smt. P. Laxmi Devi, (2008) 4 SCC 720 Para 41 & 42.; Entertainment Network(India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30 para 132-137; N.Kannadasan v. Ajoy Khose and Ors., (2009) 7 SCC 1 para 54-67; H.S. Vankani v. Stateof Gujarat, (2010) 4 SCC 301 para 43-48; State of Madhya Pradesh v. NarmadaBachao Andolan & Ors., (2011) 7 SCC 639 para 78-85; State of Gujarat & Anr. v.HHon’ble Mr. Justice R.A. Mehta (Retd.) and Ors., (2013) 3 SCC 1: para 96-98).

the process for acquisition of land afresh in accordance withthe provisions of this Act.

(2) Where possession of land has not been taken, regardlessof whether the award under section 11 of the Land AcquisitionAct, LA Act has been made or not, the process for acquisitionof land shall also be deemed to have lapsed and theappropriate Government shall initiate the process ofacquisition afresh in accordance with the provisions of thisAct.”

162. It is apparent from Section 24(1), as introduced originally,contained provision with respect to award, which has not been made,but it was later on amended, and now as provided in Section 24(1)(a),there is no lapse and only higher compensation is available in case awardhas not been passed. The earlier Section 24(2) contained only theprovision with respect to possession of the land that has not been taken.Earlier, there was no time limit prescribed, and it was proposed that theprocess for acquisition of land shall lapse.

Clause 24 of Notes on clauses of Bill read thus:

“Clause 24 seeks to provide that land acquisition processunder the Land Acquisition Act, LA shall be deemed to havelapsed in certain cases where the award has not been madeand possession of land has not been taken before thecommencement of proposed legislation.”

163. After considering the various suggestions of the StateGovernment, the Committee made some recommendations, which areextracted hereunder:

“16.5 The Committee note that Clause 24 of the Bill providesthat land acquisition cases/process shall be invalid onenactment of the new Act in cases where Collector has notgiven award or possession of the land has not been takenbefore the commencement of the proposed legislation. Someof the representatives of the industry and also the Ministrieslike Railways and Urban Development submitted before theCommittee that land acquisition proceedings already initiatedunder the existing Land Acquisition, LA should not lapse as itwould lead to time and cost over-run in many infrastructuralprojects. However, in such cases land compensation and R&R

Abenefits could be allowed as per the provisions of LARR Bill.The Committee would like the Government to re-examine theissue and incorporate necessary provisions in the Rules to beframed under the new Act with view to ensuring that theland owners/farmers/affected families get enhancedcompensation and R & R package under the provisions ofBthe LARR Bill, 2011 and at the same time, the pace ofimplementation of infrastructural projects is not adverselyimpacted.”

164. Debates in the Lok Sabha on 29.8.2013, were referred toduring the hearings, to cite various reasons given in respect of the questionCwhy effect should be given retrospectively in cases where acquisitionhas not been completed. Shri Jairam Ramesh, Minister concerned at therelevant time, replied to debate about the retrospective part with respectto Section 24 thus:

“… The hon’ble member has also raised question aboutDretrospective clause. This is about section 24 under which ithas been provided that if the award has not been passed underthe previous law than the new law will be applicable. Secondly,if the award has been passed and no compensation has beengiven and no physical possession has been taken the newElaw will be applicable. The third situation where this clausewill be applicable is when award has been passed but farmerhas not been given more than 50 per cent compensation whichwill entail enforcement of this law. The hon’ble member andseveral others have raised this apprehension that this Act willultimately give vast powers to the bureaucracy. In regard toFthis apprehension I would like to say that we have fixed timelimit at every level of the procedure and I hope that the stateswill adhere to these timelines.”

(emphasis supplied)

G165. It is clear that while replying to the debate, the Ministerconcerned has stated that there would be lapse only if in case possessionhas not been taken and compensation has not been paid. The emphasisright from the beginning was on possession. Thus, from the perusal ofdebate too, it is apparent that the word “or” had been understood as“and”.

In Re: Objectives of the Act

166. It was submitted on behalf of the landowners that theconsideration of difficulties, harsh consequences, the importance ofperformance, time lost during litigation, revival of stale claims would notpermit deviation from the mandate of the law of Section 24. If obligationsare mandatory, then also intendment of the Act cannot be defeated. Assuch, it is the duty of the court to disregard such factors and to givecontextual interpretation to the intendment. The language of the statute,wherever the context requires, its objects and reasons, the Preamble, itslegislative history as well as the accompanying provisions (including therelevant provisions of the old Act) are to be considered by the court. InArnit Das v. State of Bihar[118], the court observed that the ambiguity inthe definition of “juvenile” is to be resolved by taking into considerationthe Preamble and the statement of objects and reasons. Burrakur CoalCo. Ltd. v. Union of India[119] and A. Thangal Kunju Musaliar v. M.Venkatachalam Potti[120]. During the hearing, the State had also reliedon other decisions to say that where the issue had attained finality, reliefought not to be granted.[121] The Act of 2013 has been enacted consideringthe difficulties caused by the operation of the earlier laws and to subservethe public interest. Thus, the Court should interpret it in the context ofthe attendant circumstances. At the same time, the court should not,while ostensibly adopting purposive or liberal interpretation, affectmatters which have become final, or stale. In Popat Bahiru Govardhane& Ors. (supra) this aspect, in the context of limitation provisions, washighlighted in the following terms:

“16. It is settled legal proposition that law of limitation mayharshly affect particular party but it has to be applied withall its rigour when the statute so prescribes. The court has nopower to extend the period of limitation on equitable grounds.The statutory provision may cause hardship or inconvenienceto particular party but the court has no choice but to enforce

118 2000 (5) SCC 488119 1962 (1) SCR 44120 1955 SCR 1196

121 Delhi Development Authority v. Sukhbir Singh, (2016) 16 SCC 258, Padma SundaraRao (Dead) & Ors. v. State of T.N. & Ors., 2002 (3) SCC 533; Popat Bahiru Govardhane& Ors. v. Special Land Acquisition Officer & Anr., 2013 (10) SCC 765; B. Premanand& Ors. v. Mohan Koikal & Ors., (2011) 4 SCC 266 and Bhavnagar University v.Palitana Sugar Mill (P) Ltd. & Ors., (2003) 2 SCC 111

Ait giving full effect to the same. The legal maxim dura lex sedlex which means “the law is hard but it is the law”, standsattracted in such situation. It has consistently been heldthat, “inconvenience is not” decisive factor to be consideredwhile interpreting statute. “A result flowing from statutoryprovision is never an evil. court has no power to ignoreBthat provision to relieve what it considers distress resultingfrom its operation.”

In Re: proviso to Section 24(2)

167. In reference to the question whether the proviso is part ofCsection 24(2) or Section 24(1), it was submitted on behalf of the acquiringauthorities and the States that the proviso needs to be read along withthe main provision of section 24(2) and cannot be read with section24(1)(b). It was pointed out that this Court has taken the view in DelhiMetro Rail Corporation Ltd. v. Tarun Pal Singh & Ors., (2018) 14SCC 161 that the proviso should be read as part of section 24(2) of theDAct of 2013, cannot be construed as proviso to section 24(1)(b) whereasin Delhi Development Authority v. Virender Lal Bahri & Ors. (supra),a different view has been taken while referring the matter, and it hasbeen observed that it should be treated as proviso to section 24(1)(b)and not to section 24(2). As the interpretation of section 24(2) is involvedEin the matter, it is absolutely necessary to socio-justice and whether theproviso is part of section 24(2) or has to be read as an independentprovision or it has to be treated as part of the proviso to section 24(1)(b),the question is required to be decided as it arises for the purpose of thevery provisions of section 24(2).F168. It was submitted that the statutory provisions are to be readas they exist. Relocation of proviso by the interpretive process, resultingin its placement at different place is drastic judicial measure whichcan be adopted in rarest of rare cases, and such an exercise may amountto encroaching upon the legislative field or causing violence to the plainlanguage used by the legislature. By the proviso, Parliament has tried toGbalance the competitive new rights, and the proviso cannot be lifted andbodily placed at different place. It was also submitted on behalf of theacquiring authorities that as the Section 24(1(b) ends with ‘full stop’ (.)Section 24 (2) ends with colon (:). These punctuation marks leave noroom for any doubt that Parliament consciously used the proviso as anHexception to section 24(2). The placement of the proviso needs no further

comparative rules of interpretation. There is very clear indication oflegislative intent in section 24(2) itself. Punctuation plays vital role ininterpretation if some ambiguity is there in its interpretation. It is arguedthat punctuations play very important role in interpreting statutes ifsome ambiguity is raised in its interpretation. Considering the use of aparticular punctuation mark is an accepted method of statutoryinterpretation.

169. Considering the use of punctuation marks, as statutory modeof interpretation, full stop means the particular sentence ends and standsdetached from the next part. It was also submitted that the proviso is tobe read together with the main provision to which it is attached.

170. On the other hand, it was submitted on behalf of thelandowners that the proviso does not refer to the main factors of lapseunder section 24(2). The proviso is not an exemption from lapsing if it isread as part of Section 24(2), then the absurd consequences would follow.The proviso is in accord with section 24(1)(b) and has to be read as partof it. Reliance has been placed on D.D.A. v. Virendra Lal Bahri &Ors. (supra). It was submitted that the proviso could not have beenintended to be part of section 24(2) dealing with lapsing of acquisitionwhere the subject-matter of the proviso is wholly unrelated to physicalpossession of the land, but only relating to compensation not beingdeposited. It was also submitted that if the proviso is read with section24(2), arbitrary results will follow. The proviso would be arbitrary andliable to be struck down under Article 14 of the Constitution. In casenotification under section 4 applies only to single plot of land or singleowner, the conditions of section 24(2) are not fulfilled acquisition wouldlapse, and in case where several pieces of land have been acquired, ifcompensation in respect of majority landholdings has not been deposited,such acquisition will not lapse, but only higher compensation under theAct of 2013 would be paid. The words “award being made five yearsor more prior to the commencement of the Act” are absent in theproviso. Reading these words to proviso would do violence to the literallanguage, and its plain meaning proviso and being beneficial provisionmust be construed in the way which furthers its performance. It wasalso submitted that in respect of large chunks of land carved out by thesame notification, the compensation in respect of the majority oflandholdings has been deposited. In such case no lapse will take placebecause the proviso in such case will not apply and whether in respect

Aof the majority of landholdings, compensation has or has not beendeposited, would have no bearing on the issue whether lapsing does ordoes not take place under section 24(2).

With respect to the proviso, various questions arise forconsideration.

(a) Interpretation:

171. The main question is whether under the scheme of section24 the proviso is treated as part of Section 24(1)(b) or it is part of theexception carved out in section 24(2) particularly in view of the fact thatthe word ‘or’ has been interpreted by us as ‘and.’ In that context, whenCDelhi Metro Rail Corporation Ltd. v. Tarun Pal Singh & Ors[122] aswell as when the question was considered in Delhi DevelopmentAuthority v. Virender Lal Bahri & Ors., [SLP [C] No.37375/2016],the question did not come up for consideration in any of the matterswhether ‘or’ in two negative conditions in Section 24(2) has to be readDconjunctively or disjunctively. When we read the word “or” as ‘and’ inthe main part of section 24(2), it is clear that the proviso has to stay aspart of section 24(2) where it has been placed by the legislature, andonly then it makes sense. If ‘or’ used in-between two negative conditionsof ‘possession has not been taken’ or ‘compensation has not beenpaid,’ disjunctively, in that case, the proviso cannot be operative andEwould become otiose and would make no sense as part of Section 24(2).In case of amount not having been paid the acquisition has to lapse,though possession (of the land) has been taken would not be the properinterpretation of the main part as mentioned above, when “or” is readconjunctively, section 24(2) provided for lapse in case where possessionFhas not been taken, nor compensation has been paid, in such caseproviso becomes operative in given exigency of not depositing amountwith respect to majority of landholdings.172. reading of section 24(2) shows that in case possession hasbeen taken even if the compensation has not been paid, the proceedingsGshall not lapse. In case payment has not been made nor deposited withrespect to the majority of the holdings in the accounts of the beneficiaries,then all the beneficiaries specified in the notification under Section 4 ofthe Act of 1894 shall get the enhanced compensation under the provisionsof the Act of 2013. Section 24(2) not only deals with failure to take

physical possession but also failure to make payment of compensation.If both things have not been done, there is lapse of the acquisitionproceeding. But where payment has been made though possession hasbeen taken or payment has been made to some of the persons but not toall, and it has also not been deposited as envisaged in the proviso, in thatevent all beneficiaries (under the same award) shall get highercompensation. This is because once possession is been taken, there canbe no lapse of the proceedings, and higher compensation is intended onfailure to deposit the compensation. Once an award has been passedand possession has been taken, there is absolute vesting of the land, assuch higher compensation follows under the proviso, which is beneficialto holders. In case where both the negative conditions have not beenfulfilled, as mentioned in section 24(2), there is lapse. Thus, the proviso,in our opinion is wholesome provision and is, in fact, part of section24(2); it fits in the context of section 24(2) as deposit is related with thepayment of compensation and lapse is provided due to non-paymentalong with not taking possession for five years or more whereas fornon-deposit higher compensation is provided. Thus, when one of theconditions has been satisfied in case payment has been made, orpossession has not been taken, there is no lapse of the proceedings asboth the negative conditions must co-exist.

173. When we consider the provisions of section 24(1)(b) wherean award has been passed under section 11 of the Act of 1894, thensuch proceedings shall continue under the provisions of the said Act as ifit has not been repealed. The only exception carved out is the period of5 years or more and that too by providing non-obstante clause in Section24(2) to anything contained in section 24(1). The non-obstante clausequalifies the proviso also to Section 24(2). It has to be read as part ofSection 24(2) as it is an exception to Section 24(1)(b). In our opinion,Section 24(1)(b) is self-contained provision, and is also part of thenon-obstante clause to the other provisions of the Act as provided insub-section (1). Parliament worked out an exception, by providing anon-obstante clause in section 24(2), to Section 24(1). Compensationis to be paid under Section 24(1)(b) under the Act of 1894 and not underthe Act of 2013. As such Section 24 (2) is an exception to section 24(1)(b)and the proviso is also an exception which fits in with non-obstanteclause of Section 24 (2) only. Any other interpretation will be derogatoryto the provisions contained in Section 24(1)(b) which provides that thepending proceedings shall continue under the Act of 1894 as if it had not

Abeen repealed, that would include the part relating to compensation too.Even if there is no lapse of proceedings under section 24(1)(a), onlyhigher compensation follows under Section 24(1)(a). Section 24(2) dealswith the award having been made five years or before thecommencement of the new Act. The legislative history also indicates/itwas intended that five years’ period should be adequate to make paymentBof compensation and to take possession. In that spirit, the proviso hasbeen carved out as part of section 24(2). Thus when Parliament hasplaced it at particular place, by process of reasoning, there can be nolifting and relocation of the provision. To bodily lift it would be animpermissible exercise. Unless it produces absurd results and does notCfit in the scheme of the Act and the provisions to which it is attachedsuch an interpretation, doing violence to the express provision, is not alegitimate interpretative exercise. There is no need to add it as the provisoto Section 24(1)(b) as it has not been done by the legislature, and itmakes sense where it has been placed. It need not be lifted.

D(b) Punctuation used in Section 24(2):

174. Parliament has used the full stop (.) after section 24(1) andcolon (:) after section 24(2). It cannot be gainsaid that punctuation playsa vital role, particularly when an attempt is made to relocate any part ofthe provision. The use of the colon is to introduce sub-clause thatEfollows logically from the text before it. We are examining this aspect ofthe colon, additionally. Though as the interpretation of the provision ofSection 24(2) and its proviso needs no further deliberation regarding itsplacement, the same is to be read as proviso to Section 24(2) and notSection 24(1)(b). Use of punctuation colon reinforces our conclusionand punctuation mark has been an accepted method of statutoryFinterpretation when such problem arises. Though sometimes punctuationcan be ignored also but not generally. The full stop after section 24(1)(b)expresses deliberate intent to end particular sentence and detach itfrom the next part. With regard to the meaning of the punctuation colon,the University of Oxford Style Guide states as under:

“Use colon to introduce subclause which follows logicallyfrom the text before it, is not new concept and dependslogically on the preceding main clause. Do not use colon ifthe two parts of the sentence are not logically connected.”

175. The note of the University of England “Writing Correctly”has also been relied upon on behalf of the State of Haryana. Followingdiscussion has been made:

“Colons have number of functions in sentence. If you usecolons in your writing, use them sparingly, and never use acolon more than once in any sentence.

Rule 1: Colons can be used to introduce list, but they mustfollowa complete sentence (independent clause).

Rule 2: Colons can be used to explain, summarise or extendthe meaning in sentence by introducing word, phrase orclause that enlarges on the previousstatement.

Rule 3: Colons are used to separate the title from the subtitle.

Rule 4: Colons can be used to introduce quotationin formalacademic writing.”

(emphasis supplied)

176. It is clear that the colon (:) has reference to the previousstatement and enlarges the same and extends the meaning of thesentence. The colon indicates that the text is intrinsically linked to theprevious provision preceding it, i.e., Section 24(2) in this case and notsection 24(1). The colon indicates that what follows. The colon proves,explains, defines describes or lists elements of what precedes it. In casethe proviso is bodily lifted and placed after section 24(1(b), section 24(2)will end with “colon,” which is never done to end provision. Certaindecisions have been referred to saying that importance and weightageare to be given to punctuation marks. The earlier view was thatpunctuations were added by the proof readers, and the Acts passed byParliament did not contain any punctuation. However, it was submittedthat in the past century, the English courts realised that the drafts placedbefore the Parliament also carry punctuations and, thus, it is important togive meaning to the same. Bennion on Statutory Interpretation hasthis to say regarding punctuation marks:

“16.8 Punctuation is part of an Act and may be consideredin construing provision. It is usually of little weight, however,since the sense of an Act should be the same with or withoutits punctuation.

AAlthough punctuation may be considered, it will generally beof little use since the sense of an Act should be the same withor without it. Punctuation is device not for making meaning,but for making meaning plain. Its purpose is to denote thesteps that ought to be made in oral reading and to point outthe sense. The meaning of well-crafted legislativeBproposition should not turn on the presence or absence of apunctuation mark.”

177. In Marshall v. Cottingham[123] [1982] Ch 82 at 88, at 12while referring to the change of position and establishing that punctuationmay be used in interpretation, it was held that:C

“the day is long past when the courts would pay no heed topunctuation in an Act of Parliament.”

In Hanlon v Law Society[124] it was held as under :

“… not to take account of punctuation disregards theDreality that literate people, such as parliamentary draftsmen,punctuate what they write, if not identically, at least inaccordance with grammatical principles. Why should not otherliterate people, such as judges, look at the punctuation inorder to interpret the meaning of the legislation as acceptedEby parliament?”

Yet again in Houston v Burns[125], it was held that:

“Punctuation is rational part of English composition and issometimes quite significantly employed. I see no reason fordepriving legal documents of such significance as attachesFto punctuation in other writings.”

178. Other decisions were also cited.[126]On similar lines, theAmerican approach to the interpretation of punctuations is different. InTaylor v. Caribou[127] , it was held as under:

123 [1981] 3 All ER 8124 [1981] AC 124 at 197125 [1910] AC 337 at 348126 Dingmar v. Dingmar 2007 (2) All ER 382; Kennedy v Information Commissionerand another (Secretary of State for Justice intervening) [2012] 1 WLR 3524H127 102 Me. 401, 67 A.2 (1907)

“We are aware that it has been repeatedly asserted by courtsand jurists that punctuation is no part of statute, and that itought not to be regarded in construction. This rule in its originwas founded upon common sense, for in England until 1849statutes were entrolled upon parchment and enacted withoutpunctuation …. Such rule is not applicable to conditionswhere, as in this State, bill is printed and is on the desk ofevery member of the Legislature, punctuation and all, beforeits final passage. There is no reason why punctuation, whichis intended to and does assist in making clear and plain themeaning of all things else in the English language, should berejected in the case of the interpretation of statutes. “Cessanteratione legis cessat ipso lex.” Accordingly we find that it hasbeen said that in interpreting statute punctuation may beresorted to when other means fail …; that it may aid itsconstruction …; that by it the meaning may often bedetermined; that it is one of the means of discovering thelegislative intent …; that it may be of material assistance indetermining the legislative intention….”

(emphasis supplied)

In Aswini Kumar Ghose (supra) stated that:

“Punctuation is after all minor element in the constructionof statute, and very little attention is paid to it by Englishcourts. Cockburn, C.J. said in Stephenson v. Taylor: “On theParliament Roll there is no punctuation and we therefore arenot bound by that in the printed copies.” It seems, however,that in the Vellum copies printed since 1850 there are somecases of punctuation, and when they occur they can be lookedupon as sort of contemporanea expositio. When statute iscarefully punctuated and there is doubt about its meaning, aweight should undoubtedly be given to the punctuation. I neednot deny that punctuation may have its uses in some cases,but it cannot certainly be regarded as controlling elementand cannot be allowed to control the plain meaning of text.

*********

*******

“77.The High Court has rejected the contention of thepetitioner Aswini Kumar Ghosh on two grounds. In the first

place it has been said that the comma was no part of the Act.That the orthodox view of earlier English Judges was thatpunctuation formed no part of the statute appears quite clearlyfrom the observations of Willes, J. in Claydon v. Green.Vigorous expression was given to this view also by Lord Esher,M.R. in Duke of Devonshire v. Connor where he said:

“In an Act of Parliament there are no such things as bracketsany more than there are such things as stops.”

This view was also adopted by the Privy Council in the matterof interpretation of Indian statutes as will appear from theobservations of Lord Hobhouse in Maharani of Burdwan v.Murtunjoy Singh, namely, that “it is an error to rely onpunctuation in construing Acts of the legislature”. Sameopinion was expressed by the Privy Council in Pugh v.Ashutosh Sen. If, however, the Rule regarding the rejectionof punctuation for the purposes of interpretation is to beregarded as of imperfect obligation and punctuation is to betaken at least as contemporanea expositio, it will neverthelesshave to be disregarded if it is contrary to the plain meaningof the statute. If punctuation is without sense or conflicts withthe plain meaning of the words, the court will not allow it tocause meaning to be placed upon the words which theyotherwise would not have. This leads me to the second groundon which mainly the High Court rejected the plea of thepetitioner Aswini Kumar Ghosh, namely, that the word “other”in the phrase “any other law” quite clearly connects the IndianBar Councils Act with other laws as alternatives and subjectsboth to the qualification contained in the adjectival clause. Ifind myself in complete agreement with the High Court onthis point. If the intention was that the adjectival clause shouldnot qualify the Indian Bar Councils Act, then the use of theword “other” was wholly in apposite and unnecessary. Theuse of that word unmistakably leads to the conclusion thatthe adjectival clause also qualifies something other than“other law”. If the intention were that the Indian Bar CouncilsAct should remain unaffected by the qualifying phrase andshould be superseded in toto for the purposes of this Act thelegislature would have said “or in any law regulating the

conditions etc.” It would have been yet simpler not to refer tothe Indian Bar Councils Act at all and to drop the adjectivalclause and to simply say “Notwithstanding anything containedin any law”. In the light of the true meaning of the title of theAct as I have explained above and having regard to the useof the word “other” I have no hesitation in holding,

in agreement with the High Court, that what the non obstanteclause intended to exclude or supersede was not the whole ofthe Indian Bar Councils Act but to exclude or supersede thatAct and any other law only insofar as they or either of thempurported to regulate the conditions subject to which personnot entered in the roll of advocates of High Court might bepermitted to practise in that High Court and that the comma,if it may at all be looked at, must be disregarded as beingcontrary to this plain meaning of the statute.”

179. In Jamshed N. Guzdar (supra) this court held that:

“42. The general jurisdiction of the High Courts is dealt within Entry 11-A under the caption “administration of justice”,which has wide meaning and includes administration ofcivil as well as criminal justice. The expression “administrationof justice” has been used without any qualification orlimitation wide enough to include the “powers” and“jurisdiction” of all the courts except the Supreme Court.The semicolon (;) after the words “administration of justice”in Entry 11-A has significance and meaning. The other wordsin the same entry after “administration of justice” only speakin relation to “constitution” and “organisation” of all thecourts except the Supreme Court and High Courts. It followsthat under Entry 11-A the State Legislature has no power toconstitute and organise the Supreme Court and High Courts.It is an accepted principle of construction of Constitutionthat everything necessary for the exercise of powers isincluded in the grant of power. The State Legislature beingan appropriate body to legislate in respect of “administrationof justice” and to invest all courts within the State includingthe High Court with general jurisdiction and powers in allmatters, civil and criminal, it must follow that it can invest theHigh Court with such general jurisdiction and powers

including the territorial and pecuniary jurisdiction and alsoto take away such jurisdiction and powers from the HighCourt except those, which are specifically conferred underthe Constitution on the High Courts. It is not possible to saythat investing the City Civil Court with unlimited jurisdiction,taking away the same from the High Court, amounts to dealingwith “constitution” and “organisation” of the High Court.Under Entry 11-A of List III the State Legislature is empoweredto constitute and organise City Civil Court and whileconstituting such court the State Legislature is also empoweredto confer jurisdiction and powers upon such courts inasmuchas “administration of justice” of all the courts including theHigh Court is covered by Entry 11-A of List III, so long asParliament does not enact law in that regard under Entry 11-A. Entry 46 of the Concurrent List speaks of the specialjurisdiction in respect of the matters in List III. Entry 13 inList III is “… Code of Civil Procedure at the commencementof this Constitution …”. From Entry 13 it follows that in respectof the matters included in the Code of Civil Procedure andgenerally in the matter of civil procedure Parliament or theState Legislature, as provided by Article 246(2) of theConstitution, acquire the concurrent legislative competence.The 1987 Act deals with pecuniary jurisdiction of the courtsas envisaged in the Code of Civil Procedure and as such theState Legislature was competent to legislate under Entry 13of List III for enacting the 1987 Act.

68. Full Bench of the Punjab and Haryana High Court inRajinder Singh v. Kultar Singh AIR 1980 P&H 1, touchingthe same topic stated thus: (AIR p. 1)

“So far as the High Courts are concerned, the topic ofjurisdiction and powers in general is not separately mentionedin any of the entries of List I, but ‘administration of justice’as distinct topic finds place in Entry 3 of List II (nowEntry 11-A of List III).

The expression ‘administration of justice’ occurring in Entry3 of List II of the VIIth Schedule has to be construed in itswidest sense so as to give power to the State Legislature tolegislate on all matters relating to administration of justice.

After the words ‘administration of justice’ in Entry 3 there isa semicolon, and this punctuation cannot be discarded asbeing inappropriate. The punctuation has been put with adefinite object of making this topic as distinct and not havingrelation only to the topic that follows thereafter. Under Entry78 of List I, the topic of jurisdiction and powers of the HighCourts is not dealt with. Under Entry 3 of List II the StateLegislature can confer jurisdiction and powers or restrict orwithdraw the jurisdiction and powers already conferred onany of the courts except the Supreme Court, in respect of anystatute. Therefore, the State Legislature has the power to makea law with respect to the jurisdiction and powers of the HighCourt.”

180. There are several other decisions, which support theproposition that punctuation marks, especially colons have significantrole in the interpretation of words in statute. These judgments includeFalcon Tyres Ltd. v. State of Karnataka[128]. It was submitted that thesemicolon after the word “cotton” did not mean that the first part of thesection was disjunctive from “such produce” as has been subjected toany physical, chemical or other process. It was further submitted thatpunctuation is not safe tool in construction of statute and if the firstpart of the section is read as disjunctive from the other part it conflictswith Sl. No. 2 in the Second Schedule. Further it was submitted thatdefinition section which is the interpretation clause to the statute beginswith the expression “unless the context otherwise requires”. This courtheld that:

“11. We do not find any substance in the submission of thelearned counsel for the appellant that the semicolon after theword “cotton” does not mean that the first part of the sectionis disjunctive from “such produce” as has been subjected toany physical, chemical or other process. Section 2(A)(1) is intwo parts, it excludes two types of food from agriculturalproduce. According to us, the definition of the agriculturaland horticultural produce does not say as to what would beincluded in the agricultural or horticultural produce, insubstance it includes all agricultural or horticultural producebut excludes, (1) tea, coffee, rubber, cashew, cardamom,

ABC

Apepper and cotton from the definition of the agricultural orhorticultural produce though all these products as perdictionary meaning or in common parlance would beunderstood as agricultural produce; and (2) “such produceas has been subjected to any physical, chemical or otherprocess for being made fit for consumption”, meaning therebyBthat the agricultural produce other than what has beenexcluded, which has been subjected to any physical, chemicalor other process for making it fit for consumption would alsobe excluded from the definition of the agricultural orhorticultural produce except where such agricultural produceCis merely cleaned, graded, sorted or dried. For example, ifthe potatoes are cleaned, graded, sorted or dried, they willremain agricultural produce but in case raw potato issubjected to process and converted into chips for humanconsumption it would cease to be agricultural produce forthe purposes of the Entry Tax Act. The words “such produce”Din the second part do not refer to the produce which hasalready been excluded from the agricultural or horticulturalproduce but refer to such other agricultural produce whichhas been subjected to any physical, chemical or other processfor being made fit for human consumption.”

EThe other judgment cited was State of Gujarat v. RelianceIndustries Ltd.[129] With respect to ‘Full Stop’ and ‘Colon’, Vepa P. Sarathiin the Interpretation of Statutes, Fifth Edition discussed the issue thus:

“The Stop. – The most important punctuation mark is theperiod or full stop. It has to be placed at the end of completeFsentence which is neither exclamatory nor interrogatory. Ofcourse, in legislative drafting exclamatory or interrogativesentences will not occur. An incomplete sentence shouldhowever end with dash. It should be noticed carefullywhether the final stop should be inside or outside the quotes.GOne can tell easily by the sense.

Colon. – It implies that what follows explains and amplifiesthe sentence that comes before it. It is generally used beforea quotation, or to take the place of some word such as“namely”.”

H129 (2017) 16 SCC 28

181. Aswini Kumar Ghose & Anr (supra) also dealt with fullstops and held that as long as punctuation does not detract from themeaning of the words in the text, it can be controlling factor ininterpretation. In State of West Bengal v. Swapan Kumar Guha andOrs[130], this court observed that grammar and punctuation are haplessvictims of the pace of life and sometimes are used both as matter ofconvenience and of meaningfulness. Besides, how far clause whichfollows upon comma governs every clause that precedes the commais matter not free from doubt. This Court observed that:

“5. Since the sole question for consideration arising out ofthe FIR, as laid, is whether the accused are conducting amoney circulation scheme, it is necessary to understand whatis comprehended within the statutory meaning of thatexpression. Section 2(c) of the Act provides:

“2. (c) ‘money circulation scheme’ means any scheme, bywhatever name called, for the making of quick or easy money,or for the receipt of any money or valuable thing as theconsideration for promise to pay money, on any event orcontingency relative or applicable to the enrolment of membersinto the scheme, whether or not such money or thing is derivedfrom the entrance money of the members of such scheme orperiodical subscriptions;”

Grammar and punctuation are hapless victims of the pace oflife, and I prefer in this case not to go merely by the commasused in clause (c) because, though they seem to me to havebeen placed both as matter of convenience and ofmeaningfulness, yet, more thoughtful use of commas andother gadgets of punctuation would have helped make themeaning of the clause clear beyond controversy. Besides, howfar clause which follows upon comma governs every clausethat precedes the comma is matter not free from doubt. I,therefore, consider it more safe and satisfactory to discoverthe true meaning of clause (c) by having regard to thesubstance of the matter as it emerges from the object andpurpose of the Act, the context in which the expression isused and the consequences necessarily following upon the

Aacceptance of any particular interpretation of the provision,the contravention of which is visited by penal consequences.”

182. The present case involves placement of colon preceding tothe Proviso to Section 24 (2) and not Section 24 (1), which ends with afull stop, and it makes sense and the true meaning where Parliament hasBplaced it. The proviso is part of section 24(2). It is not permissible toalter the provision and to read it as proviso to section 24(1)(b), mainlywhen it makes sense where Parliament so placed it. To read the provisoas part of section 24(1)(b), will create repugnancy which the provisionscontained in section 24(1)(b). The window period of 5 years is providedto complete the acquisition proceedings where the award has beenCpassed, and the provisions of the Act of 1894 shall be applied as if it hasnot been repealed. Section 24(2) starts with non-obstante clause; itplainly is notwithstanding Section 24 (1), and the proviso to section 24(2)enlarges the scope of section 24(2). When the window period has beenprovided under section 24(1)(b), i.e., section 24(2) and its proviso, higherDcompensation cannot follow in case of an award which has been passedwithin 5 years of the enactment of the Act of 2013 otherwise anomalousresults shall accrue. In case proviso is read as part of section 24(1)(b),it would be repugnant to the consideration of the provision which hasbeen carved out saving acquisition and providing window period of 5years to complete the acquisition proceedings. There were cases underEthe Act of 1894, in which award may have been made in December2013, few days before the Act was enforced on 1.1.2014. As theprovisions of the Act of 1894 are applicable to such awards, obviouslynotice of the award has to be given under Section 12 of the said Act.There is no question of outright deposit. In such event as the deposit is toFbe made when the Collector is prevented by the exigencies specified inSection 31(2) from making payment. The deposit is not contemplateddirectly either in the court or the treasury, as the case may be as providedin section 31(2), corresponding to section 77(2) of the Act of 2013.

183. The proviso relates to the non-payment. Compensation isGdeposited when the Collector is prevented from making payment. It isthe obligation made under section 31(1) to tender the amount and payunless prevented by the contingencies specified in section 31(2). Thus,the deposit has co-relation with the expression “payment has not beenmade,” and the proviso makes sense with Section 24 (2) only. In case ofnon-payment or prevention from payment, compensation is required toH

be deposited as the case may be in the Reference Court or otherwise inTreasury, if permissible.

184. The proviso uses the expression that the amount is to bedeposited in the account of beneficiaries. Earlier under the Act of 1894,there was no such provision for depositing the amount in the bank accountof beneficiaries but the method which was used as per the forms whichwere prescribed to deposit the amount, it was credited to the ReferenceCourt or in the Treasury in the names of the beneficiaries and as againstthe award. It was not separate account but an account of the ReferenceCourt or set apart in the treasury. The proviso has to be interpreted andgiven the meaning with Section 24(2) as an amount was required to bepaid and on being prevented had to be deposited as envisaged under theAct of 1894.185. If we hold that even if the award has been passed within 5years and the compensation amount has not been deposited with respectto such an award passed in the window period, higher compensation tofollow if it is not deposited with respect to the majority of the holdingswould amount to re-writing the statute. The provision of section 24(1)(a)is clear if an award has not been passed, higher compensation to follow.No lapse is provided. In case award has been passed within the windowperiod of section 24(1)(b), inter alia, the provisions for compensationwould be that of the Act of 1894. The only exception to section 24(1) iscreated by the non-obstante clause in section 24(2) by providing that incase the requisite steps have not been taken for 5 years or more, thenthere is lapse as negative condition. The proviso contemplates highercompensation, in case compensation has not been paid, and the amounthas not been deposited with respect to the majority of the holdings, to allthe beneficiaries under the Act of 2013, who were holding land on thedate of notification under Section 4. If the proviso is added, section24(1)(b) will destroy the very provision of section 24(1)(b) providingproceedings to continue under the Act of 1894, which is not the functionof the proviso to substitute the main Section but to explain it. It is not tocause repugnancy with the main provision. The function of the provisois to explain or widen the scope. It is settled proposition of law that theproviso cannot travel beyond the provision to which it is attached. Theproviso would travel beyond the Act of 1894 as it is the intention ofsection 24(1)(b) the proceedings to govern by the Act of 1894. Thus, theproviso has no space to exist with section 24(1)(b), and it has rightly not

Abeen attached by Parliament, with Section 24(2) and has been placed atthe right place where it should have been.

186. It is in the cases where there is no lapse under section 24(2)if either step has been taken proviso operates to provide highercompensation. In the cases where possession has been taken, but theBamount has not been deposited as required under the proviso, highercompensation to all the beneficiaries has to follow as once possessionhas been taken, the land is vested in the State and payment is necessaryfor any acquisition. As such, Parliament has provided in such cases highercompensation to follow as envisaged in the proviso to section 24(2).Lapse of acquisition is provided only in the exigencies where possessionChas not been taken, nor compensation has been paid in the proceedingsfor acquisition pending as on the date on which the Act of 2013 cameinto force, then the State Government has to initiate fresh proceedings ifit so desires. The proviso is part of the scheme of section 24(2), and theentire provision of section 24(2), including the proviso, operates whenDinaction is there for period of 5 years or more, as contemplated therein.187. The fundamental consideration is that the proviso cannotsupersede the main provision of section 24(1)(b) and destroy it. Thefunction of the proviso is to except out the pressing provisions to whichit is attached. In case possession has been taken, but only fewEbeneficiaries have been paid, there is no lapse. Even if nobody has beenpaid, there is no lapse once possession has been taken. In casecompensation has not been deposited with respect to the majority of theholdings, there is no lapse, but higher compensation to all the beneficiarieshas to follow. The provision provides equal treatment to all, not only to afew- and, in effect, is similar to Section 28A of the Act of 1894- in caseFthe obligation to pay or deposit has not been discharged and there is noarrangement of money to discharge the obligation either by paying ordepositing in the Reference Court and, if permissible, in the treasury.Section 24(2) saves land which has been vested in the State, once awardhas been passed and possession of land. However, in case compensationGhas not been deposited with respect to majority of landowners, in anygiven award, all beneficiaries have to be paid higher compensation underthe new Act.

188. It was urged that section 24(1) and 24(2) deal with differentsubjects. It was submitted that Section 24(1) deals with compensation,Hwhereas section 24(2) deals with the lapsing of the acquisition. We are

unable to accept the submission. Section 24(2) also deals with paymentof compensation and taking of possession. Section 24(1)(a) is concerninga situation where no award has been made, higher compensation underthe new Act to follow. In section 24(1)(b) where the award is made (atthe time of coming into force of the new Act) further proceedings wouldbe under the new law; subject to Section 24(2), the provisions of the Actof 1894 would apply to such an award. Thus, the main part of section24(2) deals with payment of compensation; also the proviso whichprovides for higher compensation to be paid to all is in the context ofsection 24(2) and cannot be lifted and added to Section 24(1)(b) in theaforesaid circumstances. What would be the majority of the landholdingshas to be seen in the context, what has been acquired in the case of asingle plot being acquired, and in case compensation has not beendeposited with respect to that, it will constitute the majority. The majoritydoes not depend upon the number of holdings acquired, but whatconstitutes the majority as per the acquired area under the notification.189. Section 24(1)(a) operates where no award is made in apending acquisition proceeding; in such event all provisions of the newAct relating to determination of compensation would apply. Section 24(1) (b) logically continues with the second situation, i.e. where the awardhas been passed, and states that in such event, proceedings wouldcontinue under the Act of 1894. Section 24 (2) – by way of an exception,states that where an award is made but requisite steps have not beentaken for five years or more to take possession nor compensation hasbeen paid then there is lapse of acquisition. If one of the steps has beentaken, then the proviso can operate. Time is the essence. It is on thebasis of time-lag that the lapse is provided and in default of payment forfive years as provided on failure to deposit higher compensation is to bepaid. It is based on that time-lag higher compensation has to follow. It isnot the mere use of colon under section 24(2) but the placement of theproviso next to Section 24 (2) and not below Section 24(1)(b). Thus, it isnot permissible to alter placement of proviso more so when it is fully inconsonance with the provisions of section 24(2). Section 24(2) completelyobliterates the old regime to the effect of its field of operation. Undersection 24(1)(a), there is partial lapse of the old regime because allproceedings, till the stage of award are preserved. The award, in suchproceedings, made after coming into force of the Act of 2013 has totake into account its provisions, for determination of compensation. Thus,proceedings upto the stage of the award are deemed final under the old

AAct. In the case under section 24(1)(b), the old regime prevails. Theproviso is an exception to section 24(2) and in part the new regime forpayment of higher compensation in case of default for 5 years or moreafter award.

In re: Proviso to be read as part of provision it is appendedB

190. proviso has to be construed as part of the clause towhich it is appended. proviso is added to principal provision to whichit is attached. It does not enlarge the enactment. In case the provision isrepugnant to the enacting part, the proviso cannot prevail. Though inabsolute terms of later Act. Its placement has been considered, andCpurpose has been considered in the following decisions. It was observedin State of Rajasthan v. Leela Jain & Ors that[131]:

“14. . . . So far as general principle of construction of aproviso is concerned, it has been broadly stated that thefunction of proviso is to limit the main part of the sectionand carve out something which but for the proviso would haveDbeen within the operative part. ….”

(emphasis supplied)

Similarly, this court in Sales-tax Officer, Circle 1, Jabalpur v.Hanuman Prasad[132]stated that:

“5. …. It is well-recognised that proviso is added to aprincipal clause primarily with the object of taking out of thescope of that principal clause what is included in it and whatthe Legislature desires should be excluded.….”

(emphasis supplied)

In Commissioner of Commercial Taxes, Board of Revenue,Madras and Anr. v. Ramkishan Shrikishan Jhaver etc[133] it wasobserved:

“8. … Generally speaking, it is true that the proviso is anexception to the main part of the section; but it is recognisedGthat in exceptional cases proviso may be substantiveprovision itself. ….”

(emphasis supplied)

131 1965 (1) SCR 276132 1967 (1) SCR 831H133 AIR (1968) SC 59

191. In S. Sundaram Pillai & Ors. v. V.R. Pattabiraman &Ors[134] , the scope of proviso was clarified. The relevant discussion isquoted as under:

“27. The next question that arises for consideration is as towhat is the scope of proviso and what is the ambit of anExplanation either to proviso or to any other statutoryprovision. We shall first take up the question of the nature,scope and extent of proviso. The well established rule ofinterpretation of proviso is that proviso may have threeseparate functions. Normally, proviso is meant to be anexception to something within the main enactment or to qualifysomething enacted therein which but for the proviso wouldbe within the purview of the enactment. In other words, aproviso cannot be torn apart from the main enactment norcan it be used to nullify or set at naught the real object of themain enactment.”

“29. Odgers in Construction of Deeds and Statutes (5th Edn.)while referring to the scope of proviso mentioned thefollowing ingredients:

“P. 317. Provisos —These are clauses of exception orqualification in an Act, excepting something out of, orqualifying something in, the enactment which, but for theproviso, would be within it.

P. 318. Though framed as proviso, such clause mayexceptionally have the effect of substantive enactment.”

30. Sarathi in Interpretation of Statutes at pages 294-295 hascollected the following principles in regard to proviso:

(a) When one finds proviso to section the naturalpresumption is that, but for the proviso, the enacting part of-the section would have included the subjectmatter of theproviso.

(b) proviso must be construed with reference to thepreceding parts of the clause to which it is appended.

(c) Where the proviso is directly repugnant to section, theproviso shall stand and be held repeal of the section as theproviso speaks the latter intention of the makers.

(d) Where the section is doubtful, proviso may be used as aguide to its interpretation: but when it is clear, proviso cannotimply the existence of words of which there is no trace in thesection.

(e) The proviso is subordinate to the main section.

(f) proviso does not enlarge an enactment except forcompelling reasons.

(g) Sometimes an unnecessary proviso is inserted by way ofabundant caution.

(h) construction placed upon proviso which brings it intogeneral harmony with the terms of section should prevail.

(i) When proviso is repugnant to the enacting part, the provisowill not prevail over the absolute terms of later Act directedto be read as supplemental to the earlier one.

(j) proviso may sometimes contain substantive provision.

35. very apt description and extent of proviso was givenby Lord Loreburn in Rhondda Urban District Council v. TaffVale Railway Co., 1909 AC 253, where it was pointed out thatinsertion of proviso by the draftsman is not always strictlyadhered to its legitimate use and at times section worded asa proviso may wholly or partly be in substance freshenactment adding to and not merely excepting something outof or qualifying what goes before. To the same effect is alater decision of the same Court in Jennings v. Kelly, 1940AC 206, where it was observed thus:

“We must now come to the proviso, for there is, I think, nodoubt that, in the construction of the section, the whole of itmust be read, and consistent meaning, if possible, given toevery part of it. The words are:... ‘provided that such licenceshall be granted only for premises situate in the ward or districtelectoral division in which such increase in population has

taken place...’ There seems to be no doubt that the words “suchincrease in population” refer to the increase of not less than25 per cent of the population mentioned in the opening words”of the section.

36. While interpreting proviso care must be taken that it isused to remove special cases from the general enactment andprovide for them separately.

37.In short, generally speaking, proviso is intended to limitthe enacted provision so as to except something which wouldhave otherwise been within it or in some measure to modifythe enacting clause. Sometimes proviso may be embeddedin the main provision and becomes an integral part of it so asto amount to substantive provision itself.

43. We need not multiply authorities after authorities on thispoint because the legal position seems to be clearly andmanifestly well established. To sum up, proviso may servefour different purposes:

(1) qualifying or excepting certain provisions from the mainenactment:

(2) it may entirely change the very concept of the intendmentof the enactment by insisting on certain mandatory conditionsto be fulfilled in order to make the enactment workable:

(3) it may be so embedded in the Act itself as to become anintegral part of the enactment and thus acquire the tenor andcolour of the substantive enactment itself; and

(4) it may be used merely to act as an optional addenda to theenactment with the sole object of explaining the real intendmentof the statutory provision.”

(emphasis supplied)

192. Craies on Statute Law, 7[th] Edn., has observed, with respectto the construction of provisos thus:

“The effect of an excepting or qualifying proviso, accordingto the ordinary rules of construction, is to except out of the

Apreceding portion of the enactment, or to qualify somethingenacted therein, which but for the proviso would be within it;and such proviso cannot be construed as enlarging the scopeof an enactment when it can be fairly and properly construedwithout attributing to it that effect.”

(emphasis supplied)

R. v. Dibdin, 1910 P 57 (CA), held as under:

“The fallacy of the proposed method of interpretation isnot far to seek. It sins against the fundamental rule ofconstruction that proviso must be considered with relationCto the principal matter to which it stands as proviso. Ittreats it as if it were an independent enacting clause insteadof being dependent on the main enactment.The courts … haverefused to be led astray by arguments such as those whichhave been addressed to us, which depend solely on takingwords absolutely in their strict literal sense, disregarding theDfundamental consideration that they are appearing in theproviso.”

(emphasis supplied)

193. Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai[135],Econsidered the effect of proviso and said that its function is “to exceptor qualify something enacted in the substantive clause, which butfor the proviso would be within that clause. It may ordinarily bepresumed in construing proviso that it was intended that theenacting part of the section would have included the subject-matterof the proviso.” Similar observations and considerations weighed inFHaryana State Cooperative Land Development Bank Ltd. v.Haryana State Cooperative Land Development Banks EmployeesUnion & Anr.[136]and other decisions noted below.[137] In SubhaschandraYograj Sinha (supra) it was observed that :

135 1966 (1) SCR 367G136 (2004) 1 SCC 574

137 Shimbhu & Anr. v. State of Haryana, (2014) 13 SCC 318; Kedarnath JuteManufacturing Co. Ltd. v. The Commercial Tax Officer and Ors., 1965 (3) SCR 626.Shah Bhojraj Kuverji Oil Mills & Ginning Factory v. Subhash Chandra Yograj Sinha,AIR 1961 SC 1596; Dwarka Prasad v. Dwarka Das Saraf, 1976 (1) SCC 128; TheCommissioner of Income-tax, Mysore, Travancore-Cochin and Coorg, Bangalore v.The Indo Mercantile Bank Ltd., 1959 (Supp 2) SCR 256 In Romesh Kumar Sharma v.HUnion of India and Ors., (2006) 6 SCC 510.

“(9) The law with regard to provisos is well settled and wellunderstood. As general rule, proviso is added to anenactment to qualify or create an exception to what is in theenactment, and ordinarily, proviso is not interpreted asstating general rule. But, provisos are often added not asexceptions or qualifications to the main enactment but assavings clauses, in which cases they will not be construed ascontrolled by the section. The proviso which has been addedto Section 50 of the Act deals with the effect of repeal. Thesubstantive part of the section repealed two Acts which werein force in the State of Bombay. If nothing more had beensaid, Section 7 of the Bombay General clauses Act would haveapplied, and all pending suits and proceedings would havecontinued under the old law, as if the repealing Act had notbeen passed. The effect of the proviso was to take the matterout of Section 7 of the Bombay General Clauses Act and toprovide for special saving. It cannot be used to decidewhether Section 12 of the Act is retrospective. It was observedby Wood, V.C., in Fitzgerald v. Champneys, (1861) 70 ER 958that saving clauses are seldom used to construe Acts. Theseclauses are introduced into Acts which repeal others, tosafeguard rights which, but for the savings, would be lost.The proviso here saves pending suits and proceedings, andfurther enacts that suits and proceedings then pending are tobe transferred to the courts designated in the Act and are tocontinue under the Act and any or all the provisions of theAct are to apply to them. The learned Solicitor-Generalcontends that the savings clause enacted by the proviso, evenif treated as substantive law, must be taken to apply only tosuits and proceedings pending at the time of the repeal which,but for the proviso, would be governed by the Act repealed.According to the learned Attorney-General, the effect of thesavings is much wider, and it applies to such cases as comewithin the words of the proviso, whenever the Act is extendedto new areas.”

(emphasis supplied)

194. In Motiram Ghelabhai v. Jagan Nagar & Ors[138], the viewtaken in Bhojraj (supra) was affirmed and applied. It was observed138 (1985) 2 SCC 279

Athat provisos are often added not as exceptions or qualifications to themain enactment but as savings clauses, in which case they will not beconstrued as controlled by the section. In Madhu Gopal v. VI AdditionalDistrict Judge & Ors.[139] this Court has laid down that in any event, it isa well-settled principle of construction that unless clearly indicated, aproviso would not take away substantive rights given by the section orBthe sub-section. In The King v. Dominion Engineering Co. Ltd.[140], itwas held that where section of an enactment contains two provisionsand the second proviso is repugnant in any way to the first, thesecond proviso must prevail for it stands last in the enactment andspeaks the last intention of the makers. The following observationswere made:C“(7) Proviso 2 qualifies the main enactment in the matter ofdelivery no less than does proviso 1 and it also qualifies proviso1 itself. For it provides “further” that “in any case wherethere is no physical delivery of the goods,” the tax is to beDpayable when the property in the goods passes to thepurchaser. Thus where there is no physical delivery thenotional delivery which proviso 1 introduces is renderedinapplicable. Anger J. found in proviso 2 an alternativeground for his decision against the Crown and it is the mainground of Hudson J.’s judgment in the Supreme Court. InEtheir Lordships’ view this proviso presents an insuperableobstacle to the Crown’s claim. There has been no physicaldelivery of the goods by the Dominion Company to the PulpCompany. The proviso enacts that “in any case” where therehas been no physical delivery the tax is to be payable whenFthe property passes. The property in the goods in questionhas never passed to the Pulp Company. Consequently thetax has nevern become payable. If proviso 2 is repugnant inany way to proviso 1 it must prevail for it stands last in theenactment and so to quote Lord Tenterden C.J., “speaks thelast intention of the maker” ((1831), 2 B. & Ad. 818 at p.821).GThe word is with the respondent, the Dominion Company, andmust prevail.”

139 1988 (4) SCC 644H140 AIR (34) 1947 PC 94

195. The proviso thus, is not foreign to compensation to be paidunder section 24(2). It provides what is dealt with in Section 24(2) andtakes to its logical conclusion, and provides for higher compensation,where there is and can be no lapsing of acquisition proceedings. Therule of construction- as is clear from the preceding case law discussed,is that the proviso should be limited in its operation to the subject-matterin clause. proviso is ordinarily proviso and has to be harmoniouslyconstrued with the provisions. In our opinion, the proviso is capable ofbeing harmoniously construed with Section 24(2) and not with section24(1)(b), once we interpret the word ‘or’ as ‘nor’ in section 24(2).

196. In keeping with the ratio in the aforesaid decisions, this courtis of the considered view that the proviso cannot nullify the provision ofSection 24(1)(b) nor can it set at naught the real object of the enactment,but it can further by providing higher compensation, thus dealing withmatters in Section 24 (2). Therefore, in effect, where award is not made[Section 24 (1)(a)] as well as where award is made but compensation isnot deposited in respect of majority of the landowners in notification(for acquisition) [i.e. proviso to Section 24 (2)] compensation is payablein terms of the new Act, i.e., Act of 2013.

197. For the aforesaid reasons, considering the placement of theproviso, semi-colon having been used at the end of section 24(2),considering the interpretation of section 24(1)(b) and the repugnancywhich would be caused in case the proviso is lifted which is not permissibleand particularly when we read the word ‘or’ as ‘nor’ in section 24(2), ithas to be placed where the legislature has legislated it, it has not beenwrongly placed as part of section 24(2) but is intended for beneficialresults of higher compensation for one and all where there is no lapse,but amount not deposited as required. Higher compensation iscontemplated by the Act of 2013, which intention is fully carried forwardby the placement and interpretation.

In re: What is the meaning to be given to the word “paid”used in section 24(2) and “deposited” used in the proviso tosection 24(2)

198. Connected with this issue are questions like what is theconsequence of payment not being made under section 31(1) and whatare the consequences of amount not deposited under section 31(2). Theprovision of section 24(2) when it provides that compensation has not

Abeen paid where award has been made 5 years or more prior to thecommencement of the Act of 2013. In contradistinction to that, the provisouses the expression “an award has been made and compensation inrespect of majority of land holdings has not been deposited in theaccount of the beneficiaries”. We have to find out when an amount isrequired to be deposited under the Act of 1894 and how the payment isBmade under the Act of 1894. The provisions of Section 31 of the Act of1894 are attracted to the interpretation of provisions of section 24(2) tofind out the meaning of the words ‘paid’ and ‘deposited’. Section 31(1)makes it clear that on passing of award compensation has to be tenderedto the beneficiaries and Collector shall pay it to them. The payment isCprovided only in section 31(1). The expression ‘tender’ and pay to themin section 31(1) cannot include the term ‘deposited.’

199. Section 31 (2) of the Act of 1894 deals with deposit in caseCollector is ‘prevented’ from making payment by one or morecontingencies mentioned in section 31(2). The deposit follows if theDCollector is prevented from making payment. In case Collector isprevented from making payment due to contingencies such refusal toreceive the amount, or if there be no person competent to alienate theland, or if there is dispute as to the title to receive the compensation oras to the apportionment of it, he (i.e. the Collector) may withhold it or incase there is dispute as to apportionment, he may ask the parties to getEa decision from the Reference Court i.e., civil court and to clear the title.In such exigencies, the amount of compensation is required to be depositedin the court to which reference would be submitted under section 18.Section 31(2) requires deposit in case of reference under section 18 andnot the reference, which may be sought under section 30 or section 28AFof the Act of 1894.

200. Section 24(2) deals with the expression where compensationhas not been paid. It would mean that it has not been tendered forpayment under section 31(1). Though the word ‘paid’ amounts to acompleted event however once payment of compensation has beenGoffered/tendered under section 31(1), the acquiring authority cannot bepenalized for non-payment as the amount has remained unpaid due torefusal to accept, by the landowner and Collector is prevented frommaking the payment. Thus, the word ‘paid’ used in section 24(2) cannotbe said to include within its ken ‘deposit’ under section 31(2). For thatspecial provision has been carved out in the proviso to section 24(2),H

which deals with the amount to be deposited in the account ofbeneficiaries. Two different expressions have been used in section 24.In the main part of section 24, the word ‘paid’ and in its proviso ‘deposited’have been used.

201. The consequence of non-deposit of the amount has beendealt with in section 34 of the Act of 1894. As per section 24(2), if theamount has not been paid nor possession has been taken, it provides forlapse. Whereas the proviso indicates amount has not been depositedwith respect to majority of land holdings in case initiated under theAct of 1894 for 5 years or more. The period of five years need not havebeen specified in the proviso as it is part of section 24(2) and has to beread with it, particularly in view of the colon and placement by thelegislature as held above. Two different consequences of non-deposit ofcompensation are: (i) higher compensation in case where possessionhas been taken, payment has been made to some and amount has notbeen deposited with respect to majority of the holdings, (ii) in case thereis no lapse, the beneficiaries would be entitled to interest as envisagedunder section 34 from the date of taking possession at the rate of 9%per annum for the first year and after that @ 15% per annum.

202. The word “paid” has been defined in the Oxford Dictionaryto mean thus:

“paid past and past participle of pay”; Give sum of moneythus owned.”

Cambridge English Dictionary, defines “paid” as follows:

“being given money for something.”

P. Ramanatha Aiyar’s Advance Law Lexicon, 3[rd] Edition, 2005,uses the following definition of “paid”:

“applied; settled: satisfied.”

203. The word “paid” in Section 31(1) to the landowner cannotinclude in its ambit the expression “deposited” in court. Deposit cannotbe said to be payment made to landowners. Deposit is on being preventedfrom payment. However, in case there is tender of the amount that isto mean amount is made available to the landowner that would be adischarge of the obligation to make the payment and in that event such aperson cannot be penalised for the default in making the payment. Indefault to deposit in court, the liability is to make the payment of interest

Aunder Section 34 of Act of 1894. Sections 32 and 33 (which had beenrelied upon by the landowners’ counsel to say that valuable rights inhere,in the event of deposit with court, thus making deposit under Section 31mandatory) provide for investing amounts in the Government securities,or seeking alternative lands, in lieu of compensation, etc. Such deposits,cannot fetch higher interest than the15 per cent contemplated underBSection 34, which is pari materia to Section 80 of Act of 2013. Section34 is pari materia to section 80 of Act of 2013 in which also the similarrate of interest has been specified. Even if the amount is not deposited inReference Court nor with the treasury as against the name of the personinterested who is entitled to receive it, if Collector has been prevented toCmake the payment due to exigencies provided in Section 31(2), interestto be paid. However, in case the deposit is made without tendering it tothe person interested, the liability to pay the interest under section 34,shall continue. Even assuming deposit in the Reference Court is taken tobe mandatory, in that case too interest has to follow as specified in section34. However, acquisition proceeding cannot lapse due to non-deposit.D204. The concept of “deposit” is different and quite apart fromthe word “paid”, due to which, lapse is provided in Section 24 of Act of2013. In the case of non-deposit for the majority of landholdings, highercompensation would follow as such word “paid” cannot include in itsambit word “deposited”. To hold otherwise would be contrary toEprovisions contained in Section 24(2) and its proviso carrying differentconsequences. It is provided in Section 34 of Act of 1894, in case paymenthas not been tendered or paid, nor deposited the interest has to be paidas specified therein. In Section 24(2) also lapse is provided in case amounthas not been paid and possession has not been taken.F

205. In our considered opinion, there is breach of obligation todeposit even if it is taken that amount to be deposited in the referencecourt in exigencies being prevented from payment as provided in Section31(2). The default will not have the effect of reopening the concludedproceedings. The legal position and consequence which prevailed fromG1893 till 2013 on failure to deposit was only the liability for interest andall those transactions were never sought to be invalidated by the provisionscontained in Section 24. It is only in the case where in pendingproceeding for period of five years or more, the steps have not beentaken for taking possession and for payment of compensation, then thereis lapse under section 24(2). In case amount has not been deposited

with respect to majority of land holdings, higher compensation has tofollow. Both lapse and higher compensation are qualified with thecondition of period of 5 years or more.

206. It was submitted that mere tender of amount is not payment.The amount has to be actually paid. In our opinion, when amount hasbeen tendered, the obligation has been fulfilled by the Collector.Landowners cannot be forced to receive it. In case person has notaccepted the amount wants to take the advantage of non-payment, thoughthe amount has remained due to his own act. It is not open to him tocontend that amount has not been paid to him, as such, there should belapse of the proceedings. Even in case when offer for payment hasbeen made but not deposited, liability to pay amount along with interestsubsist and if not deposited for majority of holding, for that adequateprovisions have been given in the proviso also to Section 24(2). Thescheme of the Act of 2013 in Sections 77 and 80 is also the same as thatprovided in Sections 31 and 34 of the Act of 1894.

207. It was urged that landowners can seek investment in aninterest bearing account, there is no doubt about that investment can besought from the court under Sections 32 and 33 of Act of 1894, butinterest in Government securities is not more than what is provided insection 34 at the rate of 9 percent from the date of taking possession forone year and thereafter, at the rate of 15 percent. We take judicial noticeof the fact in no other Government security rate of interest is higher onthe amount being invested under sections 32 and 33 of the Act of 1894.Higher rate of interest is available under section 34 to the advantage oflandowners. It was submitted that in case the amount is deposited in thecourt, it is on behalf of the beneficiary. The submission overlooks theform in which it used to be deposited in the treasury too, that amount isalso credited in the treasury payable to the beneficiary specified in hisname with land details, date of award, etc.

208. There is another reason why this court holds that such aninterpretation is reasonable and in tune with Parliamentary intent. Underthe old regime, it was open to the Collector to fix convenient date ordates for announcement of award, and tender payment. In the event ofrefusal by the landowner to receive, or in other cases, such as absenceof the true owner, or in case of dispute as to who was to receive it, nodoubt, the statute provided that the amount was to be deposited with thecourt: as it does today, under Section 77. Yet, neither during the time

Awhen the Act of 1894 was in operation, nor under the Act of 2013, theentire acquisition does not lapse for non-deposit of the compensationamount in court. This is significant aspect which none of the previousdecisions have noticed. Thus, it would be incorrect to imply that failureto deposit compensation [in court, under Section 31 (2)] would entaillapse, if the amounts have not been paid for five years or more prior toBthe coming into force of the Act of 2013. Such an interpretation wouldlead to retrospective operation, of provision, and the nullification ofacquisition proceedings, long completed, by imposition of norm orstandard, and its application for time when it did not exist.

209. If the expression “deposited” is held to be included in theCexpression “paid” used in Section 24(2) of the Act of 2013, inconsistencyand repugnancy would be caused as between the proviso and the mainsub-section, which has to be avoided and the non-compliance of theprovisions of Section 31(2) is not fatal. Even if the amount has not beendeposited, higher compensation has to follow in the exigency proviso toDSection 24(2).

210. In Black’s Law Dictionary, the word “tender” has beendefined to mean thus:

“tender, n. (16c) 1. valid and sufficient offer ofperformance; specific, an unconditional offer of money orEperformance to satisfy debt or obligation tender ofdelivery. The tender may save the tendering party from apenalty for non-payment or non-performance or may, if theother party unjustifiably refuses the tender, place the otherparty in default. Cf. OFFER ORFPERFORMANCE; CONSIGNATION.”

211. It is apparent that “tender” of the amount saves the partytendering it from the consequence to be visited on non-payment of theamount. The obligation to make the payment has been considered invarious other laws and decisions. When obligation to payment is fulfilledGas to the scheme in the context of particular act, for that purpose,decisions under various other laws are relevant and cannot be said to beirrelevant.

212. In The Straw Board Manufacturing Co. Ltd., Saharanpurv. Gobind[141] , this Court considered the provisions requiring payment ofH141 1962 (Supp 3) SCR 318

one month’s wage under Section 33 of Industrial Disputes Act for makinga valid discharge or dismissal. This Court has held that the employer hastendered the wages and that would amount for payment, otherwise aworkman can make the provision unworkable by refusing to take thewages. This Court has observed thus:

“(8) Let us now turn to the words of the provisoin thebackground of what we have said above. The provisolaysdown that no workman shall be discharged or dismissed unlesshe has been paid wages for one month and an applicationhas been made by the employer to the authority before whichthe proceeding is pending for approval of the action takenby the employer. It will be clear that two kindsof punishmentare subject tothe conditions of the proviso,namely, discharge or dismissal. Any other kindof punishmentis not within the proviso.Furtherthe provisolays down two conditions, namely, (i) payment ofwages for one month and (ii) making of an application by theemployer to the authority before which the proceeding ispending for approval of the action taken. It is not disputedbefore us that when the provisolays down the conditions asto payment of one month’s wages, all that the employer isrequired to do in order to carry out that condition is to tender

the wages to the employee. But if the employee chooses not toaccept the wages he cannot come forward and say that therehas been no payment of wages to him by the employer.Therefore, though S. 33 speaks of payment of one month’swages it can only mean that the employer has tendered thewages and that would amount to payment, for otherwise aworkman could always make the section unworkable byrefusing to take the wages. So far as the second conditionabout the making of the application is concerned, the provisorequires that the application should be made for approval ofthe action taken by the employer.”(emphasis supplied)

213. In The Management of Delhi Transport Undertaking v.The Industrial Tribunal, Delhi & Anr[142], three-Judge Bench of thisCourt has laid down the law to the similar effect. It is not actual payment,142 1965 (1) SCR 998

Abut tender of amount which is necessary to fulfil obligation to pay. ThisCourt observed thus:

“4. …The proviso does not mean that the wages for one monthshould have been actually paid, because in many cases theemployer can only tender the amount before the dismissal butBcannot force the employee to receive the payment beforedismissal becomes effective. In this case the tender wasdefinitely made before the order of dismissal became effectiveand the wages would certainly have been paid if Hari Chandhad asked for them. There was no failure to comply with theprovision in this respect.”

(emphasis supplied)

214. In Indian Oxygen Ltd. v. Narayan Bhoumik[143], it was heldthat the “the condition as to payment in the proviso does not meanthat wages have to be actually paid but if wages are tendered orDoffered, such tender or offer would be sufficient compliance”with the statute. The Benares State Bank Ltd. v. The Commissioner ofIncome Tax, Lucknow[144], was decided in the context of Section 14(2)(c)of the Income Tax Act, 1922. It was observed that “paid” under Section16 does not contemplate actual receipt of the dividend by the Memberof the community. It is to be made unconditionally available to theEmembers entitled to it. It observed thus:

“5. …This Court observed in J. Dalmia v. Commissioner ofIncome-tax, Delhi, 53 ITR 83 that the expression “paid” inSection 16(2) does not contemplate actual receipt of thedividend by the member: in general, dividend may be said toFbe paid within the meaning of Section 16(2) when the companydischarges its liability and makes the amount of dividendunconditionally available to the member entitled thereto. …”

215. Two different expressions have been used in Section 24(2).The expression “paid” has been used in Section 24(2) and whereas inGthe proviso “deposited” has been used. “Paid” cannot include “deposit”,or else Parliament would have used different expressions in the mainsub-section and its proviso, if the meaning were to be the same. TheCourt cannot add or subtract any word in the statute and has to give

143 (1968) 1 PLJR 94H144 (1969) 2 SCC 316

plain and literal meaning and when compensation has not been paid underSection 24(2), it cannot mean compensation has not been deposited asused in the proviso. While interpreting the statutory provisions, additionor subtraction in the legislation is not permissible. It is not open to thecourt to either add or subtract word. There cannot be any departurefrom the words of law, as observed in legal maxim “A Verbis Legis NonEst Recedendum”. In Principles of Statutory Interpretation (14[th ]Edition)by Justice G.P. Singh, plethora of decisions have been referred. There isa conscious omission of the word “deposit” in Section 24(2), which hasbeen used in the proviso. Parliament cannot be said to have used thedifferent words carrying the same meaning in the same provision, whereaswords “paid” and “deposited” carry totally different meaning. Paymentis actually made to the landowner and deposit is made in the court, thatis not the payment made to the landowner. It may be discharge of liabilityof payment of interest and not more than that. Applying the rule of literalconstruction also natural, ordinary and popular meaning of the words“paid” and “deposited” do not carry the same meaning; the natural andgrammatical meaning has to be given to them, as observed in Principlesof Statutory Interpretation by Justice G.P. Singh (at page 91) thus:“… Natural and grammatical meaning. The words of statuteare first understood in their natural, ordinary or popular senseand phrases and sentences are construed according to theirgrammatical meaning, unless that leads to some absurdity orunless there is something in the context, or in the object ofthe statute to suggest the contrary.” “The true way”,according to LORD BROUGHAM is, “to take the words asthe Legislature have given them, and to take the meaning whichthe words given naturally imply,unless where the constructionof those Words is, either by the preamble or by the context ofthe words in question, controlled or alter “; and in the wordsof VISCOUNT HALDANE, L.C., if the language used “has anatural meaning we cannot depart from that meaning unlessreading the statute as whole, the context directs us to doso.In an oft-quoted passage, LORD WENSLEYDALE statedthe Rule thus: “In construing wills and indeed statutes andall written instruments, the grammatical and ordinary senseof the word is adhered to, unless that would lead to someabsurdity, or some repugnance or inconsistency with the restof the instrument in which case the grammatical and ordinary

sense of the words may be modified, so as to avoid thatabsurdity, and inconsistency, but no further”. And statedLORD ATKINSON: “In the construction of statutes, their wordsmust be interpreted in their ordinary grammatical sense unlessthere be something in the context, or in the object of the statutein which they occur or in the circumstances in which they areused, to show that they were used in special sense differentfrom their ordinary grammatical sense”.28 VISCOUNT SIMON, L.C., said: “The golden Rule is thatthe words of statute must prima facie be given their ordinary”meaning.Natural and ordinary meaning of words shouldnot be departed from “unless it can be shown that the legalcontext in which the words are used requires differentmeaning”. Such meaning cannot be departed from by thejudges “in the light of their own views as to policy” althoughthey can “adopt purposive interpretation if they can find inthe statute read as whole or in material to which they arepermitted by law to refer as aids to interpretation an expressionof Parliament’s purpose or policy”. For modern statementof the rule, one may refer to the speech of LORD SIMON OFGLAISDALE in case where he said: “Parliament is primafacie to be credited with meaning what is said in an Actof Parliament. The drafting of statutes, so important to apeople who hope to live under the Rule of law, will never besatisfactory unless courts seek whenever possible to apply ’thegolden rule’ of construction, that is to read the statutorylanguage, grammatically and terminologically, in the ordinaryand primary sense which it bears in its context, withoutomission or addition. Of course, Parliament is to be creditedwith good sense; so that when such an approach producesinjustice, absurdity, contradiction or stultification of statutoryobjective the language may be modified sufficiently to avoidsuch disadvantage,though no further”. The Rules statedabove have been quoted with approval by the SupremeCourt.......”

(emphasis supplied)

216. The same work also notes that when two different expressionsare used in the same provision of statute, there is presumption that

they are not used in the same sense. The following passage is relevant(Principles of Statutory Interpretation by Justice G.P. Singh at page395):

“.......When in relation to the same subject matter, differentwords are used in the same statute, there is presumptionthat they are not used in the same sense.

In construing the words ‘distinct matters’ occurring inSection 5 of the Stamp Act, 1899, and in concluding that thesewords have not the same meaning as the words ‘two or moreof the descriptions in Schedule I’ occurring in Section 6,VENKATARAMA AIYAR, J., observed: “When two words ofdifferent import are used in statute in twoconsecutive provisions, it would be difficult to maintain thatthey are used in the same sense.” Similarly, while construingthe word ‘gain’ Under Section 3(ff) of the BombayMunicipal Corporation Act, 1888, which used the words‘profit or gain’, the Supreme Court relied on the dictionarymeanings of the words to hold that the word ‘gain’ is notsynonymous with the word ‘profit’ as it is not restricted topecuniary or commercial profits, and that any advantage orbenefit acquired or value addition made by some activitieswould amount to ‘gain’.......”

***14. Brighton Parish Guardians v. Strand UnionGuardians, (1891) 2 QB 156, p. 167 (CA); Member, Boardof 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 differentmeaning from ‘trade and commerce’ in Article 301); ShriIshalAlloy Steels Ltd. v. JayaswalasNeco Ltd., JT 2001 (3) SC 114,p. 119: (2001) 3 SCC 609 : AIR 2001 SC 1161 (The words ‘abank’ and ‘the bank’ in Section 138 N.I. Act, 1881 do nothave the same meaning); The Oriental Insurance Co. Ltd. V.Hansrajbhai v. Kodala AIR 2001 SC 1832, p. 1842 : (2001)5 SCC 175; Kailash Nath Agarwal v. Pradeshiya Indust andInv. Corporation 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 inParamjeet Singh Pathak v. ICDS Ltd., (2006) 13 SCC 322:AIR 2007 SC 168 different view was taken therefore in ZenithSteel Tubes v. Sicom Ltd., (2008) 1 SCC 533: AIR 2008 SC451 case referred to larger Bench; D.L.F. Qutab EnclaveComplex Educational Charitable Trust v. State of Haryana,2003 AIR SCW 1046, p. 1057: AIR 2003 SC 1648 : (2003) 5SCC 622 (The expressions ‘at his own cost’ and ‘at its cost,’used in one Section given different meanings)”

217. In Privy Council decisions in Crawford v. Spooner[145] andLord Howard de Walden v. IRC & Anr[146] following observations haveCbeen made:

“… we cannot aid the legislature’s defective phrasing of anAct, we cannot add or mend and, by construction, makeupdeficiencies which are left there.

It is contrary to all rules of construction to read words intoan Act unless it is necessary to do so. Similarly, it is wrongand dangerous to proceed by substituting some other wordsfor words of the statute. Speaking briefly the court cannotEreframe the legislation for the very good reason that it has nopower to legislate.”

218. In V.L.S. Finance Ltd. (supra) this Court observed that:

“17. Ordinarily, the offence is compounded under theprovisions of the Code of Criminal Procedure and the powerto accord permission is conferred on the court excepting thoseoffences for which the permission is not required. However,in view of the non-obstante clause, the power of compositioncan be exercised by the court or the Company Law Board.The legislature has conferred the same power on the CompanyLaw Board which can exercise its power either before or afterthe institution of any prosecution whereas the criminal courthas no power to accord permission for composition of anoffence before the institution of the proceeding. The legislaturein its wisdom has not put the rider of prior permission of the

145 (1846) 6 Moore PC 1H146 (1948) 2 AER 825

court before compounding the offence by the Company LawBoard and in case the contention of the appellant is accepted,same would amount to addition of the words “with the priorpermission of the court” in the Act, which is not permissible.

18. As is well settled, while interpreting the provisions of astatute, the court avoids rejection or addition of words andresorts to that only in exceptional circumstances to achievethe purpose of the Act or give purposeful meaning. It is alsoa cardinal rule of interpretation that words, phrases, andsentences are to be given their natural, plain, and clearmeaning. When the language is clear and unambiguous, itmust be interpreted in an ordinary sense, and no addition oralteration of the words or expressions used is permissible. Asobserved earlier, the aforesaid enactment was brought in viewof the need of leniency in the administration of the Act becausea large number of defaults are of technical nature, and manydefaults occurred because of the complex nature of theprovision.

(emphasis supplied)

219. In Bharat Aluminium Company v. Kaiser AluminiumTechnical Services Inc.[147], this Court observed thus:

“65. Mr. Sorabjee has also rightly pointed out theobservations made by Lord Diplock in Duport Steels Ltd. v.Sirs, (1980) 1 WLR 142. In the aforesaid judgment, the Houseof Lords disapproved the approach adopted by the Court ofAppeal in discerning the intention of the legislature; it isobserved that: (WLR p. 157 C-D)

“… the role of the judiciary is confined to ascertaining fromthe words that Parliament has approved as expressing itsintention what that intention was, and to giving effect to it.Where the meaning of the statutory words is plain andunambiguous, it is not for the Judges to invent fanciedambiguities as an excuse for failing to give effect to its plainmeaning because they themselves consider that theconsequences of doing so would be inexpedient, or evenunjust or immoral. In controversial matters such as are

involved in industrial relations, there is room for differencesof opinion as to what is expedient, what is just and what ismorally justifiable. Under our Constitution it is Parliament’sopinion on these matters that is paramount.”

(emphasis supplied)

In the same judgment, it is further observed: (WLR p. 157 F)“… But if this be the case it is for Parliament, not for thejudiciary, to decide whether any changes should be made tothe law as stated in the Acts….”

(emphasis supplied)

67.We are unable to accept the submission of the learnedcounsel for the appellants that the omission of the word “only”from Section 2(2) indicates that applicability of Part I of theArbitration Act, 1996 is not limited to the arbitrations thattake place in India. We are also unable to accept that Section2(2) would make Part I applicable even to arbitrations whichtake place outside India. In our opinion, plain reading ofSection 2(2) makes it clear that Part I is limited in itsapplication to arbitrations which take place in India. We arein agreement with the submissions made by the learned counselfor the respondents, and the interveners in support of therespondents, that Parliament by limiting the applicability ofPart I to arbitrations which take place in India has expresseda legislative declaration. It has clearly given recognition tothe territorial principle. Necessarily therefore, it has enactedthat Part I of the Arbitration Act, 1996 applies to arbitrationshaving their place/seat in India.

82.Another strong reason for rejecting the submission madeby the learned counsel for the appellants is that if Part I wereto be applicable to arbitrations seated in foreign countries,certain words would have to be added to Section 2(2). Thesection would have to provide that “this part shall apply wherethe place of arbitration is in India and to arbitrations havingits place out of India.” Apart from being contrary to the

contextual intent and object of Section 2(2), such aninterpretation would amount to drastic and unwarrantedrewriting/alteration of the language of Section 2(2). As verystrongly advocated by Mr Sorabjee, the provisions in theArbitration Act, 1996 must be construed by their plainlanguage/terms. It is not permissible for the court whileconstruing provision to reconstruct the provision. In otherwords, the court cannot produce new jacket, whilst ironingout the creases of the old one. In view of the aforesaid, weare unable to support the conclusions recorded by this Court”as noticed earlier.

(emphasis supplied)

220. In Harbhajan Singh (supra) the following observations weremade:

“7. …. Ordinary, grammatical and full meaning is to beassigned to the words used while interpreting provision tohonour the rule — the legislature chooses appropriate wordsto express what it intends, and therefore, must be attributedwith such intention as is conveyed by the words employed solong as this does not result in absurdity or anomaly or unlessmaterial — intrinsic or external — is available to permit adeparture from the rule.”

(emphasis supplied)

221. In The Member, Board of Revenue v. Arthur PaulBenthall[148] this Court held as under:

“4. We are unable to accept the contention that the word“matter” in S. 5 was intended to convey the same meaning as“”the word description in S. 6. In its popular sense, theexpression “distinct matters” would connote somethingdifferent from distinct “categories”. Two transactions mightbe of the same description, but all the same, they might bedistinct.

If sells Black-acre to X and mortgages White-acre to Y,the transactions fall under different categories, and they arealso distinct matters. But if mortgages Black-acre to X and

222SUPREME COURT REPORTS

Amortgages White-acre to Y, the two transactions fall underthe same category, but they would certainly be distinct matters.

If the intention of the legislature was that the expression ‘distinctmatters’ in S. 5 should be understood not in its popular sense butnarrowly as meaning different categories in the Schedule, nothingBwould have been easier than to say so. When two words of differentimport are used in statute in two consecutive provisions, it wouldbe difficult to maintain that they are used in the same sense, and theconclusion must follow that the expression “distinct matters” in S. 5“””and descriptions in section 6 have different connotations.

(emphasis supplied)

C222. In Commissioner of Income Tax, New Delhi v. M/s. EastWest Import and Export (P) Ltd[149], it was observed as under:

“7.The Explanation has reference to the point of time at twoplaces: the first one has been stated as “at the end of theDprevious year” and the second, which is in issue, is “in thecourse of such previous year”. Counsel for the revenue hasemphasised upon the feature that in the same Explanationreference to time has been expressed differently and if thelegislative intention was not to distinguish and while stating“in the course of such previous year” it was intended toEconvey the idea of the last day of the previous year, therewould have been no necessity of expressing the positiondifferently. There is abundant authority to support the standof the counsel for the revenue that when the situation hasbeen differently expressed the legislature must be taken tohave intended to express different intention.”F

(emphasis supplied)

Several other decisions have reiterated the same proposition, i.ethat when the legislature uses two different expressions in the samestatute, they must be given different meanings, to carry out legislativeGintent.[150]

149 (1989) 1 SCC 760

150 B.R. Enterprises v. State of U.P. and Ors., (1999) 9 SCC 700; Kailash Nath Agarwaland Ors. v. Pradeshiya Industrial & Investment Corporation of U.P. Ltd. and Anr.,(2003) 4 SCC 305 (which interpreted “proceeding” and “suit” differently; In DLFQutab Enclave Complex Educational Charitable Trust v. State of Haryana and Ors.,(2003) 5 SCC 622 (where “at his cost” and “at its cost” were interpreted to meanHdifferent situations.

223. The land owners had argued that the obligation to pay getsdischarged only when compensation is actually paid and/or deposited.Even if it is received under protest under Section 31(1), it is finallyaccepted by the landowners post-settlement by the Reference Court.We are not able to accept the submission as Section 34 of the Act of1894, is clear even if the amount is not paid or deposited, it carries interest.The logic behind this is that if the State is retaining the amount withpeace and its liability to pay does not cease, but it would be liable tomake the payment with interest as envisaged therein. Once tender ismade, obligation to pay is fulfilled so that the amount cannot be said tohave been paid, but obligation to pay has been discharged and if personwho has not accepted it, cannot penalise the other party for default topay and non-deposit carries only interest as money had been retainedwith the Government.224. Thus, in our opinion, the word “paid” used in Section 24(2)does not include within its meaning the word “deposited”, which hasbeen used in the proviso to Section 24(2). Section 31 of the Act of 1894,deals with the deposit as envisaged in Section 31(2) on being ‘prevented’from making the payment even if the amount has been deposited in thetreasury under the Rules framed under Section 55 or under the StandingOrders, that would carry the interest as envisaged under Section 34, butacquisition would not lapse on such deposit being made in the treasury.In case amount has been tendered and the landowner has refused toreceive it, it cannot be said that the liability arising from non-payment ofthe amount is that of lapse of acquisition. Interest would follow in such acase also due to non-deposit of the amount. Equally, when the landownerdoes not accept the amount, but seeks reference for highercompensation, there can be no question of such individual stating that hewas not paid the amount (he was determined to be entitled to by thecollector). In such case, the landowner would be entitled to thecompensation determined by the Reference court.

In re: Rules framed under Section 55 and the StandingOrders issued by State Governments

225. It was urged on behalf of acquiring Authorities that variousState Governments have framed rules under Section 55 of the Act of1894 and/or have issued the Standing Orders/instructions with respectto the Government money under Article 283 of the Constitution of India.These Standing Orders and Rules have remained in force from timeimmemorial; their provisions require the amount to be tendered, notice

ABC

DEF

Ato be issued to the landowners to collect the amount of compensationawarded to them. If they do not appear and apply to the reference underSection 18, the officer shall cause the amounts due to be paid into thetreasury as revenue deposits payable to the persons to whom they arerespectively due and vouched for in the accompanying form (markedE). When the payee ultimately claims the payment, they shall be paid inBthe same manner as ordinary revenue deposits. The Land Acquisition(Bihar and Orissa) Rules were framed under Section 55 of the Act of1894. Rule 10 thereof is extracted hereunder:

“10. In giving notice of the award under Section 12(2) andtendering payment Under Section 31(1), to such of the personsinterested as were not present personally or by theirrepresentatives when the award was made, the officer shallrequire them to appear personally or by representatives by acertain date to receive payment of the compensation awardedto them, intimating also that no interest will be allowed tothem if they fail to appear. If they do not appear, and do notapply for reference to the Civil Court Under Section 18, theofficer shall after any further endeavour to secure theirattendance that may seem desirable, cause the amounts dueto be paid into the Treasury as Revenue deposits payable tothe persons to whom they are respectively due and vouchedfor in the accompanying form (marked E). The officer shallalso give notice to the payees of such deposits, the Treasuryin which the deposits specifying have been made. When thepayees ultimately claim payment of sums placed in deposit,the amounts will be paid to them in the same manner asordinary revenue deposits. The officer should, as far aspossible, arrange to make the payments due in or near thevillage to which the payees belong, in order that the numberof undisbursed sums to be placed in deposit on account ofnon-attendance may be reduced to minimum. Wheneverpayment is claimed through representative whether beforeor after deposit of the amount awarded, such representative,must show legal authority for receiving the compensation onbehalf of his principal.”

(emphasis supplied)

226. In the State of Assam, rules have also been framed underSection 55 of the Act of 1894, dealing with the deposit. Rule 9 providesthat in case reference is not sought under Section 18, the amount has tobe deposited in treasury. Rule 9 is extracted hereunder:

“9. In giving notice of the award Under Section 12(2) andtendering payment Under Section 31(1), to such of the personsinterested as were not present personally or by theirrepresentatives when the award was made, the Collector shallrequire them to appear personally or by representatives by acertain date, to receive payment of the compensation awardedto them intimating also that no interest will be allowed to them,if they fail to appear. If they do not appear and do not applyfor reference to the Civil Court Under Section 18, he shall,after any further endeavour to secure their attendance ormake payment that may seem desirable, cause the amountsdue to be paid into the WW as revenue deposits payable tothe persons to whom they are respectively due, and vouchedfor in the form prescribed or approved by Government fromtime to time. He shall also give notice to the payees of suchdeposits, specifying the Treasury in which the deposits havebeen made. When the payees ultimately claim payment of sumsplaced in deposit, the amount will be paid to them in the samemanner as ordinary revenue deposits. The Collector should,as far as possible, arrange to make the payment due in ornear the village to which the land pertains in order that thenumber of undisbursed sum to be placed in deposit on accountof nonattendance may be reduced to minimum. Wheneverpayment is claimed through representative, suchrepresentative, must show legal authority for receiving thecompensation on behalf of the principal.”

(emphasis supplied)

227. In the State of Karnataka too similar rules were framed in1965 under Section 55 of the Act of 1894. Similarly, in the State ofKerala also Rule 14(2) of the Land Acquisition (Kerala) Rules, 1990were framed under Section 55 of the Act of 1894, provided that paymentrelating to award shall be made or the amount shall be credited to thecourt or revenue deposit (treasury) within one month from the date ofthe award. Similar rules were framed in the State of Bihar and Orissa.

228. Standing Order No.28 was issued in 1909 by the State ofPunjab and was applicable to Delhi also, which provided five modes ofpayment in para 74 and 75 thus:

“74. Methods of making payments.—There are five methodsof making payments:

(1) By direct payments, see Para 75(I) infra

(2) By order on treasury, see Para 75(II) infra

(3) By money order, see Para 75(III) infra

(4) By cheque, see Para 75(IV) infra

(5) By deposit in treasury, see Para 75(V) infra

75. Direct payments.— * * *

(V) By treasury deposit.— In giving notice of the award underSection 12(2) and tendering payment under Section 31(1) tosuch of the persons interested as were not present personallyor by their representatives when the award was made, theofficer shall require them to appear personally or byrepresentatives by certain date to receive payment of thecompensation awarded to them, intimating also that no interestwill be allowed to them if they fail to appear, if they do notappear and do not apply for reference to the civil courtunder Section 18, the officer shall after any furtherendeavours to secure their attendance that may seemdesirable, cause the amounts due to be paid to the treasuryas revenue deposits payable to the persons to whom they arerespectively due and vouched for in the form marked below.The officer shall also give notice to the payees of suchdeposits, specifying the treasury in which the deposit has beenmade. When the payees ultimately claim payment of sumsplaced in deposit, the amounts will be paid to them in thesame manner as ordinary revenue deposit. The officer should,as far as possible, arrange to make the payments due in ornear the village to which the payee belong in order that thenumber of undisbursed sums to be placed in deposits onaccount of non-attendance may be reduced to minimum.

Whenever payment is claimed through representativewhether before or after deposit of the amount awarded, suchrepresentative, must have legal authority for receiving thecompensation on behalf of his principal.”

Sub-para (V) of the above made it clear that payment is creditedto the treasury when person who is served with notice under Section12(2) of the Act of 1894, is not present and the award is passed. Whena notice is given to receive the payment of compensation and in casethey fail to appear, the amount has to be paid to the treasury as revenuedeposit payable to the landowner.

229. Rules and the Standing Orders are binding on the concernedAuthorities and they have to follow them. They deposit the amounts incourt only when reference (for higher compensation) is sought, nototherwise. Even if person refuses to accept it and the amount isdeposited in court or even it is not tendered, only higher interest followsunder Section 34. Once Rules have prevailed since long and even if it isassumed that deposit in court is mandatory on being prevented frompayment as envisaged under Section 31(1), the only liability to make the

Apayment of higher interest is fastened upon the State. The liability topay the amount with interest would subsist. When amounts are depositedin court, there would occur procedural irregularity and the adverseconsequence envisaged is under Section 34 of the Act of 1894. Theconsequence of non-deposit in the court is that the amount of thelandowner cannot be invested in the Government securities as envisagedBunder Sections 32 and 33 of the Act of 1894, in which interest is notmore 15 per cent. Thus, no prejudice is caused to the landowners ratherthey stand to gain and still payment is safe as it is kept in the court. Wehave already held that there is distinction between the expression “paid”and “deposited”, thus the amount being deposited as per Rules in theCtreasury or as per the Standing Orders considering the scheme of Section31 read with Section 34 of the Act of 1894, which are pari materia toSections 77 and 80 of the Act of 2013. We are of the considered opinionthat acquisition cannot be invalidated, only higher compensation wouldfollow in case amount has not been deposited with respect to majority ofland holdings, all the beneficiaries would be entitled for higherDcompensation as envisaged in the proviso to Section 24(2).

230. Deposit in treasury in place of deposit in court causes noprejudice to the landowner or any other stakeholder as their interest isadequately safeguarded by the provisions contained in Section 34 of theAct of 1894, as it ensures higher rate of interest than any otherEGovernment securities. Their money is safe and credited in the earmarkedquantified amount and can be made available for disbursement to him/them. There is no prejudice caused and every infraction of law wouldnot vitiate the act.

231. In Jankinath Sarangi v. State of Orissa[151], this CourtFobserved that every infraction of law would not vitiate the act. It hasfurther been observed that test is actual prejudice has been caused to aperson by the supposed denial to him of particular right. Followingobservations have been made:

“5. From this material it is argued that the principles of naturalGjustice were violated because the right of the appellant tohave his own evidence recorded was denied to him and furtherthat the material which was gathered behind his back wasused in determining his guilt. In support of these contentionsa number of rulings are cited chief among which are State of

H151 (1969) 3 SCC 392

Bombay v. Narul Latif Khan, (1965) 3 SCR 135; State of UttarPradesh v. Sri C.S. Sharma, (1967) 3 SCR 848 and Union ofIndia v. T.R. Varma, (1958) SCR 499. There is no doubt that ifthe principles of natural justice are violated, and there is agross case, this Court would interfere by striking down theorder of dismissal, but there are cases and cases. We have tolook to what actual prejudice has been caused to personby the supposed denial to him of particular right.Here thequestion was simple one, viz. whether the measurement bookprepared for the contract work had been properly scrutinisedand checked by the appellant or not. He did the checking inMarch 1954 and immediately thereafter in May 1954 theExecutive Engineer re-checked the measurements and foundthat the previous checking had not been done properly.Between March and May there could not be much rainfall, ifat all, and the marks of digging according to the witnessescould not be obliterated during that time. It is however saidthat at the 6th and 7th mile the checking was done in Julyand by that time rains might have set in. Even so the witnessesat the sites of the pits could not be so considerably altered asto present totally wrong picture. If anything had happenedthe earth would have swollen rather than contracted by reasonof rain and the pits would have become bigger and not smaller.Anyway the questions which were put to the witnesses wererecorded and sent to the Chief Engineer and his replies werereceived. No doubt the replies were not put in the hands ofthe appellant but he saw them at the time when he was makingthe representations and curiously enough he used those repliesin his defence. In other words, they were not collected behindhis back and could be used to his advantage and he had anopportunity of so using them in his defence. We do not thinkthat any prejudice was caused to the appellant in this case bynot examining the two retired Superintending Engineers whomhe had cited or any one of them. The case was simple onewhether the measurement book had been properly checked.The pleas about rain and floods were utterly useless and theChief Engineer’s elucidated replies were not against theappellant. In these circumstances fetish of the principles ofnatural justice is not necessary to be made. We do not think

that case is made out that the principles of natural justiceare violated. The appeal must fail and is accordingly dismissed,but we will make no order as to costs.”

(emphasis supplied)

232. In Sunil Kumar Banerjee v. State of West Bengal andOrs.,[152] the Court observed:

“3. There is no substance in the contention of the appellantthat the 1955 Rules and not the 1969 Rules were followed. Aspointed out by the High Court, in the charges framed againstthe appellant and in the first show cause notice the referencewas clearly to the 1969 Rules. The appellant himself mentionedin one of his letters that the charges have been framed underthe 1969 Rules. The enquiry report mentions that ShriMukherjee was appointed as an Enquiry Officer under the1969 Rules. It is, however true that the appellant was notquestioned by the Enquiry Officer under Rule 8(19) whichprovided as follows:

“The enquiring authority may, after the member of theservices closes his case and shall if the member of the servicehas not examined himself generally question him on thecircumstances appearing against him in the evidence for thepurpose of enabling the member of the service to explain anycircumstances appearing in the evidence against him.”

It may be noticed straight away that this provision is akin toSection 342 of the Criminal Procedure Code of 1898 andSection 313 of the Criminal Procedure Code of 1973. It isnow well established that mere non-examination or defectiveexamination under Section 342 of the 1898 Code is not aground for interference unless prejudice is established, vide,K.C. Mathew v. State of Travancore-Cochin, AIR 1956 SC24; Bibhuti Bhusan Das Gupta v. State of W.B., AIR 1969 SC381 We are similarly of the view that failure to comply withthe requirements of Rule 8(19) of the 1969 Rules does notvitiate the enquiry unless the delinquent officer is able toestablish prejudice.In this case the learned Single Judge theHigh Court as well as the learned Judges of the Division Bench

found that the appellant was in no way prejudiced by thefailure to observe the requirement of Rule 8(19). The appellantcross-examined the witnesses himself, submitted his defencein writing in great detail and argued the case himself at allstages. The appellant was fully alive to the allegations againsthim and dealt with all aspects of the allegations in his writtendefence. We do not think that he was in the least prejudicedby the failure of the Enquiry Officer to question him inaccordance with Rule 8(19).

(emphasis supplied)”

similar view has been taken in the State of Andhra Pradesh v.Thakkidiram Reddy[153] and other decisions.

233. There is dual obligation, namely, part mandatory and partdirectory. In Howard v. Secretary of State for the Environment, (1975)Q.B. 235, Lord Denning has cited portion from the speech of LordPenzance, which is extracted hereunder:

“Now the distinction between matters that are directory andmatters that are imperative is well known to us all in thecommon language of the courts at Westminster … thing hasbeen ordered by the legislature to be done. What is theconsequence if it is not done?In the case of statutes that aresaid to be imperative, the courts have decided that if it is notdone the whole thing fails, and the proceedings that followupon it are all void. On the other hand, when the courts holda provision to be mandatory or directory, they say that,although such provision may not have been complied with,the subsequent proceedings do not fail.”

Later Lord Denning M.R. said, at pp. 242-243:

“The section is no doubt imperative in that the notice of appealmust be in writing and must be made within the specified time.But I think it is only directory as to the contents.Take first therequirement as to the ‘grounds’ of appeal. The section is eitherimperative in requiring ‘the grounds’ to be indicated, or it isnot. That must mean all or none. I cannot see any justificationfor the view that it is imperative as to one ground and not

Aimperative as to the rest. If one was all that was necessary, anappellant would only have to put in one frivolous or hopelessground and then amend later to add his real grounds. Thatwould be futile exercise. Then as to ‘stating the facts.’ Itcannot be supposed that the appellant must at all cost stateall the facts on which he bases his appeal. He has to stateBthe facts, not the evidence: and the facts may depend onevidence yet to be obtained, and may not be fully or sufficientlyknown at the time when the notice of appeal is given. Allthings, considered, it seems to me that the section, in so far asthe ‘grounds’ and ‘facts’ are concerned, must be construedCas directory only: that is, as desiring information to be givenabout them. It is not to be supposed that an appeal shouldfail altogether simply because the grounds are not indicated,or the facts stated. Even if it is wanting in not giving them, itis not fatal. The defects can be remedied later, either beforeor at the hearing of the appeal, so long as an opportunity isDafforded of dealing with them.”

(emphasis supplied)

234. In Belvedere Court Management Ltd. v. FrogmoreDevelopments Ltd.[154], distinction was made between essential andEsupportive provisions. The following observations are pertinent:

“By way of final comment I would add that I am stronglyattracted to the view that legislation of the present kind shouldbe evaluated and construed on an analytical basis. It shouldbe considered which of the provisions are substantive andFwhich are secondary, that is, simply part of the machinery ofthe legislation. Further, the provisions which fall into thelatter category should be examined to assess whether theyare essential parts of the mechanics or are merely supportiveof the other provisions so that they need not be insisted onregardless of the circumstances. In other words, as in theGconstruction of contractual and similar documents, the statusand effect of provision has to be assessed having regard tothe scheme of the legislation as whole and the role of thatprovision in that scheme– for example, whether someprovision confers an option properly so called, whether some

provision is equivalent to condition precedent, whether somerequirement can be fulfilled in some other way or waived.Such an approach when applied to legislation such as thepresent would assist to enable the substantive rights to begiven effect to and would help to avoid absurdities orunjustified lacunae.”

(emphasis supplied)

235. In Sharif-ud-Din (supra) the difference between mandatoryand directory rules was pointed out thus:

“9.The difference between mandatory rule and directoryrule is that while the former must be strictly observed, in thecase of the latter substantial compliance may be sufficient toachieve the object regarding which the rule is enacted. Certainbroad propositions which can be deduced from severaldecisions of courts regarding the rules of construction thatshould be followed in determining whether provision of lawis directory or mandatory may be summarised thus: The factthat the statute uses the word “shall” while laying down aduty is not conclusive on the question whether it is amandatory or directory provision. In order to find out thetrue character of the legislation, the court has to ascertainthe object which the provision of law in question has tosubserve and its design and the context in which it is enacted.-If the object of law is to be defeated by noncompliancewith it, it has to be regarded as mandatory. But when provisionof law relates to the performance of any public duty and theinvalidation of any act done in disregard of that provisioncauses serious prejudice to those for whose benefit it isenacted and at the same time who have no control over theperformance of the duty, such provision should be treated asa directory one. Where, however, provision of law prescribesthat certain act has to be done in particular manner by aperson in order to acquire right and it is coupled withanother provision which confers an immunity on another whensuch act is not done in that manner, the former has to beregarded as mandatory one. procedural rule ordinarilyshould not be construed as mandatory if the defect in the actdone in pursuance of it can be cured by permitting

Aappropriate rectification to be carried out at subsequentstage unless by according such permission to rectify the errorlater on, another rule would be contravened. Whenever astatute prescribes that particular act is to be done in aparticular manner and also lays down that failure to complywith the said requirement leads to specific consequence, itBwould be difficult to hold that the requirement is not mandatoryand the specified consequence should not follow.”

(emphasis supplied)

236. Similarly, in Ram Deen Maurya (Dr.) v. State of UttarCPradesh and Ors[155] this Court observed that non-compliance with thedirectory provision does not affect the validity of the act done in breachthereof. In Rai Vimal Krishna and Ors. v. State of Bihar & Ors.[156],this Court considered the mode of publication and held that publication ina newspaper was the only effective mode and that the provision wasmandatory.D

237. This Court also considered the effect of non-deposit of theamount in Hissar Improvement v. Smt. Rukmani Devi and Anr[157] andheld that in case compensation has not been paid or deposited, the Stateis liable to pay interest as provided in Section 34. The Court held thus:

E“5. It cannot be gainsaid that interest is due and payable tothe landowner in the event of the compensation not beingpaid or deposited in time in court. Before taking possessionof the land, the Collector has to pay or deposit the amountawarded, as stated in Section 31, failing which he is liable topay interest as provided in Section 34.F6. In the circumstances, the High Court was right in statingthat interest was due and payable to the landowner. The HighCourt was justified in directing the necessary parties toappear in the executing court for determination of theamount.”G

238. In Kishan Das v. State of U.P[158], this Court observed thatwhere land owners themselves delayed the acquisition proceedings, it is

155 (2009) 6 SCC 735156 (2003) 6 SCC 401157 1990 Supp SCC 806H158 (1995) 6 SCC 240

discretionary for the court to award the interest and they cannot get thepremium on their dilatory tactics. This Court stated that:

“4. In the light of the operation of the respective provisionsof Sections 34 and 28 of the Act, it would be difficult to directpayment of interest. In fact, Section 23(1-A) is set-off forloss in cases of delayed awards to compensate the personentitled to receive compensation; otherwise person who isresponsible for the delay in disposal of the acquisitionproceedings will be paid premium for dilatory tactics. It isstated by the learned counsel for the respondents that theamount of interest was also calculated and total amount wasdeposited in the account of the appellants by the LandAcquisition Officer after passing the award, i.e., on15-11-1976 in sum of Rs 20,48,615. Under thesecircumstances, the liability to pay interest would arise whenpossession of the acquired land was taken and the amountwas not deposited. In view of the fact that compensation wasdeposited as soon as the award was passed, we do not thinkthat it is case for us to interfere at this stage.”

(emphasis supplied)

239. In D-Block Ashok Nagar (Sahibabad) Plot Holders’ Assn.v. State of U.P.[159], it was observed that liability to pay interest underSection 34 arises from the date of taking possession.

240. It was argued that in fact in many cases, reference wassought as such the amounts being deposited in the treasury were notvalid. Reference was sought for higher compensation and landownershad declined to accept the compensation for no good reason they couldhave received it under protest reserving their right to seek the referenceand in case compensation was not paid or deposited, they could haveclaimed it along with interest as envisaged under Section 34.

241. It is clear that once land is acquired, award passed andpossession has been taken, it has vested in the State. It had been allottedto beneficiaries. considerable infrastructure could have been developedand third-party interest had also intervened. The land would have beengiven by the acquiring authorities to the beneficiaries from whoseschemes the land had been acquired and they have developed immense

159 (1997) 10 SCC 77

Ainfrastructure. We are unable to accept the submission that merely bydeposit of amount in treasury instead of court, we should invalidate allthe acquisitions, which have taken place. That is not what is contemplatedunder Section 24(2). We are also not able to accept the submission thatwhen law operates these harsh consequences need not be seen by thecourt. In our opinion, that submission is without merit in as suchBconsequences are not even envisaged on proper interpretation of Section24(2), as mentioned above.242. The proviso to Section 24(2) of the Act of 2013, intends thatthe Collector would have sufficient funds to deposit it with respect to themajority of landholdings. In case compensation has not been paid orCdeposited with respect to majority of land holdings, all the beneficiariesare entitled for higher compensation. In case money has not beendeposited with the Land Acquisition Collector or in the treasury or incourt with respect to majority of landholdings, the consequence has tofollow of higher compensation as per proviso to Section 24(2) of the ActDof 2013. Even otherwise, if deposit in treasury is irregular, then the interestwould follow as envisaged under Section 34 of Act of 1894. Section24(2) is attracted if acquisition proceeding is not completed within 5years after the pronouncement of award. Parliament considered theperiod of 5 years as reasonable time to complete the acquisitionproceedings i.e., taking physical possession of the land and payment ofEcompensation. It is the clear intent of the Act of 2013, that provision ofSection 24(2) shall apply to the proceeding which is pending as on thedate on which the Act of 2013, has been brought into force and it doesnot apply to the concluded proceedings. It was urged before us by oneof the Counsel that lands in the Raisina Hills and Lutyens’ Zones ofFDelhi were acquired in 1913 and compensation has not been paid. TheAct of 2013 applies only to the pending proceedings in which possessionhas not been taken or compensation has not paid and not to casewhere proceedings have been concluded long back, Section 24(2) is nota tool to revive those proceedings and to question the validity of taking

acquisition proceedings due to which possession in 1960s, 1970s, 1980sGwere taken, or to question the manner of deposit of amount in the treasury.The Act of 2013 never intended revival such claims. In case suchlandowners were interested in questioning the proceedings of takingpossession or mode of deposit with the treasury, such challenge waspermissible within the time available with them to do so. They cannotHwake from deep slumber and raise such claims in order to defeat the

acquisition validly made. In our opinion, the law never contemplates -norpermits- misuse much less gross abuse of its provisions to reopen all theacquisitions made after 1984, and it is the duty of the court to examinethe details of such claims. There are several litigations before us wherelandowners, having lost the challenge to the validity of acquisitionproceedings and after having sought enhancement of the amount in thereference succeeding in it nevertheless are seeking relief arguing aboutlapse of acquisition after several rounds of litigation.243. The expression used in Section 24(1)(b) is ‘where an awardunder Section 11 has been made”, then ‘such proceedings shallcontinue’ under the provisions of the said Act of 1894 as if the said Acthas not been repealed’. The expression “proceedings shall continue”indicates that proceedings are pending at the time; it is present perfecttense and envisages that proceedings must be pending as on the date onwhich the Act of 2013 came into force. It does not apply to concludedproceedings before the Collector after which it becomes functus officio.Section 24 of the Act of 2013, does not confer benefit in the concludedproceedings, of which legality if question has to be seen in the appropriateproceedings. It is only in the pending proceedings where award hasbeen passed and possession has not been taken nor compensation hasbeen paid, it is applicable. There is no lapse in case possession has beentaken, but amount has not been deposited with respect to majority ofland holdings in pending proceeding, higher compensation under theAct of 2013 would follow under the proviso to Section 24(2). Thus, theprovision is not applicable to any other case in which higher compensationhas been sought by way of seeking reference under the Act of 1894 orwhere the validity of the acquisition proceedings have been questioned,though they have been concluded. Such case has to be decided on theirown merits and the provisions of Section 24(2) are not applicable tosuch cases.

In re: Issue no.4: mode of taking possession under the Actof 1894

244. Section 16 of the Act of 1894 provided that possession ofland may be taken by the State Government after passing of an awardand thereupon land vest free from all encumbrances in the StateGovernment. Similar are the provisions made in the case of urgency inSection 17(1). The word “possession” has been used in the Act of 1894,whereas in Section 24(2) of Act of 2013, the expression “physical

Apossession” is used. It is submitted that drawing of panchnama fortaking over the possession is not enough when the actual physicalpossession remained with the landowner and Section 24(2) requires actualphysical possession to be taken, not the possession in any other form.When the State has acquired the land and award has been passed, landvests in the State Government free from all encumbrances. The act ofBvesting of the land in the State is with possession, any person retainingthe possession, thereafter, has to be treated as trespasser and has noright to possess the land which vests in the State free from allencumbrances.

245. The question which arises whether there is any differenceCbetween taking possession under the Act of 1894 and the expression“physical possession” used in Section 24(2). As matter of fact, whatwas contemplated under the Act of 1894, by taking the possession meantonly physical possession of the land. Taking over the possession underthe Act of 2013 always amounted to taking over physical possession of

Dthe land. When the State Government acquires land and drawns up amemorandum of taking possession, that amounts to taking the physicalpossession of the land. On the large chunk of property or otherwisewhich is acquired, the Government is not supposed to put some otherperson or the police force in possession to retain it and start cultivating ittill the land is used by it for the purpose for which it has been acquired.EThe Government is not supposed to start residing or to physically occupyit once possession has been taken by drawing the inquest proceedingsfor obtaining possession thereof. Thereafter, if any further retaining ofland or any re-entry is made on the land or someone starts cultivation onthe open land or starts residing in the outhouse, etc., is deemed to be theFtrespasser on land which in possession of the State. The possession oftrespasser always inures for the benefit of the real owner that is theState Government in the case.246. It was urged on behalf of acquiring authorities and the statesthat there is no conflict of opinion with respect to the mode of takingGpossession in IDA v Shailendra and Pune Municipal Corporation &Anr (supra), and that the latter is not decision as to the aspect ofpossession. two-Judge Bench decision in Shree Balaji NagarResidential Association (supra) has been overruled in the IndoreDevelopment Authority case (supra). The view taken in IndoreDevelopment Authority (supra) has to prevail as the decision in VelaxanH

Kumar (supra), was rendered by two judge Bench of this court. Thiscourt, however, proceeds to examine the matter afresh as issues havebeen framed.

247. The concept of possession is complex one. It comprises theright to possess and to exclude others, essential is animus possidendi.Possession depends upon the character of the thing which is possessed.If the land is not capable of any use, mere non-user of it does not lead tothe inference that the owner is not in possession. The established principleis that the possession follows title. Possession comprises of the controlover the property. The element of possession is the physical control orthe power over the object and intention or will to exercise the power.Corpus and animus are both necessary and have to co-exist. Possessionof the acquired land is taken under the Act of 1894 under Section 16 or17 as the case may be. The government has right to acquire the propertyfor public purpose. The stage under Section 16 comes for taking possessionafter issuance of notification under Section 4(1) and stage of Section9(1). Under section 16, vesting is after passing of the award on takingpossession and under section 17 before passing of the award.

248. Mitra’s “Law of Possession and Ownership of Property”,2[nd] Edn., expressions ‘trespass’ and ‘trespasser’ have been dealt withby the learned Author with the help of Words and Phrases, PermanentEdition, West Publishing Co. which has also been quoted with respect towho is trespasser:

“A “trespasser” is person who enters or remains upon landin the possession of another without privilege to do socreated by the possessor’s consent or otherwise. In reWimmer’s Estate, 182 P.2d 119, 121, 111 Utah 444.”

“A “trespasser” is one entering or remaining on land inanother’s possession without privilege to do so created bypossessor’s consent, express or implied, or by law. Keeseckerv. G.M. Mckelvey Co., 42 N.E. 2d 223, 226, 227, 68 OhioApp. 505.”

249. One who enters or remains in possession on land of anotherwithout privilege to do so, is also treated as trespasser. On the strengthof Full Bench decision of Patna High Court in S.M. Yaqub v. T.N.Basu[160], Mitra, has referred to the observation that the possession should

160 AIR 1949 Pat 146

Anot be confused with occupation. person may be in actual possessionof the property without occupying it for considerable time. The personwho has right to utilise the whole in any way he likes. Possession inpart is good enough to infer that the person is in possession of the rest.Learned Author has referred to Jowitt’s Dictionary of English Law,Ed. 1969, so as to explain what constitutes possession.B

“There are three requisites of possession. First, there mustbe actual or potential physical control. Secondly, the physicalcontrol is not possession unless accompanied by intentionhence if thing is put into the hand of sleeping person hehas no possession of it. Thirdly, the possibility and intentionmust be visible or evidence by external signs for if the thingshows no signs of being under the control of anyone, it is notpossession.”

250. In order to constitute possession, person should be in physicalcontrol. The same is not possession unless and until the intention is thereDand thirdly, possibility and intention must be visible; otherwise, it is notpossession. Mitra has further dealt with how to determine possession.The relevant extract is quoted hereunder:

“36. Who is in possession – Determination of.—In Jones v.Chopman, (1849) 2 Ex. 803: 18 LJ Ex. 456: 76 PR 794;EMaule, J, expounded the doctrine thus:

“If there are two persons in field, each asserting that thefield is his, and each doing some act in the assertion of theright of possession, and if the question is, which of these twois in actual possession, I answer, the person who has the titleis in actual possession and the other person is trespasser.

In such case who is in possession is to be determined by thefact of the title and having the same apparent actualpossession;

The question as to which of the two really is in possession isGdetermined by the fact of the possession; following the title,”that is by the law, which makes it follow the title.

In Kynoch Limited v. Rowlands, (1912) 1Ch 527; LJ Ch 340;106 LT 316; per Joyce, J, where his Lordship says:

“It is well settled principle with reference to land at allevents …… that where possession in fact is underterminateor the evidence is undecisive, possession, in law follows theright to possess. As far back as the time of Littleton it wassaid, “Where two be in one house or other tenements togetherto claim the said lands and tenements, and the one claimethby one title, and the other by another title, the law shalladjudge him in possession that has right to have the possessionof the same tenements.”

(emphasis supplied)

251. person with title is considered to be in actual possession.The other person is trespasser. The possession in law follows the rightto possess as held in Kynoch Limited v. Rowlands[161]. Ordinarily, theowner of the property is presumed to be in possession and presumptionas to possession is in his favour. In Superintendent and Remembrancerof Legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors.,[162], thisCourt observed that possession implies right and fact; the right toenjoy annexed to the right of property and the fact of the real intention.It involves the power of control and intent to control. Possession isannexed to right of property.

“13. “Possession” is polymorphous term which may havedifferent meanings in different contexts. It is impossible towork out completely logical and precise definition of“possession” uniformally applicable to all situations in thecontexts of all statutes. Dias and Hughes in their book onJurisprudence say that if topic ever suffered from too muchtheorising it is that of “possession.” Much of this difficultyand confusion is (as pointed out in Salmond’s Jurisprudence,12th Edn., 1966) caused by the fact that possession is notpurely legal concept. “Possession,” implies right and afact; the right to enjoy annexed to the right of property andthe fact of the real intention. It involves power of control andintent to control. (See Dias and Hughes, ibid.)

14. According to Pollock and Wright,

“when person is in such relation to thing that, so far asregards the thing, he can assume, exercise or resume manual

161 (1912) 1Ch 527

162 (1979) 4 SCC 274

control of it at pleasure, and so far as regards other persons,the thing is under the protection of his personal presence, orin or on house or land occupied by him or in any receptaclebelonging to him and under his control, he is in physicalpossession of the thing.”

15. While recognising that “possession” is not purely legalconcept but also matter of fact, Salmond (12th Edn., p. 52)describes “possession, in fact”, as relationship between aperson and thing. According to the learned Author the testfor determining “whether person is in possession of anythingis whether he is in general control of it”.

252. In Ram Dass v. Davinder[163], this Court stated that possessionand occupation in common parlance may be used interchangeably, but inlaw possession amounts to holding property as an owner, while to occupyis to keep possession by being present in it. In Bhinka & Ors. v. CharanSingh, Bhinka & Ors. v. Charan Singh[164], this court considered theDdichotomy between taking and retaining possession. They are mutuallyexclusive expressions and apply to two different situations. The word‘taking’ applies to person taking possession of land otherwise than inaccordance with the provisions of the law, while the word ‘retaining’applies to person taking possession in accordance with the provisionsEof the law, but subsequently retaining the same illegally. In Bhinka &Ors. (supra), as to retaining possession, it was observed:

“14. If the appellants did not take possession of the disputedlands, did they retain possession of the same in accordancewith the provisions of the law for the time being in force? TheFdichotomy between taking and retaining indicates that theyare mutually exclusive and apply to two different situations.The word “taking” applies to person taking possession ofa land otherwise than in accordance with the provisions ofthe law, while the word “retaining” to person takingpossession in accordance with the provisions of the law butGsubsequently retaining the same illegally. So construed, theappellants’ possession of the lands being illegal from theinception, they could not be described as persons retainingpossession of the said lands in accordance with the provisions

163 (2004) 3 SCC 684H164 1959 (Suppl 2) SCR 798

of any law for the time being in force, so as to be outside thescope of Section 180 of the Act.”

253. Under section 16 of the Act of 1894, vesting of title in theGovernment, in the land took place immediately upon taking possession.Under Sections 16 and 17 of the Act of 1894, the acquired land becamethe property of the State without any condition or limitation either as totitle or possession. Absolute title thus vested in the State.

254. This Court in V. Chandrasekaran & Anr. v. AdministrativeOfficer & Ors[165] dealt with the concept of vesting under the Act of1894. The facts of the said case indicated that the appellants and theofficials of the State and Development Board connived with each otherto enable the appellant to grab/encroach upon the public land, whichwas acquired and falsified the documents so as to construct flats thereon.Considering the gravamen of the fraud, the Chief Secretary of the Statewas directed to trace out such officials and to take suitable action againsteach of them. It was also held by this Court that alienation of landsubsequent to notification under Section 4(1) is void and no title passeson the basis of such sale deed. This Court held that once land vested inthe State free from all encumbrances, it cannot be divested. Once landhas been acquired, it cannot be restored to tenure-holders/personsinterested, even if it is not used for the purpose for which it is so acquired.Once possession of land has been taken, it vests in the State free fromall encumbrances. Under sections 16 and 17, the acquired propertybecomes the property of the Government without any limitation orcondition either as to title or possession. Reliance has been placed onFruit and Vegetable Merchants Union (supra):19. That the word “vest” is word of variable import is shownby provisions of Indian statutes also. For example, Section56 of the Provincial Insolvency Act (5 of 1920) empowers thecourt at the time of the making of the order of adjudicationor thereafter to appoint receiver for the property of theinsolvent and further provides that “such property shallthereupon vest in such receiver”. The property vests in thereceiver for the purpose of administering the estate of theinsolvent for the payment of his debts after realising his assets.The property of the insolvent vests in the receiver not for allpurposes but only for the purpose of the Insolvency Act and

165 (2012) 12 SCC 133

the receiver has no interest of his own in the property. On theother hand, Sections 16 and 17 of the Land Acquisition Act(Act 1 of LA), provide that the property so acquired, upon thehappening of certain events, shall “vest absolutely in theGovernment free from all encumbrances”. In the casescontemplated by Sections 16 and 17 the property acquiredbecomes the property of Government without any conditionsor limitations either as to title or possession.The legislaturehas made it clear that the vesting of the property is not forany limited purpose or limited duration. It would thus appearthat the word “vest” has not got fixed connotation, meaningin all cases that the property is owned by the person or theauthority in whom it vests. It may vest in title, or it may vest inpossession, or it may vest in limited sense, as indicated inthe context in which it may have been used in particularpiece of legislation. The provisions of the Improvement Act,particularly Sections 45 to 49 and 54 and 54-A when theyspeak of certain building or street or square or other landvesting in municipality or other local body or in trust, donot necessarily mean that ownership has passed to any ofthem.”

(emphasis supplied)

255. In National Textile Corporation Ltd. v. NareshkumarBadrikumar Jagad & Ors[166], the concept of vesting was considered.This court observed that vesting means an absolute and indefeasibleright. Vesting, in general sense, means vesting in possession. Vestingmay include vesting of interest too. This Court observed thus:

“38. “Vesting” means having obtained an absolute andindefeasible right. It refers to and is used for transfer orconveyance. “Vesting” in the general sense, means vesting inpossession. However, “vesting” does not necessarily andalways means possession but includes vesting of interest aswell. “Vesting” may mean vesting in title, vesting in possessionor vesting in limited sense, as indicated in the context inwhich it is used in particular provision of the Act. The word“vest” has different shades, taking colour from the context in

which it is used. It does not necessarily mean absolute vestingin every situation and is capable of bearing the meaning of alimited vesting, being limited, in title as well as duration. Thus,the word “vest” clothes varied colours from the context andsituation in which the word came to be used in the statute.The expression “vest” is word of ambiguous import since ithas no fixed connotation and the same has to be understoodin different context under different sets of circumstances.[Vide Fruit & Vegetable Merchants Union v. Delhi ImprovementTrust, AIR 1957 SC 344, Maharaj Singh v. State of U.P. AIR1976 SC 2602, Municipal Corpn. of Hyderabad v. P.N. MurthyAIR 1987 SC 802, Vatticherukuru Village Panchayat v. NoriVenkatarama Deekshithulu 1991 Supp (2) SCC 228, M. IsmailFaruqui v. Union of India AIR 1995 SC 605, SCC p. 404,para 41, Govt. of A.P. v. Nizam, Hyderabad (1996) 3 SCC282, K.V. Shivakumar v. Appropriate Authority (2000) 3 SCC485, Municipal Corpn. of Greater Bombay v. HindustanPetroleum Corpn. AIR 2001 SC 3630 and SulochanaChandrakant Galande v. Pune Municipal Transport (2010)8 SCC 467.]”

(emphasis supplied)

256. Thus, it is apparent that vesting is with possession and thestatute has provided under Sections 16 and 17 of the Act of 1894 thatonce possession is taken, absolute vesting occurred. It is an indefeasibleright and vesting is with possession thereafter. The vesting specifiedunder section 16, takes place after various steps, such as, notificationunder section 4, declaration under section 6, notice under section 9, awardunder section 11 and then possession. The statutory provision of vestingof property absolutely free from all encumbrances has to be accordedfull effect. Not only the possession vests in the State but all otherencumbrances are also removed forthwith. The title of the landholderceases and the state becomes the absolute owner and in possession ofthe property. Thereafter there is no control of the land-owner over theproperty. He cannot have any animus to take the property and to controlit. Even if he has retained the possession or otherwise trespassed uponit after possession has been taken by the State, he is trespasser andsuch possession of trespasser enures for his benefit and on behalf of theowner.

ABC

A257. After the land has vested in the State, the total control is ofthe State. Only the State has right to deal with the same. In MunicipalCorporation of Greater Bombay & Ors. v. Hindustan PetroleumCorporation & Anr[167], this Court discussed the concept of vesting inthe context of Section 220 of the Bombay Municipal Corporation Act. Ithas referred to various decisions including that of Richardson v.BRobertson, (1862) 6 LT 75 thus:

“8. It is no doubt true that Section 220 provides that anydrain which vests in the Corporation is municipal drainand shall be under the control of the Corporation. In thiscontext, the question arises as to what meaning is required toassign to the word “vest” occurring in Section 220 of theAct? In Richardson v. Robertson 6 LT at p. 78, it was observedby Lord Cranworth as under: (LT p. 78)

“The word ‘vest’ is word, at least, of ambiguous import.Prima facie ‘vesting’ in possession is the more naturalDmeaning. The expressions ‘investiture’ — ‘clothing’ — andwhatever else be the explanation as to the origin of theword, point prima facie rather to the enjoyment than tothe obtaining of right. But I am willing to accede to theargument that was pressed at the Bar, that by long usageE‘vesting’ originally means the having obtained an absoluteand indefeasible right, as contradistinguished from the nothaving so obtained it. But it cannot be disputed that theword ‘vesting’ may mean, and often does mean, that whichis its primary etymological signification, namely, vestingin possession.”

15. We are, therefore, of the view that the word “vest” meansvesting in title, vesting in possessionor vesting in limitedsense, as indicated in the context in which it is used in a”particular provision of the Act.

(emphasis supplied)

258. The word ‘vest’ has to be construed in the context in whichit is used in particular provision of the Act. Vesting is absolute and freefrom all encumbrances that includes possession. Once there is vesting

H167 2001 (8) SCC 143

of land, once possession has been taken, section 24(2) does notcontemplate divesting of the property from the State as mentioned above.

259. Now, the court would examine the mode of taking possessionunder the Act of 1894 as laid down by this Court. In Balwant NarayanBhagde (supra) it was observed that the act of Tehsildar in going on thespot and inspecting the land was sufficient to constitute taking ofpossession. Thereafter, it would not be open to the Government or theCommission to withdraw from the acquisition under Section 48(1) of theAct. It was held thus:

“28. We agree with the conclusion reached by our brotherUntwalia, J., as also with the reasoning on which theconclusion is based. But we are writing separate judgmentas we feel that the discussion in the judgment of our learnedBrother Untwalia, J., in regard to delivery of “symbolical”and “actual” possession under Rules 35, 36, 95 and 96 ofOrder 21of the Code of Civil Procedure, is not necessary forthe disposal of the present appeals and we do not wish tosubscribe to what has been said by our learned BrotherUntwalia, J., in that connection, nor do we wish to expressour assent with the discussion of the various authorities madeby him in his judgment. We think it is enough to state thatwhen the Government proceeds to take possession of the landacquired by it under the Land Acquisition Act, LA, it musttake actual possession of the land since all interests in theland are sought to be acquired by it. There can be no questionof taking “symbolical” possession in the sense understoodby judicial decisions under the Code of Civil Procedure. Norwould possession merely on paper be enough. What the Actcontemplates as necessary condition of vesting of the landin the Government is the taking of actual possession of theland. How such possession may be taken would depend onthe nature of the land. Such possession would have to betaken as the nature of the land admits of. There can be nohard and fast rule laying down what act would be sufficientto constitute taking of possession of land. We should not,therefore, be taken as laying down an absolute and inviolablerule that merely going on the spot and making declarationby beat of drum or otherwise would be sufficient to constitute

248SUPREME COURT REPORTS

Ataking of possession of land in every case. But here, in ouropinion, since the land was lying fallow and there was nocrop on it at the material time, the act of the Tehsildar ingoing on the spot and inspecting the land for the purpose ofdetermining what part was waste and arable and should,therefore, be taken possession of and determining its extent,Bwas sufficient to constitute taking of possession. It appearsthat the appellant was not present when this was done by theTehsildar, but the presence of the owner or the occupant ofthe land is not necessary to effectuate the taking of possession.It is also not strictly necessary as matter of legal requirementCthat notice should be given to the owner or the occupant ofthe land that possession would be taken at particular time,though it may be desirable where possible, to give such noticebefore possession is taken by the authorities, as that wouldeliminate the possibility of any fraudulent or collusivetransaction of taking of mere paper possession, without theDoccupant or the owner ever coming to know of it.”

260. In Tamil Nadu Housing Board v. A. Viswam (supra) it washeld that drawing of Panchnama in the presence of witnesses wouldconstitute mode of taking possession. This court observed:

E“9. It is settled law by series of judgments of this Court thatone of the accepted modes of taking possession of the acquiredland is recording of memorandum or Panchnama by theLAO in the presence of witnesses signed by him/them and thatwould constitute taking possession of the land as it would beimpossible to take physical possession of the acquired land.FIt is common knowledge that in some cases the owner/interested person may not cooperate in taking possession ofthe land.”

(emphasis supplied)

G261. In Banda Development Authority (supra) this Court heldthat preparing Panchnama is sufficient to take possession. This Courthas laid down thus:

“37. The principles which can be culled out from the abovenoted judgments are:

(i) No hard-and-fast rule can be laid down as to what actwould constitute taking of possession of the acquired land.

(ii) If the acquired land is vacant, the act of the State authorityconcerned to go to the spot and prepare panchnama willordinarily be treated as sufficient to constitute taking ofpossession.

(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authorityconcerned will, by itself, be not sufficient for takingpossession. Ordinarily, in such cases, the authority concernedwill have to give notice to the occupier of the building/structure or the person who has cultivated the land and takepossession in the presence of independent witnesses and gettheir signatures on the panchnama. Of course, refusal of theowner of the land or building/structure may not lead to aninference that the possession of the acquired land has notbeen taken.

(iv) If the acquisition is of large tract of land, it may not bepossible for the acquiring/designated authority to takephysical possession of each and every parcel of the land andit will be sufficient that symbolic possession is taken bypreparing appropriate document in the presence ofindependent witnesses and getting their signatures on suchdocument.

(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensationis deposited in terms of Section 17(3-A) and substantialportion of the acquired land has been utilised in furtheranceof the particular public purpose, then the court mayreasonably presume that possession of the acquired land hasbeen taken.”

262. In State of Tamil Nadu and Anr. v. Mahalakshmi Ammaland Ors., (supra), this court dealt with the effect of vesting on possessionand mode of taking it and opined thus:

“9. It is well-settled law that publication of the declarationunder Section 6 gives conclusiveness to public purpose. Awardwas made on 26-9-1986 and for Survey No. 2/11 award was

Amade on 31-8-1990. Possession having already beenundertaken on 24-11-1981, it stands vested in the State underSection 16 of the Act free from all encumbrances and therebythe Government acquired absolute title to the land. The initialaward having been made within two years under Section 11of the Act, the fact that subsequent award was made on 31-8-B1990 does not render the initial award invalid. It is also to beseen that there is stay of dispossession. Once there is stay ofdispossession, all further proceedings necessarily could notbe proceeded with as laid down by this Court. Therefore, thelimitation also does not stand as an impediment as providedCin the proviso to Section 11-A of the Act. Equally, even ifthere is an irregularity in service of notice under Sections 9and 10, it would be curable irregularity and on accountthereof, award made under Section 11 does not becomeinvalid. Award is only an offer on behalf of the State. Ifcompensation was accepted without protest, it binds suchDparty but subject to Section 28-A. Possession of the acquiredland would be taken only by way of memorandum,Panchnama, which is legally accepted norm. It would notbe possible to take any physical possession. Therefore,subsequent continuation, if any, had by the erstwhile ownerEis only illegal or unlawful possession which does not bindthe Government nor vested under Section 16 divested in theillegal occupant. Considered from this perspective, we holdthat the High Court was not justified in interfering with theaward.”

263. In Balmokand Khatri Educational and Industrial Trust,Amritsar v. State of Punjab & Ors[168], this Court ruled that undercompulsory acquisition it is difficult to take physical possession of land.The normal mode of taking possession is by way of drafting thePanchnama in the presence of Panchas. This Court observed thus:

“4. It is seen that the entire gamut of the acquisitionproceedings stood completed by 17-4-1976 by which datepossession of the land had been taken. No doubt, Shri Parekhhas contended that the appellant still retained their possession.It is now well-settled legal position that it is difficult to take

H168 (1996) 4 SCC 212

physical possession of the land under compulsory acquisition.The normal mode of taking possession is drafting thepanchnama in the presence of panchas and taking possessionand giving delivery to the beneficiaries is the accepted modeof taking possession of the land. Subsequent thereto, theretention of possession would tantamount only to illegal orunlawful possession.

5. Under these circumstances, merely because the appellantretained possession of the acquired land, the acquisitioncannot be said to be bad in law. It is then contended by ShriParekh that the appellant-Institution is running an educationalinstitution and intends to establish public school and thatsince other land was available, the Government would haveacquired some other land leaving the acquired land for theappellant. In the counter-affidavit filed in the High Court, itwas stated that apart from the acquired land, the appellantalso owned 482 canals 19 marlas of land. Thereby, it is seenthat the appellant is not disabled to proceed with thecontinuation of the educational institution which it seeks toestablish. It is then contended that an opportunity may begiven to the appellant to make representation to the StateGovernment. We find that it is not necessary for us to giveany such liberty since acquisition process has already beencompleted.”

264. In P.K. Kalburqi v. State of Karnataka and Ors.,[169], withrespect of mode of possession, this Court laid down as under:

“6. Moreover, the Hon’ble Minister who passed the order ofdenotification of the lands in question sought to make adistinction between symbolic possession and actual possessionand proceed to pass the order on the basis of hisunderstanding of the law that symbolic possession did notamount to actual possession, and that the power to withdrawfrom the acquisition could be exercised at any time before“actual possession” was taken. This view appears to becontrary to the majority decision of this Court in BalwantNarayan Bhagde v. M.D. Bhagwat, wherein this Courtobserved that how such possession would be taken would

169 (2005) 12 SCC 489

depend on the nature of the land. Such possession would haveto be taken as the nature of the land admits of. There can beno hard-and-fast rule laying down what act would be sufficientto constitute taking of possession of land. In the instant casethe lands of which possession was sought to be taken wereunoccupied, in the sense that there was no crop or structurestanding thereon. In such case only symbolic possessioncould be taken, and as was pointed out by this Court in theaforesaid decision, such possession would amount to vestingthe land in the Government. Moreover, four acres and oddbelonging to the appellant was part of the larger area of118 acres notified for acquisition. We are, therefore, satisfiedthat the High Court has not committed any error in holdingthat possession of the land was taken on 6-11-1985. Eventhe order of the Minister on which considerable reliance hasbeen placed by the appellant indicates that possession of thelands was taken, though symbolic.”

265. In Sita Ram Bhandar Society, New Delhi (supra) this Courtheld that when possession of large area of land is to be taken, then it ispermissible to take possession by drawing Panchnama. similar viewwas expressed in Om Prakash Verma & Ors (supra) which stated that:

“85. As pointed out earlier, the expression “civil appeals areallowed” carry only one meaning i.e. the judgment of theHigh Court is set aside and the writ petitions are dismissed.Moreover, the determination of surplus land based on thedeclaration of owners has become final long back. Thenotifications issued under Section 10 of the Act and thepanchnama taking possession are also final. On behalf ofthe State, it was asserted that the possession of surplus landwas taken on 20-7-1993 and the panchnama was executedshowing that the possession has been taken. It is signed bythe witnesses. We have perused the details which are availablein the paper book. It is settled law that where possession is tobe taken of large tract of land then it is permissible to takepossession by properly executed panchnama. [Vide Sita RamBhandar Society v. Govt. (NCT of Delhi) (2009) 10 SCC 501.]

86. It is not in dispute that the panchnama has not beenquestioned in any proceedings by any of the appellants.

Though it is stated that Chanakyapuri Cooperative Societywas in possession at one stage and Shri VenkateshawarEnterprises was given possession by the owners andpossession was also given to Golden Hill ConstructionCorporation and thereafter it was given to the purchasers,the fact remains that the owners are not in possession. Inview of the same, the finding of the High Court that thepossession was taken by the State legally and validly througha panchnama is absolutely correct and deserves to beupheld.”

266. In M. Venkatesh and Ors. v. Commissioner, BangaloreDevelopment Authority, etc.[170], three-Judge Bench of this Court hasopined that one of the modes of taking possession is by drawingpanchnama. The Court observed:

“17. To the same effect are the decisions of this Court in AjayKrishan Shinghal v. Union of India (1996) 10 SCC 721,Mahavir v. Rural Institute (1995) 5 SCC 335, Gian Chand v.Gopala (1995) 2 SCC 528, Meera Sahni v. Lt. Governor ofDelhi (2008) 9 SCC 177 and Tika Ram v. State of U.P. (2009)10 SCC 689 More importantly, as on the date of the suit, therespondents had not completed 12 years in possession of thesuit property so as to entitle them to claim adverse possessionagainst BDA, the true owner. The argument that possessionof the land was never taken also needs notice only to berejected for it is settled that one of the modes of takingpossession is by drawing panchnama which part has beendone to perfection according to the evidence led by thedefendant BDA. Decisions of this Court in T.N. Housing Boardv. A. Viswam (1996) 8 SCC 259 and Larsen & Toubro Ltd. v.State of Gujarat (1998) 4 SCC 387, sufficiently support BDAthat the mode of taking possession adopted by it was apermissible mode.”

267. In Ram Singh v. Jammu Development Authority[171], thisCourt stated that the mode of taking possession is by drawing aPanchnama. Concerning the mode of taking possession in any otherland, law to similar effect has been laid down in NAL Layout Residents

170 (2015) 17 SCC 1171 2017 (13) SCC 474

AAssociation v. Bangalore Development Authority[172]. Certain decisionswere cited with respect to other statutes regarding coalfields etc. andhow the possession is taken and vesting is to what extent. Those have tobe seen in the context of the particular Act. Possession comprises ofvarious rights, thus it has to be couched in particular statute for whichwe have plethora of decisions of this Court. Hence, we need not fallBback on the decisions in other cases. The decision in Burrakur CoalCo. Ltd. (supra) held that person can be said to be in possession ofminerals contained in well-defined mining area even though his actualphysical possession is confined to small portion. Possession in partextends to the whole of the area. The decision does not help the causeCof the petitioner. Once possession has been taken by drawing aPanchnama, the State is deemed to be in possession of the entire areaand not for part. There is absolute vesting in Government with possessionand control free from all encumbrances as specifically provided in Section16 of the Act of 1894.

D268. Maguni Charan Dwivedi v. State of Orissa[173], dealt withthe provision of land laws requiring actual cultivating possession withwhich we are not concerned here. Sri Tarkeshwar Sio Thakur Jiu v.Dar Dass Dey & Co.[174], it was again case relating to mining. Thedecision is of no avail. The decision in Ramesh Bejoy Sharma v.Pashupati Rai[175] related to khas possession and physical possession ofEthe tenant with which we are not concerned in the instant case, and thedecision has no relevance so as to determine the expression. In theinstant case, we are not dealing with the question, what are the rights tobe conferred on the actual cultivators under revenue laws?

269. Karanpura Development Co. v. Union of India[176], wasFagain case of mines. In Larsen & Toubro Ltd. v. State of Gujarat[177],this Court relied upon Tamil Nadu Housing Board v. A. Viswam, (supra),Balmokand Khatri Educational & Industrial Trust (supra) and heldthat drawing of Panchnama is sufficient to take possession andacquisition was held to be valid.G172 (2018) 12 SCC 400173 1976 (2) SCC 134174 1979 (3) SCC 106175 (1979) 4 SCC 27176 (1988) Supp. SCC 488H177 (1998) 4 SCC 387

270. The decision in Velaxan Kumar (supra) cannot be said to belaying down the law correctly. The Court considered the photographsalso to hold that the possession was not taken. Photographs cannotevidence as to whether possession was taken or not. Drawing of aPanchnama is an accepted mode of taking possession. Even after re-entry, photograph can be taken; equally, it taken be taken aftercommitting trespass. Such documents cannot prevail over the establishedmode of proving whether possession is taken, of lands. Photographs canbe of little use, much less can they be proof of possession. personmay re-enter for short period or only to have photograph. That wouldnot impinge adversely on the proceedings of taking possession by drawingPanchnama, which has been rarely recognised and settled mode oftaking possession.

271. In the decision in Raghbir Singh Sehrawat v. State ofHaryana[178], the observation made was that it is not possible to take thepossession of entire land in day on which the award was declared,cannot be accepted as laying down the law correctly and same is contraryto large number of precedents. The decision in Narmada BachaoAndolan v. State of M.P[179], is confined to particular facts of the case.The Commissioner was appointed to find out possession on the spot.DVDs. and CDs were seen to hold that the landowners were inpossession. The District Judge, Indore, recorded the statements of thetenure-holder. We do not approve the method of determining thepossession by appointment of Commissioner or by DVDs and CDs asan acceptable mode of proving taking of possession. The drawing ofPanchnama contemporaneously is sufficient and it is not open to courtCommissioner to determine the factum of possession within the purviewof Order XXVII, Rule 9 CPC. Whether possession has been taken, ornot, is not matter that court appointed Commissioner cannot opine.However, drawing of Panchnama by itself is enough and is proof ofthe fact that possession has been taken.

272. It was submitted on behalf of landowners that under Section24 the expression used is not possession but physical possession. In ouropinion, under the Act of 1894 when possession is taken after award ispassed under section 16 or under section 17 before the passing of theaward, land absolutely vests in the State on drawing of Panchnama of

178 (2012) 1 SCC 792

179 (2011) 7 SCC 639

ABC

Ataking possession, which is the mode of taking possession. Thereafter,any re-entry in possession or retaining the possession is wholly illegaland trespasser’s possession inures for the benefit of the owner and evenin the case of open land, possession is deemed to be that of the owner.When the land is vacant and is lying open, it is presumed to be that of theowner by this Court as held in Kashi Bai v. Sudha Rani Ghose[180].BMere re-entry on Government land once it is acquired and vestsabsolutely in the State (under the Act of 1894) does not confer, any rightto it and Section 24(2) does not have the effect of divesting the landonce it vests in the State.

273. In Maria Margadia Sequeria v Erasmo Jack DeCSequeria[181], approving decision of this Court, this court clarified whatamounts to “possession” in law and held:

“Possession is flexible term and is not necessarily restrictedto mere actual possession of the property. The legalconception of possession may be in various forms. The twoDelements of possession are the corpus and the animus. Aperson though in physical possession may not be in possessionin the eye of law, if the animus be lacking. On the contrary, tobe in possession, it is not necessary that one must be in actualphysical contact. To gain the complete idea of possession,Eone must consider

(i) the person possessing, (ii) the things possessed and, (iii)the persons excluded from possession. man may hold anobject without claiming any interest therein for himself. Aservant though holding an object, holds it for his master. HeFhas, therefore, merely custody of the thing and not thepossession which would always be with the master thoughthe master may not be in actual contact of the thing. It is inthis light in which the concept of possession has to beunderstood in the context of servant and master.”

************** *******************G

Principles of law which emerge in Maria Margadia Sequeria(supra) are crystallized as under:-

180 AIR 1958 SC 434H181 2012 (5) SCC 370

“1. No one acquires title to the property if he or she wasallowed to stay in the premises gratuitously. Even by longpossession of years or decades such person would not acquireany right or interest in the said property.”

274. In the decision reported as National Thermal Power Ltd vMahesh Dutta[182]this court held that:

“28. When possession is to be taken over in respect of thefallow or Patit land, mere intention to do so may not beenough. It is, however, the positive stand by the appellantthat the lands in question are agricultural land and cropsused to be grown therein. If the lands in question areagricultural lands, not only actual physical possession hadto be taken but also they were required to be properlydemarcated. If the land had standing crops, as has beencontended by Mr. Raju Ramachandran, steps in relationthereto were required to be taken by the Collector. Even inthe said certificate of possession, it had not been stated thatthere were standing crops on the land on the date on whichpossession was taken. We may notice that delivery ofpossession in respect of immoveable property should be takenin the manner laid down in Order XXI Rule 35 of the Code ofCivil Procedure.

29. It is beyond any comprehension that when possession ispurported to have been taken of the entire acquired lands,actual possession would be taken only of portion thereof.The certificate of possession was either correct or incorrect.It cannot be partially correct or partially incorrect. Eitherthe possession had actually been delivered or had not beendelivered. It cannot be accepted that possession had beendelivered in respect of about 10 acres of land and thepossession could not be taken in respect of the rest 55 acresof land. When the provisions of Section 17 are taken recourseto, vesting of the land takes effect immediately.

30. Another striking feature of the case is that all the actionshad been taken in comprehensive manner. The Collector inhis certificate of possession dated 16th November, 1984 stated

Athat the possession had been taken over in respect of theentire land; the details of the land and the area thereof hadalso been mentioned in the certificate of possession; evenNTPC in its letter dated 24th February, 1986 stated thatpossession had not been delivered only in respect of landsituated in four villages mentioned therein. Indisputably NTPCBgot possession over 10.215 acres of land. It raisedconstructions thereover. It is difficult to comprehend that ifthe NTPC had paid 80% of the total compensation as providedfor under sub-section (3A) of Section 17 of the Act, out of65.713 acres of land it had obtained possession only inCrespect of about 10.215 acres of land and still for such along time it kept mum. Ex-facie, therefore, it is difficult toaccept that merely symbolic possession had been taken.”

275. In V. Chandrasekaran & Anr. v. Administrative Officer &Ors.[183], the land was acquired and possession was handed over to theDauthorities. Later on the land was sold, documents were manipulated,and flats were constructed in an illegal manner. It was held that the landonce acquired, cannot be restored. The State has no right to reconveythe land and no person can claim such right nor derive an advantage.Sale of land after notification under section 4 of the LA Act was heldto be void. It was held in the facts of the case that the judicial processEcannot be used to subvert its way. Such persons must not be permittedto profit from the frivolous litigation, and they must be prevented fromtaking false pleas by relying on forged documents or illegal action.

276. We have seen the blatant misuse of the provisions of section24(2). Acquisitions that were completed several decades before even toFsay 50-60 years ago, or even as far back as 90 years ago were questioned;cases filed were dismissed. References were sought claiming highercompensation and higher compensation had been ordered. Now, there isa fresh bout of litigation started by erstwhile owners even after havingreceived the compensation in many cases by submitting that possessionGhas not been taken and taking of possession by drawing Panchnamawas illegal and they are in physical possession. As such, there is lapse ofproceedings.

277. The court is alive to the fact that are large number of caseswhere, after acquisition land has been handed over to various corporations,H183 (2012) 12 SCC 133

local authorities, acquiring bodies, etc. After depositing compensation(for the acquisition) those bodies and authorities have been handedpossession of lands. They, in turn, after development of such acquiredlands have handed over properties; third party interests have intervenedand now declaration is sought under the cover of section 24(2) toinvalidate all such actions. As held by us, section 24 does not intend tocover such cases at all and such gross misuse of the provisions of lawmust stop. Title once vested, cannot be obliterated, without an expresslegal provision; in any case, even if the landowners’ argument that afterpossession too, in case of non-payment of compensation, the acquisitionwould lapse, were for arguments’ sake, be accepted, these third partyowners would be deprived of their lands, lawfully acquired by them,without compensation of any sort. Thus, we have no hesitation to overrulethe decisions in Velaxan Kumar (supra) and Narmada Bachao Andolan(supra), with regard to mode of taking possession. We hold that drawingof Panchnama of taking possession is the mode of taking possession inland acquisition cases, thereupon land vests in the State and any re-entry or retaining the possession thereafter is unlawful and does notinure for conferring benefits under section 24(2) of the Act of 2013.

In Re Question No.5: the effect of interim order of Court

278. On behalf of acquiring authorities, it was submitted that periodspent during the interim stay or injunction by which Authorities have notbeen able to take possession or to make payment, has to be excludedfrom computing the period of 5 years or more as provided in Section24(2). It was submitted that in case authorities are restrained by interimorder passed by the court in pending litigation, the land acquisitioncannot lapse by including the period for which interim stay orderpreventing the Authorities from taking action has operated. Reliancehas been placed on the principles contained in maxim “actus curiaeneminem gravabit”. It was also submitted even in the absence of theprovisions specifically excluding the period of interim stay/injunctionhaving been made in Section 24(2) of the Act, 2013, the aforesaidprinciples are attracted and the period has to be excluded.

279. The landowners, on the other hand argued that there is novalid reason to exclude the period spent during the interim order by thecourt from the prescribed period of 5 years under Section 24(2) of theAct of 2013. For the main reason that the legislature has not speciallyprovided for exclusion of such period in Section 24 and secondly, where

AParliament has desired to exclude the period of interim order has madeprovision for exclusion of such period in proviso to Section 19 andexplanation to Section 69 of the Act of 2013. In the Act of 1894, therewas similar provision made in Section 6 and explanation to Section11A. During the process of consultation of the stakeholders while enactingthe Act of 2013, the Government of NCT of Delhi had suggested that anBexplanation be added in the provisions of Section 24 to exclude the periodof interim order passed by the court. The suggestion was not acceptedby the Department of Land Reforms on the ground that same would bein conflict with the retrospective effect of the clause. Ultimately, in thefinal recommendation, the period of interim order of the court was notCmade. Thus, it is “casus omissus” which cannot be applied by the court.The maxim “actus curiæ neminem gravabit” is not applied and is rare ifever applied to interpret the statute.

280. In Padma Sundar Rao (supra), Constitution Bench of thisCourt has declined to rely on the maxim and similarly in KhandakaDJain Jewellers, (supra), the maxim was not applied. It was urged thatin Snell’s Equity (33[rd] Edition), 2015 with respect to the maxim, it hasbeen observed that maxim of equity is not specific rule of principle oflaw. It is statement of broad theme which underlies equitable conceptsand principles. As result, the utility of equitable maxim is limited. It canprovide some support to the court when there is some uncertainty as toEthe scope of particular rule of principle and court in exercising anequitable discretion may apply the same.

281. Reference was also made to decision of Parson Tools andPlants (supra) to contend that court cannot supply the omission byengrafting on it or introducing in it under the guise of interpretation. ToFdo so, it would be entrenching upon the preserves of the legislature.Where under Section 24 cut-off date is prescribed and there is no startingpoint and period for completion of task, the notion of excluding timespent in litigations is an alien concept to the provisions. The court mustassume that the old law was oppressive and unjust and such introductionGof exclusion of time may create complication in the working of the statute.It was also submitted that common law principles can be excluded bythe legislature by express or implied implication in the statute itself. Inthis regard, reliance has been placed upon Union of India v. SICOMLtd[184]. It was submitted on behalf of landowners that no provision hadbeen enacted by issuing any ordinance and later amending the law, forproviding for exclusion of the time spent on interim order under Section24(2), but Ordinance lapsed. The legislature could have amended theprovisions as such the court cannot exclude the period.

282. Before we go to various rival submissions, the pivotal questionfor consideration is the interpretation of Section 24 and aims andobjectives of the Act of 2013. Section 24 contemplates that theproceedings initiated under the Act of 1894, are pending as on the dateon which Act of 2013 has been enacted and if no award has been passedin the proceedings, then there is no lapse and only determination ofcompensation has to be made under the Act of 2013. Where an awardhas been passed, it is provided under Section 24(1)(b), the pendingproceedings shall continue under the provisions of the Act of 1894 as ifthe old Act has not been repealed. The provisions totally exclude theapplicability of any provision of Act of 2013. There are two requirementsunder Section 24(2), which are to be met by the Authorities, where awardhas been made 5 years or more prior to the commencement of the Actof 2013, if the physical possession of the land has not been taken norcompensation has been paid. If possession has been taken, compensationhas to be paid by the acquiring authorities. The time of five years isprovided for authorities to take action, not to sleep over the matter. Incase of lethargy or machinery and default on the part of the Authoritiesand for no other reason the lapse is provided. Lapse is provided only incase of default by Authorities acquiring the land, not caused by anyother reason or order of the court. When the interpretation of the provisionis clear, there was no necessity for Parliament to make such provisionunder Section 24(2) for exclusion of the period of the interim order.Though it has excluded the period of interim order for making declarationunder the proviso to Sections 19(7) and exclusion has also been madefor computation of the period under Section 69 of the Act of 2013. It isdue to the necessity to provide so in view of the language of the provision.Under section 69 of the Act of 2013, additional compensation at the rateof 12 per cent has to be given on market value for the period commencingfrom the date of the publication of the preliminary notification underSection 11. The additional compensation at the rate of 12 per cent hasbeen excluded for the period acquisition proceedings have been held upon account of the interim injunction order of any court. The provisions ofSection 24 cast an obligation upon the Authorities to take steps meaningthereby that it is open to them to take such steps, and inaction or lethargy

Aon their part has not been countenanced by Parliament. Resultantly, lapseof proceedings takes place. It is by the very nature of the provisions if itwas not possible for authorities for any reason not attributable to themor the Government to take requisite steps, the period has to be excluded.The Minister concerned Shri Jairam Ramesh in answer to the debatequoted above has made it clear that time limit of five years has beenBfixed for the Authorities to take action. If we do not exclude the periodof interim order, the very spirit of the provision will be violated.283. With respect to fixation of period is five years for theexecutive Authorities to take the requisite steps, Delhi DevelopmentAuthority v. Sukhbir Singh and Ors. (supra) observed that what theClegislature is in effect telling the executive is that they ought to have puttheir house in order and completed the acquisition proceedings within areasonable time after the pronouncement of award. Not having done soeven after leeway of five years, would cross the limits of legislativetolerance, after which the whole proceeding would be deemed to haveDlapsed. Thus, it is apparent from the decision of Delhi DevelopmentAuthority v. Sukhbir Singh and Ors. (supra), which is relied upon bythe landowners, that time limit is fixed for the executive authorities totake steps. In case they are prevented by the court’s order, obviously, asper the interpretation of the provisions is that such period has to beexcluded. In case such provision would have been made, it wouldEhave been “ex abundanti cautela”. There was no necessity of makingsuch provision even if this proposition has been discussed during theformulation of legislation. However, the provision providing exclusionhas been enacted. It casts an obligation upon the Authorities to takerequisite steps within five years, that by itself excludes such period ofFinterim order.

284. It was pointed out that in certain States, amendments havebeen incorporated in Section 24(2), excluding the period of interim orderpassed by the Court. In our opinion, there is no such necessity for providingexclusion of time and it has been done by the States “ex abundantiGcautela” and there is no doubt about it that Central Government hasalso tried to introduce the provision of the exclusion of time by issuanceof ordinances, however, they lapsed. It was due to the interpretationand the decision rendered by this Court in Shree Balaji Nagar ResidentialAssociation (supra), which cannot be said to be laying down the lawcorrectly.H

285. The intent of the Act of 2013, is not to benefit litigants only.It has introduced new regime which is beneficial to the landowners.The provisions of Section 24 by itself do not intend to confer the benefitson litigating parties, while as per Section 114 of the Act of 2013 andsection 6 of the General Clauses Act, has to be litigated as per theprovisions of the Act of 1894.

286. Section 24 treats land acquisition proceedings as one andprescribes the transition mechanism for the said proceedings. Possessionof the land holdings in normal course is to be taken at one go, not inpiecemeal by the Authorities. Once award is made, possession can betaken and on that the land vests in State under section 16, and underSection 17(1) of the Act of 1894, the possession of any land can betaken for public purposes in cases of urgency without passing of theaward. The expression “acquisition proceedings” is referred to insub-sections (1) and (2) of Section 24 and its proviso makes it clear thatin case in majority of the landholdings compensation has not beendeposited, all the beneficiaries as on the date of notification under Section4 (of the Act of 1894) shall be entitled to compensation in accordancewith the provisions of the Act of 2013. That also intends to give benefitsto all the concerned. Payment of compensation too has to be made.Possession of land holdings is to be taken in terms of the notificationunder Section 4 and declaration under section 6 and payment has to bemade to the beneficiaries. In case payment has not been made to thelandowners nor is possession taken, there is lapse. In case compensationhas not been deposited within 5 years with respect to majority of landholdings, then all the beneficiaries are entitled for higher compensationunder the Act of 2013.287. In the opinion of this court it is not the intendment of the Actof 2013 that those who have litigated should get benefits of highercompensation as contemplated under Section 24 benefit is conferred onall beneficiaries. It is not intended by the provisions that in piecemeal thepersons who have litigated and have obtained the interim order shouldget the benefits of the provisions of the Act of 2013. Those who haveaccepted the compensation within 5 years and handed over the possessiontoo, are to be benefited, in case amount has not been deposited withrespect to majority of holdings. There are cases in which projects havecome up in part and as per plan rest of the area is required for planneddevelopment with respect to which interim stays have been obtained. It

Ais not the intendment of the law to deliver advantage to relentless litigants.It cannot be said hence, that it was due to the inaction of the authoritiesthat possession could not be taken within 5 years. Public policy is not tofoment or foster litigation but put an end to it. In several instances, invarious High Courts writ petitions were dismissed by single judgeBenches and the writ appeals were pending for long time and in which,Bwith respect to part of land of the projects, efforts were made to obtainthe benefit of Section 24(2). Parliament in our view did not intend toconfer benefits to such litigants for the aforementioned reasons. Litigationmay be frivolous or may be worthy. Such litigants have to stand on thestrength of their own case and in such case provisions of Section 114Cof the Act of 2013 and Section 6 of the General Clauses Act, 1897, areclearly attracted and such proceedings have to be continued under theprovisions of the old Act that would be in the spirit of Section 24(1)(b)itself of the Act of 2013. Section 6(b) of the General Clauses Act, 1897,provides that repeal will not affect the previous operation of any enactmentso repealed or anything duly done or suffered thereunder. Section 6(c)Dstates that repeal would not affect any right, privilege, obligation or liabilityacquired, accrued or incurred under any enactment so repealed. Whenthere is provision itself in Section 24(1)(b) of continuance of theproceedings where award has been passed under the Act of 1894, forthe purposes of Section 24 as provided in Section 24(b), the provisionsEof Section 114 is clearly attracted so as the provisions of Section 6 of theGeneral Clauses Act, 1897, to the extent of non obstante clause of Section24, where possession has not been taken nor payment has been made,there is lapse, that too by the inaction of the Authorities. Any court’sinterim order cannot be said to be inaction of the authorities or agencies;thus, time period is not to be included for counting the 5 years period asFenvisaged in Section 24(2). As per proviso to Section 24(2), wherepossession has been taken, but compensation has not been paid ordeposited with respect to majority of land holdings, all the beneficiarieswould be entitled for higher compensation only to that extent, theprovisions of Section 114 of the Act of 2013, would be superseded but itGwould not obliterate the general application of Section 6 of the GeneralClauses Act, 1897, which deals with effect of repeal except as providedin section 24(2) and its proviso.

288. It was submitted on behalf of acquiring authorities thatprinciple of casus omissus is not necessarily applicable in all the cases.H

Reliance has been placed on Seaford Court Estates Ltd. v. Asher[185], inwhich following observations have been made:

“The question for decision in this case is whether we are atliberty to extend the ordinary meaning of “burden” so as toinclude contingent burden of the kind I have described.Now this court has already held that this sub-section is to beliberally construed so as to give effect to the governingprinciples embodied in the legislation (Winchester Court Ld.v. Miller); and I think we should do the same. Whenever astatute comes up for consideration it must be remembered thatit is not within human powers to foresee the manifold sets offacts which may arise, and, even if it were, it is not possible toprovide for them in terms free from all ambiguity. The Englishlanguage is not an instrument of mathematical precision. Ourliterature would be much the poorer if it were. This is wherethe draftsmen of Acts of Parliament have often been unfairlycriticized. judge, believing himself to be fettered by thesupposed rule that he must look to the language and nothingelse, laments that the draftsmen have not provided for this orthat, or have been guilty of some or other ambiguity. It wouldcertainly save the judges trouble if Acts of Parliament weredrafted with divine prescience and perfect clarity. In theabsence of it, when defect appears judge cannot simplyfold his hands and blame the draftsman. He must set to workon the constructive task of finding the intention of Parliament,and he must do this not only from the language of the statute,but also from consideration of the social conditions whichgave rise to it, and of the mischief which it was passed toremedy, and then he must supplement the written word sc asto give “force and life” to the intention of the legislature.That was clearly laid down by the resolution of the judges in’-Heydons case, and it is the safest guide today. Good practicaladvice on the subject was given about the same time byPlowden in his second volume Evston v. Studd. Put into homelymetaphor it is this: judge should ask himself the question:If the makers of the Act had themselves come across this ruckin the texture of it, how would they have straightened it out?

He must then do as they would have done. judge must notalter the material of which it is woven, but he can and shouldiron out the creases.

Approaching this case in that way, I cannot help feeling thatthe legislature had not specifically in mind contingent burdenBsuch as we have here. If it had, would it not have put it on thesame footing as an actual burden? I think it would. It wouldhave permitted an increase of rent when the terms were sochanged as to put positive legal burden on the landlord. Ifthe parties expressly agreed between themselves the amountof the increase on that account the court would give effect toCtheir agreement. But if, as here, they did not direct their mindsto the point, the court has itself to assess the amount of theincrease. It has to say how much the tenant should pay “inrespect of” the transfer of this burden to the landlord. Itshould do this by asking what willing tenant would agree toDpay and willing landlord would agree to accept in respectof it. Just as in the earlier cases the courts were able to assessthe value of the “fair wear and tear” clause, and of a“cooker.” So they can assess the value of the hot water clauseand translate it fairly in terms of rent; and what applies tohot water applies also to the removal of refuse and so forth. IEagree that the appeal should be allowed, and with the orderproposed by Asquith LJ.”

(emphasis supplied)

289. Reliance was also placed on M. Pentiah v. MuddalaFVeeramallappa[186], in which this Court observed that where the languageof statute in its ordinary meaning and grammatical construction, leadsto manifest contradiction of the apparent purpose of the enactment orto some inconvenience or absurdity, hardship or injustice, which is notintended, construction may be put upon it which modifies the meaningof the words and even the structure of the sentence. In HameediaGHardware Stores v. B. Mohan Lal Sowcar[187], it was held that absurdityhas to be avoided. In that decision reliance was placed on the decision inSeaford Court Estates Ltd. (supra), wherein it was observed that whena defect or omission appears, judge cannot simply fold his hands and

186 (1961) 2 SCR 295H187 (1988) 2 SCC 513

blame the draftsman. It is the duty to give force and life to the intentionof the legislature. The court has to construe the words of the statute ina reasonable way having regard to the context.

290. Again, in Madan Singh Shekhawat v. Union of India[188],the decision in Seaford Court Estates Ltd. (supra) has been followed.Following observations have been made:

“18. Applying the above rule, we are of the opinion that therule-makers did not intend to deprive the army personnel ofthe benefit of the disability pension solely on the ground thatthe cost of the journey was not borne by the public exchequer.If the journey was authorised, it can make no differencewhether the fare for the same came from the public exchequeror the army personnel himself.”

291. There cannot be any dispute with the above propositions.However, in the present case, when we construe the provisions of Section24, it clearly ousts the period spent during the interim stay of the court.Five years’ period is fixed for the purpose to take action, if they have nottaken the action for 5 years or more, then there is lapse, not otherwise.Even if there had been provision made with respect to the exclusion oftime spent in the court proceedings with respect to interim stay due tocourt’s order, it could have been ex abundanti cautela, which has beenconsidered by this Court in Union of India and Ors. v. Modi RubberLtd[189]. It would have been superfluous to make such provision.Following observations were made in Modi Rubber Ltd. (supra):

“7. Both these notifications, as the opening part shows, areissued under Rule 8(1) of the Central Excise Rules, 1944 andsince the definition of ‘duty’ in Rule 2, clause (v) mustnecessarily be projected in Rule 8(1) and the expression “dutyof excise” in Rule 8(1) must be read in the light of thatdefinition, the same expression used in these two notificationsissued under Rule 8(1) must also be interpreted in the samesense, namely, duty of excise payable under the CentralExcises and Salt Act, 1944 and the exemption granted underboth these notifications must be regarded as limited only tosuch duty of excise. But the respondents contended that theexpression “duty of excise” was one of large amplitude and

188 (1999) 6 SCC 459189 (1986) 4 SCC 66

in the absence of any restrictive or limitative words indicatingthat it was intended to refer only to duty of excise leviableunder the Central Excises and Salt Act, 1944, it must be heldto cover all duties of excise whether leviable under the CentralExcises and Salt Act, 1944 or under any other enactment.The respondents sought to support this contention by pointingout that whenever the Central Government wanted to confinethe exemption granted under notification to the duty ofexcise leviable under the Central Excises and Salt Act, 1944,the Central Government made its intention abundantly clearby using appropriate words of limitation such as “duty ofexcise leviable ... under Section 3 of the Central Excises andSalt Act, 1944” or “duty of excise leviable ... under the CentralExcises and Salt Act, 1944” or “duty of excise leviable ...under the said Act” as in the Notification No. CER-8(3)/55-C.E. dated September 17, 1955, Notification No. 255/77-C.E.dated July 20, 1977, Notification No. CER-8(1)/55-C.E. datedSeptember 2, 1955, Notification No. CER-8(9)/55-C.E. datedDecember 31, 1955, Notification No. 95/61-C.E. dated April1, 1961, Notification No. 23/55-C.E. dated April 29, 1955and similar other notifications. But, here said the respondents,no such words of limitation are used in the two notificationsin question and the expression “duty of excise” must,therefore, be read according to its plain natural meaning asincluding all duties of excise, including special duty of exciseand auxiliary duty of excise. Now, it is no doubt true that inthese various notifications referred to above, the CentralGovernment has, while granting exemption under Rule 8(1),used specified language indicating that the exemption, totalor partial, granted under each such notification is in respectof excise duty leviable under the Central Excises and SaltAct, 1944. But, merely because, as matter of drafting, theCentral Government has in some notifications specificallyreferred to the excise duty in respect of which exemption isgranted as “duty of excise” leviable under the Central Excisesand Salt Act, 1944, it does not follow that in the absence ofsuch words of specificity, the expression “duty of excise”standing by itself must be read as referring to all duties ofexcise. It is not uncommon to find that the legislaturesometimes, with view to making its intention clear beyonddoubt, uses language ex abundanti cautela though it may notbe strictly necessary and even without it the same intentioncan be spelt out as matter of judicial construction and thiswould be more so in case of subordinate legislation by theexecutive. The officer drafting particular piece ofsubordinate legislation in the Executive Department mayemploy words with view to leaving no scope for possibledoubt as to its intention or sometimes even for greatercompleteness, though these words may not add anything tothe meaning and scope of the subordinate legislation. Here,in the present notifications, the words duty of excise leviableunder the Central Excises and Salt Act, 1944’ do not find aplace as in the other notifications relied upon by therespondents. But, that does not necessarily lead to theinference that the expression “duty of excise” in thesenotifications was intended to refer to all duties of exciseincluding special and auxiliary duties of excise. The absenceof these words does not absolve us from the obligation tointerpret the expression “duty of excise” in these notifications.We have still to construe this expression — what is its meaningand import — and that has to be done bearing in mind thecontext in which it occurs. We have already pointed out thatthese notifications having been issued under Rule 8(1), theexpression “duty of excise” in these notifications must bearthe same meaning which it has in Rule 8(1) and that meaningclearly is — excise duty payable under the Central Excisesand Salt Act, 1944 as envisaged in Rule 2 clause (v). It cannotin the circumstances bear an extended meaning so as toinclude special excise duty and auxiliary excise duty.”

(emphasis supplied)

292. Relying on State of U.P. and Ors. v. Hindustan AluminiumCorpn. and Ors.,[190]it was submitted that whether piece of legislationhas spent itself or exhausted in operation are matters of law and no suchrights exist in citizen to ask for declaration that the law has beenimpliedly repealed on any such ground. In extreme and clear cases, nodoubt, an antiquated law may be said to have become obsolete and,

Amore so, if it is penal law and has become incapable of user by adrastic change in the circumstances. Craies on Statute Law, SeventhEdition, has discussed about different classes of enactments such asexpired, spent, repealed in general terms, virtually repealed, supersededand obsolete.

B293. The Act of 2013 operates prospectively. Section 114 of theAct of 2013, effects repeal, but with certain savings, in accordancewith Section 24. Thus, acquisition proceedings are preserved under theAct of 1894, till the stage of making of award; where award is not made,the provisions of compensation under the Act of 2013 apply; where awardis made, further proceedings would be under the new Act (of 2013). InCcase possession has been taken by the authorities concerning awardswhich were made 5 years or before, under the Act of 1894 and suchproceedings are pending, that would be due to inaction of the authoritieson the date on which the Act of 2013 came into force. The lapse (ofacquisition) and higher compensation to follow only under Section 24(2),Dwhere compensation is not paid, nor possession of lands is taken. Aperiod of 5 years or more has been provided under Section 24. In thecase, however, where possession is taken, but compensation is notdeposited in respect of majority landholdings, compensation under theAct of 2013 is payable to all- including those who received compensationearlier.E

294. Reliance has been placed on the decision in Syndicate Bankv. Prabha D. Naik and Anr[191], in which it was observed that thelegislature is supposed to be conscious of the needs of the society atlarge and the prevalent laws. It was held that there is no reason forassuming that the legislature was not aware of the difficulties and theFprevailing situation. There is no dispute with the aforesaid proposition;however, it does not espouse the cause of the landowners.

295. The correctness of the decision of Shree Balaji NagarResidential Association (supra) was doubted in Yogesh Neema andOrs. (supra), and the matter was referred to larger Bench. In ShreeGBalaji Nagar Residential Association (supra) following observationswere made:

“11. From plain reading of Section 24 of the 2013 Act, it isclear that Section 24(2) of the 2013 Act does not exclude any

H191 (2001) 4 SCC 713

period during which the land acquisition proceeding mighthave remained stayed on account of stay or injunction grantedby any court. In the same Act, the proviso to Section 19(7) inthe context of limitation for publication of declaration underSection 19(1) and the Explanation to Section 69(2) forworking out the market value of the land in the context ofdelay between preliminary notification under Section 11 andthe date of the award, specifically provide that the period orperiods during which the acquisition proceedings were heldup on account of any stay or injunction by the order of anycourt be excluded in computing the relevant period. In thatview of the matter, it can be safely concluded that thelegislature has consciously omitted to extend the period offive years indicated in Section 24(2) even if the proceedingshad been delayed on account of an order of stay or injunctiongranted by court of law or for any reason. Such casusomissus cannot be supplied by the court in view of law on thesubject elaborately discussed by this Court in Padma SundaraRao v. State of T.N (2002) 3 SCC 533.

12. Even in the Land Acquisition Act of 1894, the legislaturehad brought about amendment in Section 6 through anAmendment Act of 1984 to add Explanation 1 for the purposeof excluding the period when the proceeding suffered stay byan order of the court, in the context of limitation provided forpublishing the declaration under Section 6(1) of the Act. Toa similar effect was the Explanation to Section 11-A, whichwas added by Amendment Act 68 of 1984. Clearly, thelegislature has, in its wisdom, made the period of five yearsunder Section 24(2) of the 2013 Act absolute and unaffectedby any delay in the proceedings on account of any order ofstay by court. The plain wordings used by the legislatureare clear and do not create any ambiguity or conflict. In sucha situation, the court is not required to depart from the literalrule of interpretation.”

296. This Court held that the conscious omission by Parliament inSection 24(2) to exclude the period, an interim order operates is to begiven effect and that the court should not fill in the gap. In IndoreDevelopment Authority (supra), the decision rendered in Shree Balaji

ABC

ANagar Residential Association (supra) was overruled with consensusand it was not the subject matter in Pune Municipal Corporation(supra). However, the learned counsel for the parties had urged that thisquestion arises as such it should be framed and considered by the presentlarger Bench. Hence, we have examined the matter afresh.

B297. In cases where some landowners have chosen to takerecourse to litigation (which they have right to) and have obtainedinterim orders on taking possession or orders of status quo, as matterof practical reality it is not possible for the authorities or State officials totake the possession or to make payment of the compensation. In severalinstances, such interim orders also impeded the making of an award.CNow, so far as awards (and compensation payments, pursuant to suchproceedings were concerned) the period provided for making of awardsunder the Act of 2013 could be excluded by virtue of Explanation toSection 11A.[192] Thus, no fault of inaction can be attributed to theauthorities and those who had obtained such interim orders, cannot benefitDby their own action in filing litigation, which may or may not bemeritorious. Apart from the question of merits, when there is an interimorder with respect to the possession or order of status quo or stay offurther proceedings, the authorities cannot proceed; nor can they paycompensation. Their obligations are intertwined with the scheme of landacquisition. It is observed that authorities may wait in the proceedings tillEthe interim order is vacated.

298. In our considered opinion, litigation which initiated by thelandowners has to be decided on its own merits and the benefits ofSection 24(2) should not be available to the litigants. In case there is nointerim order, they can get the benefits they are entitled to, not otherwiseFas result of fruit of litigation, delays and dilatory tactics and some timeit may be wholly frivolous pleas and forged documents as observed in V.Chandrasekaran (supra) mentioned above.

192 “11-A. Period within which an award shall be made

The Collcctor shall make an award under section 11 within period of two yearsfrom the date of the publication of the declaration and ifno award is made within thatGperiod. the entire proceedings for the acquisition ofthc land shall lapse:

Provided that in case where thc said declaration has been publishedbefore the commencement of the Land Acquisition (Amendment) Act. 1984 the awardshall be made within period oftwo years from such commencements.Explanation: In computing the period of two years referred to in this section. theperiod during which any action or proceeding to be taken in pursuance of the s..’lidHdeclaration is stayed by an order ofa court shall be excluded.

299. In Abhey Ram (Dead) by L.Rs. and Ors. v. Union of Indiaand Ors[193]., this Court considered the extended meaning of words “stayof the action or proceedings”. It was observed that any type of orderspassed by this Court would be an inhibitive action on the part of theAuthorities to proceed further. This Court observed thus:

“9. Therefore, the reasons given in B.R. Gupta v. Union ofIndia, 37 (1989) DLT 150 (Del) DB, are obvious with referenceto the quashing of the publication of the declaration underSection 6 vis-à-vis the writ petitioners therein. The questionthat arises for consideration is whether the stay obtained bysome of the persons who prohibited the respondents frompublication of the declaration under Section 6 would equallybe extendible to the cases relating to the appellants. Weproceed on the premise that the appellants had not obtainedany stay of the publication of the declaration but since theHigh Court in some of the cases has, in fact, prohibited themas extracted hereinbefore, from publication of the declaration,necessarily, when the Court has not restricted the declarationin the impugned orders in support of the petitioners therein,the officers had to hold back their hands till the matters weredisposed of. In fact, this Court has given extended meaningto the orders of stay or proceeding in various cases, namely,Yusufbhai Noormohmed Nendoliya v. State of Gujarat, (1991)4 SCC 531, Hansraj H. Jain v. State of Maharashtra, (1993)3 SCC 634, Sangappa Gurulingappa Sajjan v. State ofKarnataka, (1994) 4 SCC 145, Gandhi Grah Nirman SahkariSamiti Ltd. v. State of Rajasthan, (1993) 2 SCC 662, G.Narayanaswamy Reddy v. Govt. of Karnataka, (1991) 3 SCC261 and Roshnara Begum v. Union of India, (1986) 1 ApexDec 6. The words “stay of the action or proceeding” havebeen widely interpreted by this Court and mean that any typeof the orders passed by this Court would be an inhibitiveaction on the part of the authorities to proceed further. Whenthe action of conducting an enquiry under Section 5-A wasput in issue and the declaration under Section 6 wasquestioned, necessarily unless the Court holds that enquiryunder Section 5-A was properly conducted and the declarationpublished under Section 6 was valid, it would not be open to

Athe officers to proceed further into the matter. As aconsequence, the stay granted in respect of some would beapplicable to others also who had not obtained stay in thatbehalf. We are not concerned with the correctness of theearlier direction with regard to Section 5-A enquiry andconsideration of objections as it was not challenged by theBrespondent Union. We express no opinion on its correctness,though it is open to doubt.”

300. In Om Parkash v. Union of India and Ors.[194], it wasobserved that interim order of stay granted in one of the matters of thelandowners would put complete restraint on the respondents to proceedCfurther to issue declaration under Section 6 of the Act. It was observed

as under:

“72. Thus, in other words, the interim order of stay grantedin one of the matters of the landowners would put completerestraint on the respondents to have proceeded further to issueDnotification under Section 6 of the Act. Had they issued thesaid notification during the period when the stay wasoperative, then obviously they may have been hauled up forcommitting contempt of court. The language employed in theinterim orders of stay is also such that it had completelyErestrained the respondents from proceeding further in thematter by issuing declaration/notification under Section 6 ofthe Act.”301. In Suresh Chand v. Gulam Chisti[195], this Court consideredthe provision where tenant would not be entitled to the protection ofFSection 39. If the suit had prolonged beyond ten years, then the tenantwould be entitled to such protection. The interpretation suggested wasnot accepted by this Court as that would encourage the tenant to protractthe litigation. This Court frowned upon obtaining of fruits by protractingthe litigation on the ground of public policy. This Court observed thus:G“17. It was argued that the words ‘commencement of this Act’should be construed to mean the date on which the moratoriumperiod expired and the Act became applicable to the demisedbuilding. Such view would require this Court to give differentmeanings to the same expression appearing at two places in194 (2010) 4 SCC 17H195 (1990) 1 SCC 593

the same section. The words ‘on the date of commencement ofthis Act’ in relation to the pendency of the suit would meanJuly 15, 1972 as held in Om Prakash Gupta v. Dig VijendrapalGupta, (1982) 2 SCC 61, but the words ‘from such date ofcommencement’ appearing immediately thereafter in relationto the deposit to be made would have to be construed as thedate of actual application of the Act at date subsequent toJuly 15, 1972. Ordinarily, the rule of construction is that thesame expression where it appears more than once in the samestatute, more so in the same provision, must receive the samemeaning unless the context suggests otherwise. Besides, suchan interpretation would render the use of prefix ‘such’ beforethe word ‘commencement’ redundant. Thirdly such aninterpretation would run counter to the view taken by thisCourt in Atma Ram Mittal case, (1988) 4 SCC 284, wherein itwas held that no man could be made to suffer because of thecourt’s fault or court’s delay in the disposal of the suit. To putit differently, if the suit could be disposed of within the periodof 10 years, the tenant would not be entitled to the protectionof Section 39, but if the suit is prolonged beyond ten years,the tenant would be entitled to such protection. Such aninterpretation would encourage the tenant to protract thelitigation, and if he succeeds in delaying the disposal of thesuit till the expiry of 10 years, he will secure the benefit ofSection 39, otherwise not. We are, therefore, of the opinionthat it is not possible to uphold the argument.”

302. In Shyam Sunder and Ors. v. Ram Kumar and Anr.[196], aConstitution Bench of this Court observed that substantive rights of theparties are to be examined on the date of the suit unless the legislaturemakes such rights retrospective. The Court made following observations:

“28. From the aforesaid decisions the legal position thatemerges is that when repeal of an enactment is followed bya fresh legislation, such legislation does not affect thesubstantive rights of the parties on the date of the suit oradjudication of the suit unless such legislation isretrospective and court of appeal cannot take intoconsideration new law brought into existence after the

judgment appealed from has been rendered because the rightsof the parties in an appeal are determined under the law inforce on the date of the suit. However, the position in lawwould be different in the matters which relate to procedurallaw, 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 repeal of provisionsof an enactment is followed by fresh legislation by anamending Act, such legislation is prospective in operationand does not affect substantive or vested rights of the partiesunless made retrospective either expressly or by necessaryintendment. We are further of the view that there is apresumption against the retrospective operation of statuteand further statute is not to be construed to have greaterretrospective operation than its language renders necessary,but an amending Act which affects the procedure is presumedto be retrospective unless the amending Act provides otherwise.We have carefully looked into the new substituted Section 15brought in the parent Act by the Amendment Act, 1995 but donot find it either expressly or by necessary implicationretrospective in operation which may affect the rights of theparties on the date of adjudication of the suit and the same isrequired to be taken into consideration by the appellate court.In Shanti Devi v. Hukum Chand, (1996) 5 SCC 768, this Courthad occasion to interpret the substituted Section 15 with whichwe are concerned and held that on plain reading of Section15, it is clear that it has been introduced prospectively andthere is no question of such section affecting in any mannerthe judgment and decree passed in the suit for pre-emptionaffirmed by the High Court in the second appeal. We arerespectfully in agreement with the view expressed in the saiddecision and hold that the substituted Section 15 in theabsence of anything in it to show that it is retrospective, doesnot affect the right of the parties which accrued to them onthe date of the suit or on the date of passing of the decree bythe court of the first instance. We are also of the view that thepresent appeals are unaffected by the change in law insofarit related to the determination of the substantive rights of theparties and the same are required to be decided in the light of

the law of pre-emption as it existed on the date of passing ofthe decree.”

(emphasis supplied)

303. In Sarah Mathew (supra), it was observed that delay causedby the court in taking cognizance cannot deny justice to the litigant. Acourt of law would interpret and make the reasonable construction ratherthan applying doctrine which would make the provision unsustainableand ultra vires the Constitution. This Court observed thus:

“37. We are inclined to take this view also because there hasto be some amount of certainty or definiteness in matters oflimitation relating to criminal offenses. If, as stated by thisCourt, taking cognizance is the application of mind by theMagistrate to the suspected offense, the subjective elementcomes in. Whether Magistrate has taken cognizance or notwill depend on facts and circumstances of each case. diligentcomplainant or the prosecuting agency which promptly filesthe complaint or initiates prosecution would be severelyprejudiced if it is held that the relevant point for computinglimitation would be the date on which the Magistrate takescognizance. The complainant or the prosecuting agency wouldbe entirely left at the mercy of the Magistrate, who may takecognizance after the limitation period because of severalreasons; systemic or otherwise. It cannot be the intention ofthe legislature to throw diligent complainant out of the courtin this manner. Besides, it must be noted that the complainantapproaches the court for redressal of his grievance. He wantsaction to be taken against the perpetrators of crime. The courtsfunctioning under the criminal justice system are created forthis purpose. It would be unreasonable to take the view thatdelay caused by the court in taking cognizance of casewould deny justice to diligent complainant. Such aninterpretation of Section 468 CrPC would be unsustainableand would render it unconstitutional. It is well settled that acourt of law would interpret provision which would help tosustain the validity of the law by applying the doctrine ofreasonable construction rather than applying doctrine whichwould make the provision unsustainable and ultra vires theConstitution. (U.P. Power Corpn. Ltd. v. Ayodhya PrasadMishra. (2008) 10 SCC 139)”

A304. When the authorities are disabled from performing dutiesdue to impossibility, would be good excuse for them to save them fromrigour of provisions of Section 24(2). litigant may be right or wrong.He cannot be permitted to take advantage of situation created by himof interim order. The doctrine “commodum ex-injuria sua Nemo haberedebet” that is convenience cannot accrue to party from his own wrong.BProvisions of Section 24 do not discriminate litigants or non-litigants andtreat them differently with respect to the same acquisition, otherwise,anomalous results may occur and provisions may become discriminatoryin itself.

305. In Union of India v. Shiv Raj[197], this Court did not considerCthe question of exclusion of the time. In Karnail Kaur and Ors. v.State of Punjab and Ors., (supra) and in Shree Balaji NagarResidential Association (supra), various aspects including theinterpretation of provisions of Section 24 were not taken intoconsideration. Thus, the said rulings cannot be said to be laying downDgood law.

306. In Union of India and Ors. v. North Telumer Colliery &Ors[198], this Court observed that delaying tactics should not be permittedto fructify. By causing delay, the owner would get huge amount of interest,but he may not get penny out of the principal amount. It would amountEto conferring unjust benefit on the owners which can never be the intentionof the Parliament. This Court observed:

“8. The High Court’s conclusions are primarily based on theinterpretation of Section 18(5) of the Coal Act. The High Courthas quoted the meaning of words “enure” and “benefit” fromFvarious dictionaries. No dictionary or any outside assistanceis needed to understand the meaning of these simple words inthe context and scheme of the Coal Act. The interest has toenure to the benefit of the owners of the coal mines. The claimsbefore the Commissioner under the Coal Act are from thecreditors of the owners, and the liabilities sought to beGdischarged are also of the owners of the coal mines. Whenthe debts are paid and the liabilities discharged, it is only theowners of coal mines who are benefited. Taking away theinterest amount by the owners without discharging their debts

197 2014 (6) SCC 564H198 1989 (3) SCC 411

and liabilities would be unreasonable. They have only to adoptdelaying tactics to postpone the disbursement of claims andconsequently earn more interest. Due to such delay, the ownerwould get huge amount of interest though ultimately, he maynot get penny out of principal amount on the final settlementof claims. It would amount to conferring unjust benefit onthe owners which can never be the intention of the Parliament.We do not agree with the interpretation given by the HighCourt and hold that the interest accruing under the Coal Actis the money paid to the Commissioner in relation to the coalmine and the same has to be utilized by the Commissioner inmeeting the claims of the creditors and discharging otherliabilities in accordance with the provisions of the Coal Act.”

307. It may not be doubtful conduct to file frivolous litigation andobtain stay; but benefit of Section 24 (2) should not be conferred onthose who prevented the taking of possession or payment of compensation,for the period spent during the stay.

308. In Padma Sundara Rao (Dead) & Ors. (supra), this Courtconsidered the question of casus omissus and observed thus:

“12. The rival pleas regarding rewriting of statute and casusomissus need careful consideration. It is well-settledprinciple in law that the court cannot read anything into astatutory provision which is plain and unambiguous. statuteis an edict of the legislature. The language employed in astatute is the determinative factor of legislative intent. Thefirst and primary rule of construction is that the intention ofthe legislation must be found in words used by the legislatureitself. The question is not what may be supposed and has beenintended, but what has been said. “Statutes should beconstrued, not as theorems of Euclid,” Judge Learned Handsaid, “but words must be construed with some imagination ofthe purposes which lie behind them.” (See Lenigh Valley CoalCo. v. Yensavage, 218 FR 547) The view was reiterated inUnion of India v. Filip Tiago De Gama of Vedem Vasco DeGama (1990) 1 SCC 277.

13. In D.R. Venkatchalam v. Deputy Transport Commissioner(1977) 2 SCC 273, it was observed that Courts must avoid

the danger of priori determination of the meaning of aprovision based on their own preconceived notions ofideological structure or scheme into which the provision tobe interpreted is somewhat fitted. They are not entitled to usurplegislative function under the disguise of interpretation.

14. While interpreting provision, the court only interpretsthe law and cannot legislate it. If provision of law is misusedand subjected to the abuse of process of law, it is for thelegislature to amend, modify, or repeal it, if deemed necessary.(See Rishabh Agro Industries Ltd. v. P.N.B. Capital ServicesLtd., (2000) 5 SCC 515) The legislative casus omissus cannotbe supplied by the judicial interpretative process. Thelanguage of Section 6(1) is plain and unambiguous. There isno scope for reading something into it, as was done inNarasimhaiah’s case. In Nanjudaiah’s case, the period wasfurther stretched to have the time period run from the date ofservice of the High Court’s order. Such view cannot bereconciled with the language of Section 6(1). If the view isaccepted, it would mean that case can be covered by notonly clause (i) and/or clause (ii) of the proviso to Section6(1), but also by non-prescribed period. The same can neverbe the legislative intent.

16. The plea relating to the applicability of the stare decisisprinciples is clearly unacceptable. The decision in K.Chinnathambi Gounder v. Government of T.N., AIR 1980 Mad251 was rendered on 22-6-1979, i.e., much prior to theamendment by the 1984 Act. If the legislature intended to givea new lease of life in those cases where the declaration underSection 6 is quashed, there is no reason why it could not havedone so by specifically providing for it. The fact that thelegislature specifically provided for periods covered by ordersof stay or injunction clearly shows that no other period wasintended to be excluded and that there is no scope forproviding any other period of limitation. The maxim actuscuriae neminem gravabit highlighted by the Full Bench ofthe Madras High Court has no application to the fact situationof this case.”

309. There is no dispute with the aforesaid proposition that casusomissus cannot be applied by the court and in case of clear necessity,the court has to interpret the law, if the provision of law is misused andsubjected to abuse of process of law. It is for the legislature to amend,modify and repeal law, if deemed necessary. Because of the above-mentioned interpretation of the provisions of Section 24 itself, we areunable to accept the submission made. We are not applying casusomissus as urged. In Padma Sundara Rao (supra), this Court consideredthe period of limitation for issuances of declaration under Section 6 ofthe Act of 1894. The period has been stretched further in the case ofState of Karnataka v. D.C. Nanjudaiah[199]. Few expressions in theaforesaid decision were held to be incorrect. In Padma Sundara Rao(supra), this Court held that when period, which the legislature hasspecifically provided, is covered by orders of stay and injunction, noother period could be intended to be excluded by providing time period torun from the date of service of the High Court’s order and it would notbe open to court to add to that period. The question in Padma SundaraRao (supra) was totally different and it was of counting the period overand above excluded in the provisions, inter alia, from the veryinterpretation of Section 24.

310. As regards application of the maxim to statute, in RanaGirders Ltd. v. Union of India[200], this Court observed that the statutoryprovision would prevail upon the common law principles. The decisionin Rana Girders Ltd. (supra) was considered in Union of India (supra)where this Court observed thus:

“9. Generally, the rights of the Crown to recover the debtwould prevail over the right of subject. Crown debt meansthe “debts due to the State or the King; debts which aprerogative entitles the Crown to claim priority for before allother creditors.” [See Advanced Law Lexicon by P.Ramanatha Aiyar (3rd Edn.), p. 1147.] Such creditors,however, must be held to mean unsecured creditors. Theprinciple of Crown debt as such pertains to the common lawprinciple. common law, which is law within the meaning ofArticle 13 of the Constitution, is saved in terms of Article 372thereof. Those principles of common law, thus, which were

199 (1996) 10 SCC 619200 2013 (10) SCC 746

Aexisting at the time of coming into force of the Constitution ofIndia, are saved by reason of the aforementioned provision.A debt that is secured or which by reason of the provisions ofa statute becomes the first charge over the property havingregard to the plain meaning of Article 372 of the Constitutionof India must be held to prevail over the Crown debt, which isBan unsecured one.

10. It is trite that when Parliament or State Legislature makesan enactment, the same will prevail over the common law.Thus, the common law principle which was existing on thedate of coming into force of the Constitution of India mustyield to statutory provision. To achieve the same purpose,Parliament as also the State Legislatures inserted provisionsin various statutes, some of which have been referred tohereinbefore, providing that the statutory dues shall be thefirst charge over the properties of the taxpayer. This aspectof the matter has been considered by this Court in series of

judgments.”

311. There is no doubt that common law principles have to beweighed upon the statutory provision and latter has to prevail, but thestatutory provision itself makes it clear that in the instant matter suchperiod has to be excluded, thus, the principles of common law also applywith full force. In Mary Angel and Ors. v. State of T.N.[201], the maxim“expressio unius est exclusio alterius” came to be considered by thisCourt. It was held that maxim needs to be applied when its applicationhaving regard to the subject matter to which it is to be applied, leads toinconsistency or injustice. This Court observed:

“19. Further, for the rule of interpretation on the basis of themaxim “expressio unius est exclusio alterius,” it has beenconsidered in the decision rendered by the Queen’s Bench inthe case of Dean v. Wiesengrund, (1955) 2 QB 120. The Courtconsidered the said maxim and held that after all, it is nomore than an aid to construction and has little if any, weightwhere it is possible to account for the “inclusio unius” ongrounds other than the intention to affect the “exclusioalterius.” Thereafter, the Court referred to the followingpassage from the case of Colquhoun v. Brooks, (1887) 19

H201 1999 (5) SCC 209

QBD 400, QBD at 406 wherein the Court called for itsapproval—

“… ‘The maxim “expressio unius est exclusio alterius” hasbeen pressed upon us. I agree with what is said in the courtbelow by Wills, J., about this maxim. It is often valuableservant, but dangerous master to follow in the constructionof statutes or documents. The exclusio is often the result ofinadvertence or accident, and the maxim ought not to beapplied, when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency orinjustice.’ In my opinion, the application of the maxim herewould lead to inconsistency and injustice, and would makeSection 14(1) of the Act of 1920 uncertain and capricious inits operation.”312. The maxim “lex non cogit ad impossibilia” means that thelaw does not expect the performance of the impossible. Though paymentis possible but the logic of payment is relevant. There are cases in whichcompensation was tendered, but refused and then deposited in thetreasury. There was litigation in court, which was pending (or in somecases, decided); earlier references for enhancement of compensationwere sought and compensation was enhanced. There was no challengeto acquisition proceedings or taking possession etc. In pending mattersin this Court or in the High Court even in proceedings relating tocompensation, Section 24 (2) was invoked to state that proceedings havelapsed due to non-deposit of compensation in the court or to deposit inthe treasury or otherwise due to interim order of the court needful couldnot be done, as such proceedings should lapse.

313. In Chander Kishore Jha v. Mahabir Prasad[202], an electionpetition was to be presented in the manner prescribed in Rule 6 of ChapterXXI-E of the Patna High Court Rules. The rules stipulated that theelection petition, could under no circumstances, be presented to theRegistrar to save the period of limitation. The election petition could bepresented in the open court upto 4.15 p.m. i.e., working hours of thecourt. The Chief Justice had passed the order that court shall not sit forthe rest after 3.15 p.m. Thus, the petition filed the next day was held tobe within time. In Mohammed Gazi v. State of M.P. & Ors[203]., the

202 1999 (8) SCC 266203 2000 (4) SCC 342

Amaxim “actus curiae neminem gravabit” came up for considerationalong with maxim “lex non cogit ad impossibilia” – the law does notcompel man to perform act which is not possible. Following observationshad been made:

“7. In the facts and circumstances of the case, the maxim ofBequity, namely, actus curiae neminem gravabit — an act ofthe court shall prejudice no man, shall be applicable. Thismaxim is founded upon justice and good sense, which servesa safe and certain guide for the administration of law. Theother maxim is, lex non cogit ad impossibilia — the law doesnot compel man to do what he cannot possibly perform.CThe law itself and its administration are understood to disclaimas it does in its general aphorisms, all intention of compellingimpossibilities, and the administration of law must adopt thatgeneral exception in consideration of particular cases. Theapplicability of the aforesaid maxims has been approved byDthis Court in Raj Kumar Dey v. Tarapada Dey, (1987) 4 SCC398 and Gursharan Singh v. New Delhi Municipal Committee,(1996) 2 SCC 459.”

314. Another Roman Law maxim “nemo tenetur adimpossibilia”, means no one is bound to do an impossibility. ThoughEsuch acts of taking possession and disbursement of compensation arenot impossible, yet they are not capable of law performance, duringsubsistence of court’s order; the order has to be complied and cannotbe violated. Thus, on equitable principles also, such period has to beexcluded. In Industrial Finance Corporation of India Ltd. v.Cannanore Spinning & Weaving Mills Ltd. & Ors.[204], this CourtFobserved that where law creates duty or charge and the party is disabledto perform it, without any default and has no remedy over, there the lawwill in general excuse him. This Court relying upon the aforesaid maximobserved as under:

“30. The Latin maxim referred to in the English judgment lexGnon cogit ad impossibilia also expressed as impotentia excusatlegem in common English acceptation means, the law doesnot compel man to do that which he cannot possibly perform.There ought always thus to be an invincible disability toperform the obligation, and the same is akin to the Roman

H204 2002 (5) SCC 54

maxim nemo tenetur ad impossible. In Broom’s Legal Maxims,the state of the situation has been described as below:

“It is, then, general rule which admits of amplepractical illustration, that impotentia excusat legem;where the law creates duty or charge, and the party isdisabled to perform it, without any default in him, andhas no remedy over, there the law will in general excusehim (t): and though impossibility of performance is, ingeneral, no excuse for not performing an obligationwhich party has expressly undertaken by contract,yet when the obligation is one implied by law,impossibility of performance is good excuse. Thus ina case in which consignees of cargo were preventedfrom unloading ship promptly by reason of dockstrike, the Court, after holding that in the absence ofan express agreement to unload in specified time therewas implied obligation to unload within reasonabletime, held that the maxim lex non cogit ad impossibiliaapplied, and Lindley, L.J., said: ‘We have to do withimplied obligations, and I am not aware of any case inwhich an obligation to pay damages is ever cast byimplication upon person for not doing that which isrendered impossible by causes beyond his control.’ “

315. In HUDA and Anr. v. Dr. Babeswar Kanhar & Anr[205], thisCourt considered the general principle that party prevented from doingan act by some circumstances beyond his control, can do so at the firstsubsequent opportunity as held in Sambasiva Chari v. RamasamiReddi[206]. In Dr. Babeswar Kanhar (supra), it was observed thus:

“5. What is stipulated in clause 4 of the letter dated30-10-2001 is communication regarding refusal to acceptthe allotment. This was done on 28-11-2001. Respondent 1cannot be put to loss for the closure of the office of HUDAon 1-12-2001 and 2-12-2001 and the postal holiday on30-11-2001. 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

205 (2005) 1 SCC 191206 ILR (1899) 22 Mad 179

ABCDE

Avarious provisions in various other Acts, there is the generalprinciple that party prevented from doing an act by somecircumstances beyond his control, can do so at the firstsubsequent opportunity (see Sambasiva Chari v. RamasamiReddi, (1898) 8 MLJ 265). The underlying object of theprinciple is to enable person to do what he could have doneBon holiday, on the next working day. Where, therefore, periodis prescribed for the performance of an act in court oroffice, and that period expires on holiday, then the act shouldbe considered to have been done within that period if it isdone on the next day on which the court or office is open.CThe reason is that the law does not compel the performanceof an impossibility. (See Hossein Ally v. Donzelle, ILR (1880)5 Cal 906.) Every consideration of justice and expediencywould require that the accepted principle, which underliesSection 10 of the General Clauses Act, should be applied incases where it does not otherwise in terms apply. The principlesDunderlying are lex non cogit ad impossibilia (the law doesnot compel man to do the impossible) and actus curiaeneminem gravabit (the act of court shall prejudice no man).Above being the position, there is nothing infirm in the orderspassed by the forums below. However, the rate of interest fixedEappears to be slightly on the higher side and is reduced to9% to be paid with effect from 3-12-2001, i.e., the date onwhich the letter was received by HUDA.”316. In re Presidential Poll[207], this Court made similarobservations. When there is disability to perform part of the law,Fsuch charge has to be excused. When performance of the formalitiesprescribed by statute is rendered impossible by circumstances overwhich the persons concerned have no control, it has to be taken as avalid excuse. The Court observed:

“15. The impossibility of the completion of the election to fillGthe vacancy in the office of the President before the expirationof the term of office in the case of death of candidate asmay appear from Section 7 of the 1952 Act does not rob Article62(1) of its mandatory character. The maxim of law impotentiaexcusat legam is intimately connected with another maxim of

H207 (1974) 2 SCC 33

law lex non cogit ad impossibilia. Impotentia excusat legamis that when there is necessary or invincible disability toperform the mandatory part of the law that impotentia excuses.The law does not compel one to do that which one cannotpossibly perform. “Where the law creates duty or charge,and the party is disabled to perform it, without any default inhim and has no remedy over it, there the law will in generalexcuse him.” Therefore, when it appears that the performanceof the formalities prescribed by statute has been renderedimpossible by circumstances over which the persons interestedhad no control, like the act of God, the circumstances will betaken as valid excuse. Where the act of God prevents thecompliance of the words of statute, the statutory provisionis not denuded of its mandatory character because ofsupervening impossibility caused by the act of God. (SeeBroom’s Legal Maxims 10th Edn. At pp. 162-163 and Craieson Statute Law 6th Edn. at p. 268).”

317. In Standard Chartered Bank v. Directorate ofEnforcement[208], the legal maxim “impotentia excusat legem” has beenapplied to hold that law does not compel man to do that which cannotpossibly be performed. Though the maxim with respect to the impossibilityof performance may not be strictly applicable, however, the effect ofthe court’s order, for the time being, made the Authorities disable tofulfill the obligation. Thus, when they were incapable of performing,they have to be permitted to perform at the first available opportunity,which is the time prescribed by the statute for them, i.e., the total periodof 5 years excluding the period of the interim order.

318. The maxim actus curiae neminem gravabit is founded uponthe principle due to court proceedings or acts of court, no party shouldsuffer. If any interim orders are made during the pendency of the litigation,they are subject to the final decision in the matter. In case the matter isdismissed as without merit, the interim order is automatically dissolved.In case the matter has been filed without any merit, the maxim is attractedcommodum ex injuria sua nemo habere debet, that is, conveniencecannot accrue to party from his own wrong. No person ought to havethe advantage of his own wrong. In case litigation has been filed frivolouslyor without any basis, iniquitously in order to delay and by that it is delayed,

Athere is no equity in favour of such person. Such cases are required tobe decided on merits. In Mrutunjay Pani and Anr. v. Narmada BalaSasmal and Anr[209], this Court observed that:

“(5) X x x The same principle is comprised in the latin maximcommodum ex injuria sua nemo habere debet, that is,Bconvenience cannot accrue to party from his own wrong.To put it in other words, no one can be allowed to benefitfrom his own wrongful act. …”

319. It is not the policy of law that untenable claims should getfructified due to delay. Similarly, sufferance of person who abides byClaw is not permissible. The Act of 2013 does not confer the benefit onunscrupulous litigants, but it aims at and frowns upon the lethargy of theofficials to complete the requisites within five years.

320. The States urge that by refusal to accept compensation, onecannot take advantage of own conduct. This idea is explained in MaxwellDon the Interpretation of Statutes (12[th] Edition) by P. St. J. Langon,wherein following observations have been made:

“On the principles of avoiding injustice and absurdity, anyconstruction will, if possible, be rejected (unless the policy ofthe Act requires it) if it would enable person by his own actEto impair an obligation which he has undertaken, or otherwiseto profit by his own wrong. He may not take advantage of hisown wrong. He may not plead in his own interest self creatednecessity” (Kish v. Taylor, (1911) 1 K.B. 625, per FletcherMoulton I.J. at page 634).

Thus an Act which authorised justices to discharge apprenticefrom his indenture in certain circumstances “on the master’sappearance” before them justified discharge in his wilfulabsence. It would have been unreasonable to have construedthe Act in such way that the master derived an advantagefrom his own obstinacy (Ditton’s Case (1701) 2 Salk. 490)”

321. In G.T.C. Industries Ltd. v. Union of India[210], it wasobserved that while vacating stay, it is the court’s duty to account for theperiod of delay and to settle equities. It is not the gain which can be

209 AIR 1961 SC 1353210 (1998) 3 SCC 376H

conferred. In Jaipur Municipal Corporation v. C. L. Mishra[211], it hasbeen observed that interim order merges in the final order, and it cannothave an independent existence, cannot survive beyond final decision. InRam Krishna Verma v. the State of U.P[212], reliance was placed onGrindlays Bank Ltd. v. C.I.T[213]. It was held that no one could bepermitted to suffer from the act of the court and in case an interim orderhas been passed and ultimately petition is found to be without merit andis dismissed, the interest of justice requires that any undeserved or unfairadvantage gained by party invoking the jurisdiction of the Court mustbe neutralized.

322. In Mahadeo Savlaram Shelke v. Pune MunicipalCorporation[214], it has been observed that the Court can under its inherentjurisdiction ex debito justitiae has duty to mitigate the damage sufferedby the defendants by the act of the court. Such action is necessary toput check on abuse of process of the court. In Amarjeet Singh andOrs. v. Devi Ratan and Ors[215], and Ram Krishna Verma (supra), itwas observed that no person can suffer from the act of court and unfairadvantage of the interim order must be neutralized. In Amarjeet Singh(supra), this Court observed:

“17. No litigant can derive any benefit from mere pendencyof the case in court of law, as the interim order alwaysmerges in the final order to be passed in the case, and if thewrit petition is ultimately dismissed, the interim order standsnullified automatically. party cannot be allowed to takeany benefit of its own wrongs by getting an interim order andthereafter blame the court. The fact that the writ is found,ultimately, devoid of any merit, shows that frivolous writpetition had been filed. The maxim actus curiae neminemgravabit, which means that the act of the court shall prejudiceno one, becomes applicable in such case. In such factsituation, the court is under an obligation to undo the wrongdone to party by the act of the court. Thus, any undeservedor unfair advantage gained by party invoking thejurisdiction of the court must be neutralized, as the institution

211 (2005) 8 SCC 423212 (1992) 2 SCC 620213 (1980) 2 SCC 191214 (1995) 3 SCC 33215 (2010) 1 SCC 417

of litigation cannot be permitted to confer any advantage ona suitor from delayed action by the act of the court. (VideShiv Shankar v. U.P. SRTC, 1995 Supp (2) SCC 726, GTCIndustries Ltd. v. Union of India, (1998) 3 SCC 376 and JaipurMunicipal Corpn. v. C.L. Mishra, (2005) 8 SCC 423.)

B18. In Ram Krishna Verma v. the State of U.P. (1992) 2 SCC620, this Court examined similar issue while placing relianceupon its earlier judgment in Grindlays Bank Ltd. v. ITO, (1980)2 SCC 191 and held that no person can suffer from the act ofthe court and in case an interim order has been passed, andthe petitioner takes advantage thereof, and ultimately theCpetition is found to be without any merit and is dismissed, theinterest of justice requires that any undeserved or unfairadvantage gained by party invoking the jurisdiction of thecourt must be neutralized.”

323. In Karnataka Rare Earth and Anr. v. Senior Geologist,DDepartment of Mines & Geology[216], this Court observed that maximactus curiae neminem gravabit requires that the party should be placedin the same position but for the court’s order which is ultimately found tobe not sustainable which has resulted in one party gaining advantagewhich otherwise would not have earned and the other party has sufferedEbut for the orders of the court. The successful party can demand thedelivery of benefit earned by the other party, or make restitution forwhat it has lost. This Court observed:

“10. In x x x x the doctrine of actus curiae neminem gravabitand held that the doctrine was not confined in its applicationFonly to such acts of the court which were erroneous; thedoctrine is applicable to all such acts as to which it can beheld that the court would not have so acted had it beencorrectly apprised of the facts and the law. It is the principleof restitution that is attracted. When on account of an act ofthe party, persuading the court to pass an order, which at theGend is held as not sustainable, has resulted in one partygaining advantage which it would not have otherwise earned,or the other party has suffered an impoverishment which itwould not have suffered, but for the order of the court andthe act of such party, then the successful party finally held

H216 (2004) 2 SCC 783

entitled to relief, assessable in terms of money at the end ofthe litigation, is entitled to be compensated in the same mannerin which the parties would have been if the interim order ofthe court would not have been passed. The successful partycan demand: (a) the delivery of benefit earned by the oppositeparty under the interim order of the court, or (b) to makerestitution for what it has lost.

11. In the facts of this case, in spite of the judgment of theHigh Court, if the appellants would not have persuaded thisCourt to pass the interim orders, they would not have beenentitled to operate the mining leases and to raise and removeand dispose of the minerals extracted. But for the interimorders passed by this Court, there is no difference betweenthe appellants and any person raising, without any lawfulauthority, any mineral from any land, attracting applicabilityof sub-section (5) of Section 21. As the appellants have lostfrom the Court, they cannot be allowed to retain the benefitearned by them under the interim orders of the Court. TheHigh Court has rightly held the appellants liable to be placedin the same position in which they would have been if thisCourt would not have protected them by issuing interim orders.All that the State Government is demanding from the appellantsis the price of the minor minerals. Rent, royalty or tax hasalready been recovered by the State Government and,therefore, there is no demand under that head. No penalproceedings, much less any criminal proceedings, have beeninitiated against the appellants. It is absolutely incorrect tocontend that the appellants are being asked to pay anypenalty or are being subjected to any penal action. It is notthe case of the appellants that they are being asked to paythe price more than what they have realized from the exportsor that the price appointed by the respondent State is in anymanner arbitrary or unreasonable.”

(emphasis supplied)

324. In A.R. Antulay (supra), this Court observed that it is settledprinciple that an act of the court shall prejudice no man. This maximactus curiae neminem gravabit is founded upon justice and good senseand affords safe and certain guide for the administration of the law.

ANo man can be denied his rights. In India, delay occurs due toprocedural wrangles. In A.R. Antulay (supra), this Court observed:

“102. This being the apex court, no litigant has anyopportunity of approaching any higher forum to question itsdecisions. Lord Buckmaster in Montreal Street Railway Co. v.Normadin, 1917 AC 170 (sic) stated:

“All rules of court are nothing but provisions intended to securethe proper administration of justice. It is, therefore, essentialthat they should be made to serve and be subordinate to thatpurpose.”

This Court in State of Gujarat v. Ramprakash P. Puri, (1970)2 SCR 875, reiterated the position by saying: [SCC p. 159:SCC (Cri) p. 31, para 8]

“Procedure has been described to be handmaid and not amistress of law, intended to subserve and facilitate the causeDof justice and not to govern or obstruct it. Like all rules ofprocedure, this rule demands construction which wouldpromote this cause.”

Once judicial satisfaction is reached that the direction wasnot open to be made and it is accepted as mistake of theEcourt, it is not only appropriate but also the duty of the courtto rectify the mistake by exercising inherent powers. Judicialopinion heavily leans in favour of this view that mistake ofthe court can be corrected by the court itself without anyfetters. This is on principle, as indicated in (Alexander) RodgerFcase (1869-71) LR 3 PC 465. I am of the view that in thepresent situation, the court’s inherent powers can be exercisedto remedy the mistake. Mahajan., J. speaking for FourJudge Bench in Keshardeo Chamria v. Radha Kissen Chamria,1953 SCR 136 at Page 153 stated:

“The judge had jurisdiction to correct his own error withoutentering into discussion of the grounds taken by the decree-holder or the objections raised by the judgment-debtors.”

325. In Superintendent of Taxes v. Onkarmal Nathmal Trust[217],this Court considered the conduct of the State Government in not

questioning the interim order at any stage in seeking variation ormodification of the order of injunction. It was held that the State couldnot take advantage of its own wrong and lack of diligence and could notcontend it was impossible to issue notice within the purview of Section7(2) of the new Act. The decision is distinguishable and turns on its ownfacts. Though the act is possible to be performed but not as per thepublic policy which frowns upon violation of the court’s interim order.The decision cannot be applied, particularly in view of the provisionscontained in Section 24(2), and on facts, it has no application.326. Reliance was placed on Neeraj Kumar Sainy v. the Stateof U.P.[218]. There, this Court observed that no one should suffer anyprejudice because of the act of the court; the legal maxim cannot operatein vacuum. It has to get the sustenance from the facts. As the appellantsresigned to their fate and woke up to have control over the eventsforgetting that the law does not assist the non-vigilant. One cannot indulgein the luxury of lethargy, possibly nurturing the feeling that forgetting is avirtue. If such is the conduct, it is not permissible to take shelter underthe maxim actus curiae neminem gravabit. There is no dispute withthe aforesaid principle. Party has to be vigilant about the right, but theratio cannot be applied. In the opinion, the ratio in the decision cannotbe applied for the purpose of interpretation of Section 24(2).

327. There can be no doubt that when parties are before court,the final decision has to prevail, and they succeed or fail based on themerits of their relative cases. Neither can be permitted to take shelterunder the cover of court’s order to put the other party in disadvantageousposition. If one has enjoyed under the court’s cover, that period cannotbe included towards inaction of the authorities to take requisite stepsunder Section 24. The State authorities would have acted but for thecourt’s order. In fact, the occasion for the petitioners to approachthe court in those cases, was that the State or acquiring bodieswere taking their properties. Ultimately case had to stand on its meritin the challenge to the acquisition or compensation, and no right oradvantage could therefore be conferred (or accrue) under Section 24(2)in such situations.

328. The argument of the landowners was that on the one hand,the court should not discern casus omissus and in effect, the absenceof provision to exclude the time during which an interim order operated,218 (2017) 14 SCC 136

Ameans that Parliament intended such omission. The maxim ‘expressiounius est exclusio alterious’ means that express mention of one ormore persons or things of particular class may be regarded as byimplication excluding all others of that class. The maxim, however, doesnot apply when the provisions of the legislation in question show that theexclusion could not have been intended. In Colquhoun v. Brooks[219],Bthe House of Lords opined that:

“The maxim ‘expressio unius est exclusio alterious’ has beenpressed upon us. I agree with what is said in the court belowby Wills, J. about this maxim. It is often valuable servant,but dangerous master to follow in the construction of statutesCor documents. The ‘exclusio’ is often the result of inadvertenceor accident, and the maxim ought not to be applied when itsapplication, having regard to the subject matter to which it isto be applied, leads to inconsistency or injustice.”

Lewis Sutherland’s Statutory Construction (2[nd] ed.), Section 491,Dapplies the rule as follows:

“Expressio unius est exclusio alterious - The maxim, like allrules of construction, is applicable under certain conditionsto determine the intent of the lawmaker when it is not otherwisemanifest. Under these conditions, it leads to safe andEsatisfactory conclusions; but otherwise the expression of oneor more things is not negation or exclusion of other things.What is expressed is exclusive only when it is creative, or inderogation of some existing law, or of some provisions in theparticular act. The maxim is applicable to statutory provisionFwhich grants originally power or right.”329. In case before the United States Court of Customs andPatent Appeals decided on 5[th] November, 1934, Yardley & Co. Ltd. V.United States, the court considered the question of classification andassessment with duty of certain merchandise consisting of empty glassGjars and lids, and whether these could be considered as ‘entireties’ thatwould be dutiable under paragraph 33 of the Tariff Act of 1930. Thecourt in that case relied on the observations in Colquhoun v. Brooks(supra) and held that the glass jars with their lids would be dutiable asentireties, despite there not being an express legislative provision to that

effect. It was held that the rule of expressio unius est exclusio alteriouswould not be applicable in the context of the legislative provision in theTariff Acts of 1909, 1913 and 1922, as the relevant provision therein (inthe 1930 Act) was merely declaratory in nature and not in derogation ofexisting law. In Assistant Collector of Central Excise v. NationalTobacco Company of India Ltd.[220], this Court held that the rule ofexpressio unius est exclusio alterious:

“is subservient to the basic principle that courts mustendeavour to ascertain the legislative intent and purpose,and then adopt rule of construction which effectuates ratherthan one that may defeat these.”

330. In Karnataka State v. Union of India[221], the Court observed

that:

“Before the principle can be applied at all the Court mustfind an express mode of doing something that is provided in astatute, which, by its necessary implication, could excludethe doing of that very thing and not something else in someother way. Far from this being the case here, as the discussionabove has shown, the Constitution makers intended to coverthe making of provisions by Parliament for inquiries forvarious objects which may be matters of public importancewithout any indications of any other limits except that theymust relate to subjects found in the Lists. I have also indicatedwhy provision like Section 3 of the Act would, in any case,fall under entry 97 of List I of Schedule VII read with Articles248 and 356 of the Constitution even if all subjects to whichit may relate are not found specified in the lists. Thus, there isexpress provision in our Constitution to cover an enactmentsuch as Section 3 of the Act, hence, there is no roomwhatsoever for applying the “Expressio Unius” rule to excludewhat falls within an expressly provided legislative entry. Thatmaxim has been aptly described as “useful servant but adangerous master “ (per Lopes L.J. in Colquhoun v. Brooks[1888] 21 Q.B.D. The limitations or conditions under whichthis principle of construction operates are frequentlyoverlooked by those who attempt to apply it.

220 (1972) 2 SCC 560221 (1977) 4 SCC 608

To advance the balder and broader proposition that what isnot specifically mentioned in the Constitution must be deemedto be deliberately excluded from its purview, so that nothingshort of Constitutional amendment could authoriselegislation upon it, is really to invent “Cams Omissus” so asto apply the rule that, where there is such gap in the law,the Court cannot fill it. The rule, however, is equally clearthat the Court cannot so interpret statute as “to produce acasus omissus” where there is really none (see: The MerseyDocks and Harbour Board v. Penderson Brothers [1888] 13A.C. 595). If our Constitution itself provides for legislation tofill what is sought to be construed as lacuna, how canlegislation seeking to do this be held to be void because itperforms its intended function by an exercise of an expresslyconferred legislative power? In declaring the purpose of theprovisions so made and the authority for making it, Courtsdo not supply an omission or fill up gap at all. It is Parliamentwhich can do so and has done it. To hold that parliament isincompetent to do this is to substitute an indefensible theoryor figment of one’s imagination- that the Constitution standsin the way somehow-for that which only clear Constitutionalbar could achieve.”

In Mary Angel (supra) this Court observed as follows:

“…The rule of interpretation on the basis of the maxim“expressio unius est exclusio alterius”, … has been consideredin the decision rendered by the Queen’s Bench in the case ofDean v. Wiesengrund (1955) 2 QBD 120. The Courtconsidered the said maxim and held that after all it is morethan an aid to construction and has little, if any, weight whereit is possible to account for the “exclusio unius” on groundsother than intention to effect the “exclusio alterius”.Thereafter, the Court referred to the following passage fromthe case of Colquhoon v. Brooks (1887) 19 QBD 400 whereinthe Court called for its approval – “The maxim ‘expressiounius est exclusio alterius’ has been pressed upon us. I agreewith what is said in the Court below by Wills J, about thismaxim. It is often valuable servant, but dangerous masterto follow in the construction of statutes of documents. The

exclusio is often the result of inadvertence or accident, andthe maxim ought not to be applied, when its application havingregard to the subject matter to which it is to be applied, leadsto inconsistency or injustice. In my opinion, the applicationof the maxim here would lead to inconsistency and injustice,and would make Section 14(1) of the Act of 1920 uncertainand capricious in its operation.”

The aforesaid maxim was referred to by this Court in the caseof Asst. Collector, Central Excise v. National Tobacco Co.1978 (2) ELT 416 (SC), the Court in that case considered thequestion whether there was or was not an implied power tohold an inquiry in the circumstances of the case in view ofthe provisions of the Section 4 of the Central Excise Act readwith Rule 10(A) of the Central Excise Rules and referred tothe aforesaid passage “the maxim” is often valuable servant,but dangerous master ...’ and held that the rule is subservientto the basic principle that Courts must endeavour to ascertainthe legislative intent and purpose, and then adopt rule ofconstruction which effectuates rather than one that maydefeat these. Moreover, the rule of prohibition by necessaryimplication could be applied only where specified procedureis laid down for the performance of duty. In the case ofParbhani Transport Co-op Society Ltd. v. R.T.A. Aurangabad[1960] 3 SCR 177, this Court observed that the maxim‘expressio unius est exclusio alterius’ is maxim forascertaining the intention of the legislature and where thestatutory language is plain and the meaning clear, there is noscope for applying. Further, in Harish Chander Vajpai v.Triloki Singh, [1957] 1 SCR 370, the Court referred to thefollowing passage from Maxwell on Interpretation of Statutes,10th Edition, pages 316-317:“Provisions sometimes found in statutes, enactingimperfectly or for particular cases only that which wasalready and more widely the law, have occasionallyfurnished ground for the contention that an intention toalter the general law was to be inferred from the partial orlimited enactment, resting on the maxim expressio unius,exclusio alterius. But that maxim is inapplicable in such

Acases. The only inference which court can draw fromsuch superfluous provisions (which generally find placein Acts to meet unfounded objections and idle doubts), isthat the Legislature was either ignorant or unmindful ofthe real state of the law, or that it acted under the influenceof excessive caution.B

Lastly, we would state that in the case of Pampathy v. State ofMysore (supra), the Court has specifically observed that nolegislative enactment dealing with the procedure can provide forall cases and that Court should have inherent powers apart fromthe express provisions of law which are necessary for the properCdischarge of duties.”

331. For all these reasons, it is held that the omission to expresslyenact provision, that excludes the period during which any interimorder was operative, preventing the State from taking possession ofacquired land, or from giving effect to the award, in particular case orDcases, cannot result in the inclusion of such period or periods for thepurpose of reckoning the period of 5 years. Also, merely because timelinesare indicated, with the consequence of lapsing, under Sections 19 and 69of the Act of 2013, per se does not mean that omission to factor suchtime (of subsistence of interim orders) has any special legislative intent.This Court notices, in this context, that even under the new Act (nor wasEit so under the 1894 Act) no provision has been enacted, for lapse of theentire acquisition, for non-payment of compensation within specifiedtime; nor has any such provision been made regarding possession.Furthermore, non-compliance with payment and deposit provisions (underSection 77) only results in higher interest pay-outs under Section 80.FThe omission to provide for exclusion of time during which interim orderssubsisted, while determining whether or not acquisitions lapsed, in thepresent case, is clear result of inadvertence or accident, having regardto the subject matter, refusal to apply the principle underlying the maximactus curae neminem gravabit would result in injustice.

In Re: Principle of Restitution:G

332. The principle of restitution is founded on the ideal of doingcomplete justice at the end of litigation, and parties have to be placed inthe same position but for the litigation and interim order, if any, passed inthe matter. In South Eastern Coalfields Ltd. v. State of M.P. & Ors.[222],

H222 (2003) 8 SCC 648

it was held that no party could take advantage of litigation. It has todisgorge the advantage gained due to delay in case lis is lost. The interimorder passed by the court merges into final decision. The validity of aninterim order, passed in favour of party, stands reversed in the event ofa final order going against the party successful at the interim stage.Section 144 of the Code of Civil Procedure is not the fountain source ofrestitution. It is rather statutory recognition of the rule of justice, equityand fair play. The court has inherent jurisdiction to order restitution so asto do complete justice. This is also on the principle that wrong ordershould not be perpetuated by keeping it alive and respecting it. In exerciseof such power, the courts have applied the principle of restitution tomyriad situations not falling within the terms of section 144 CPC. Whatattracts applicability of restitution is not the act of the court being wrongfulor mistake or an error committed by the court; the test is whether, onaccount of an act of the party persuading the court to pass an order heldat the end as not sustainable, resulting in one party gaining an advantagewhich it would not have otherwise earned, or the other party havingsuffered an impoverishment, restitution has to be made. Litigation cannotbe permitted to be productive industry. Litigation cannot be reduced togaming where there is an element of chance in every case. If the conceptof restitution is excluded from application to interim orders, then thelitigant would stand to gain by swallowing the benefits yielding out of theinterim order. This Court observed in South Eastern Coal Field (supra)thus:

“26. In our opinion, the principle of restitution takes care ofthis submission. The word “restitution” in its etymologicalsense means restoring to party on the modification, variationor reversal of decree or order, what has been lost to him inexecution of decree or order of the court or in directconsequence of decree or order (see Zafar Khan v. Boardof Revenue, U.P., 1984 Supp SCC 505) In law, the term“restitution” is used in three senses: (i) return or restorationof some specific thing to its rightful owner or status; (ii)compensation for benefits derived from wrong done toanother; and (iii) compensation or reparation for the losscaused to another. (See Black’s Law Dictionary, 7th Edn., p.1315). The Law of Contracts by John D. Calamari & JosephM. Perillo has been quoted by Black to say that “restitution”is an ambiguous term, sometimes referring to the disgorging

ABCDE

of something which has been taken and at times referring tocompensation for the injury done:

“Often, the result under either meaning of the term wouldbe the same. … Unjust impoverishment, as well as unjustenrichment, is ground for restitution. If the defendant isguilty of non-tortious misrepresentation, the measure ofrecovery is not rigid but, as in other cases of restitution,such factors as relative fault, the agreed-upon risks, andthe fairness of alternative risk allocations not agreed uponand not attributable to the fault of either party need to beweighed.”

The principle of restitution has been statutorily recognized inSection 144 of the Code of Civil Procedure, 1908. Section144 CPC speaks not only of decree being varied, reversed,set aside or modified but also includes an order on par witha decree. The scope of the provision is wide enough so as toinclude therein almost all the kinds of variation, reversal,setting aside or modification of decree or order. The interimorder passed by the court merges into final decision. Thevalidity of an interim order, passed in favor of party, standsreversed in the event of final decision going against theparty successful at the interim stage.

27. x x x

This is also on the principle that wrong order should not beperpetuated by keeping it alive and respecting it (A. ArunagiriNadar v. S.P. Rathinasami, (1971) 1 MLJ 220). In the exerciseof such inherent power, the courts have applied the principlesof restitution to myriad situations not strictly falling withinthe terms of Section 144.

28. That no one shall suffer by an act of the court is not arule confined to an erroneous act of the court; the “act of thecourt” embraces within its sweep all such acts as to whichthe court may form an opinion in any legal proceedings thatthe court would not have so acted had it been correctlyapprised of the facts and the law. x x x the concept of restitution

is excluded from application to interim orders, then the litigantwould stand to gain by swallowing the benefits yielding outof the interim ordereven though the battle has been lost atthe end. This cannot be countenanced. We are, therefore, ofthe opinion that the successful party finally held entitled to arelief assessable in terms of money at the end of the litigation,is entitled to be compensated by award of interest at suitablereasonable rate for the period for which the interim order ofthe court withholding the release of money had remained inoperation.”

(emphasis supplied)

333. In State of Gujarat & Ors. v. Essar Oil Ltd. & Anr[223], itwas observed that the principle of restitution is remedy against unjustenrichment or unjust benefit. The Court observed:

“61. The concept of restitution is virtually common lawprinciple, and it is remedy against unjust enrichment orunjust benefit. The core of the concept lies in the conscienceof the court, which prevents party from retaining money orsome benefit derived from another, which it has received byway of an erroneous decree of the court. Such remedy inEnglish Law is generally different from remedy in contractor in tort and falls within the third category of common lawremedy, which is called quasi-contract or restitution.

62. If we analyze the concept of restitution, one thing emergesclearly that the obligation to restitute lies on the person orthe authority that has received unjust enrichment or unjustbenefit (see Halsbury’s Laws of England, 4th Edn., Vol. 9, p.434).”

334. In A. Shanmugam v. Ariya Kshatriya Rajakula VamsathuMadalaya Nandhavana Paripalanai Sangam[224], it was stated thatrestitutionary jurisdiction is inherent in every court, to neutralize theadvantage of litigation. person on the right side of the law should notbe deprived, on account of the effects of litigation; the wrongful gain offrivolous litigation has to be eliminated if the faith of people in the judiciaryhas to be sustained. The Court observed:

223 (2012) 3 SCC 522

224 (2012) 6 SCC 430

“37. This Court, in another important case in Indian Councilfor Enviro-Legal Action v. Union of India (of which one ofus, Dr. Bhandari, J. was the author of the judgment) had anoccasion to deal with the concept of restitution. The relevantparagraphs of that judgment dealing with relevant judgmentsare reproduced hereunder: (SCC pp. 238-41 & 243-46, paras170-76, 183-88 & 190-93)

“170. x x x

171. In Ram Krishna Verma v. the State of U.P. this Courtobserved as under: (SCC p. 630, para 16)

‘16. The 50 operators, including the appellants/privateoperators, have been running their stage carriages by blatantabuse of the process of the court by delaying the hearing asdirected in Jeewan Nath Wahal’s case and the High Courtearlier thereto. As fact, on the expiry of the initial period ofthe grant after 29-9-1959, they lost the right to obtain renewalor to ply their vehicles, as this Court declared the scheme tobe operative. However, by sheer abuse of the process of law,they are continuing to ply their vehicles pending the hearingof the objections. This Court in Grindlays Bank Ltd. v. ITOheld that the High Court, while exercising its power underArticle 226, the interest of justice requires that any undeservedor unfair advantage gained by party invoking thejurisdiction of the court must be neutralized. It was furtherheld that the institution of the litigation by it should not bepermitted to confer an unfair advantage on the partyresponsible for it. In the light of that law and in view of thepower under Article 142(1) of the Constitution this Court,while exercising its jurisdiction would do complete justice andneutralize the unfair advantage gained by the 50 operatorsincluding the appellants in dragging the litigation to run thestage carriages on the approved route or area or portionthereof and forfeited their right to hearing of the objectionsfiled by them to the draft scheme dated 26-2-1959.’

172. This Court in Kavita Trehan v. Balsara HygieneProducts Ltd. observed as under: (SCC p. 391, para 22)

‘22. The jurisdiction to make restitution is inherent inevery court and will be exercised whenever the justice of thecase demands. It will be exercised under inherent powers,where the case did not strictly fall within the ambit of Section144. Section 144 opens with the words:

“144. Application for restitution.—(1) Where and insofar asa decree or an order is varied or reversed in any appeal,revision or other proceeding or is set aside or modified inany suit instituted for the purpose ….”

The instant case may not strictly fall within the terms ofSection 144, but the aggrieved party in such case canappeal to the larger and general powers of restitution inherentin every court.’

173. This Court in Marshall Sons & Co. (I) Ltd. v. SahiOretrans (P) Ltd. observed as under: (SCC pp. 326-27, para4)

‘4. From the narration of the facts, though it appearsto us, prima facie, that decree in favor of the appellant isnot being executed for some reason or the other, we do notthink it proper at this stage to direct the respondent to deliverthe possession to the appellant since the suit filed by therespondent is still pending. It is true that proceedings aredragged on for long time on one count or the other and, onoccasion, become highly technical accompanied by unendingprolixity at every stage, providing legal trap to the unwary.Because of the delay, unscrupulous parties to the proceedingstake undue advantage, and the person who is in wrongfulpossession draws delight in delay in disposal of the cases bytaking undue advantage of procedural complications. It isalso known fact that after obtaining decree for possessionof the immovable property, its execution takes long time. Insuch situation, for protecting the interest of the judgment-creditor, it is necessary to pass appropriate orders so thatreasonable mesne profit which may be equivalent to the marketrent is paid by person who is holding over the property.Inappropriate cases, the court may appoint Receiver anddirect the person who is holding over the property to act as

an agent of the [Receiver with direction to deposit the royaltyamount fixed by the] Receiver or pass such other order whichmay meet the interest of justice. This may prevent further injuryto the plaintiff in whose favor the decree is passed and toprotect the property, including further alienation.’

174. In Padmawati v. Harijan Sewak Sangh decidedby the Delhi High Court on 6-11-2008, the Court held asunder: (DLT p. 413, para 6)

‘6. The case at hand shows that frivolous defenses andfrivolous litigation is calculated venture involving no riskssituation. You have only to engage professionals to prolongthe litigation so as to deprive the rights of person and enjoythe fruits of illegalities. I consider that in such cases wherethe court finds that using the courts as tool, litigant hasperpetuated illegalities or has perpetuated an illegalpossession, the court must impose costs on such litigants whichshould be equal to the benefits derived by the litigant andharm and deprivation suffered by the rightful person so as tocheck the frivolous litigation and prevent the people fromreaping rich harvest of illegal acts through the courts. Oneof the aims of every judicial system has to be to discourageunjust enrichment using courts as tool. The costs imposedby the courts must in all cases should be the real costs equalto deprivation suffered by the rightful person.’

We approve the findings of the High Court of Delhi in thecase mentioned above.

175. The High Court also stated: (Padmawati case, DLTpp. 414-15, para 9)

‘9. Before parting with this case, we consider it necessaryto observe that one of the [main] reasons for overflowing ofcourt dockets is the frivolous litigation in which the courtsare engaged by the litigants and which is dragged on for aslong as possible. Even if these litigants ultimately lose the lis,they become the real victors and have the last laugh. Thisclass of people who perpetuate illegal acts by obtaining staysand injunctions from the courts must be made to pay thesufferer not only the entire illegal gains made by them as coststo the person deprived of his right but also must be burdenedwith exemplary costs. The faith of people in judiciary canonly be sustained if the persons on the right side of the lawdo not feel that even if they keep fighting for justice in thecourt and ultimately win, they would turn out to be foolsince winning case after 20 or 30 years would make thewrongdoer as real gainer, who had reaped the benefits forall those years. Thus, it becomes the duty of the courts to seethat such wrongdoers are discouraged at every step, and evenif they succeed in prolonging the litigation due to their moneypower, ultimately, they must suffer the costs of all these years’long litigation. Despite the settled legal positions, the obviouswrongdoers, use one after another tier of judicial reviewmechanism as gamble, knowing fully well that dice is alwaysloaded in their favour since even if they lose, the time gainedis the real gain. This situation must be redeemed by thecourts.’

176. Against this judgment of the Delhi High Court,Special Leave to Appeal (Civil) No. 29197 of 2008 waspreferred to this Court. The Court passed the following order:(SCC p. 460, para 1)

‘1. We have heard the learned counsel appearing forthe parties. We find no ground to interfere with the well-considered judgment passed by the High Court. The specialleave petition is, accordingly, dismissed.’

183. In Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans(P) Ltd. this Court in para 4 of the judgment observed asunder: (SCC pp. 326-27)

‘4. … It is true that proceedings are dragged on for along time on one count or the other and, on occasion, becomehighly technical accompanied by unending prolixity at everystage, providing legal trap to the unwary. Because of thedelay, unscrupulous parties to the proceedings take undueadvantage, and person who is in wrongful possession drawsdelight in delay in disposal of the cases by taking undueadvantage of procedural complications. It is also known

Afact that after obtaining decree for possession of immovableproperty, its execution takes long time. In such situation,for protecting the interest of the judgment-creditor, it isnecessary to pass appropriate orders so that reasonablemesne profit which may be equivalent to the market rent ispaid by person who is holding over the property. InBappropriate cases, the court may appoint Receiver and directthe person who is holding over the property to act as an agentof the Receiver with direction to deposit the royalty amountfixed by the Receiver or pass such other order which maymeet the interest of justice. This may prevent further injury toCthe plaintiff in whose favour the decree is passed and to protectthe property, including further alienation.’

184. In Ouseph Mathai v. M. Abdul Khadir, this Courtreiterated the legal position that: (SCC p. 328, para 13)

‘13. … [the] stay granted by the court does not conferDa right upon party and it is granted always subject to thefinal result of the matter in the court and at the risks andcosts of the party obtaining the stay. After the dismissal of thelis, the party concerned is relegated to the position whichexisted prior to the filing of the petition in the court whichEhad granted the stay. Grant of stay does not automaticallyamount to extension of statutory protection.”

There are other decisions as well, which iterate and apply thesame principle.[225]

335. wrong-doer or in the present context, litigant who takesFhis chances, cannot be permitted to gain by delaying tactics. It is theduty of the judicial system to discourage undue enrichment or drawingof undue advantage, by using the court as tool. In KalabharatiAdvertising v. Hemant Vimalnath Narichania[226], it was observed thatcourts should be careful in neutralizing the effect of consequential ordersGpassed pursuant to interim orders. Such directions are necessary to checkthe rising trend among the litigants to secure reliefs as an interim measure225 Indian Council for Enviro-Legal Action v. Union of India, (2011) 8 SCC 161,Grindlays Bank Ltd. v. CIT, (1980) 2 SCC 191, Ram Krishna Verma v. the State of U.P.,(1992) 2 SCC 620. Also Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. andAnr., (1999) 2 SCC 325.226 (2010) 9 SCC 437H

and avoid adjudication of the case on merits. Thus, the restitutionaryprinciple recognizes and gives shape to the idea that advantages securedby litigant, on account of orders of court, at his behest, should not beperpetuated; this would encourage the prolific or serial litigant, to approachcourts time and again and defeat rights of others- including underminingof public purposes underlying acquisition proceedings. differentapproach would mean that, for instance, where two landowners (soughtto be displaced from their lands by the same notification) are awardedcompensation, of whom one allows the issue to attain finality- and moveson, the other obdurately seeks to stall the public purpose underlying theacquisition, by filing one or series of litigation, during the pendency ofwhich interim orders might inure and bind the parties, the latter wouldprofit and be rewarded, with the deemed lapse condition under Section24 (2). Such consequence, in the opinion of this Court, was neverintended by Parliament; furthermore, the restitutionary principle requiresthat the advantage gained by the litigant should be suitably offset, infavour of the other party.

336. In Krishnaswamy S. Pd. v. Union of India[227], it wasobserved that an unintentional mistake of the Court, which may prejudicethe cause of any party, must and alone could be rectified. Thus, in ouropinion, the period for which the interim order has operated under Section24 has to be excluded for counting the period of 5 years under Section24(2) for the various reasons mentioned above.

In Re Question no.6: Whether Section 24 revives stale andbarred claim

337. Before proceeding further, in our opinion, Section 24contemplates pending proceedings and not the concluded ones in whichpossession has been taken, and compensation has been paid or deposited.Section 24 does not provide an arm or tool to question the legality ofproceedings, which have been undertaken under the Act of 1894 andstood concluded before five years or more. It is only in cases wherepossession has not been taken, nor compensation is paid, that there is alapse. In case possession has been taken, and compensation has notbeen deposited with respect to majority of landholdings, the beneficialprovision of the statute provides that all beneficiaries shall be paidcompensation as admissible under the Act of 2013. The beneficiaries,i.e., landowners contemplated under the proviso to Section 24(2), are

227 (2006) 3 SCC 286

Athe ones who were so recorded as beneficiaries as on the date of issuanceof notification under Section 4 of the Act of 1894. The provision is notmeant to be invoked on the basis of void transactions, and by the personswho have purchased on the basis of power of attorney or otherwise,they cannot claim the benefit under Section 24 as is apparent from provisoto Section 24(2) and the decision in Shiv Kumar and Ors. v. Union ofBIndia and Ors[228].

338. This Court is cognizant that Section 24 is used for submittingvarious claims, by way of filing applications in the pending proceedingseither before the High Court or this Court. There are cases in which inthe first round of litigation where the challenge to acquisition proceedingsChas failed, validity has been upheld, and possession has been taken afterpassing of the award. It is contended that drawing of panchnama wasnot the permissible mode to take possession, and actual physicalpossession remains with such landowners/purchasers/power of attorneyholders as such benefit of Section 24 should be given to themDnotwithstanding the fact that they have withdrawn the compensationalso.339. This Court is cognizant of cases where reference was soughtfor enhancement of compensation, money was deposited in the treasury,enhancement was made, and possession was taken. Yet, acquisitionsEhave been questioned, and claims are being made under Section 24, thatacquisition has lapsed, as the deposit (of compensation amount) in thetreasury was not in accordance with the law, the amount should havebeen deposited in reference court. Further, this Court also notes thatthere have been cases in which after taking possession, whendevelopment is complete, infrastructure has developed despite whichFclaims are being made under Section 24, on the ground that either thepossession has not been taken in accordance with law or compensationhas been deposited in the treasury, thus questioning the acquisitions. Thedecision in Mahavir and Ors. v. Union of India[229] was an instance inwhich claim was made that acquisition was made more than centuryGago, and compensation has not been paid as such acquisition has lapsedrelating to the land of Raisina Hills in New Delhi. The importance ofRaisina Hills is well-known to everybody. The grossest misuse of Section24 has been sought to be made, which is intended to confer benefit. It

228 2019 (13) SCALE 698H229 (2018) 3 SCC 588

was never intended to revive such claims and be used in the manner inwhich it has been today, where large numbers of acquisitions anddevelopment projects, such as construction of roads, hospitals, townships,housing projects, etc., are sought to be undone, though such acquisitionshave been settled in several rounds of litigation. In several matters, thevalidity has been questioned under the guise as if the right has beenconferred for the first time under the Act of 2013, claiming that suchacquisitions have lapsed. There are also cases in which the claims forrelease of land under Section 48 of the Act of 1894 have been dismissed.Now, claims are made that as land is open and landowners/intermediaries/POA holders continue to be in physical possession, thus, it should bereturned to them, as the acquisition has lapsed under Section 24(2).Before us also arguments have been raised to grant relief in all suchcases by making purposive interpretation of benevolent provisions. Itwas urged that this Court is bound to give relief as Section 24 isretrospective in operation, and the authorities have not cared to takepossession for more than five years or more, and they have not paid thecompensation and deposited it in treasury which cannot be said to belegal. It is declared that the acquisition has lapsed, and the land is givenback to them. In case any infrastructure is existing, the State Governmentshould acquire the land afresh after following the process of Act of2013. Earlier, injustice was done to landowners, as observed in variousdecisions mentioned above. We should not disturb the decisions of thisCourt and are bound to follow the law laid down in Pune MunicipalCorporation (supra) and the principle of stare decisis.

340. By and large, concluded cases are being questioned by wayof invoking the provisions contained in Section 24. In our consideredopinion, the legality of concluded cases cannot be questioned under theguise of Section 24(2) as it does not envisage or confer any such right toquestion the proceedings and the acquisitions have been concluded longback, or in several rounds of litigation as mentioned above, rights of theparties have been settled.

341. In this context, it is noteworthy that the Urban Land (Ceilingand Regulation) Act, 1976, was repealed in the year 1999; thereafter,claims were raised. After repeal, it was claimed that actual physicalpossession has not been taken by the State Government as such repealhas the effect of effacing the proceedings of taking possession, which itwas alleged, was not in accordance with the law. In State of Assam v.

ABhaskar Jyoti Sarma and Ors[230], submission was raised by the Stateof Assam that physical possession has been taken over by the competentauthority and it was submitted on behalf of landowner that procedureprescribed under Section 10(5) of the Urban Land (Ceiling and Regulation)Act, 1976, was not followed. It was before taking possession underSection 10(6) of the Urban Land (Ceiling and Regulation) Act, 1976, theBnotification under Section 10(5) was necessary; thus, no possession canbe said to have been taken within the meaning of Section 3 of the RepealAct. The question this Court had to consider was whether actual physicalpossession was taken over in that case by the competent authority. TheState of Assam submitted that though possession was taken over in theCyear 1991, may be unilaterally and without notice to the landowner. Itwas urged that mere non-compliance with Section 10(5) would beinsufficient to attract the provisions of Section 3 of the Repeal Act. ThisCourt repelled the submission of the landowner and held as under:

“15. The High Court has held that the alleged dispossessionDwas not preceded by any notice under Section 10(5) of theAct. Assuming that to be the case all that it would mean is thaton 7-12-1991 when the erstwhile owner was dispossessedfrom the land in question, he could have made grievancebased on Section 10(5) and even sought restoration ofpossession to him no matter he would upon such restorationEonce again be liable to be evicted under Sections 10(5) and10(6) of the Act upon his failure to deliver or surrender suchpossession. In reality therefore unless there was somethingthat was inherently wrong so as to affect the very process oftaking over such as the identity of the land or the boundariesFthereof or any other circumstance of similar nature goingto the root of the matter hence requiring an adjudication, aperson who had lost his land by reason of the same beingdeclared surplus under Section 10(3) would not consider itworthwhile to agitate the violation of Section 10(5) for hecan well understand that even when the Court may upholdGhis contention that the procedure ought to be followed asprescribed, it may still be not enough for him to retain theland for the authorities could the very next day dispossesshim from the same by simply serving notice under Section

10(5). It would, in that view, be an academic exercise for anyowner or person in possession to find fault with hisdispossession on the ground that no notice under Section10(5) had been served upon him.

16. The issue can be viewed from another angle also. Assumingthat person in possession could make grievance, no matterwithout much gain in the ultimate analysis, the question iswhether such grievance could be made long after the allegedviolation of Section 10(5). If actual physical possession wastaken over from the erstwhile landowner on 7-12-1991 as isalleged in the present case, any grievance based on Section10(5) ought to have been made within reasonable time ofsuch dispossession. If the owner did not do so, forcibly takingover of possession would acquire legitimacy by sheer lapseof time. In any such situation, the owner or the person inpossession must be deemed to have waived his right underSection 10(5) of the Act. Any other view would, in our opinion,give license to litigant to make grievance not becausehe has suffered any real prejudice that needs to be redressedbut only because the fortuitous circumstance of Repeal Acttempted him to raise the issue regarding his dispossessionbeing in violation of the prescribed procedure.17. Reliance was placed by the respondents upon the decisionof this Court in Hari Ram case. That decision does not, in ourview, lend much assistance to the respondents. We say sobecause this Court was in State of UP v. Hari Ram, (2013) 4SCC 280 considering whether the word “may” appearing inSection 10(5) gave to the competent authority the discretionto issue or not to issue notice before taking physicalpossession of the land in question under Section 10(6). Thequestion of whether the breach of Section 10(5) and possibledispossession without notice would vitiate the Act ofdispossession itself or render it non-est in the eye of the lawdid not fall for consideration in that case. In our opinion,what Section 10(5) prescribes is an ordinary and logicalcourse of action that ought to be followed before theauthorities decided to use force to dispossess the occupantunder Section 10(6). In the case at hand, if the appellant’s

Aversion regarding dispossession of the erstwhile owner inDecember 1991 is correct, the fact that such dispossessionwas without notice under Section 10(5) will be of noconsequence and would not vitiate or obliterate the Act oftaking possession for the purposes of Section 3 of the RepealAct. That is because Bhabadeb Sarma, erstwhile owner, hadBnot made any grievance based on breach of Section 10(5) atany stage during his lifetime, implying thereby that he hadwaived his right to do so.”

This Court held that provisions of the Repeal Act could not beextended in such case where possession has been taken withoutCfollowing the procedure, and the landowner cannot retain the land. ThisCourt also observed that once possession has been taken over in theyear 1991, any grievance as to non-compliance of Section 10(5) oughtto have been made within reasonable time of such dispossession. Bysheer lapse of time, the possession would acquire legitimacy. Thus, theDowner or the person in possession must be deemed to have waived hisright under Section 10(5) of the Act. This Court also observed that onlybecause of the fortuitous circumstance of Repeal Act, which conferscertain rights, the litigation had tempted the landowner to raise the issueregarding his dispossession being in violation of the prescribed procedure.It is clear from the aforesaid decision that such claims cannot beEentertained, and any such dispute raised belatedly was repelled by thisCourt.

342. Section 24(2) is sought to be used as an umbrella so as toquestion the concluded proceedings in which possession has been taken,development has been made, and compensation has been deposited, butFmay be due to refusal, it has not been collected. The challenge to theacquisition proceedings cannot be made within the parameters of Section24(2) once panchnama had been drawn of taking possession, thereafterre-entry or retaining the possession is that of the trespasser. The legalityof the proceedings cannot be challenged belatedly, and the right toGchallenge cannot be revived by virtue of the provisions of Section 24(2).Section 24(2) only contemplates lethargy/inaction of the authorities toact for five years or more. It is very easy to lay claim that physicalpossession was not taken, with respect to open land. Yet, once vestingtakes place, possession is presumed to be that of the owner, i.e., theState Government and land has been transferred to the beneficiaries,

Corporations, Authorities, etc., for developmental purposes and third-party interests have intervened. Such challenges cannot be entertainedat all under the purview of Section 24(2) as it is not what is remotelycontemplated in Section 24(2) of the Act of 2013.

343. In matters of land acquisition, this Court has frowned upon,and cautioned courts about delays and held that delay is fatal in questioningthe land acquisition proceedings. In case possession has not been takenin accordance with law and vesting is not in accordance with Section 16,proceedings before courts are to be initiated within reasonable time, notafter the lapse of several decades.

344. In Hari Singh and Ors. v. State of U.P. and Ors[231], therewas delay of two and half years in questioning the proceedings. ThisCourt held that the writ petition was liable to be dismissed on the groundof laches only.

345. In State of T.N. and Ors. v. L. Krishnan & Ors[232], thisCourt held that petitioners could not raise their claim at belated stage.Following observations were made:

“45. There remains the last ground assigned by the High Courtin support of its decision. The High Court has held that thenon-compliance with sub-rules (b) and (c) of Rule 3 of theRules made by the Government of Tamil Nadu pursuant toSection 55(1) of the Land Acquisition Act vitiates the reportmade under Section 5-A and consequently the declarationsmade under Section 6. The said sub-rules provide that onreceipt of objections under Section 5-A, the Collector shallfix date of hearing to the objections and give notice of thesame to the objector as well as to the department. It is open tothe department to file statement by way of answer to theobjections filed by the landowners. The submission of thewrit petitioners was that in given case, it might well happenthat in the light of the objections submitted by the landowners,the department concerned may decide to drop the acquisition.Since no such opportunity was given to the departmentconcerned herein, it could not file its statement by way ofanswer to their objections. This is said to be prejudice. We do

231 AIR 1984 SC 1020232 (1996) 1 SCC 250

Anot think it necessary to go into the merits of this submissionon account of the laches on the part of the writ petitioners.As stated above, the declaration under Section 6 was madesometime in the year 1978, and the writ petitioners chose toapproach the Court only in the years 1982-83. Had they raisedthis objection at the proper time and if it were found to beBtrue and acceptable, the opportunity could have been givento the Government to comply with the said requirement.Having kept quiet for number of years, the petitioners cannotraise this contention in writ petitions filed at stage when theawards were about to be passed.”

346. In Municipal Corporation of Greater Bombay v. IndustrialDevelopment Investment Co. Pvt. Ltd[233], this Court observed, withrespect to delay and laches that:

“29. It is thus well-settled law that when there is inordinatedelay in filing the writ petition and when all steps taken inDthe acquisition proceedings have become final, the Courtshould be loath to quash the notifications. The High Courthas, no doubt, discretionary powers under Article 226 of theConstitution to quash the notification under Section 4(1) anddeclaration under Section 6. But it should be exercised byEtaking all relevant factors into pragmatic consideration. Whenthe award was passed, and possession was taken, the Courtshould not have exercised its power to quash the award whichis material factor to be taken into consideration beforeexercising power under Article 226. The fact that no thirdparty rights were created in the case is hardly ground forFinterference. The Division Bench of the High Court was notright in interfering with the discretion exercised by the learnedSingle Judge dismissing the writ petition on the ground oflaches.

S.B. MAJUMDAR, J. (concurring)—I have gone through thejudgment prepared by my esteemed learned brother K.Ramaswamy, J. I respectfully agree with the conclusion to theeffect that Respondents 1 and 2 had missed the bus by

adopting an indolent attitude in not challenging theacquisition proceedings promptly. Therefore, the result isinevitable that the writ petition is liable to be dismissed on theground of gross delay and laches.

35. x x x The acquired land got vested in the State Governmentand the Municipal Corporation free from all encumbrancesas enjoined by Section 16 of the Land Acquisition Act. Thusright to get more compensation got vested in diverse claimantsbypassing the award, as well as the vested right, was createdin favor of the Bombay Municipal Corporation by virtue ofthe vesting of the land in the State Government for beinghanded over to the Corporation. All these events could notbe wished away by observing that no third party rights werecreated by them. The writ petition came to be filed after allthese events had taken place. Such writ petition was clearlystillborn due to gross delay and laches. I, therefore,respectfully agree with the conclusion to which my learnedbrother Ramaswamy, J., has reached that on the ground ofdelay and laches the writ petition is required to be dismissed,”and the appeal has to be allowed on that ground.

(emphasis supplied)

There are several other decisions of this Court, where delaywas held, to disentitle litigants any relief.[234]

347. In Jasveer Singh and Anr. v. State of Uttar Pradesh &Ors.[235] , the writ petition was filed in which High Court had directed theredetermination of the compensation. In that case the matter wasremanded by this Court to consider the additional compensation underSection 23-(1A). Thereafter submission was raised in the High Courtunder Section 24. This Court held that the challenge could not have beenentertained. This Court observed thus:

234 In Hindustan Zinc Ltd. v. Bhagwan Singh Bhati and Ors., (2008) 3 SCC 462, therewas fatal delay of 10 years in the filing of the writ petition. In Govt. of A.P. and Ors.v. Kollutla Obi Reddy and Ors., (2005) 6 SCC 493, the writ petition was filed after sixyears of the land acquisition. The writ petition was dismissed on the ground of delayand laches.235 (2017) 6 SCC 787

“2. On 19-12-2005 the appellants filed writ petitionbefore the High Court seeking quashing of the acquisitionproceedings which was decided by the High Court on 3-12-2010 directing redetermination of compensation. The saidorder was set aside by this Court on 16-10-2012 in State ofU.P. v. Jasveer Singh [Civil Appeal No.7535 of 2012, orderdated 16-10-2012 (SC)]. It was observed that:

“After considering the pros and cons, without enteringinto serious controversies and making any comment on themerit of the case, we are of the considered opinion that inview of the judgment and order of this Court dated 26-11-2010, which was passed in the presence of the counsel forboth the parties, the High Court ought not to have heard thematter at all. Thus, the judgment and order impugned beforeus have lost its sanctity. Therefore, the same is hereby setaside.

However, in order to meet the ends of justice, we remandthe case to the High Court to hear the writ petition afreshexpeditiously, preferably within period of six months fromthe date of production of the certified copy of the order beforethe Hon’ble Chief Justice. The matter may be assigned to anyparticular Bench by the Hon’ble Chief Justice for finaldisposal. The parties shall be at liberty to raise all factualand legal issues involved in the case. The High Court isrequested to deal with the relevant issues in detail.More so, if the respondents are so aggrieved regardingwithdrawal of their appeals, which had been remanded bythis Court for determining the entitlement of interest underSection 23(1-A) of the Land Acquisition Act, 1984 and anapplication is made by the respondent to revive the same, theHigh Court may consider and decide the said application inaccordance with law. All the matters shall be heardsimultaneously by the same Bench if the appeals are restored.”

3. Thereafter, the High Court considered the contentionof the appellants that the award in respect of compensationwas no award in the eye of the law and though the possessionwas taken long back and railway line had been laid out, the

acquisition proceedings were liable to be set aside, andcompensation was liable to be awarded at present market rate.The High Court rejected the said plea vide judgment dated30-5-2014 in Jasvir Singh v. the State of U.P., 2014 SCCOnLine All 8465. It was observed that objection of theappellants against the award had already been consideredand remand by the Supreme Court on 12-9-2005 was only inrespect of statutory benefits. For the first time plea was soughtto be raised in the writ petition against validity of acquisitionwhich was impermissible in view of the law laid down by thisCourt in Aflatoon v. Lt. Governor of Delhi, (1975) 4 SCC285, Swaika Properties (P) Ltd. v. State of Rajasthan, (2008)4 SCC 695, Sawaran Lata v. State of Haryana, (2010) 4 SCC532 and Banda Development Authority v. Moti Lal Agarwal,(2011) 5 SCC 394. The judgment of this Court in Royal OrchidHotels v. G. Jayarama Reddy, (2011) 10 SCC 608, wasdistinguished as that case related to the fraudulent exerciseof power of an eminent domain. The High Court concluded:(Jasvir Singh case, 2014 SCC OnLine All 8465 (SCC OnLineparas 45-47)

“45. Taking into consideration the entire facts andcircumstances of the case, we are of the view that the writpetition is highly barred by laches and deserves to be dismissedon the ground of laches alone.

46. As has been observed above, the petitioners’ maingrievance is for enhancement of compensation, for which thepetitioner has already filed First Appeal No. 880 of 1993and First Appeal No. 401 of 1998 which appeals are beingallowed by order of the date, we see no reason to entertainthe writ petition.

47. Although various submissions on merits challengingthe entire acquisition proceedings have been raised by thelearned counsel for the petitioners, we have taken the viewthat the writ petition is highly barred by laches, we do notfind it necessary to enter into the submissions raised by thelearned counsel for the petitioners on merits.”

A348. In Swaika Properties Pvt. Ltd. and Ors. v. State ofRajasthan and Ors[236], the writ petition was filed after taking possessionand award has become final. The writ petition was dismissed on theground of delay and laches. In Larsen & Toubro Ltd. v. State of Gujaratand Ors.[237], in the absence of challenge to the acquisition proceedingswithin reasonable time, the challenge was repelled. Delay was alsoBfatal in Haryana State Handloom and Handicrafts Corporation Ltd.and Ors. v. Jain School Society[238]. The writ petition was filed aftertwo years to question the declaration under Section 6 and was dismissedon the ground of delay in Urban Improvement Trust, Udaipur vs. BheruLal and Ors[239]. Delay of 5 to 10 years was held to be fatal inCquestioning the acquisition proceedings as held in Vishwas NagarEvacuee Plot Purchasers Association & Ors. v. Under Secretary,Delhi Admn. & Ors.[240]349. There is plethora of decisions where, owing to delay of 6months or more, this Court has repelled the challenge to the acquisitionDproceedings. In our opinion, Section 24 does not revive the right tochallenge those proceedings which have been concluded. The legalityof those judgments and orders cannot be reopened or questioned underthe guise of the provisions of Section 24(2). By reason of our reasoningin respect of that provision (which we have held that under Section24(2) that word “or” is to be read as ‘and’ or as ‘nor,’ even if one of theErequirements has been fulfilled, i.e., either possession taken orcompensation paid), there is no lapse unless both conditions are fulfilled,i.e., compensation has not been paid nor has possession been taken; thelegality of the concluded proceedings cannot be questioned. It is only inthe case where steps have not been taken by the Authorities. The lapse

For higher compensation is provided under Section 24(2) and its provisounder the Act of 2013.

350. In U.P. State Jal Nigam and Anr. v. Jaswant Singh andAnr[241], this Court has observed that if claimant is aware of the violationof his rights and does not claim his remedies, such inaction or conductGtantamounts waiver of the right. In such cases, the lapse of time and

236 (2008) 4 SCC 695237 (1998) 4 SCC 387238 (2003) 12 SCC 538239 (2002) 7 SCC 712240 (1990) 2 SCC 268H241 (2006) 11 SCC 464

delay are most material and cannot be ignored by the Court. InRabindranath Bose and Ors. v. Union of India and Ors[242], theConstitution Bench of this Court has observed that the Court cannot gointo the stale demands after lapse of several years. This Court observedthus:

“32. The learned counsel for the petitioners strongly urgesthat the decision of this Court in Tilokchand Motichand caseneeds review. But after carefully considering the matter, weare of the view that no relief should be given to petitionerswho, without any reasonable explanation, approach thisCourt under Article 32 of the Constitution after inordinatedelay. The highest Court in this land has been given originaljurisdiction to entertain petitions under Article 32 of theConstitution. It could not have been the intention that thisCourt would go into stale demands after lapse of years. Itis said that Article 32 is itself guaranteed right. So it is, butit does not follow from this that it was the intention of theConstitution-makers that this Court should discard allprinciples and grant relief in petitions filed after inordinatedelay.”

351. In Dharappa v. Bijapur Coop. Milk Producers SocietiesUnion Ltd[243], this Court observed that if delay has resulted in materialevidence relevant to adjudication being lost or rendered unavailable, wouldbe fatal. It was held that the time limit of 6 months prescribed underSection 10(4A) of the I.D. Act, 1947 and should not be interpreted torevive stale and dead claims, it would not be possible to defend suchclaims due to lapse of time and due to material evidence having beenlost or rendered unavailable. The lapse of time results in losing the remedyand the right as well. The delay would be fatal. It will be illogical to holdthat the amendment to the Act inserting Section 10(4A) should beinterpreted as reviving all stale and dead claims. This Court observedthus:

“29. This Court while dealing with Sections 10(1)(c) and (d)of the I.D. Act, has repeatedly held that though the Act doesnot provide period of limitation for raising dispute underSection 10(1)(c) or (d), if on account of delay, dispute hasbecome stale or ceases to exist, the reference should be

242 (1970) 1 SCC 84

243 (2007) 9 SCC 109

rejected. It has also held that lapse of time results in losingthe remedy and the right as well. The delay would be fatal ifit has resulted in material evidence relevant to adjudicationbeing lost or rendered unavailable (vide Nedungadi Bank Ltd.v. K.P. Madhavankutty, (2000) 2 SCC 455; Balbir Singh v.Punjab Roadways, (2001) 1 SCC 133; Asstt. ExecutiveEngineer v. Shivalinga, (2002) 10 SCC 167 and S.M. Nilajkarv. Telecom Distt. Manager, (2003) 4 SCC 27). When belatedclaims are considered as stale and non-existing for thepurpose of refusing or rejecting reference under Section10(1)(c) or (d), in spite of no period of limitation is prescribed,it will be illogical to hold that the amendment to the Actinserting Section 10(4-A) prescribing time-limit of sixmonths, should be interpreted as reviving all stale and deadclaims.

31. Section 10(4-A) does not, therefore, revive non-existingor stale or dead claims but only ensures that claims whichwere life, by applying the six-month rule in Section 10(4-A)as on the date when the section came into effect, have aminimum of six months’ time to approach the Labour Court.That is ensured by adding the words “or the date ofcommencement of the Industrial Disputes (KarnatakaAmendment) Act, 1987, whichever is later” to the words“within six months from the date of communication to him ofthe order of discharge, dismissal, retrenchment ortermination.” In other words, all those who have communicatedorders of termination during period of six months prior to7-4-1988 were deemed to have been communicated such ordersof termination as on 7-4-1988 for the purpose of seeking aremedy. Therefore, the words “within six months from the dateof commencement of the Industrial Disputes (KarnatakaAmendment) Act, 1987, whichever is later” only enables thosewho had been communicated order of termination within sixmonths prior to 7-4-1988, to apply under Section 10(4-A).”

352. In State of Karnataka v. Laxuman[244], this court held thatstale claims should not be entertained even if no time limit is fixed by thestatute. This court observed as follows:

“9. As can be seen, no time for applying to the Court in termsof sub-section (3) is fixed by the statute. But since theapplication is to the Court, though under special enactment,Article 137, the residuary article of the Limitation Act, 1963,would be attracted and the application has to be made withinthree years of the application for making reference or theexpiry of 90 days after the application. The position is settledby the decision of this Court in Addl. Spl. Land AcquisitionOfficer v. Thakoredas, (1997) 11 SCC 412. It was held: (SCCp. 414, para 3)“3. Admittedly, the cause of action for seeking referencehad arisen on the date of service of the award under Section12(2) of the Act. Within 90 days from the date of the serviceof the notice, the respondents made the application requestingthe Deputy Commissioner to refer the cases to the civil Courtunder Section 18. Under the amended sub-section (3)(a) ofthe Act, the Deputy Commissioner shall, within 90 days from1-9-1970, make reference under Section 18 to the civil Court,which he failed to do. Consequently, by operation ofsubsection 3(b) with the expiry of the aforestated 90 days,the cause of action had accrued to the respondents to makean application to the civil Court with prayer to direct theDeputy Commissioner to make reference. There is no periodof limitation prescribed in subsection (3)(b) to make thatapplication, but it should be done within the limitationprescribed by the Schedule to the Limitation Act. Since noarticle expressly prescribed the limitation to make such anapplication, the residuary article under Article 137 of theSchedule to the Limitation Act gets attracted. Thus, it couldbe seen that in the absence of any special period of limitationprescribed by clause (b) of sub-section (3) of Section 18 ofthe Act, the application should have been made within threeyears from the date of expiry of 90 days prescribed in Section18(3)(b), i.e., the date on which cause of action had accruedto the respondent claimant. Since the application had beenadmittedly made beyond three years, it was clearly barred bylimitation. Since the High Court relied upon the case inMunicipal Council, (1969) 1 SCC 873 which has stoodoverruled, the order of the High Court is unsustainable.”

AThis position is also supported by the reasoning in KeralaSEB v. T.P. Kunhaliumma, (1976) 4 SCC 634. It may be seenthat under the Central Act sans the Karnataka amendment,there was no right to approach the Principal Civil Court oforiginal jurisdiction to compel reference, and no time-limitwas also fixed for making such an approach. All that wasBrequired of claimant was to make an application forreference within six weeks of the award or the notice of theaward, as the case may be. But obviously, the State Legislaturethought it necessary to provide time-frame for the claimantto make his claim for enhanced compensation and forCensuring an expeditious disposal of the application forreference by the authority under the Act fixing time withinwhich he is to act and conferring an additional right on theclaimant to approach the civil Court on satisfying the conditionprecedent of having made an application for reference withinthe time prescribed.”D353. We are of the opinion that courts cannot invalidate acquisitions,which stood concluded. No claims in that regard can be entertained andagitated as they have not been revived. There has to be legal certaintywhere infrastructure has been created or has been developed partially,and investments have been made, especially when land has been acquiredElong back. It is the duty of the Court to preserve the legal certainty, asobserved in Vodafone International Holdings B.V. v. Union of Indiaand Ors[245]. The landowners had urged that since the Act of 2013 createsnew situations, which are beneficial to their interests, the question ofdelay or laches does not arise. This Court is of the opinion that the saidcontention is without merits. As held earlier, the doctrine of laches wouldFalways preclude an indolent party, who chooses not to approach thecourt, or having approached the court, allows an adverse decision tobecome final, to re-agitate the issue of acquisition of his holding. Doingso, especially in cases, where the title has vested with the State, andthereafter with subsequent interests, would be contrary to public policy.GIn A.P. State Financial Corp. v. Garware Rolling Mill[246], this Courtobserved that equity is always known to defend the law from craftyevasions and new subtleties invented to evade the law. There is no dearthof talent left in longing for the undue advantage of the wholesomeprovisions of Section 24(2) on the basis of wrong interpretation.

245 (2012) 6 SCC 613H246 (1994) 2 SCC 647

354. In British Railway Board v. Pickin[247], the followingobservations were made:

“… equity, when faced with an appeal to regulatory publicstatute, which requires compliance with formalities, will notallow such statute (assumedly passed to prevent fraud) to beused to promote fraud and will do so by imposing trust orequity upon legal right. …”

355. We are unable to accept the submission on behalf of thelandowners that it is by operation of law the proceedings are deemed tohave lapsed and that this Court should give full effect to the provisions.It was submitted that lapse of acquisition proceedings was notcontemplated under the Act of 1894, and there is departure made inSection 24 of the Act of 2013. Thus, Section 24 gives fresh cause ofaction to the landowners to approach the courts for declaration thatthe acquisition lapsed, if either compensation has not been paid or thephysical possession has not been taken. The decision of this Court in theMathura Prasad Bajoo Jaiswal and Ors. v. Dossibai N.B.Jeejeebhoy[248] was relied upon to contend that there cannot be resjudicata in the previous proceedings when the cause of action is different;reliance is also placed on Canara Bank v. N.G. Subbaraya Setty andAnr[249], where the decision of Mathura Prasad Bajoo Jaiswal andOrs. (supra) was followed as to belated challenges. Reliance was furtherplaced on Anil Kumar Gupta v. the State of Bihar[250] in which it washeld that vesting of land in the Government can be challenged on theground that possession had not been taken in accordance with theprescribed procedure. The invocation of the urgency clause in Section17, can be questioned on the ground that there was no real urgency.The notification issued under Section 4 and declaration under Section 6can be challenged on the ground of non-compliance of Section 5-A(1).Notice issued under Section 9 and the award passed under Section 11can also be questioned on permissible grounds. Reliance has also beenplaced on Ram Chand and Ors. v. Union of India[251] to contend thatinaction and delay on the part of the acquiring authority would also giverise to cause of action in favour of the landowner.

247 (1974) AC 765248 (1970) 1 SCC 613249 (2018) 16 SCC 228

250 (2012) 12 SCC 443251 (1994) 1 SCC 4

CDE

A356. The entire gamut of submissions of the landowners is basedon the misinterpretation of the provisions contained in Section 24. Itdoes not intend to divest the State of possession (of the land), title towhich has been vested in the State. It only intends to give highercompensation in case the obligation of depositing of compensation hasnot been fulfilled with regard to the majority of holdings. fresh causeBof action in Section 24 has been given if for five years or more possessionhas not been taken nor compensation has been paid. In case possessionhas been taken and compensation has not been deposited with respectto the majority of landholdings, higher compensation to all incumbents

follows, as mentioned above. Section 24 does not confer new cause ofCaction to challenge the acquisition proceedings or the methodology adoptedfor the deposit of compensation in the treasury instead of referencecourt, in that case, interest or higher compensation, as the case may be,can follow. In our considered opinion, Section 24 is applicable to pendingproceedings, not to the concluded proceedings and the legality of theconcluded proceedings, cannot be questioned. Such challenge doesDnot lie within the ambit of the deemed lapse under Section 24. The lapseunder section 24(2) is due to inaction or lethargy of authorities in takingrequisite steps as provided therein.

357. We are also of the considered opinion that the decision in anearlier round of litigation operates as res judicata where the challengeEto the legality of the proceedings had been negatived and the proceedingsof taking possession were upheld. Section 24 does not intend to reopenproceedings which have been concluded. The decision in MathuraPrasad Bajoo Jaiswal and Ors. (supra) is of no avail. Similar is thedecision in Anil Kumar Gupta v. State of Bihar (supra). No doubtFabout it that proceedings (i.e., the original acquisition, or aspects relatingto it) can be questioned but within reasonable time; yet once thechallenge has been made and failed or has not been made for reasonabletime, Section 24 does not provide for reopening thereof.

358. So far as the proposition laid down in Ram Chand and Ors.Gv. Union of India (supra) is concerned, inaction and delay on the partof acquiring authorities have been taken care of under Section 24. Themischief rule (or Heydon’s Mischief Rule) was pressed into service onbehalf of landowners relying upon the decision in Bengal Immunity Cov. the State of Bihar (supra), it was submitted that Act of 1894 did notprovide for lapse in the case of inordinate delay on the part of acquiringH

Authorities to complete the acquisition proceedings. Mischief has beensought to be cured by the legislature by introducing the Act of 2013 bymaking provisions in Section 24 of the lapse of proceedings. Thesubmission is untenable. The provisions made under section 24 haveprovided window of 5 years to complete the acquisition proceedings,and if there is delay of 5 years or more, there is lapse and nototherwise. The provision cannot be stretched any further, otherwise, theentire infrastructure, which has come up, would have to go and only thelitigants would reap the undeserving fruits of frivolous litigation, havinglost in several rounds of litigation earlier, which can never be theintendment of the law.359. We are of the considered opinion that Section 24 cannot beused to revive dead and stale claims and concluded cases. They cannotbe inquired into within the purview of Section 24 of the Act of 2013.The provisions of Section 24 do not invalidate the judgments and ordersof the Court, where rights and claims have been lost and negatived.There is no revival of the barred claims by operation of law. Thus, staleand dead claims cannot be permitted to be canvassed on the pretext ofenactment of Section 24. In exceptional cases, when in fact, the paymenthas not been made, but possession has been taken, the remedy lieselsewhere if the case is not covered by the proviso. It is the Court toconsider it independently not under section 24(2) of the Act of 2013.

360. It was submitted that Section 101 provides for return ofunutilized land under the Act of 2013. Section 101 provides that in caseland is not utilized for five years from the date of taking over thepossession, the same shall be returned to the original owner or ownersor their legal heirs, as the case may be, or to the Land Bank of theappropriate Government by reversion in the manner as may be prescribedby the appropriate Government. Section 101 reads as under:

“101. Return of unutilized land.— When any land, acquiredunder this Act remains unutilized for period of five yearsfrom the date of taking over the possession, the same shall bereturned to the original owner or owners or their legal heirs,as the case may be, or to the Land Bank of the appropriateGovernment by reversion in the manner as may be prescribedby the appropriate Government.

Explanation.— For the purpose of this section, “Land Bank”means governmental entity that focuses on the conversion

Aof Government-owned vacant, abandoned, unutilizedacquired lands and tax-delinquent properties into productiveuse.”

361. Section 24 deals with lapse of acquisition. Section 101 dealswith the return of unutilized land. Section 101 cannot be said to beBapplicable to an acquisition made under the Act of 1894. The provisionof lapse has to be considered on its own strength and not by virtue ofSection 101 though the spirit is to give back the land to the original owneror owners or the legal heirs or to the Land Bank. Return of lands is withrespect to all lands acquired under the Act of 2013 as the expressionused in the opening part is “When any land, acquired under this ActCremains unutilized”. Lapse, on the other hand, occurs when the Statedoes not take steps in terms of Section 24(2). The provisions of Section101 cannot be applied to the acquisitions made under the Act of 1894.Thus, no such sustenance can be drawn from the provisions containedin Section 101 of the Act of 2013. Five years’ logic has been carried intoDeffect for the purpose of lapse and not for the purpose of returning theland remaining unutilized under Section 24(2).

362. Resultantly, the decision rendered in Pune MunicipalCorporation & Anr. (supra) is hereby overruled and all other decisionsin which Pune Municipal Corporation (supra) has been followed, areEalso overruled. The decision in Shree Balaji Nagar ResidentialAssociation (supra) cannot be said to be laying down good law, isoverruled and other decisions following the same are also overruled. InIndore Development Authority v. Shailendra (Dead) through L.Rs.and Ors., (supra), the aspect with respect to the proviso to Section24(2) and whether ‘or’ has to be read as ‘nor’ or as ‘and’ was notFplaced for consideration. Therefore, that decision too cannot prevail, inthe light of the discussion in the present judgment.

363. In view of the aforesaid discussion, we answer the questionsas under:G1. Under the provisions of Section 24(1)(a) in case the award isnot made as on 1.1.2014 the date of commencement of Act of 2013,there is no lapse of proceedings. Compensation has to be determinedunder the provisions of Act of 2013.

2. In case the award has been passed within the window periodof five years excluding the period covered by an interim order of theH

court, then proceedings shall continue as provided under Section 24(1)(b)of the Act of 2013 under the Act of 1894 as if it has not been repealed.

3. The word ‘or’ used in Section 24(2) between possession andcompensation has to be read as ‘nor’ or as ‘and’. The deemed lapse ofland acquisition proceedings under Section 24(2) of the Act of 2013takes place where due to inaction of authorities for five years or moreprior to commencement of the said Act, the possession of land has notbeen taken nor compensation has been paid. In other words, in casepossession has been taken, compensation has not been paid then there isno lapse. Similarly, if compensation has been paid, possession has notbeen taken then there is no lapse.

4. The expression ‘paid’ in the main part of Section 24(2) of theAct of 2013 does not include deposit of compensation in court. Theconsequence of non-deposit is provided in proviso to Section 24(2) incase it has not been deposited with respect to majority of land holdingsthen all beneficiaries (landowners) as on the date of notification for landacquisition under Section 4 of the Act of 1894 shall be entitled tocompensation in accordance with the provisions of the Act of 2013. Incase the obligation under Section 31 of the Land Acquisition Act of 1894has not been fulfilled, interest under Section 34 of the said Act can begranted. Non-deposit of compensation (in court) does not result in thelapse of land acquisition proceedings. In case of non-deposit with respectto the majority of holdings for five years or more, compensation underthe Act of 2013 has to be paid to the “landowners” as on the date ofnotification for land acquisition under Section 4 of the Act of 1894.

5. In case person has been tendered the compensation asprovided under Section 31(1) of the Act of 1894, it is not open to him toclaim that acquisition has lapsed under Section 24(2) due to non-paymentor non-deposit of compensation in court. The obligation to pay is completeby tendering the amount under Section 31(1). Land owners who hadrefused to accept compensation or who sought reference for highercompensation, cannot claim that the acquisition proceedings had lapsedunder Section 24(2) of the Act of 2013.

6. The proviso to Section 24(2) of the Act of 2013 is to be treatedas part of Section 24(2) not part of Section 24(1)(b).

7. The mode of taking possession under the Act of 1894 and ascontemplated under Section 24(2) is by drawing of inquest report/

Amemorandum. Once award has been passed on taking possession underSection 16 of the Act of 1894, the land vests in State there is no divestingprovided under Section 24(2) of the Act of 2013, as once possession hasbeen taken there is no lapse under Section 24(2).

8. The provisions of Section 24(2) providing for deemed lapseBof proceedings are applicable in case authorities have failed due to theirinaction to take possession and pay compensation for five years or morebefore the Act of 2013 came into force, in proceeding for landacquisition pending with concerned authority as on 1.1.2014. The periodof subsistence of interim orders passed by court has to be excluded inthe computation of five years.

9. Section 24(2) of the Act of 2013 does not give rise to newcause of action to question the legality of concluded proceedings of landacquisition. Section 24 applies to proceeding pending on the date ofenforcement of the Act of 2013, i.e., 1.1.2014. It does not revive staleand time-barred claims and does not reopen concluded proceedings norDallow landowners to question the legality of mode of taking possessionto reopen proceedings or mode of deposit of compensation in the treasuryinstead of court to invalidate acquisition.

Let the matters be placed before appropriate Bench forconsideration on merits.

Devika Gujral

Reference answered.