FAIZABAD-AYODHYA DEVELOPMENT AUTHORITY, FAIZABAD versus DR. RAJESH KUMAR PANDEY & ORS. on 20 May 2022

SUPREME COURT REPORTS

[2022] 3 S.C.R.

AFAIZABAD-AYODHYA DEVELOPMENT AUTHORITY,FAIZABAD

v.

DR. RAJESH KUMAR PANDEY & ORS.

B(Civil Appeal No. 2915 of 2022)

MAY 20, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Land Acquisition – Right to Fair Compensation andTransparency in Land Acquisition, Rehabilitation and ResettlementCAct, 2013 – s.24(1) – Land Acquisition Act, 1894 – s.11 – Whetherin a case where an award u/s.11 of the Act, 1894 could not bedeclared by the Authority due to the pendency of the writ petitionand/or the interim stay granted by the High Court, which was filedby the landowners and consequently as on the date on which theDAct, 2013 came into force, there was no award declared u/s.11 ofthe Act, 1894, the original landowners shall be entitled tocompensation determined under sub-section (1) of s.24 of the Act,2013 – Held: In a case where on the date of commencement of theAct, 2013, no award has been declared u/s.11 of the Act, 1894, dueto the pendency of any proceedings and/or the interim stay grantedEby the Court, such landowners shall not be entitled to thecompensation u/s.24(1) of the Act, 2013 and they shall be entitledto the compensation only under the Act, 1894 – The landownerscannot be permitted to take advantage of the interim order obtainedby them due to which the Authority could not declare the award u/Fs.11 of the Act, 1894 and thereafter contend that in that view of thematter, he/they shall be paid the compensation u/s.24(1) of the Act,2013, under which a higher compensation will be available to them– The intention of the Parliament while enacting s.24(1) of the Act,2013 cannot be to give benefit to a litigant, who has obtained astay order and because of that the award could not be declaredGand thereafter the litigant may be awarded the compensation as perAct, 2013 – It may even result in discrimination between thelandowners, whose lands have been acquired under the samenotification, which would never have been the intention of theParliament.H

Land Acquisition – Right to Fair Compensation andTransparency in Land Acquisition, Rehabilitation and ResettlementAct, 2013 – s.24(1) – Observations made in Indore DevelopmentAuthority case summarized – Held: The observations would be aptlyapplicable while interpreting and considering s.24(1) of the Act,2013.

Doctrines / Principles – Principle of Restitution – Discussed– Held: The principle of restitution is a remedy against unjustenrichment or unjust benefit – Restitutionary jurisdiction is inherentin every court, to neutralise the advantage of litigation – Wrongfulgain of frivolous litigation has to be eliminated if the faith of peoplein the judiciary has to be sustained – An unsuccessful litigant(landowner) who had the benefit of an interim order in his favour(whilst a challenge was made to the land acquisition proceedings)cannot encash or take advantage of the same on the enforcementof the Act, 2013 by initially stalling the acquisition process andlater seeking a higher compensation under the provisions of Act,2013 – Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013 –Restitutionary jurisdiction.

Allowing the appeals, the Court

HELD : 1.1. Sub-section 1 of Section 24 of the Right toFair Compensation and Transparency in Land Acquisition,Rehabilitation and Resettlement Act, 2013 begins with a non-obstante clause and it states that notwithstanding anythingcontained in the Act, 2013 in any case of land acquisitionproceedings initiated under the Land Acquisition Act, 1894, - (a)Where no award under Section 11 of the Act, 1894 has been made,all provisions of the Act, 2013 relating to the determination ofcompensation shall apply; or (b) Where an award under Section11 has been made, such proceedings shall continue under theprovisions of the Act, 1894 as if the said Act has not beenrepealed. [Para 10.1][207-G-H; 208-A]

1.2. The expression “where no award under Section 11 ofthe said Land Acquisition Act has been made” in clause (a) ofsub-section 1 of Section 24 of the Act, 2013 has to be read A

B

C

D

EF

G

H

Acontextually and not by way of a plain reading. This is because aland owner who has an interim order of stay of further proceedingspursuant to the declaration made under Section 6 of the Act, 1894issued by a Court of law and has thereby restrained the Collector/Land Acquisition Officer from making an award cannot thereafterby contending that as on 01.01.2014, no award has been made byBthe acquiring authority seek benefit under the provisions of theAct, 2013 by receiving a higher compensation. [Para 10.10][211-E-F]

2.1. Section 24 is in the nature of a saving clause to save allacquisitions initiated under the provisions of Act, 1894 and atCthe same time, to grant certain reliefs under the provisions ofAct, 2013 such as lapse of acquisition under sub-section 2 ofSection 24 of the Act or clause (a) of sub-section 1 of Section 24thereof. Therefore, while applying the said provisions to the factsof each case, it is necessary to bear in mind the contextualDinterpretation having regard to provisions under both the Acts.This also becomes clear on a reading of clause (b) of sub-section1 of Section 24 which states that if an award has been made underSection 11 of Act, 1894 as on 01.01.2014 i.e., the date ofenforcement of Act, 2013, then the proceedings shall continueunder the provisions of Act, 1894 as if the same has not beenErepealed. But if no award has been made as on 01.01.2014 thenclause (a) of sub-section 1 of Section 24 would apply.[Para 10.11][211-F-H; 212-A]

2.2. It is, thus, necessary to dwell into the reasons as towhy no award has been made. If there is an order of restraint onFthe Collector or on the acquiring authority and as a result of which,the Collector or the Land Acquisition Officer is not in a positionto make an award for reasons beyond his control and incompliance of the interim order granted by a court of law at theinstance of the land owner or any other person who may haveGquestioned the acquisition, the period during which the interimorder has operated has to be reckoned and if on the date ofenforcement of Act, 2013 i.e., 01.01.2014, no award has beenmade owing to the operation of such an interim order granted bya Court in favour of the land owner, then the provisions of the2013, Act cannot straightaway be made applicable in theH

determination of the compensation. This is because, but for theoperation of the interim order, the award could have been madeunder the provisions of the Act, 1894 until 31.12.2013 and thenprovisions of Act, 1894 would have applied as per clause (b) ofsub-section 1 of Section 24. But on the other hand, owing to theoperation of the interim order granted by a Court in favour ofland owner, the award would not have been made as on 01.01.2014when the Act, 2013 was enforced. [Para 10.12][212-B-E]

2.3. In such a situation the acquiring authority cannot beburdened with the determination of compensation under theprovisions of the Act, 2013. In other words, the land owner cannot,on the one hand, assail the acquisition and seek interim ordersrestraining the authorities from proceeding further in theacquisition, and on the other hand, contend that since no awardhas been made under Section 11 of Act, 1894 on 01.01.2014, theprovisions of the Act, 2013 should be made applicable indetermining the compensation. [Para 10.13][212-E-G]

3.1. On interpreting sub-section (2) of Section 24 of Act,2013, the Constitution Bench of this Court in Indore DevelopmentAuthority case made certain observations. The sum and substanceof the same could be summarized as under:-

(i) The time of five years is provided to the authoritiesto take action, not to sleep over the matter;

(ii) Only in cases of lethargy or inaction and default onthe part of the authorities and for no other reasonlapse of acquisition can occur;

(iii) Lapse of acquisition takes place only in case of defaultby the authorities acquiring the land, not caused byany other reason or order of the court;

(iv) The additional compensation @ 12% provided underSection 69 of the Act, 2013 has been excluded fromthe period acquisition proceedings have been heldup on account of the interim injunction order of anycourt; A

B

C

D

E

F

G

H

A(v)If it was not possible for the acquiring authorities, forany reason not attributable to them or theGovernment, to take requisite steps, the period hasto be excluded;

(vi) In case the authorities are prevented by the court’sBorder, obviously, as per the interpretation of theprovisions such period has to be excluded;

(vii) The intent of the Act, 2013 is not to benefitlandowners only. The provisions of Section 24 by itselfdo not intend to confer benefits on litigating partiesCas such, while as per Section 114 of the Act, 2013 andSection 6 of the General Clauses Act the case has tobe litigated as per the provisions of the Act, 1894.

(viii) It is not the intendment of the Act, 2013 that thosewho have assailed the acquisition process should getDbenefits of higher compensation as contemplatedunder Section 24;

(ix) It is not intended by the provisions that in case, thepersons, who have litigated and have obtained interimorders from the Civil Courts by filing suits or fromEthe High Court under Article 226 of the Constitutionshould have the benefits of the provisions of the Act,2013 except to the extent specifically provided underthe Act, 2013;

(x) In cases where some landowners have chosen to takeFrecourse to litigation and have obtained interim ordersrestraining taking of possession or orders of statusquo, as a matter of practical reality it is not possiblefor the authorities or the Government to takepossession or to make payment of compensation tothe landowners. In several instances, such interimGorders also have impeded the making of an award;

(xi) However, so far as awards are concerned, the periodprovided for making of awards under the Act, 2013(sic 1894 Act) could be excluded by virtue ofExplanation to Section 11-A, which provided that inHcomputing the period of two years, the period during which any action or proceeding to be taken inpursuance of the declaration is stayed by an order ofa court shall be excluded;

(xii) The litigation initiated by the landowners has to bedecided on its own merits and the benefits of Section24(2) should not be available to the litigants in astraightjacket manner. In case there is no interimorder, they can get the benefits they are entitled to,not otherwise. Delays and dilatory tactics andsometimes wholly frivolous pleas cannot result inbenefitting the landowners under sub-section (1) ofSection 24 of the Act, 2013;

(xiii) Any type of order passed by this Court would inhibitaction on the part of the authorities to proceed further,when a challenge to acquisition is pending;

(xiv) Interim order of stay granted in one of the matters ofthe landowners would cause a complete restraint onthe authorities to proceed further to issue declaration;

(xv) When the authorities are disabled from performingduties due to impossibility, it would be a sufficientexcuse for them to save them from rigour of provisionsof Section 24. A litigant may have a good or a badcause, be right or wrong. But he cannot be permittedto take advantage of a situation created by him byway of an interim order passed in his favour by theCourt at his instance. Although provision of Section24 does not discriminate between landowners, whoare litigants or non-litigants and treat them differentlywith respect to the same acquisition, it is necessaryto view all of them from the stand point of the intentionof the Parliament. Otherwise, anomalous results mayoccur and provisions may become discriminatory initself;

(xvi) The law does not expect the performance of theimpossible;

(xvii) An act of the court shall prejudice no man; A

B

C

D

E

F

G

H

A(xviii)A party prevented from doing an act by certaincircumstances beyond his control can do so at thefirst subsequent opportunity;

(xix) When there is a disability to perform a part of the law,such a charge has to be excused. When performanceBof the formalities prescribed by a statute is renderedimpossible by circumstances over which the personsconcerned have no control, it has to be taken as avalid excuse;

(xx) The Court under its inherent jurisdiction ex debitoCjustitiae has a duty to mitigate the damage sufferedby the defendants by the act of the Court;

(xxi) No person can suffer from the act of Court and anunfair advantage of the interim order must beneutralised; D

(xxii) No party can be permitted to take shelter under thecover of Court’s order to put the other party in adisadvantageous position;

(xxiii) If one has enjoyed under the Court’s cover, thatperiod cannot be included towards inaction of theEauthorities to take requisite steps under Section 24as the State authorities would have acted and passedan award determining compensation but for theCourt’s order. [Paras 11, 12][212-G; 243-D-H;244-A-H; 245-A-H; 346-A-C]

F

F3.2. Repelling the submission that there is no expressprovision in Section 24, that excludes the period during whichany interim order was operative, preventing the State from makingan award, it was observed and held that preventing the State fromtaking the possession of acquired land or from giving effect tothe award, in a particular case or cases, cannot result in theGinclusion of such period or periods for the purpose of reckoningthe period of five years. [Para 13][246-C-D]

3.3. The aforesaid observations would be aptly applicablewhile interpreting and considering Section 24(1) of the Act, 2013.

H

The intention of the Parliament while enacting Section 24(1) ofthe Act, 2013 cannot be to give benefit to a litigant, who hasobtained a stay order and because of that the award could not bedeclared and thereafter the litigant may be awarded thecompensation as per Act, 2013. It may even result indiscrimination between the landowners, whose lands have beenacquired under the same notification, which would never havebeen the intention of the Parliament. [Para 14][246-E; 246-G-H;247-C-D]

4.1. In the case of Indore Development Authority, this Courtapplied the principle of restitution. It was observed that theprinciple of restitution is founded on the ideal of doing completejustice at the end of litigation, and parties have to be placed inthe same position but for the litigation and interim order, if any,passed in the matter. Applying the principle of restitution, it wasfurther observed that no party could take advantage of a litigation.It was further observed and held that the principle of restitutionis a statutory recognition of the rule of justice, equity and fairplay. The court has inherent jurisdiction to order restitution soas to do complete justice. This is also on the principle that anunsuccessful litigant who had the benefit of an interim order inhis favour cannot encash or take advantage of the same on theenforcement of the Act, 2013 by initially stalling the acquisitionprocess and later seeking a higher compensation under theprovisions of Act, 2013. This is for the reason that if at the instanceof a landowner, who has challenged the acquisition, an interimorder has been passed by a Court is successful then theproceeding of acquisition or the acquisition notification would bequashed. Then there would be no occasion to determine anycompensation. But on the other hand, if a landowner, who has thebenefit of an interim order in his favour whilst a challenge is madeto the acquisition, is unsuccessful, he cannot then contend thathe must be paid compensation under the provision of the Act,2013 on its enforcement, whereas a landowner, who did not havethe benefit of any interim order is paid compensation determinedunder the provisions of the Act, 1894, which is lesser than whatwould be computed under the Act, 2013. [Para 15][247-D-H;248-A]

AB

C

D

E

F

G

H

A

A4.2. The principle of restitution is a remedy against unjustenrichment or unjust benefit. The restitutionary jurisdiction isinherent in every court, to neutralise the advantage of litigation.A person on the right side of the law should not be deprived, onaccount of the effects of litigation; the wrongful gain of frivolouslitigation has to be eliminated if the faith of people in the judiciaryBhas to be sustained. [Para 15.1][248-B-C]

4.3. Therefore, even applying the principle of restitution,as applied by this Court in the case of Indore DevelopmentAuthority, the landowners cannot be permitted to take advantageof the interim order obtained by them due to which the AuthorityCcould not declare the award under Section 11 of the Act, 1894and thereafter contend that in that view of the matter, he/theyshall be paid the compensation under Section 24(1) of the Act,2013, under which a higher compensation will be available to themon determination of the compensation under the Act, 2013.D[Para 16][248-D-E]

Conclusion

5.1. In a case where on the date of commencement of Rightto Fair Compensation and Transparency in Land Acquisition,Rehabilitation and Resettlement Act, 2013, no award has beenEdeclared under Section 11 of the Land Acquisition Act, 1894, dueto the pendency of any proceedings and/or the interim stay grantedby the Court, such landowners shall not be entitled to thecompensation under Section 24(1) of the Act, 2013 and they shallbe entitled to the compensation only under the Act, 1894.F[Para 17][248-F-H]

5.2. The concerned appropriate Authority(s) to declare theaward under Section 11 of the Act, 1894 with respect to the landsin question and determine the compensation under the provisionsof the Act, 1894 by taking into consideration Section 114 of theGAct, 2013 read with Section 6 of the General Clauses Act, 1897,wherever applicable and the original landowners shall be paidthe compensation accordingly, under the provisions of the Act,1894. [Para 18][249-A-B]

Indore Development Authority v. Manoharlal and Ors.,(2020) 8 SCC 129 : [2020] 3 SCR 1; State of H

FAIZABAD-AYODHYA DEVELOPMENT AUTHORITY, FAIZABAD v.DR. RAJESH KUMAR PANDEY

Gujarat v. Essar Oil Ltd., (2012) 3 SCC 522 : [2012]2 SCR 1127 and A. Shanmugam v. Ariya KshatriyaRajakula Vamsathu Madalaya NandhavanaParipalanai Sangam, (2012) 6 SCC 430 : [2012]4 SCR 74 – followed.

A

Case Law Reference

C

CIVIL APPELLATE JURISDICTION : Civil Appeal No.2915of 2022.

From the Judgment and Order dated 24.04.2017 of the High Courtof Judicature at Allahabad, Lucknow Bench, Lucknow in Land AcquisitionNo.41 of 2012.

D

With

Civil Appeal Nos.2917, 2918 And 2919 of 2022.

V. K. Shukla, Sr. Adv., R. K. Singh, M. M. Pandey, Mrs. NeerajSingh, Kumar Gaurav, Praveen Pathak, Ajay Chaudhary, Ms. RituReniwal, Sajith P., Sudhir Kulshreshtha, Sameer Kulshreshtha, RakeshUttamchandra Upadhyay, Ms. Aarti U. Mishra, Rishabh Kumar Pandey,Mridul Singh, Advs. for the Appellant.

E

S. R. Singh, Rana Mukherjee, Sr. Advs., Yash Pal Dhingra, PrateekYadav, Ms. Sunita Pandit, K. K. Yadav, Prithvi Yadav, Gaurav Lomes,Mohd. Muztaba, Ankur Yadav, Ms. Manju Jetley, Rudreshwar Singh,Kaushik Poddar, Ms. Isha Singh, Nishit Agrawal, Harsh Mishra, KumarDeepraj, Vikas Tiwari, Dharmendra Kumar Sinha, Bhakti Vardhan Singh,Rajeev Kumar Dubey, Ashiwan Mishra, Kamlendra Mishra,Pukhrambam Ramesh Kumar, Karun Sharma, Ms. Anupama Ngangom,Mohan Dadwal, Advs. for the Respondents.

F

G

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. As common questions of law and facts arise in this group ofappeals, they have been heard together and are being disposed of by thiscommon judgment and order.

H

A2. Feeling aggrieved and dissatisfied with the respective judgmentsand orders/order(s) passed by the High Court of Judicature at Allahabadpassed in respective writ petitions preferred by the private respondentsherein – original landowners by which the High Court has disposed ofthe said writ petitions by directing the respective appellant(s) –Development Authorities to pay the compensation to the originalBlandowners as per “The Right to Fair Compensation and Transparencyin Land Acquisition, Rehabilitation and Resettlement Act, 2013(hereinafter referred to as the “Act, 2013)” on the ground that on thedate on which the Act, 2013 came into force, no award under Section 11of the Land Acquisition Act, 1894 (hereinafter referred to as the “Act,C1894”) was declared with respect to the lands acquired, the respectiveDevelopment Authorities have preferred the present appeals.

Civil Appeal No. 2915 of 2022

3. Land totally measuring 17.172 hectares in village Ranopali,District Faizabad was requisitioned by the Faizabad DevelopmentDAuthority (hereinafter referred to as the “Authority”) for the purpose ofresidential project. The land therein included land admeasuring 03.13hectares in Plot Nos. 407, 413 and 415 belonging to respondent Nos. 1to 4 herein (hereinafter referred to as the “original landowners”).

3.1 Notification under Section 4 and Section 6 read with SectionE17 was issued. The original landowners preferred Writ Petition No. 3810of 2005 before the High Court challenging the acquisition with respectto the aforesaid three plots. The High Court granted interim stayrestraining the Authority from taking over the possession of the aforesaidthree plots. Except the aforesaid three plot, the possession of the entireFland was taken over by the Authority. Even the Award under Section 11of Act, 1894 was also declared except in respect of the aforesaid threeplots in question, due to the pendency of the writ petition before the HighCourt and due to the interim order passed by the High Court. It is thissignificant fact, which has led us to consider this case in light of the realintention of the Parliament under Section 24(1)(a) of the Act, 2013. Thus,Gexcluding the land involved in the aforesaid writ petition, i.e., the aforesaidthree plots, possession of the remaining property was taken over on07.09.2005 and Award therein was published on 10.04.2007. A total sumof Rs. 5,11,60,606.00 was made available on different dates with respectto the compensation to be paid.H

3.2 Vide order dated 27.09.2010, the High Court has disposed ofthe said Writ Petition No. 3810 of 2005 preferred by the respondentsherein by directing the State Government to consider the application/representation submitted by the original landowners under Section 48(1)of the Act, 1894. That the Appropriate Authority rejected therepresentation/application of the original landowners under Section 48of the Act, 1894 vide order dated 13.03.2012. The respondents herein –original landowners again preferred the present Writ Petition No. 41 of2012 before the High Court.

3.3 During the pendency of the aforesaid writ petition, Act, 2013came into force. At the time of hearing of the present writ petition beforethe High Court, it was submitted on behalf of the original landowners –original writ petitioners that as no award has been made under Section11 of the Act, 1894, therefore, the provisions of Section 24(1) of the Act,2013 would be attracted and the original landowners shall be entitled tothe compensation determined under the provisions of Act, 2013.

3.4 By the impugned judgment and order, the High Court hasallowed the said writ petition and has observed and held that therespondents herein – original writ petitioners – original landowners wouldbe entitled to compensation in terms of provisions of Section 24(1) of theAct, 2013. Therefore, as pursuant to the impugned judgment and orderpassed by the High court, now the original landowners / original writpetitioners will have to be paid compensation as determined under theAct, 2013, the Faizabad-Ayodhya Development Authority, Faizabad haspreferred the present appeal.

Civil Appeal No. 2917 of 2022

4. By the impugned judgment and order dated 20.07.2017, theHigh Court has directed the appellant – Moradabad DevelopmentAuthority to declare the award and determine the compensation underSection 24(1) of the Act, 2013 and consequently, the respondents herein– original landowners shall be entitled to compensation determined underthe Act, 2013. Hence, the Moradabad Development Authority haspreferred the present appeal.

4.1 Before the High Court, in the writ petition, the original writpetitioners challenged the acquisition proceedings mainly on the groundthat the award was not made within two years of the publication of the AB

C

DE

FG

H

Adeclaration under Section 6 of the Act, 1894 and therefore, in view ofthe provisions of Section 11A of the Act, 1894, the acquisition has lapsed.

4.2 However, during the course of hearing of the writ petition andwithout any specific prayer sought to determine and pay thecompensation under the Act, 2013, learned counsel appearing on behalfBof the original writ petitioners placed reliance upon the provisions ofSection 24(1) of the Act, 2013 and relied upon paragraph 20 of the counteraffidavit in which it was stated that the award has not been made underSection 11 of the Act, 1894 and therefore, the award will now be madeunder Section 24(1) of the Act, 2013.

C4.3 It was the case on behalf of the appellant that as such theaward under Section 11 of the Act, 1894 could not be declared in viewof the pendency of the writ petition and the interim stay order granted bythe High Court. By the impugned judgment and order, the High Courthas directed the appellant – Moradabad Development Authority to declarethe award under Section 24(1) of the Act, 2013.D

4.4 Feeling aggrieved and dissatisfied with the impugned orderpassed by the High Court directing the appellant to declare the awardunder Section 24(1) of the Act, 2013, Moradabad Development Authorityhas preferred the present appeal.

ECivil Appeal No. 2918 of 2022 and Civil Appeal No. 2919 of2022

5. Civil Appeal No. 2918 of 2022 is arising out of the impugnedjudgment and order passed by the High Court dated 20.07.2017 passedin Writ Petition No. 31806 of 2013 and Civil Appeal No. 2919 of 2022 isFarising out of the impugned judgment and order passed by the HighCourt dated 20.07.2017 passed in Writ Petition No. 29247 of 2011 bywhich similar orders have been passed by the High Court directing theMoradabad Development Authority to declare the award under Section24(1) of the Act, 2013 and thereby the original landowners shall be entitledto the compensation determined under the Act, 2013, the MoradabadGDevelopment Authority has preferred the present appeal.

6. Shri V.K. Shukla, learned Senior Advocate has appeared onbehalf of the respective Development Authority(s) and Shri S.R. Singh,learned Senior Advocate has appeared on behalf of the respective originallandowners – original writ petitioners.

H

7. Shri Shukla, learned Senior Advocate appearing on behalf ofthe respective Development Authority(s) has vehemently submitted thatin the facts and circumstances of the case, the High Court has committeda grave error in directing the Development Authority(s) to declare theaward under Section 24(1) of the Act, 2013 and thereby now the originallandowners shall be entitled to the compensation determined under theAct, 2013.

7.1 It is submitted that the High Court has not properly appreciatedthe fact that as such the Special Land Acquisition Officer could notdeclare the award due to the pendency of the writ petitions before theHigh Court and/or the interim stay granted by the High Court eitherrestraining the Authority from taking over the possession and/or directingto maintain the status quo.

7.2 It is submitted that in fact in Civil Appeal No. 2915 of 2022, inview of the fact that the urgency clause was applied, even 80% of thecompensation was deposited, however, the award under Section 11 ofthe Act, 1894 could not be declared because of the pendency of the writpetition before the High Court. It is submitted that in the said case, sucha large area of the land was acquired including Plot Nos. 407, 413 and415 belonging to the respondents herein. It is submitted that the awardexcluding the aforesaid three plots was in fact declared under Section11 of the Act and it was also stated therein that the award with respectto the aforesaid three plots in question could not be declared in view ofthe stay order granted by the High Court. It is contended that the awardwith respect to the plots in question could not be declared under Section11 of the Act, 1894 in view of the pendency of the writ petition beforethe High court and the interim stay granted by the High Court.

7.3 Learned counsel appearing on behalf of the MoradabadDevelopment Authority in Civil Appeal Nos. 2917, 2918 and 2919 of2022 has submitted that as such in view of the urgency clause applied,even 80% of the compensation was already deposited, however, theaward under Section 11 of the Act, 1894 could not be declared becauseof the pendency of the writ petition before the High Court.

7.4 It is submitted that in fact the impugned order has been passedby the High Court on oral submissions that the award has not beendeclared and therefore they are entitled to the relief under Section 24(1)of the Act, 2013. That as such, neither were the writ petitions amended A

B

C

D

E

F

G

H

Anor specific reliefs were prayed, directing the Authority(s) to declarethe award under Section 24(1) of the Act, 2013. It is contended that inany case, once the award could not be declared because of the pendencyof the writ petition and/or the interim stay granted by the High Court,landowners cannot be permitted to take the benefit of compensationunder the Act, 2013. It is urged that there was no inaction on the part ofBthe Land Acquisition Officer and/or Authority in not declaring the awardunder Section 11 of the Act, 1894.

7.5 Learned counsel appearing on behalf of the respectiveDevelopment Authority(s) have heavily relied upon the decision of theConstitution Bench of this Court in the case of Indore DevelopmentCAuthority Vs. Manoharlal and Ors., (2020) 8 SCC 129, moreparticularly, paragraph 366.8. It is submitted that after detailed discussionand after taking into consideration various decisions of this Court on theeffect of the stay granted by the Court and on the principle of restitution,it is specifically observed and held by this Court that (i) the act of theDCourt shall prejudice no one; (ii) no one is bound to do an impossibility;(iii) law does not compel a man to do that which he cannot possiblyperform; (iv) where law creates a 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; (v) it is not the intendment of the Act, 2013that those who have litigated should get benefits of higher compensationEas contemplated under Section 24 of the Act, 2013.

7.6 Learned counsel appearing on behalf of the respectiveDevelopment Authorities has heavily relied upon paragraph 366.8 of thedecision in the case of Indore Development Authority (supra) andsubmitted that while interpreting Section 24(2) of the Act, 2013, thisFCourt has specifically observed and held that the period of subsistenceof interim orders passed by the Court has to be excluded. It is submittedthat the same analogy shall be applicable in a case where the Authoritycould not declare the award under Section 11 of the Act, 1894 due tosubsistence of the interim order passed by the Court.G

7.7 Making the above submissions and relying upon theobservations made by this Court in the case of Indore DevelopmentAuthority (supra) in paragraphs 284, 285, 287, 289, 293, 297, 299, 300,301, 302, 306, 308, 309, 314, 315, 316, 317, 318, 319, 320, 321, 323, 324,325, 326, 329, 334 and 335, it is prayed to allow the present appeals.

H

8. Learned counsel appearing on behalf of the original landownershave also relied upon the decision of this Court in the case of IndoreDevelopment Authority (supra). It is submitted that as observed andheld by this Court in the said decision, the moment it is found that noaward has been declared under Section 11 of the Act, 1894 at the timeof commencement of Act, 2013, the landowner shall be straightawayentitled to the compensation under Section 24(1) of the Act, 2013.

8.1 It is further submitted by learned counsel appearing on behalfof the original landowners – original writ petitioners that as such there isno specific provision made in Section 24(1) of the Act, 2013 to the effectthat the period of interim stay and/or pendency of the writ petition shallbe excluded. Hence, as per the settled proposition of law, a statute hasto be read as it is.

8.2 It is contended that the legislature’s intention is that once theaward is not declared under Section 11 of the Act, 1894, at the time ofcommencement of the Act, 2013, to save lapsing of the acquisition, undersub-section (1) of Section 24 of the Act, 2013, the original landownersshall have to be compensated by payment of compensation determinedunder the Act, 2013. Therefore, as such, the High Court has not committedany error in directing the Development Authorities to declare the awardunder Section 24(1) of the Act, 2013 and consequently to determine thecompensation under the provisions of the Act, 2013.

8.3 It is further submitted by the learned counsel appearing onbehalf of the respondents – original writ petitioners in Civil Appeal Nos.2917, 2918 and 2919 of 2022 that as such in the counter affidavit, it wassubmitted that as the award has not been declared, the award shall bedeclared under Section 24(1) of the Act, 2013. It is pointed out thatconsidering the aforesaid stand/submission made in the counter filed onbehalf of the Authority, the High Court has directed to declare the awardand pay the compensation under Section 24(1) of the Act, 2013, whichdirection may not be interfered by this Court.

8.4 Making the above submissions, it is prayed to dismiss thepresent appeals and direct the appropriate Authorities to declare theaward under Section 24(1) of the Act, 2013 and to pay the compensationto the respective landowners under the provisions of the Act, 2013.

9. Having heard the learned counsel appearing on behalf of therespective parties, the question which is posed for the consideration ofthis Court is:- AB

C

D

E

F

G

H

AWhether in a case where an award under Section 11 of the LandAcquisition Act, 1894 could not be declared by the Authority due to thependency of the writ petition and/or the interim stay granted by the HighCourt, which was filed by the landowners and consequently as on thedate on which the Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013 (Act, 2013) cameBinto force, there was no award declared under Section 11 of the Act,1894, the original landowners shall be entitled to compensation determinedunder sub-section (1) of Section 24 of the Act, 2013?

A

A

10. At this stage, it is necessary to consider the relevant provisionsof the Act, 1894 and Section 24 of Act, 2013 dealing with lapse ofCacquisition in the context of the question raised in this case arising underSection 24(1)(a) of Act, 2013 especially in the context of stay ordersgranted by a court of law and as a result award not being made as on01.01.2014 i.e., the date when Act, 2013 was enforced. Sections 11 and11A of the Act, 1894 are extracted as under:D“

“11. Enquiry and award by Collector. - (1) On the dayso fixed, or on any other day to which the enquiry has beenadjourned, the Collector shall proceed to enquire into the objection(if any) which any person interested has stated pursuant to a noticegiven under Section 9 to the measurements made under section 8,Eand into the value of the land at the date of the publication of thenotification under section 4, sub-section (1), and into the respectiveinterests of the persons claiming the compensation and shall makean award under his hand of-

(i) the true area of the land;

F

(ii) the compensation which in his opinion should be allowedfor the land; and

(iii) the apportionment of the said compensation among all thepersons known or believed to be interested in the land, or whom,or of whose claims, he has information, whether or not theyGhave respectively appeared before him:

Provided that no award shall be made by the Collector underthis sub-section without the previous approval of the appropriateGovernment or of such officer as the appropriate Governmentmay authorize in this behalf:

H

Provided further that it shall be competent for the appropriateGovernment to direct that the Collector may make such awardwithout such approval in such class of cases as the appropriateGovernment may specify in this behalf.

(2) Notwithstanding anything contained in sub-section (1), if atany stage of the proceedings, the Collector is satisfied that all thepersons interested in the land who appeared before him haveagreed in writing on the matters to be included in the award of theCollector in the form prescribed by rules made by the appropriateGovernment, he may, without making further enquiry, make anaward according to the terms of such agreement.

(3) The determination of compensation for any land under sub-section (2) shall not in any way affect the determination ofcompensation in respect of other lands in the same locality orelsewhere in accordance with the other provisions of this Act.

(4) Notwithstanding anything contained in the Registration Act,1908 (16 of 1908), no agreement made under sub-section (2) shallbe liable to registration under that Act.

11A. Period within which an award shall be made. – (1) TheCollector shall make an award under section 11 within a period oftwo years from the date of the publication of the declaration andif no award is made within that period, the entire proceeding forthe acquisition of the land shall lapse:

Provided that in a case where the said declaration has beenpublished before the commencement of the Land Acquisition(Amendment) Act, 1984 (68 of 1984), the award shall be madewithin a period of two years from such commencement.

10.1 Section 24 of the Act, 2013 is extracted as under:

24. Land acquisition process under Act No. 1 of 1894 shall bedeemed to have lapsed in certain cases.–(1) Notwithstandinganything contained in this Act, in any case of land acquisitionproceedings initiated under the Land Acquisition Act, 1894 (1 of1894),—

(a) where no award under section 11 of the said LandAcquisition Act has been made, then, all provisions of this Actrelating to the determination of compensation shall apply; or A

B

C

DE

F

G

H

208SUPREME COURT REPORTS

A(b) where an award under said section 11 has been made, thensuch proceedings shall continue under the provisions of thesaid Land Acquisition Act, as if the said Act has not beenrepealed.

(2) Notwithstanding anything contained in sub-section (1), in caseBof land acquisition proceedings initiated under the Land AcquisitionAct, 1894 (1 of 1894), where an award under the said section 11has been made five years or more prior to the commencement ofthis Act but the physical possession of the land has not been takenor the compensation has not been paid the said proceedings shallbe deemed to have lapsed and the appropriate Government, if itCso chooses, shall initiate the proceedings of such land acquisitionafresh in accordance with the provisions of this Act:

Provided that where an award has been made and compensationin respect of a majority of land holdings has not been deposited inthe account of the beneficiaries, then, all beneficiaries specifiedDin the notification for acquisition under section 4 of the said LandAcquisition Act, shall be entitled to compensation in accordancewith the provisions of this Act.”

10.2 Section 11 of the Act, 1894 deals with the enquiry to be heldprior to making of the award by the Collector/Deputy Commissioner/EDistrict Magistrate, as the case may be, who may be designated as theland acquisition officer. However, Section 11A of the said Act mandatesthat the Collector shall make an award under Section 11 within a periodof two years from the date of the publication of the declaration (underSection 6 of the said Act) and if no award is made within that period, theFentire proceedings for the acquisition of the land shall lapse. The proviso,thereto, is not relevant for the purpose of this case. However, theExplanation is of significance. It stated that in computing the period oftwo years referred to in sub-section 1 of Section 11A, wherein it isprovided that the period during which any action or proceeding to betaken in pursuance of the said declaration is stayed by an order of aGcourt is excluded. Therefore, the implication is that if there is inaction onthe part of the Collector in passing the award for a period of two yearsfrom the date of publication of the declaration, then the acquisition wouldlapse. The object of providing and prescribing a two-year period was inorder to ensure that the land loser was assured of the compensation toHbe paid in pursuance of the acquisition of his land within a reasonable period which is stated to be two years under Section 11A of the Act,1894. However, while calculating the said period of two years, the periodduring which no award could be passed owing to an order of stay in thatregard passed by a court had to be excluded.

10.3 The concept of lapse is also provided under sub-section (2)of Section 24 of the Act, 2013. However, for the purpose of this case, itis not necessary to dwell into the said aspect except by stating thatwhere an award under Section 11 of Act, 1894 has been made fiveyears or more prior to the commencement of the Act, 2013 (which wasenforced with effect from 01.01.2014) but the physical possession ofthe land has not been taken or the compensation has not been paid, thenthe said proceedings of acquisition shall be deemed to have lapsed. Aninterpretation of sub-section 2 of Section 24 of the Act has been madeby this Court in Indore Development Authority (supra). It has beenclearly held in para that while calculating the period of five years theperiod during which an interim order was under operation has to beexcluded.

10.4 As far as this case is concerned, clause (a) of sub-section 1of Section 24 of the Act, 2013 has to be interpreted in the aforesaidbackdrop. The said sub-section begins with a non-obstante clause and itstates that notwithstanding anything contained in the Act, 2013 in anycase of land acquisition proceedings initiated under the Land AcquisitionAct, 1894, -

a) Where no award under Section 11 of the Act, 1894 has beenmade, all provisions of the Act, 2013 relating to the determinationof compensation shall apply; or

b) Where an award under Section 11 has been made, suchproceedings shall continue under the provisions of the Act, 1894as if the said Act has not been repealed.

10.5 The object and purpose of providing sub-section (1) of Section24 of Act, 2013 is to save acquisitions which had been initiated underAct, 1894, where no award had been made or where an award hadbeen made under Section 11 of Act, 1894. The respective consequencesfor both the aforesaid situations are indicated in the respective clauses(a) and (b) of sub-section 1 of Section 24 of the Act, 2013.

10.6 What is of significance for the purpose of this case is clause(a) of sub-section 1 of Section 24 of the Act. To reiterate the same, A

B

C

D

E

F

G

H

Awhen no award under Section 11 of the Act, 1894 has been made, allprovisions of Act, 2013 relating to determination of compensation shallapply. This means that when the acquisition proceeding under Act, 1894has been initiated but the award has not been made as on the date of theenforcement of Act, 2013 i.e., 01.01.2014, in such an event, the provisionsof Act, 2013 would apply with regard to determination of compensation.BIt is necessary to understand the implication of the words “where noaward under Section 11 of Act, 1894 has been made.” This means thatalthough acquisition proceedings had been initiated, for reasons bestknown to the acquiring authority, the Collector or the DeputyCommissioner or District Magistrate or the Special Land AcquisitionCOfficer, as the case may be, had not passed an award as on the date ofenforcement of Act, 2013 i.e., on 01.01.2014. This could be on accountof sheer inaction on the part of the Collector or Land Acquisition Officerin not passing an award and the Act, 2013 being enforced. In such acase, the provisions of the Act, 2013 would straightaway apply vis-à-visdetermination of compensation. This is because Act, 2013 is a moreDbeneficial legislation as compared to Act, 1894. The compensationpayable under the Act, 2013 is higher than under the repealed Act beingAct i.e., 1894. Thus, there would be a continuity in the acquisitionproceedings under the Act, 2013.

10.7 However, it is necessary to delve deeper into the provision toEassimilate the reasons as to why no award would have been made onthe date of enforcement of the Act, 2013 in a given case when theacquisition had commenced under the Act, 1894 which is the repealedAct. One of the reasons would be that the acquisition proceedings areassailed either before the High Court under Article 226 of the ConstitutionFof India or by filing a civil suit before the Civil Court seeking certainreliefs, in which there would be interim orders including but not limited to“stay of further proceedings”, “stay of dispossession” or “status quo tobe maintained by both the land owner as well as the acquiring authority”.In such a case, where an interim order would have been operating againstthe acquiring authority, the said authority would be restrained fromGproceeding further in the acquisition proceedings vis-à-vis making of anaward under Section 11 of the Act, 1894.

10.8 As already noted, if an award is not made within a period oftwo years from the date of the publication of the declaration, then underSection 11A of Act, 1894, the acquisition of the land would lapse. But inH

computing the said period of two years, the period during which adeclaration under Section 6 of the Act, 1894 is stayed and during whichperiod the no action or further proceeding could have been taken pursuantthereto by an order of court, is excluded. But, under clause (a) of sub-section 1 of Section 24 of Act, 2013, if no award has been made on theenforcement of the said Act i.e., on 01.01.2014 then the provisions ofAct, 2013 would apply relating to the determination of compensation.

10.9 When these two Sections though in the repealed Act and thenew Act i.e., Act, 2013 are read together in an analogous way, thequestion that emerges is, if, by reason of an interim order of a Courtgranted in favour of a land owner, no award under Section 11 of the Act,1894 has been made on the date of enforcement of Act, 2013 i.e.,01.01.2014, would it imply that the award has not been made owing toinaction on the part of Collector/Land Acquisition Officer. Thus,straightaway whether the benefit under Act, 2013 must be made applicableto such a land owner who has also the benefit of an interim order grantedby a court in his favour on the date of enforcement of Act, 2013 i.e., on01.01.2014.

10.10 We find that the expression “where no award under Section11 of the said Land Acquisition Act has been made” has to be readcontextually and not by way of a plain reading. This is because a landowner who has an interim order of stay of further proceedings pursuantto the declaration made under Section 6 of the Act, 1894 issued by aCourt of law and has thereby restrained the Collector/Land AcquisitionOfficer from making an award cannot thereafter by contending that ason 01.01.2014, no award has been made by the acquiring authority seekbenefit under the provisions of the Act, 2013 by receiving a highercompensation.

10.11 As already noted, Section 24 is in the nature of a savingclause to save all acquisitions initiated under the provisions of Act, 1894and at the same time, to grant certain reliefs under the provisions of Act,2013 such as lapse of acquisition under sub-section 2 of Section 24 ofthe Act or clause (a) of sub-section 1 of Section 24 thereof. Therefore,while applying the said provisions to the facts of each case, it is necessaryto bear in mind the contextual interpretation having regard to provisionsunder both the Acts. This also becomes clear on a reading of clause (b)of sub-section 1 of Section 24 which states that if an award has beenmade under Section 11 of Act, 1894 as on 01.01.2014 i.e., the date of AB

C

D

E

F

G

H

Aenforcement of Act, 2013, then the proceedings shall continue under theprovisions of Act, 1894 as if the same has not been repealed. But if noaward has been made as on 01.01.2014 then clause (a) of sub-section 1of Section 24 would apply.

10.12 Thus, it is necessary to dwell into the reasons as to why noBaward has been made. As discussed aforesaid, if there is an order ofrestraint on the Collector or on the acquiring authority and as a result ofwhich, the Collector or the Land Acquisition Officer is not in a positionto make an award for reasons beyond his control and in compliance ofthe interim order granted by a court of law at the instance of the landowner or any other person who may have questioned the acquisition, theCperiod during which the interim order has operated has to be reckonedand if on the date of enforcement of Act, 2013 i.e., 01.01.2014, no awardhas been made owing to the operation of such an interim order grantedby a Court in favour of the land owner, then the provisions of the 2013,Act cannot straightaway be made applicable in the determination of theDcompensation. This is because, but for the operation of the interim order,the award could have been made under the provisions of the Act, 1894until 31.12.2013 and then provisions of Act, 1894 would have applied asper clause (b) of sub-section 1 of Section 24. But on the other hand,owing to the operation of the interim order granted by a Court in favourof land owner, the award would not have been made as on 01.01.2014Ewhen the Act, 2013 was enforced.

10.13 In our view in such a situation the acquiring authority cannotbe burdened with the determination of compensation under the provisionsof the Act, 2013. In other words, the land owner cannot, on the onehand, assail the acquisition and seek interim orders restraining theFauthorities from proceeding further in the acquisition, and on the otherhand, contend that since no award has been made under Section 11 ofAct, 1894 on 01.01.2014, the provisions of the Act, 2013 should be madeapplicable in determining the compensation.

11. On interpreting sub-section (2) of Section 24 of Act, 2013, theGConstitution Bench of this Court in Indore Development Authority(supra) has ultimately concluded in paragraph 366.8 as under:- “366.8. The provisions of Section 24(2) providing for adeemed lapse of proceedings are applicable in case authoritieshave failed due to their inaction to take possession and pay H

compensation for five years or more before the 2013 Act cameinto force, in a proceeding for land acquisition pending with theauthority concerned as on 1-1-2014. The period of subsistence ofinterim orders passed by court has to be excluded in thecomputation of five years.”

11.1 While holding so and dealing with somewhat similarsubmissions, this Court has observed and held in paragraphs 284, 285,287, 289, 293, 297, 299, 300, 301, 302, 306, 308, 309, 314, 315, 316, 317,318, 319, 321, 323, 324, 325, 326, 329, 334 as under:-

“284. Before we go to various rival submissions, the pivotalquestion for consideration is the interpretation of Section 24 andaims and objectives of the 2013 Act. Section 24 contemplatesthat in case the proceedings initiated under the 1894 Act, arepending as on the date on which the 2013 Act has been enactedand if no award has been passed in the proceedings, then there isno lapse and only determination of compensation has to be madeunder the 2013 Act. Where an award has been passed, it is providedunder Section 24(1)(b), the pending proceedings shall continueunder the provisions of the 1894 Act as if the old Act has not beenrepealed. The provisions totally exclude the applicability of anyprovision of the 2013 Act. There are two requirements underSection 24(2), which are to be met by the authorities, where awardhas been made 5 years or more prior to the commencement ofthe 2013 Act, if the physical possession of the land has not beentaken nor compensation has been paid. If possession has beentaken, compensation has to be paid by the acquiring authorities.The time of five years is provided for authorities to take action,not to sleep over the matter. In case of lethargy or machinery anddefault on the part of the authorities and for no other reason thelapse is provided. Lapse is provided only in case of default by theauthorities acquiring the land, not caused by any other reason ororder 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 orderfor making declaration under the proviso to Section 19(7) andexclusion has also been made for computation of the period underSection 69 of the 2013 Act. It is due to the necessity to provide so A

B

C

D

EF

G

H

in view of the language of the provision. Under Section 69 of the2013 Act, additional compensation @ 12% has to be given onmarket value for the period commencing from the date of thepublication of the preliminary notification under Section 11. Theadditional compensation @ 12% has been excluded for the periodacquisition proceedings have been held up on account of the interiminjunction order of any court. The provisions of Section 24 cast anobligation upon the authorities to take steps meaning thereby thatit is open to them to take such steps, and inaction or lethargy ontheir part has not been countenanced by Parliament. Resultantly,lapse of proceedings takes place. It is by the very nature of theprovisions if it was not possible for authorities for any reason notattributable to them or the Government to take requisite steps, theperiod has to be excluded. The Minister concerned Shri JairamRamesh in answer to the debate quoted above has made it clearthat time-limit of five years has been fixed for the authorities totake action. If we do not exclude the period of interim order, thevery spirit of the provision will be violated.

A

B

C

D

A

B

C

D

285. With respect to fixation of period is five years for the executiveauthorities to take the requisite steps, DDA v. SukhbirSingh [(2016) 16 SCC 258] observed that what the legislature isin effect telling the executive is that they ought to have put theirEhouse in order and completed the acquisition proceedings within areasonable time after the pronouncement of award. Not havingdone so even after a leeway of five years, would cross the limitsof legislative tolerance, after which the whole proceeding wouldbe deemed to have lapsed. Thus, it is apparent from the decisionFof DDA v. Sukhbir Singh [(2016) 16 SCC 258], which is reliedupon by the landowners, that time-limit is fixed for the executiveauthorities to take steps. In case they are prevented by the court’sorder, obviously, as per the interpretation of the provisions is thatsuch period has to be excluded. In case such a provision wouldhave been made, it would have been “ex abundanti cautela”. ThereGwas no necessity of making such a provision even if this propositionhas been discussed during the formulation of legislation. However,the provision providing exclusion has been enacted. It casts anobligation upon the authorities to take requisite steps within fiveyears, that by itself excludes such period of interim order.

H

X X X X

287. The intent of the 2013 Act, is not to benefit litigants only. Ithas introduced a new regime which is beneficial to the landowners.The provisions of Section 24 by itself do not intend to confer thebenefits on litigating parties, while as per Section 114 of the 2013Act and Section 6 of the General Clauses Act, has to be litigatedas per the provisions of the 1894 Act.

X X X X

289. In the opinion of this Court it is not the intendment of the2013 Act that those who have litigated should get benefits of highercompensation as contemplated under Section 24 benefit isconferred on all beneficiaries. It is not intended by the provisionsthat in piecemeal the persons who have litigated and have obtainedthe interim order should get the benefits of the provisions of the2013 Act. Those who have accepted the compensation within 5years and handed over the possession too, are to be benefited, incase amount 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 planned developmentwith respect to which interim stays have been obtained. It is notthe intendment of the law to deliver advantage to relentless litigants.It cannot be said hence, that it was due to the inaction of theauthorities that possession could not be taken within 5 years. Publicpolicy is not to foment or foster litigation but put an end to it. Inseveral instances, in various High Courts writ petitions weredismissed by the Single Judge Benches and the writ appeals werepending for a long time and in which, with respect to part of landof the projects, efforts were made to obtain the benefit of Section24(2). Parliament in our view did not intend to confer benefits tosuch litigants for the aforementioned reasons. Litigation may befrivolous or may be worthy. Such litigants have to stand on thestrength of their own case and in such a case provisions of Section114 of the 2013 Act and Section 6 of the General Clauses Act,1897, are clearly attracted and such proceedings have to becontinued under the provisions of the old Act that would be in thespirit of Section 24(1)(b) itself of the 2013 Act. Section 6(b) ofthe General Clauses Act, 1897, provides that repeal will not affectthe previous operation of any enactment so repealed or anything B

C

DEF

G

H

B

C

DEF

G

H

duly done or suffered thereunder. Section 6(c) states that repealwould not affect any right, privilege, obligation or liability acquired,accrued or incurred under any enactment so repealed. When thereis a provision itself in Section 24(1)(b) of continuance of theproceedings where award has been passed under the 1894 Act,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 a lapse, that too by theinaction of the authorities. Any court’s interim order cannot besaid to be inaction of the authorities or agencies; thus, time periodis not to be included for counting the 5 years period as envisagedin Section 24(2). As per the proviso to Section 24(2), wherepossession has been taken, but compensation has not been paidor deposited with respect to majority of landholdings, all thebeneficiaries would be entitled for higher compensation only tothat extent, the provisions of Section 114 of the 2013 Act, wouldbe superseded but it would not obliterate the general applicationof Section 6 of the General Clauses Act, 1897, which deals witheffect of repeal except as provided in Section 24(2) and its proviso.

A

B

C

D

E

293. There cannot be any dispute with the above propositions.However, in the present case, when we construe the provisionsof Section 24, it clearly ousts the period spent during the interimstay of the court. Five years’ period is fixed for the purpose totake action, if they have not taken the action for 5 years or more,Fthen there is lapse, not otherwise. Even if there had been a provisionmade with respect to the exclusion of time spent in the courtproceedings with respect to interim stay due to court’s order, itcould have been ex abundanti cautela, which has been consideredby this Court in Union of India v. Modi Rubber Ltd. [(1986) 4GSCC 66] It would have been superfluous to make such a provision.Following observations were made in Modi Rubber Ltd. [(1986)4 SCC 66]: (SCC pp. 72-74, para 7)

“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) must H

necessarily be projected in Rule 8(1) and the expression “dutyof excise” in Rule 8(1) must be read in the light of that definition,the same expression used in these two notifications issued underRule 8(1) must also be interpreted in the same sense, namely,duty of excise payable under the Central Excises and Salt Act,1944 and the exemption granted under both these notificationsmust be regarded as limited only to such duty of excise. Butthe respondents contended that the expression “duty of excise”was one of large amplitude and in the absence of any restrictiveor limitative words indicating that it was intended to refer onlyto duty of excise leviable under the Central Excises and SaltAct, 1944, it must be held to cover all duties of excise whetherleviable under the Central Excises and Salt Act, 1944 or underany other enactment. The respondents sought to support thiscontention by pointing out that whenever the CentralGovernment wanted to confine the exemption granted under anotification to the duty of excise leviable under the CentralExcises and Salt Act, 1944, the Central Government made itsintention abundantly clear by using appropriate words oflimitation such as “duty of excise leviable … under Section 3of the Central Excises and Salt Act, 1944” or “duty of exciseleviable … under the Central Excises and Salt Act, 1944” or“duty of excise leviable … under the said Act” as in NotificationNo. CER-8(3)/55-C.E. dated 17-9-1955, Notification No. 255/77-C.E. dated 20-7-1977, Notification No. CER-8(1)/55-C.E.dated 2-9-1955, Notification No. CER-8(9)/55-C.E. dated 31-12-1955, Notification No. 95/61-C.E. dated 1-4-1961,Notification No. 23/55-C.E. dated 29-4-1955 and similar othernotifications. But, here said the respondents, no such words oflimitation are used in the two notifications in question and theexpression “duty of excise” must, therefore, be read accordingto its plain natural meaning as including all duties of excise,including special duty of excise and auxiliary duty of excise.Now, it is no doubt true that in these various notificationsreferred to above, the Central Government has, while grantingexemption under Rule 8(1), used specified language indicatingthat the exemption, total or partial, granted under each suchnotification is in respect of excise duty leviable under the CentralExcises and Salt Act, 1944. But, merely because, as a matter ABC

D

E

F

G

H

A

B

C

D

E

G

ABC

D

E

F

G

H

A

B

C

D

E

G

of drafting, the Central Government has in some notificationsspecifically referred to the excise duty in respect of whichexemption is granted as “duty of excise” leviable under theCentral Excises and Salt Act, 1944, it does not follow that inthe absence of such words of specificity, the expression “dutyof excise” standing by itself must be read as referring to allduties of excise. It is not uncommon to find that thelegislature sometimes, with a view to making its intentionclear beyond doubt, uses language ex abundanti cautelathough it may not be strictly necessary and even without itthe same intention can be spelt out as a matter of judicialconstruction and this would be more so in case ofsubordinate legislation by the executive. The officer draftinga particular piece of subordinate legislation in the ExecutiveDepartment may employ words with a view to leaving no scopefor possible doubt as to its intention or sometimes even forgreater completeness, though these words may not add anythingto the 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 the respondents.But, that does not necessarily lead to the inference that theexpression “duty of excise” in these notifications was intendedto refer to all duties of excise including special and auxiliaryduties of excise. The absence of these words does not absolveus from the obligation to interpret the expression “duty ofexcise” in these notifications. We have still to construe thisexpression — what is its meaning and import — and that hasto be done bearing in mind the context in which it occurs. Wehave already pointed out that these notifications having beenissued under Rule 8(1), the expression “duty of excise” in thesenotifications must bear the same meaning which it has in Rule8(1) and that meaning clearly is — excise duty payable underthe Central Excises and Salt Act, 1944 as envisaged in Rule 2clause (v). It cannot in the circumstances bear an extendedmeaning so as to include special excise duty and auxiliary exciseduty.”

X X X X

297. The correctness of the decision of Sree Balaji NagarResidential Assn. [Sree Balaji Nagar Residential Assn. v. Stateof T.N., (2015) 3 SCC 353] was doubted in YogeshNeema [Yogesh Neema v. State of M.P., (2016) 6 SCC 387], andthe matter was referred to a larger Bench. In Sree Balaji NagarResidential Assn. [Sree Balaji Nagar Residential Assn. v. Stateof T.N., (2015) 3 SCC 353] following observations were made:(SCC p. 361, paras 11-12)

“11. From a plain reading of Section 24 of the 2013 Act, it isclear that Section 24(2) of the 2013 Act does not exclude anyperiod during which the land acquisition proceeding might haveremained stayed on account of stay or injunction granted byany court. In the same Act, the proviso to Section 19(7) in thecontext of limitation for publication of declaration under Section19(1) and the Explanation to Section 69(2) for working out themarket value of the land in the context of delay betweenpreliminary notification under Section 11 and the date of theaward, specifically provide that the period or periods duringwhich the acquisition proceedings were held up on account ofany stay or injunction by the order of any court be excluded incomputing the relevant period. In that view of the matter, itcan be safely concluded that the legislature has consciouslyomitted to extend the period of five years indicated in Section24(2) even if the proceedings had been delayed on account ofan order of stay or injunction granted by a court of law or forany reason. Such casus omissus cannot be supplied by thecourt in view of law on the subject elaborately discussed bythis Court in Padma Sundara Rao v. State of T.N. [(2002) 3SCC 533]

12. Even in the Land Acquisition Act, 1894, the legislature hadbrought about amendment in Section 6 through an AmendmentAct of 1984 to add Explanation 1 for the purpose of excludingthe period when the proceeding suffered stay by an order ofthe court, in the context of limitation provided for publishingthe declaration under Section 6(1) of the Act. To a similareffect was the Explanation to Section 11-A, which was addedby Amendment Act 68 of 1984. Clearly, the legislature has, in B

CD

EF

GH

A

B

C

D

E

F

G

H

its wisdom, made the period of five years under Section 24(2)of the 2013 Act absolute and unaffected by any delay in theproceedings on account of any order of stay by a court. Theplain wordings used by the legislature are clear and do notcreate any ambiguity or conflict. In such a situation, the courtis not required to depart from the literal rule of interpretation.”

299. In cases where some landowners have chosen to takerecourse to litigation (which they have a right to) and have obtainedinterim orders on taking possession or orders of status quo, as amatter of practical reality it is not possible for the authorities orState officials to take the possession or to make payment of thecompensation. In several instances, such interim orders alsoimpeded the making of an award. Now, so far as awards (andcompensation payments, pursuant to such proceedings wereconcerned) the period provided for making of awards under the2013 Act (sic 1894 Act) could be excluded by virtue of Explanationto Section 11-A. [“11-A. Period within which an award shallbe made.—The Collector shall make an award under Section 11within a period of two years from the date of the publication ofthe declaration and if no award is made within that period. theentire proceedings for the acquisition of the land shall lapse:Provided that in a case where the said declaration has beenpublished before the commencement of the Land Acquisition(Amendment) Act, 1984 the award shall be made within a periodof two years from such commencements. Explanation.—Incomputing the period of two years referred to in this section, theperiod during which any action or proceeding to be taken inpursuance of the said declaration is stayed by an order of a courtshall be excluded.”] Thus, no fault of inaction can be attributed tothe authorities and those who had obtained such interim orders,cannot benefit by their own action in filing litigation, which may ormay not be meritorious. Apart from the question of merits, whenthere is an interim order with respect to the possession or order ofstatus quo or stay of further proceedings, the authorities cannotproceed; nor can they pay compensation. Their obligations areintertwined with the scheme of land acquisition. It is observedthat authorities may wait in the proceedings till the interim order isvacated.

300. In our considered opinion, litigation which initiated by thelandowners has to be decided on its own merits and the benefitsof Section 24(2) should not be available to the litigants. In casethere is no interim order, they can get the benefits they are entitledto, not otherwise as a result of fruit of litigation, delays and dilatorytactics and sometime it may be wholly frivolous pleas and forgeddocuments as observed in V.Chandrasekaran [V. Chandrasekaranv. Administrative Officer, (2012) 12 SCC 133] mentioned above.

301. In Abhey Ram v. Union of India [(1997) 5 SCC 421], thisCourt considered the extended meaning of words “stay of theaction or proceedings”. It was observed that any type of orderspassed by this Court would be an inhibitive action on the part ofthe authorities to proceed further. This Court observed thus: (SCCpp. 428-29, para 9)

“9. Therefore, the reasons given in B.R. Gupta v. Union ofIndia [1988 SCC OnLine Del 367], 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 equally beextendible to the cases relating to the appellants. We proceedon the premise that the appellants had not obtained any stay ofthe publication of the declaration but since the High Court insome of the cases has, in fact, prohibited them as extractedhereinbefore, from publication of the declaration, necessarily,when the Court has not restricted the declaration in theimpugned orders in support of the petitioners therein, the officershad to hold back their hands till the matters were disposed of.In fact, this Court has given extended meaning to the orders ofstay or proceeding in various cases, namely, YusufbhaiNoormohmed Nendoliya v. State of Gujarat [(1991) 4 SCC531], Hansraj H. Jain v. State of Maharashtra [(1993) 3SCC 634], Sangappa Gurulingappa Sajjan v. State ofKarnataka [(1994) 4 SCC 145], Gandhi Grah NirmanSahkari Samiti Ltd. v. State of Rajasthan [(1993) 2 SCC662], G. Narayanaswamy Reddy v. State of Karnataka [(1991)3 SCC 261] and Roshnara Begum v. Union of India [Civil AB

C

D

E

F

G

H

A

B

C

D

E

H

Appeal No. 13976 of 1996 sub nom Murari v. Union of India,(1997) 1 SCC 15] . The words “stay of the action or proceeding”have been widely interpreted by this Court and mean that anytype of 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 was putin issue and the declaration under Section 6 was questioned,necessarily unless the Court holds that enquiry under Section5-A was properly conducted and the declaration published underSection 6 was valid, it would not be open to the officers toproceed further into the matter. As a consequence, the staygranted in respect of some would be applicable to others alsowho had not obtained stay in that behalf. We are not concernedwith the correctness of the earlier direction with regard toSection 5-A enquiry and consideration of objections as it wasnot challenged by the respondent Union. We express no opinionon its correctness, though it is open to doubt.”

302. In Om Parkash v. Union of India [(2010) 4 SCC 17], itwas observed that interim order of stay granted in one of thematters of the landowners would put complete restraint on therespondents to proceed further to issue declaration under Section6 of the Act. It was observed as under: (SCC p. 44, para 72)

“72. Thus, in other words, the interim order of stay granted inone of the matters of the landowners would put completerestraint on the respondents to have proceeded further to issuenotification under Section 6 of the Act. Had they issued thesaid notification during the period when the stay was operative,then obviously they may have been hauled up for committingcontempt of court. The language employed in the interim ordersof stay is also such that it had completely restrained therespondents from proceeding further in the matter by issuingdeclaration/notification under Section 6 of the Act.”

X X X X

306. When the authorities are disabled from performing dutiesdue to impossibility, would be a good excuse for them to savethem from rigour of provisions of Section 24(2). A litigant may beright or wrong. He cannot be permitted to take advantage of a

situation created by him of interim order. The doctrine“commodum ex injuria sua nemo habere debet” that isconvenience cannot accrue to a party from his own wrong.Provisions of Section 24 do not discriminate litigants or non-litigantsand treat them differently with respect to the same acquisition,otherwise, anomalous results may occur and provisions maybecome discriminatory in itself.

308. In Union of India v. North Telumer Colliery [(1989) 3 SCC411], this Court observed that delaying tactics should not bepermitted to fructify. By causing delay, the owner would get hugeamount of interest, but he may not get a penny out of the principalamount. It would amount to conferring unjust benefit on the ownerswhich can never be the intention of Parliament. This Courtobserved: (SCC pp. 416-17, para 8)

“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” fromvarious dictionaries. No dictionary or any outside assistance isneeded 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 bedischarged are also of the owners of the coal mines. When thedebts are paid and the liabilities discharged, it is only the ownersof coal mines who are benefited. Taking away the interestamount by the owners without discharging their debts andliabilities 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 a penny out of principal amount on the final settlementof claims. It would amount to conferring unjust benefit on theowners which can never be the intention of Parliament. We donot agree with the interpretation given by the High Court andhold that the interest accruing under the Coal Act is the moneypaid to the Commissioner in relation to the coal mine and the AB

C

DE

F

G

H

A

B

C

D

E

F

G

H

same has to be utilised by the Commissioner in meeting theclaims of the creditors and discharging other liabilities inaccordance with the provisions of the Coal Act.”

309. It may not be doubtful conduct to file frivolous litigation andobtain stay; but benefit of Section 24(2) should not be conferredon those who prevented the taking of possession or payment ofcompensation, for the period spent during the stay.

314. The maxim “lex non cogit ad impossibilia” means thatthe law does not expect the performance of the impossible. Thoughpayment is possible but the logic of payment is relevant. Thereare cases in which compensation was tendered, but refused andthen deposited in the treasury. There was litigation in court, whichwas pending (or in some cases, decided); earlier references forenhancement of compensation were sought and compensation wasenhanced. There was no challenge to acquisition proceedings ortaking possession, etc. In pending matters in this Court or in theHigh Court even in proceedings relating to compensation, Section24(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.

315. In Chandra Kishore Jha v. Mahavir Prasad [(1999) 8SCC 266], an election petition was to be presented in the mannerprescribed in Rule 6 of Chapter XXI-E of the Patna High CourtRules. The Rules stipulated that the election petition, could underno circumstances, be presented to the Registrar to save the periodof limitation. The election petition could be presented in the opencourt up to 4.15 p.m. i.e. working hours of the court. The ChiefJustice had passed the order that court shall not sit for the restafter 3.15 p.m. Thus, the petition filed the next day was held to bewithin time. In Mohd. Gazi v. State of M.P. [(2000) 4 SCC 342],the maxim “actus curiae neminem gravabit” came up forconsideration along with maxim “lex non cogit ad impossibilia”— the law does not compel a man to perform act which is notpossible. Following observations had been made: (SCC p. 347,para 7)

“7. In the facts and circumstances of the case, the maxim ofequity, namely, actus curiae neminem gravabit — an act ofthe court shall prejudice no man, shall be applicable. This maximis founded upon justice and good sense, which serves a safeand certain guide for the administration of law. The other maximis, lex non cogit ad impossibilia — the law does not compela man to do what he cannot possibly perform. The law itselfand its administration are understood to disclaim as it does inits general aphorisms, all intention of compelling impossibilities,and the administration of law must adopt that general exceptionin consideration of particular cases. The applicability of theaforesaid maxims has been approved by this Court in RajKumar Dey v. Tarapada Dey [(1987) 4 SCC 398]and Gursharan Singh v. NDMC [(1996) 2 SCC 459].”

316. Another Roman Law maxim “nemo tenetur adimpossibilia”, means no one is bound to do an impossibility. Thoughsuch acts of taking possession and disbursement of compensationare not impossible, yet they are not capable of law performance,during subsistence of a court’s order; the order has to be compliedwith and cannot be violated. Thus, on equitable principles also,such a period has to be excluded. In Industrial Finance Corpn.of India Ltd. v. Cannanore Spg. & Wvg. Mills Ltd. [(2002) 5SCC 54], this Court observed that where law creates a duty orcharge and the party is disabled to perform it, without any defaultand has no remedy over, there the law will in general excuse him.This Court relying upon the aforesaid maxim observed as under:(SCC p. 71, para 30)

“30. The Latin maxim referred to in the English judgment lexnon cogit ad impossibilia also expressed as impotentiaexcusat legem in common English acceptation means, the lawdoes not compel a man to do that which he cannot possiblyperform. There ought always thus to be an invincible disabilityto perform the obligation, and the same is akin to the Romanmaxim nemo tenetur ad impossible. In Broom’s LegalMaxims, the state of the situation has been described as below:

‘It is, then, a general rule which admits of ample practicalillustration, that impotentia excusat legem; where the lawcreates a duty or charge, and the party is disabled to perform AB

C

D

E

F

G

H

A

B

C

D

E

H

it, without any default in him, and has no remedy over, therethe law will in general excuse him (t) : and thoughimpossibility of performance is, in general, no excuse fornot performing an obligation which a party has expresslyundertaken by contract, yet when the obligation is oneimplied by law, impossibility of performance is a goodexcuse. Thus in a case in which consignees of a cargowere prevented from unloading a ship promptly by reasonof a dock strike, the Court, after holding that in the absenceof an express agreement to unload in a specified time therewas implied obligation to unload within a reasonable time,held that the maxim lex non cogit ad impossibilia applied,and Lindley, L.J., said: “We have to do with implied obligations,and I am not aware of any case in which an obligation to paydamages is ever cast by implication upon a person for notdoing that which is rendered impossible by causes beyondhis control.” ’ “

(emphasis in original)

317. In HUDA v. Babeswar Kanhar [(2005) 1 SCC 191], thisCourt considered the general principle that a party prevented fromdoing an act by some circumstances beyond his control, can do soat the first subsequent opportunity as held in SambasivaChari v. Ramasami Reddi [ILR (1899) 22 Mad 179].In Babeswar Kanhar [HUDA v. Babeswar Kanhar, (2005) 1SCC 191], it was observed thus: (SCC pp. 192-93, para 5)

“5. What is stipulated in Clause 4 of the letter dated 30-10-2001 is a communication regarding refusal to accept theallotment. This was done on 28-11-2001. Respondent 1 cannotbe put to a loss for the closure of the office of HUDA on 1-12-2001 and 2-12-2001 and the postal holiday on 30-11-2001. Infact, he had no control over these matters. Even the logic ofSection 10 of the General Clauses Act, 1897 can be pressedinto service. Apart from the said section and various provisionsin various other Acts, there is the general principle that a partyprevented from doing an act by some circumstances beyondhis control, can do so at the first subsequent opportunity(see Sambasiva Chari v. Ramasami Reddi [ILR (1899) 22Mad 179]). The underlying object of the principle is to enable a person to do what he could have done on holiday, on the nextworking day. Where, therefore, a period is prescribed for theperformance of an act in a court or office, and that periodexpires on a holiday, then the act should be considered to havebeen done within that period if it is done on the next day onwhich the court or office is open. The reason is that the lawdoes not compel the performance of an impossibility.(See Hossein Ally v. Donzelle [ILR (1880) 5 Cal 906].) Everyconsideration of justice and expediency would require that theaccepted principle, which underlies Section 10 of the GeneralClauses Act, should be applied in cases where it does nototherwise in terms apply. The principles underlying are lex noncogit ad impossibilia (the law does not compel a man to dothe impossible) and actus curiae neminem gravabit (the actof court shall prejudice no man). Above being the position,there is nothing infirm in the orders passed by the forums below.However, the rate of interest fixed appears to be slightly onthe higher side and is reduced to 9% to be paid with effectfrom 3-12-2001 i.e. the date on which the letter was receivedby HUDA.”

318. In Presidential Poll, In re [(1974) 2 SCC 33], this Courtmade similar observations. When there is a disability to perform apart of the law, such a charge has to be excused. Whenperformance of the formalities prescribed by a statute is renderedimpossible by circumstances over which the persons concernedhave no control, it has to be taken as a valid excuse. The Courtobserved: (SCC pp. 49-50, para 15)

“15. The impossibility of the completion of the election to fillthe vacancy in the office of the President before the expirationof the term of office in the case of death of a candidate asmay appear from Section 7 of the 1952 Act does not rob Article62(1) of its mandatory character. The maxim of law impotentiaexcusat legem is intimately connected with another maxim oflaw lex non cogit ad impossibilia. Impotentia excusatlegem is that when there is a necessary or invincible disabilityto perform the mandatory part of the law that impotentiaexcuses. The law does not compel one to do that which onecannot possibly perform. ‘Where the law creates a duty or AB

C

D

E

F

G

H

A

B

C

D

E

F

G

H

charge, and the party is disabled to perform it, without anydefault in him, and has no remedy over it, there the law will ingeneral excuse him.’ Therefore, when it appears that theperformance of the formalities prescribed by a statute has beenrendered impossible by circumstances over which the personsinterested had no control, like the act of God, the circumstanceswill be taken as a valid excuse. Where the act of God preventsthe compliance of the words of a statute, the statutory provisionis not denuded of its mandatory character because ofsupervening impossibility caused by the act of God.(See Broom’s Legal Maxims, 10th Edn. at pp. 162-63and Craies on Statute Law, 6th Edn. at p. 268).”

319. In Standard Chartered Bank v. Directorate ofEnforcement [(2005) 4 SCC 530], the legal maxim “impotentiaexcusat legem” has been applied to hold that law does not compela man to do that which cannot possibly be performed. Though themaxim with respect to the impossibility of performance may notbe strictly applicable, however, the effect of the court’s order, forthe time being, made the authorities disable to fulfil the obligation.Thus, when they were incapable of performing, they have to bepermitted to perform at the first available opportunity, which isthe time prescribed by the statute for them i.e. the total period of5 years excluding the period of the interim order.

320. The maxim actus curiae neminem gravabit is founded uponthe principle due to court proceedings or acts of court, no partyshould suffer. If any interim orders are made during the pendencyof the litigation, they are subject to the final decision in the matter.In case the matter is dismissed as without merit, the interim orderis automatically dissolved. In case the matter has been filed withoutany merit, the maxim is attracted commodum ex injuria sua nemohabere debet, that is, convenience cannot accrue to a party fromhis own wrong. No person ought to have the advantage of hisown wrong. In case litigation has been filed frivolously or withoutany basis, iniquitously in order to delay and by that it is delayed,there is no equity in favour of such a person. Such cases arerequired to be decided on merits. In Mrutunjay Pani v. NarmadaBala Sasmal [AIR 1961 SC 1353], this Court observed that: (AIRp. 1355, para 5)

“5. … The same principle is comprised in the Latinmaxim commodum ex injuria sua nemo habere debet, thatis, convenience cannot accrue to a party from his own wrong.To put it in other words, no one can be allowed to benefit fromhis own wrongful act.”

321. It is not the policy of law that untenable claims should getfructified due to delay. Similarly, sufferance of a person who abidesby law is not permissible. The 2013 Act does not confer the benefiton unscrupulous litigants, but it aims at and frowns upon thelethargy of the officials to complete the requisites within five years.

X X X X

323. In GTC Industries Ltd. v. Union of India [(1998) 3 SCC376], it was observed that while vacating stay, it is the court’sduty to account for the period of delay and to settle equities. It isnot the gain which can be conferred. In Jaipur MunicipalCorpn. v. C.L. Mishra [(2005) 8 SCC 423], it has been observedthat interim order merges in the final order, and it cannot have anindependent existence, cannot survive beyond final decision.In Ram Krishna Verma v. State of U.P. [(1992) 2 SCC 620],reliance was placed on Grindlays Bank Ltd. v. CIT [(1980) 2SCC 191]. It was held that no one could be permitted to sufferfrom the act of the court and in case an interim order has beenpassed and ultimately petition is found to be without merit and isdismissed, the interest of justice requires that any undeserved orunfair advantage gained by a party invoking the jurisdiction of thecourt must be neutralised.

324. In Mahadeo Savlaram Shelke v. Pune MunicipalCorpn. [(1995) 3 SCC 33], it has been observed that the Courtcan under its inherent jurisdiction ex debito justitiae has a dutyto mitigate the damage suffered by the defendants by the act ofthe court. Such action is necessary to put a check on abuse ofprocess of the court. In Amarjeet Singh v. Devi Ratan [(2010)1 SCC 417], and Ram Krishna Verma [Ram KrishnaVerma v. State of U.P., (1992) 2 SCC 620], it was observed thatno person can suffer from the act of court and unfair advantageof the interim order must be neutralised. In AmarjeetSingh [Amarjeet Singh v. Devi Ratan, (2010) 1 SCC 417], thisCourt observed: (SCC pp. 422-23, paras 17-18)

A

B

C

DE

F

G

H

A

B

C

D

E

G

H

“17. No litigant can derive any benefit from mere pendency ofthe case in a court of law, as the interim order always mergesin the final order to be passed in the case, and if the writ petitionis ultimately dismissed, the interim order stands nullifiedautomatically. A party cannot be allowed to take any benefit ofits own wrongs by getting an interim order and thereafter blamethe court. The fact that the writ is found, ultimately, devoid ofany merit, shows that a frivolous writ petition had been filed.The maxim actus curiae neminem gravabit, which meansthat the act of the court shall prejudice no one, becomesapplicable in such a case. In such a fact situation, the court isunder an obligation to undo the wrong done to a party by theact of the court. Thus, any undeserved or unfair advantagegained by a party invoking the jurisdiction of the court must beneutralised, as the institution of litigation cannot be permittedto confer any advantage on a suitor from delayed action by theact of the court. (Vide Shiv Shankar v. U.P. SRTC [1995 Supp(2) SCC 726], GTC Industries Ltd. v. Union of India [(1998)3 SCC 376] and Jaipur Municipal Corpn. v. C.L.Mishra [(2005) 8 SCC 423].)

18. In Ram Krishna Verma v. State of U.P. [(1992) 2 SCC620], this Court examined a similar issue while placing relianceupon its earlier judgment in Grindlays Bank Ltd. v. CIT [(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 the petitionis found to be without any merit and is dismissed, the interestof justice requires that any undeserved or unfair advantagegained by a party invoking the jurisdiction of the court must beneutralised.”

325. In Karnataka Rare Earth v. Deptt. of Mines &Geology [(2004) 2 SCC 783], this Court observed thatmaxim actus curiae neminem gravabit requires that the partyshould be placed in the same position but for the court’s orderwhich is ultimately found to be not sustainable which has resultedin one party gaining advantage which otherwise would not haveearned and the other party has suffered but for the orders of thecourt. The successful party can demand the delivery of benefit earned by the other party, or make restitution for what it has lost.This Court observed: (SCC pp. 790-91, paras 10-11)

“10. In … the doctrine of actus curiae neminem gravabit andheld that the doctrine was not confined in its application only tosuch acts of the court which were erroneous; the doctrine isapplicable to all such acts as to which it can be held that thecourt would not have so acted had it been correctly apprisedof the facts and the law. It is the principle of restitution that isattracted. When on account of an act of the party,persuading the court to pass an order, which at the end isheld as not sustainable, has resulted in one party gainingadvantage which it would not have otherwise earned, orthe other party has suffered an impoverishment which itwould not have suffered, but for the order of the courtand the act of such party, then the successful party finallyheld entitled to a relief, assessable in terms of money atthe end of the litigation, is entitled to be compensated inthe same manner in which the parties would have been ifthe interim order of the court would not have been passed.The successful party can demand : (a) the delivery of benefitearned by the opposite party under the interim order ofthe court, or (b) to make restitution for what it has lost.

11. In the facts of this case, in spite of the judgment [KarnatakaRare Earth v. Department of Mines & Geology, WPs No.4030-4031 of 1997, order dated 1-12-1998 (KAR)] of the HighCourt, if the appellants would not have persuaded this Court topass the interim orders, they would not have been entitled tooperate the mining leases and to raise and remove and disposeof the minerals extracted. But for the interim orders passed bythis Court, there is no difference between the appellants andany person raising, without any lawful authority, any mineralfrom any land, attracting applicabilitys of sub-section (5) ofSection 21. As the appellants have lost from the Court, theycannot be allowed to retain the benefit earned by them underthe interim orders of the Court. The High Court has rightlyheld the appellants liable to be placed in the same positionin which they would have been if this Court would nothave protected them by issuing interim orders. All that the AB

C

D

E

F

G

H

A

B

C

D

E

G

H

State Government is demanding from the appellants is the priceof the minor minerals. Rent, royalty or tax has already beenrecovered by the State Government and, therefore, there is nodemand under that head. No penal proceedings, much less anycriminal proceedings, have been initiated against the appellants.It is absolutely incorrect to contend that the appellants are beingasked to pay any penalty or are being subjected to any penalaction. It is not the case of the appellants that they are beingasked to pay the price more than what they have realised fromthe exports or that the price appointed by the respondent Stateis in any manner arbitrary or unreasonable.”

326. In A.R. Antulay [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC602], this Court observed that it is a settled principle that an act ofthe court shall prejudice no man. This maxim actus curiaeneminem gravabit is founded upon justice and good sense andaffords a safe and certain guide for the administration of the law.No man can be denied his rights. In India, a delay occurs due toprocedural wrangles. In A.R. Antulay [A.R. Antulay v. R.S.Nayak, (1988) 2 SCC 602], this Court observed: (SCC p. 687,para 102)

“102. This being the apex court, no litigant has any opportunity ofapproaching any higher forum to question its decisions. LordBuckmaster in Montreal Street Railway Co. v. Normandin [1917AC 170 (PC)] (sic) stated:

‘All rules of court are nothing but provisions intended tosecure the proper administration of justice. It is, therefore,essential that they should be made to serve and besubordinate to that purpose.’

This Court in State of Gujarat v. Ramprakash P. Puri [(1969)3 SCC 156], reiterated the position by saying: (SCC p. 159,para 5)

‘5. … Procedure has been described to be a handmaid andnot a mistress of law, intended to subserve and facilitatethe cause of justice and not to govern or obstruct it. Like allrules of procedure, this rule demands a construction whichwould promote this cause.’

Once judicial satisfaction is reached that the direction was notopen to be made and it is accepted as a mistake of the court, itis not only appropriate but also the duty of the court to rectifythe mistake by exercising inherent powers. Judicial opinionheavily leans in favour of this view that a mistake of the courtcan be corrected by the court itself without any fetters. This ison principle, as indicated in Alexander Rodgercase [Alexander Rodger v. Comptoir D’Escompte De Paris,(1969-71) LR 3 PC 465 : 17 ER 120]. I am of the view that inthe present situation, the court’s inherent powers can beexercised to remedy the mistake. Mahajan, J. speaking for afour-Judge Bench in Keshardeo Chamria v. Radha KissenChamria [1953 SCR 136 : AIR 1953 SC 23], SCR p. 153 stated:(AIR p. 28, para 21)

‘21. … The Judge had jurisdiction to correct his own errorwithout entering into a discussion of the grounds taken by thedecree-holder or the objections raised by the judgment-debtors.’“

329. There can be no doubt that when parties are before court,the final decision has to prevail, and they succeed or fail based onthe merits of their relative cases. Neither can be permitted totake shelter under the cover of court’s order to put the other partyin a disadvantageous position. If one has enjoyed under the court’scover, that period cannot be included towards inaction of theauthorities to take requisite steps under Section 24. The Stateauthorities would have acted but for the court’s order. In fact,the occasion for the petitioners to approach the court in thosecases, was that the State or acquiring bodies were taking theirproperties. Ultimately case had to stand on its merit in thechallenge to the acquisition or compensation, and no right oradvantage could therefore be conferred (or accrue) under Section24(2) in such situations.

334. For all these reasons, it is held that the omission to expresslyenact a provision, that excludes the period during which any interimorder was operative, preventing the State from taking possession AB

C

D

E

F

G

H

SUPREME COURT REPORTS

Aof acquired land, or from giving effect to the award, in a particularcase or cases, cannot result in the inclusion of such period orperiods for the purpose of reckoning the period of 5 years. Also,merely because timelines are indicated, with the consequence oflapsing, under Sections 19 and 69 of the 2013 Act, per se does notmean that omission to factor such time (of subsistence of interimBorders) has any special legislative intent. This Court notices, inthis context, that even under the new Act (nor was it so under the1894 Act) no provision has been enacted, for lapse of the entireacquisition, for non-payment of compensation within a specifiedtime; nor has any such provision been made regarding possession.CFurthermore, non-compliance with payment and deposit provisions(under Section 77) only results in higher interest pay-outs underSection 80. The omission to provide for exclusion of time duringwhich interim orders subsisted, while determining whether or notacquisitions lapsed, in the present case, is a clear result ofinadvertence or accident, having regard to the subject-matter,Drefusal to apply the principle underlying the maxim actus curiaeneminem gravabit would result in injustice.”

11.2 While applying the principle of restitution, it is observed inparagraphs 335 to 339 as under:- E“In re : Principle of restitution

335. 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. In South Eastern CoalfieldsFLtd. v. State of M.P. [(2003) 8 SCC 648], it was held that noparty could take advantage of litigation. It has to disgorge theadvantage gained due to delay in case lis is lost. The interim orderpassed by the court merges into a final decision. The validity ofan interim order, passed in favour of a party, stands reversed inthe event of a final order going against the party successful at theGinterim stage. Section 144 of the Code of Civil Procedure is notthe fountain source of restitution. It is rather a statutory recognitionof the rule of justice, equity and fair play. The court has inherentjurisdiction to order restitution so as to do complete justice. This isalso on the principle that a wrong order should not be perpetuatedby keeping it alive and respecting it. In exercise of such power, H

the courts have applied the principle of restitution to myriadsituations not falling within the terms of Section 144 CPC. Whatattracts applicability of restitution is not the act of the court beingwrongful or mistake or an error committed by the court; the testis whether, on account of an act of the party persuading the courtto pass an order held at the end as not sustainable, resulting in oneparty gaining an advantage which it would not have otherwiseearned, or the other party having suffered an impoverishment,restitution has to be made. Litigation cannot be permitted to be aproductive industry. Litigation cannot be reduced to gaming wherethere is an element of chance in every case. If the concept ofrestitution is excluded from application to interim orders, then thelitigant would stand to gain by swallowing the benefits yielding outof the interim order. This Court observed in South EasternCoalfields [South Eastern Coalfields Ltd. v. State of M.P.,(2003) 8 SCC 648] thus: (SCC pp. 662-64, paras 26-28)

“26. In our opinion, the principle of restitution takes care ofthis submission. The word “restitution” in its etymological sensemeans restoring to a party on the modification, variation orreversal of a decree or order, what has been lost to him inexecution of decree or order of the court or in directconsequence of a 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 restoration ofsome specific thing to its rightful owner or status; (ii)compensation for benefits derived from a wrong done toanother; and (iii) compensation or reparation for the loss causedto 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” isan ambiguous term, sometimes referring to the disgorging ofsomething 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 a ground for restitution. If the defendant isguilty of a non-tortious misrepresentation, the measure ofrecovery is not rigid but, as in other cases of restitution, AB

C

D

E

F

G

H

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.’

A

The principle of restitution has been statutorily recognised in Section144 of the Code of Civil Procedure, 1908. Section 144 CPC speaksnot only of a decree being varied, reversed, set aside or modifiedbut also includes an order on a par with a decree. The scope ofthe provision is wide enough so as to include therein almost all thekinds of variation, reversal, setting aside or modification of a decreeor order. The interim order passed by the court merges into a finaldecision. The validity of an interim order, passed in favour of aparty, stands reversed in the event of a final decision going againstthe party successful at the interim stage. …

B

C

27. … This is also on the principle that a wrong order should notbe perpetuated by keeping it alive and respecting it (A. ArunagiriNadar v. S.P. Rathinasami [1970 SCC OnLine Mad 63]). In theexercise of such inherent power, the courts have applied theprinciples of restitution to myriad situations not strictly falling withinthe terms of Section 144.

D

28. That no one shall suffer by an act of the court is not a ruleEconfined to an erroneous act of the court; the “act of the court”embraces within its sweep all such acts as to which the courtmay form an opinion in any legal proceedings that the court wouldnot have so acted had it been correctly apprised of the facts andthe law. … the concept of restitution is excluded from applicationFto interim orders, then the litigant would stand to gain byswallowing the benefits yielding out of the interim order eventhough the battle has been lost at the end. This cannot becountenanced. We are, therefore, of the opinion that the successfulparty finally held entitled to a relief assessable in terms of moneyat the end of the litigation, is entitled to be compensated by awardGof interest at a suitable reasonable rate for the period for whichthe interim order of the court withholding the release of moneyhad remained in operation.”

H

FAIZABAD-AYODHYA DEVELOPMENT AUTHORITY, FAIZABAD v.DR. RAJESH KUMAR PANDEY [M. R. SHAH, J.]

336. In State of Gujarat v. Essar Oil Ltd. [(2012) 3 SCC 522],it was observed that the principle of restitution is a remedy againstunjust enrichment or unjust benefit. The Court observed: (SCC p.542, paras 61-62)

“61. The concept of restitution is virtually a common lawprinciple, and it is a remedy against unjust enrichment or unjustbenefit. The core of the concept lies in the conscience of thecourt, which prevents a party from retaining money or somebenefit derived from another, which it has received by way ofan erroneous decree of the court. Such remedy in English Lawis generally different from a remedy in contract or in tort andfalls within the third category of common law remedy, whichis called quasi-contract or restitution.

62. If we analyse the concept of restitution, one thing emergesclearly that the obligation to restitute lies on the person or theauthority that has received unjust enrichment or unjust benefit (see Halsbury’s Laws of England, 4th Edn., Vol. 9, p. 434).”

337. In A. Shanmugam v. Ariya Kshatriya Rajakula VamsathuMadalaya Nandhavana Paripalanai Sangam [(2012) 6 SCC430], it was stated that restitutionary jurisdiction is inherent inevery court, to neutralise the advantage of litigation. A person onthe right side of the law should not be deprived, on account of theeffects of litigation; the wrongful gain of frivolous litigation has tobe eliminated if the faith of people in the judiciary has to besustained. The Court observed: (SCC pp. 451-55, para 37)

“37. This Court, in another important case in Indian Councilfor Enviro-Legal Action v. Union of India [Indian Councilfor Enviro-Legal Action v. Union of India, (2011) 8 SCC161] (of which one of us, Dr Bhandari, J. was the author ofthe judgment) had an occasion to deal with the concept ofrestitution. The relevant paragraphs of that judgment dealingwith relevant judgments are reproduced hereunder : (SCC pp.238-41 & 243, paras 171-76 & 183-84)

‘170.***

171. In Ram Krishna Verma v. State of U.P. [(1992) 2 SCC620] this Court observed as under: (SCC p. 630, para 16)

A

BC

D

E

FG

H

A

B

C

D

E

F

G

H

“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 hearingas directed in Jeewan Nath Wahal case [Jeewan NathWahal v. State of U.P., (2011) 12 SCC 769] and the HighCourt earlier thereto. As a fact, on the expiry of the initialperiod of the grant after 29-9-1959, they lost the right toobtain renewal or to ply their vehicles, as this Court declaredthe scheme to be operative. However, by sheer abuse ofthe process of law, they are continuing to ply their vehiclespending the hearing of the objections. This Courtin Grindlays Bank Ltd. v. CIT [(1980) 2 SCC 191] heldthat the High Court, while exercising its power under Article226, the interest of justice requires that any undeserved orunfair advantage gained by a party invoking the jurisdictionof the court must be neutralised. It was further held thatthe institution of the litigation by it should not be permittedto confer an unfair advantage on the party responsible forit. In the light of that law and in view of the power underArticle 142(1) of the Constitution this Court, while exercisingits jurisdiction would do complete justice and neutralise theunfair advantage gained by the 50 operators including theappellants in dragging the litigation to run the stage carriageson the approved route or area or portion thereof andforfeited their right to hearing of the objections filed by themto the draft scheme dated 26-2-1959.”

172. This Court in Kavita Trehan v. Balsara Hygiene ProductsLtd. [(1994) 5 SCC 380] observed as under: (SCC p. 391, para22)

“22. The jurisdiction to make restitution is inherent in everycourt and will be exercised whenever the justice of the casedemands. It will be exercised under inherent powers, wherethe case did not strictly fall within the ambit of Section 144.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, revisionor other proceeding or is set aside or modified in any suitinstituted for the purpose,….’

The instant case may not strictly fall within the terms of Section144, but the aggrieved party in such a case can appeal to thelarger and general powers of restitution inherent in every court.”

173. This Court in Marshall Sons & Co. (India) Ltd. v. SahiOretrans (P) Ltd. [(1999) 2 SCC 325] observed as under: (SCCpp. 326-27, para 4)

“4. From the narration of the facts, though it appears to us,prima facie, that a decree in favour of the appellant is notbeing executed for some reason or the other, we do not think itproper at this stage to direct the respondent to deliver thepossession to the appellant since the suit filed by the respondentis still pending. 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 a legal trap to the unwary. Because of thedelay, unscrupulous parties to the proceedings take undueadvantage, and the person who is in wrongful possession drawsdelight in delay in disposal of the cases by taking undueadvantage of procedural complications. It is also a known factthat after obtaining a decree for possession of the immovableproperty, its execution takes a long time. In such a situation,for protecting the interest of the judgment-creditor, it isnecessary to pass appropriate orders so that reasonable mesneprofit which may be equivalent to the market rent is paid by aperson who is holding over the property. In appropriate cases,the court may appoint a Receiver and direct the person who isholding over the property to act as an agent of the [Receiverwith a direction to deposit the royalty amount fixed by the]Receiver or pass such other order which may meet the interestof justice. This may prevent further injury to the plaintiff inwhose favour the decree is passed and to protect the property,including further alienation.”

174. In Padmawati v. Harijan Sewak Sangh [2008 SCC OnLineDel 1202] decided by the Delhi High Court on 6-11-2008, theCourt held as under: (SCC Online Del para 6)

“6. The case at hand shows that frivolous defences and frivolouslitigation is a calculated venture involving no risks situation.

AB

C

D

EF

G

H

A

B

C

D

E

G

H

You have only to engage professionals to prolong the litigationso as to deprive the rights of a person and enjoy the fruits ofillegalities. I consider that in such cases where the court findsthat using the courts as a tool, a litigant has perpetuatedillegalities or has perpetuated an illegal possession, the courtmust impose costs on such litigants which should be equal tothe benefits derived by the litigant and harm and deprivationsuffered by the rightful person so as to check the frivolouslitigation and prevent the people from reaping a rich harvest ofillegal acts through the courts. One of the aims of every judicialsystem has to be to discourage unjust enrichment using courtsas a tool. The costs imposed by the courts must in all casesshould be the real costs equal to deprivation suffered by therightful person.”

We approve the findings of the High Court of Delhi in the casementioned above.

175. The High Court also stated: (Padmawaticase [Padmawati v. Harijan Sewak Sangh, 2008 SCC OnLineDel 1202], SCC OnLine Del para 9)

“9. Before parting with this case, we consider it necessary toobserve that one of the [main] reasons for overflowing of courtdockets is the frivolous litigation in which the courts are engagedby the litigants and which is dragged on for as long as possible.Even if these litigants ultimately lose the lis, they become thereal victors and have the last laugh. This class of people whoperpetuate illegal acts by obtaining stays and injunctions fromthe courts must be made to pay the sufferer not only the entireillegal gains made by them as costs to the person deprived ofhis right but also must be burdened with exemplary costs. Thefaith of people in judiciary can only be sustained if the personson the right side of the law do not feel that even if they keepfighting for justice in the court and ultimately win, they wouldturn out to be a fool since winning a case after 20 or 30 yearswould make the wrongdoer as real gainer, who had reaped thebenefits for all those years. Thus, it becomes the duty of thecourts to see that such wrongdoers are discouraged at everystep, and even if they succeed in prolonging the litigation dueto their money power, ultimately, they must suffer the costs of all these years’ long litigation. Despite the settled legal positions,the obvious wrongdoers, use one after another tier of judicialreview mechanism as a gamble, knowing fully well that dice isalways loaded in their favour since even if they lose, the timegained is the real gain. This situation must be redeemed by thecourts.”

176. Against this judgment of the Delhi High Court, Special Leaveto Appeal (Civil) No. 29197 of 2008 was preferred to this Court.The Court passed the following order [Padmawati v. HarijanSewak Sangh, (2012) 6 SCC 460]: (SCC p. 460, para 1)

“1. We have heard the learned counsel appearing for theparties. We find no ground to interfere with the well-consideredjudgment passed by the High Court. The special leave petitionis, accordingly, dismissed.”

***

183. In Marshall Sons & Co. (India) Ltd. v. Sahi Oretrans (P)Ltd. [(1999) 2 SCC 325] this Court in para 4 of the judgmentobserved as under: (SCC pp. 326-27)

“4. … It is true that proceedings are dragged on for a longtime on one count or the other and, on occasion, become highlytechnical accompanied by unending prolixity at every stage,providing a legal trap to the unwary. Because of the delay,unscrupulous parties to the proceedings take undue advantage,and a person who is in wrongful possession draws delight indelay in disposal of the cases by taking undue advantage ofprocedural complications. It is also a known fact that afterobtaining a decree for possession of immovable property, itsexecution takes a long time. In such a situation, for protectingthe interest of the judgment-creditor, it is necessary to passappropriate orders so that reasonable mesne profit which maybe equivalent to the market rent is paid by a person who isholding over the property. In appropriate cases, the court mayappoint a Receiver and direct the person who is holding overthe property to act as an agent of the Receiver with a directionto deposit the royalty amount fixed by the Receiver or passsuch other order which may meet the interest of justice. Thismay prevent further injury to the plaintiff in whose favour the A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

decree is passed and to protect the property, including furtheralienation.”

184. In Ouseph Mathai v. M. Abdul Khadir [(2002) 1 SCC 319]this Court reiterated the legal position that: (SCC p. 328, para 13)

“13. … [the] stay granted by the court does not confer a rightupon a party and it is granted always subject to the final resultof the matter in the court and at the risks and costs of the partyobtaining the stay. After the dismissal, of the lis, the partyconcerned is relegated to the position which existed prior tothe filing of the petition in the court which had granted thestay. Grant of stay does not automatically amount to extensionof a statutory protection.” ’ ”

There are other decisions as well, which iterate and apply thesame principle. [Indian Council for Enviro-LegalAction v. Union of India, (2011) 8 SCC 161; Grindlays BankLtd. v. CIT, (1980) 2 SCC 191; Ram Krishna Verma v. State ofU.P., (1992) 2 SCC 620. Also Marshall Sons & Co. (India)Ltd. v. Sahi Oretrans (P) Ltd., (1999) 2 SCC 325.]

338. A wrongdoer or in the present context, a litigant who takeshis chances, cannot be permitted to gain by delaying tactics. It isthe duty of the judicial system to discourage undue enrichment ordrawing of undue advantage, by using the court as a tool.In Kalabharati Advertising v. Hemant Vimalnath Narichania [(2010)9 SCC 437], it was observed that courts should be careful inneutralizing the effect of consequential orders passed pursuant tointerim orders. Such directions are necessary to check the risingtrend among the litigants to secure reliefs as an interim measureand avoid adjudication of the case on merits. Thus, therestitutionary principle recognizes and gives shape to the idea thatadvantages secured by a litigant, on account of orders of court, athis behest, should not be perpetuated; this would encourage theprolific or serial litigant, to approach courts time and again anddefeat rights of others — including undermining of public purposesunderlying acquisition proceedings. A different approach wouldmean that, for instance, where two landowners (sought to bedisplaced from their lands by the same notification) are awardedcompensation, of whom one allows the issue to attain finality —

and moves on, the other obdurately seeks to stall the public purposeunderlying the acquisition, by filing one or series of litigation, duringthe pendency of which interim orders might inure and bind theparties, the latter would profit and be rewarded, with the deemedlapse condition under Section 24(2). Such a consequence, in theopinion of this Court, was never intended by Parliament;furthermore, the restitutionary principle requires that the advantagegained by the litigant should be suitably offset, in favour of theother party.

339. In Krishnaswamy S. Pd. v. Union of India [(2006) 3 SCC286], it was observed that an unintentional mistake of the Court,which may prejudice the cause of any party, must and alone couldbe rectified. Thus, in our opinion, 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) for the variousreasons mentioned above.”

12. The sum and substance of the aforesaid observations couldbe summarized as under:-

(i) The time of five years is provided to the authorities to takeaction, not to sleep over the matter;

(ii) Only in cases of lethargy or inaction and default on the partof the authorities and for no other reason lapse of acquisitioncan occur;

(iii) Lapse of acquisition takes place only in case of default bythe authorities acquiring the land, not caused by any otherreason or order of the court;

(iv) The additional compensation @ 12% provided under Section69 of the Act, 2013 has been excluded from the periodacquisition proceedings have been held up on account ofthe interim injunction order of any court;

(v) If it was not possible for the acquiring authorities, for anyreason not attributable to them or the Government, to takerequisite steps, the period has to be excluded;

(vi) In case the authorities are prevented by the court’s order,obviously, as per the interpretation of the provisions suchperiod has to be excluded; A

B

C

D

E

F

G

H

A(vii)The intent of the Act, 2013 is not to benefit landownersonly. The provisions of Section 24 by itself do not intend toconfer benefits on litigating parties as such, while as perSection 114 of the Act, 2013 and Section 6 of the GeneralClauses Act the case has to be litigated as per the provisionsBof the Act, 1894.

(viii) It is not the intendment of the Act, 2013 that those whohave assailed the acquisition process should get benefits ofhigher compensation as contemplated under Section 24;

(ix) It is not intended by the provisions that in case, the persons,Cwho have litigated and have obtained interim orders fromthe Civil Courts by filing suits or from the High Court underArticle 226 of the Constitution should have the benefits ofthe provisions of the Act, 2013 except to the extentspecifically provided under the Act, 2013; D

(x) In cases where some landowners have chosen to takerecourse to litigation and have obtained interim ordersrestraining taking of possession or orders of status quo, asa matter of practical reality it is not possible for the authoritiesor the Government to take possession or to make paymentEof compensation to the landowners. In several instances,such interim orders also have impeded the making of anaward;

(xi) However, so far as awards are concerned, the periodprovided for making of awards under the Act, 2013 (sic 1894FAct) could be excluded by virtue of Explanation to Section11-A, which provided that in computing the period of twoyears, the period during which any action or proceeding tobe taken in pursuance of the declaration is stayed by anorder of a court shall be excluded; G

(xii) The litigation initiated by the landowners has to be decidedon its own merits and the benefits of Section 24(2) shouldnot be available to the litigants in a straightjacket manner.In case there is no interim order, they can get the benefitsthey are entitled to, not otherwise. Delays and dilatory tacticsH

A

and sometimes wholly frivolous pleas cannot result inbenefitting the landowners under sub-section (1) of Section24 of the Act, 2013;

(xiii) Any type of order passed by this Court would inhibit actionon the part of the authorities to proceed further, when achallenge to acquisition is pending; B

(xiv) Interim order of stay granted in one of the matters of thelandowners would cause a complete restraint on theauthorities to proceed further to issue declaration;

(xv) When the authorities are disabled from performing dutiesCdue to impossibility, it would be a sufficient excuse for themto save them from rigour of provisions of Section 24. Alitigant may have a good or a bad cause, be right or wrong.But he cannot be permitted to take advantage of a situationcreated by him by way of an interim order passed in hisfavour by the Court at his instance. Although provision ofDSection 24 does not discriminate between landowners, whoare litigants or non-litigants and treat them differently withrespect to the same acquisition, it is necessary to view allof them from the stand point of the intention of theParliament. Otherwise, anomalous results may occur andEprovisions may become discriminatory in itself; D

(xvi) The law does not expect the performance of the impossible;

D

(xvi) The law does not expect the performance of the impossible;

(xvii) An act of the court shall prejudice no man;

(xviii) A party prevented from doing an act by certaincircumstances beyond his control can do so at the firstsubsequent opportunity; F

(xix) When there is a disability to perform a part of the law, sucha charge has to be excused. When performance of theformalities prescribed by a statute is rendered impossibleby circumstances over which the persons concerned haveno control, it has to be taken as a valid excuse; G

(xx) The Court can under its inherent jurisdiction ex debitojustitiae has a duty to mitigate the damage suffered by thedefendants by the act of the Court; H

A(xxi) No person can suffer from the act of Court and an unfairadvantage of the interim order must be neutralised;

(xxii) No party can be permitted to take shelter under the coverof Court’s order to put the other party in a disadvantageousposition; B

(xxiii) If one has enjoyed under the Court’s cover, that period cannotbe included towards inaction of the authorities to takerequisite steps under Section 24 as the State authoritieswould have acted and passed an award determiningcompensation but for the Court’s order.

C13. Repelling the submission that there is no express provision inSection 24, that excludes the period during which any interim order wasoperative, preventing the State from making an award, it is observedand held that preventing the State from taking the possession of acquiredland or from giving effect to the award, in a particular case or cases,Dcannot result in the inclusion of such period or periods for the purpose ofreckoning the period of five years.

14. The aforesaid observations would be aptly applicable whileinterpreting and considering Section 24(1) of the Act, 2013. In otherwords, whether due to the interim stay granted by the Court and theEauthority not declaring the award under Section 11 of the Act, 1894 andthe interim stay being continued at the time when the Act, 2013 came tobe enforced, such litigants, who have benefitted from the interim ordercan be permitted to take the advantage of the same and thereafter praythat in such a situation, they shall be paid compensation as per the newAct, 2013? It cannot be disputed that there shall be a very huge differenceFbetween the quantum of compensation payable under the Act, 1894 andthe compensation payable under the Act, 2013. It cannot be said thatthere was any inaction on the part of the Authority in not declaring theaward because of the interim order passed by the Court. Therefore,should the State and the Public Exchequer be made to suffer whenGthere is no inaction on the part of the Authority in declaring the Award?The intention of the Parliament while enacting Section 24(1) of the Act,2013 cannot be to give benefit to a litigant, who has obtained a stayorder and because of that the award could not be declared and thereafterthe litigant may be awarded the compensation as per Act, 2013. It mayeven result in discrimination between the landowners, whose lands have H

H

been acquired under the same notification. Take an example, as in thepresent case, in Civil Appeal No. 2915 of 2022, the total land measuring17.172 hectares was acquired from different landowners including thethree plots owned by the respondents herein. The respondents hereinalone were granted the interim order and because of that, the awardcould not be declared with respect to three plots only and with respect tothe remaining lands under the same notification, the awards were declaredand the payment of compensation was made under the Act, 1894.Therefore, if respondents herein, who litigated and obtained the stayorder are now to be paid the compensation under the Act, 2013 on theground that so far as they are concerned, the award has not been declaredas on the date on which the Act, 2013 has been enforced, in that case,there would be two different amounts of compensation with respect tothe landowners under the same notification and that would lead todiscrimination amongst the landowners whose lands have been acquiredunder the same notification, which would never have been the intentionof the Parliament.

15. In the case of Indore Development Authority (supra),even this Court applied the principle of restitution. It is observed that theprinciple of restitution is founded on the ideal of doing complete justiceat the end of litigation, and parties have to be placed in the same positionbut for the litigation and interim order, if any, passed in the matter. Applyingthe principle of restitution, it is further observed that no party could takeadvantage of a litigation. It is further observed and held that the principleof restitution is a statutory recognition of the rule of justice, equity andfair play. The court has inherent jurisdiction to order restitution so as todo complete justice. This is also on the principle that an unsuccessfullitigant who had the benefit of an interim order in his favour cannotencash or take advantage of the same on the enforcement of the Act,2013 by initially stalling the acquisition process and later seeking a highercompensation under the provisions of Act, 2013. We say so for the reasonthat if at the instance of a landowner, who has challenged the acquisition,an interim order has been passed by a Court is successful then theproceeding of acquisition or the acquisition notification would be quashed.Then there would be no occasion to determine any compensation. Buton the other hand, if a landowner, who has the benefit of an interimorder in his favour whilst a challenge is made to the acquisition, isunsuccessful, he cannot then contend that he must be paid compensationunder the provision of the Act, 2013 on its enforcement, whereas a AB

C

D

E

F

G

H

Alandowner, who did not have the benefit of any interim order is paidcompensation determined under the provisions of the Act, 1894, whichis lesser than what would be computed under the Act, 2013.

15.1 Following the decision of this Court in the case of State ofGujarat Vs. Essar Oil Ltd., (2012) 3 SCC 522, it is observed thatBthe principle of restitution is a remedy against unjust enrichment or unjustbenefit. Following the decision of this Court in the case of A.Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu MadalayaNandhavana Paripalanai Sangam, (2012) 6 SCC 430, it is observedthat the restitutionary jurisdiction is inherent in every court, to neutralisethe advantage of litigation. A person on the right side of the law shouldCnot be deprived, on account of the effects of litigation; the wrongful gainof frivolous litigation has to be eliminated if the faith of people in thejudiciary has to be sustained.

16. Therefore, even applying the principle of restitution, as appliedby this Court in the case of Indore Development Authority (supra),Dthe landowners cannot be permitted to take advantage of the interimorder obtained by them due to which the Authority could not declare theaward under Section 11 of the Act, 1894 and thereafter contend that inthat view of the matter, he/they shall be paid the compensation underSection 24(1) of the Act, 2013, under which a higher compensation willEbe available to them on determination of the compensation under theAct, 2013.

Conclusion:-

17. In view of the above and for the reasons stated above, it isobserved as under:-F

(i) It is concluded and held that in a case where on the date ofcommencement of Right to Fair Compensation andTransparency in Land Acquisition, Rehabilitation andResettlement Act, 2013, no award has been declared underSection 11 of the Act, 1894, due to the pendency of anyGproceedings and/or the interim stay granted by the Court,such landowners shall not be entitled to the compensationunder Section 24(1) of the Act, 2013 and they shall be entitledto the compensation only under the Act, 1894.

18. In view of the above discussion and for the reasons statedHabove and in view of our conclusion above, all these appeals are allowed.

The impugned judgment(s) and order(s) passed by the High Court arequashed and set aside. The concerned appropriate Authority(s) to declarethe award under Section 11 of the Act, 1894 with respect to the lands inquestion and determine the compensation under the provisions of theAct, 1894 by taking into consideration Section 114 of the Act, 2013 readwith Section 6 of the General Clauses Act, 1897, wherever applicableand the original landowners shall be paid the compensation accordingly,under the provisions of the Act, 1894.

It goes without saying that if the landowners are aggrieved by thedetermination of compensation declared under the award under the Act,1894, it will be open for them to take recourse to law for enhancementof compensation under the provisions of the Land Acquisition Act, 1894only.

With this, the present appeals are allowed. However, in the factsand circumstances of the case, there shall be no order as to costs.

Bibhuti Bhushan Bose

Appeals allowed.

A

B

C

D

E

F

G

H