INDORE DEVELOPMENT AUTHORITY versus SHAILENDRA (DEAD) THROUGH LRS. & ORS. on 8 February 2018

INDORE DEVELOPMENT AUTHORITY

v.

SHAILENDRA (DEAD) THROUGH LRS. & ORS.

(Civil Appeal No. 20982 of 2017)

FEBRUARY 08, 2018

[ARUN MISHRA, ADARSH KUMAR GOEL ANDMOHAN M. SHANTANAGOUDAR, JJ.]

Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013:

Legislative intendment of the enactment – Held: The Actaddresses the concern of farmers and of those whose livelihood isdependent upon the land being acquired, while at the same timefacilitating land acquisition for myriad reasons, includingurbanization, rural electrification et al., in a timely and transparentmanner. (Per majority)

s.24(1) – Word ‘paid’ – Connotation of – Held: The word‘paid’ in s.24 of the Act of 2013 has the same meaning as ‘tender ofpayment’ in s.31(1) of the Act of 1894 – They carry the same meaning– The expression ‘deposited’ in s.31(2) is not included in theexpressions ‘paid’ in s.24 of the Act of 2013 or in ‘tender of payment’used in s.31(1) of the Act of 1894 – The words ‘paid’/tender’ and‘deposited’ are different expressions and carry different meaningswithin their fold – Land Acquisition Act, 1894 – s.31(1), (2). (Permajority)

s.24(2) – Failure to deposit compensation, effect – Non-deposit of compensation in court under s.31(2) of the Act of 1894does not result in a lapse of acquisition under s.24(2) of the Act of2013 – Due to the failure of deposit in court, the only consequenceat the most in appropriate cases may be of a higher rate of intereston compensation as envisaged under s.34 of the Act of 1894 andnot lapse of acquisition – Land Acquisition Act, 1894 – s.31(2).(Per majority)

s.24(2) – Protection under, when there is refusal to acceptcompensation – Once the amount of compensation has beenunconditionally tendered and it is refused, that would amount to

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Apayment and the obligation under s.31(1) stands discharged andthat amounts to discharge of obligation of payment under s.24(2)of the Act of 2013 also and it is not open to the person who hasrefused to accept compensation, to urge that since it has not beendeposited in court, acquisition has lapsed – Claimants/landownersafter refusal, cannot take advantage of their own wrong and seekBprotection under the provisions of s.24(2) – Land Acquisition Act,1894 – s.31(1). (Per majority)

s.24(2) – Limitation – Exclusion of period spent in litigation– Held: Provisions of s.24(2) do not intend to cover the periodspent during litigation and when the authorities have been disabledCto act under s.24(2) due to the final or interim order of a court orotherwise, such period has to be excluded from the period of fiveyears as provided in s.24(2) of the Act of 2013 – There is noconscious omission in s.24(2) for the exclusion of a period of theinterim order. (Per majority)Ds.24(1) – Interpretation of – Held: When award under the1894 Act has not been passed, then as per s.24(1)(a) of the Act2013, all the provisions of the Act of 2013 relating to determinationof compensation shall apply – Where, however, an award unders.11 has been made then such proceedings shall continue as perEs.24(1)(b) of the Act 2013, under the Act of 1894 as if the said Acthas not been repealed – However, in case physical possession ofthe land has not been taken, or the compensation has not beenpaid, the proceedings shall be deemed to have lapsed; and, in caseof compensation with respect to a majority of landholdings has notbeen deposited in the account of the beneficiaries, then, allFbeneficiaries i.e. landowners shall be entitled to compensation inaccordance with the provisions of the Act of 2013 – Consequenceof non-deposit of the amount, with respect to the majority of landholdings, in the account of the beneficiaries, is that the acquisitionwould not lapse, and only compensation under the new Act wouldGbe payable. (Per majority)

s.24(2) – Interpretation of – Expression ‘paid/deposit’ –Meaning of – Under the main part of s.24(2), the expression“compensation has not been paid” has been used – The word“deposited” is missing from main part of s.24(2), and it is only usedHin the proviso – The Legislature has used two different expressions to carry, respectively different meanings; and, the proviso operatesin a different field, where the acquisition would not lapse – Theproviso is not attracted where compensation has been paid – Theproviso to s.24(2) does not provide that amount of compensationhas to be deposited in the court – It obviously refers to a paymentdeposited with LAO or in treasury – The expression “paid”, used ins.24(2) of the 2013 Act, thus, cannot carry same meaning and includein it the deposit to be made in Court under s.31(2) of the Act of1894; it only reflects the mode of payment as envisaged under s.31(1)of the Act of 1894 i.e. “tender” – Land Acquisition Act, 1894 –s.31.(Per majority)

s.24(2), proviso – Connotation of – ‘paid’ and ‘deposit’ –Distinction between – Held: The proviso to s.24(2) of the 2013 Actdeals with ‘deposit’ of compensation in treasury or with LandAcquisition Collector with respect to the majority of holding – Itcontemplates that amount has not been ‘paid’ to landowners/beneficiaries/interested persons – Thus, when scheme of entire s.24is considered, the concept of ‘paid’ in the main s.24(2) is differentfrom the deposit – If the deposit is included in word ‘paid’, theproviso to s.24(2), which has the different consequence of no lapse,but only higher compensation would be otiose and become redundantand repugnancy would occur – It is clear that expression ‘paid’ ins.24 is different from word ‘deposit’ which is provided in its proviso.(Per majority)

s.24(2) – Meaning of “paid in s.24(2) and in s.31 of Act of1894 – The expression “paid” in s.31(1) of Act of 1894 and s.24(2)of Act of 2013 mean, as soon as it is offered and madeunconditionally available – Merely, if a landowner refuses to acceptit, it cannot be said that it has not been paid – Once amount hasbeen tendered that would amount to payment – Thus, word “paid”does not mean actual payment to be made but whatever is possiblefor an incumbent to make the payment is only contemplated – It issettled that a Court cannot add or subtract a word; the expression“compensation has not been paid” is used in s.24(2); it is not opento the court to add to these words, or to substitute the said expressionwith any further expression, such as ‘deposit’. (Per majority)

s.24(2) – Applying the rule of harmonious construction tothe provisions of s.24(2) of the Act of 2013, i.e. as between the AB

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Amain part of the section and its proviso, the word “paid” occurringin the main part, has to be construed differently (with a differentmeaning being given to it from the word “deposited” occurring inthe proviso; otherwise, inconsistency and repugnancy would be theresult of the provision contained in s.24(2) as a whole; and, that iswhat has to be avoided – The provisions would be irreconcilable,Band an anomalous result would be occasioned – A section is to beinterpreted by reading all its parts altogether, and it is not permissibleto omit any part thereof – In the instant case, proviso to s.24(2)cannot be ignored while interpreting the main subsection – Theproviso is enacted as part of s.24(2); it is not an independentCprovision and applies to an acquisition made five years or before,in which amount, with respect to majority of holdings, has not beendeposited in court – There has to be harmonized construction ofprovision of s.24(2) – Interpretation of statutes. (Per majority)

s.24 – Compensation – Deposit in Court – Whether necessaryD– Held: The law as prevailed under the Act of 1894 never invalidatedany land acquisition in the absence of amount being deposited incourt since the time immemorial in most cases where reference is notsought, amount had been invariably deposited in the Treasury asprovided in statutory rules framed under s.55 of Act of 1894 andother standing order issued by State Governments, and there wereEbinding decisions which simply laid down that in case landowner isnot responsible for delay in payment, at the most he may be entitledto interest on such amount, in case it has not been tendered/paid tohim when possession has been taken – It would be wrong to laydown law that once amount has not been deposited in the court but Fin treasury, acquisitions would lapse under s.24. (Per majority)

s.24 – Compensation – Deposit made in Treasury – The courtis not disbursing authority of compensation when reference is notsought – Farmers/claimants are primarily concerned with the LandAcquisition Collector and for more than one century this procedureGof deposit in treasury was prevailing and by and large amounts hadbeen deposited in the treasury only and, thus, it would not beappropriate to make the operation of law to be such as to invalidateland acquisition when deposit is made in Treasury – Such aninterpretation is not permissible as per the intendment of the Act of2013. (Per majority)H

s.24(2) and its proviso – The expression “deposited in theaccount of landowners” would not mean deposited in the court asenvisaged in s.31(2) of the old Act, action as permissible as per thefinancial instructions having statutory or administrative ordershaving force of law as well as under the Rules framed by variousState Governments in exercise of power under s.55 of Act of 1894can always be taken – In various States, Financial Code/Order/Rules deal with Government money and as such amount is requiredto be deposited in the Treasury by opening separate accounts oflandowners/beneficiaries/ claimants that would be full complianceof the proviso of s.24(2) of new Act. (Per majority)

s.24 – When there is absolute vesting of the land in the Stateunder the provisions of the Act of 1894, whether it can be divestedby virtue of the provisions made in s.24 of 2013 Act – Held: Whenthere is absolute vesting in the State it is vesting along with possessionand thereafter a person who remains in possession is only atrespasser not in rightful possession – Vesting contemplates absolutetitle, possession in the State – “Vest” means an absolute orindefeasible right – Thus, the provisions contained under the Act of2013 do not take vested rights away – There is no deemed lapseunder s.24 in such a case – In case of urgency also before award ispassed as provided in s.17(1), 17(3A) vesting takes place onfulfillment of conditions – No different intention appears from s.24to divest the land once it has absolutely vested in the State inaccordance with the provisions of the Act of 1894 – Merely byobtaining interim order or keeping the litigation pending or filing itafresh that too by way of stale and belated claim after the Act of2013 has come into force, no divesting of land is contemplated – Itis only in exigencies provided deemed lapse take place either whenpossession not taken or compensation not paid as provided in s.24(2)and where award has not been passed, the provisions of s.24 of Actof 2013 applies. (Per majority)

s.24(2) – Accrued right – It is settled law that accrued rightscannot be taken away by repealing statutory provisions – Therepealing law must provide for taking away the accrued rightsexpressly or by necessary implications – There is no such expressprovision or necessary implication – The beneficial intendment ofproviso to s.24(2) is that acquiring body must have arrangement of AB

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6SUPREME COURT REPORTS

Amoney for payment of compensation with respect to majority ofholding – Law does not contemplate or permit a litigant to misuseof the provisions – Law does not permit court cover to be used asshield when there is no legality in the claim and one cannot bepermitted to reap the fruits of one’s own dilatory tactics, moneypower to litigate till eternity – The Act nowhere intends that onlyBlitigating incumbents who are not accepting acquisition have to begiven the benefit of Act of 2013 – Those who have obtained interimorders under guise of prima facie case anyhow or somehow withoutany basis, without merit in their claim, cannot be protected byproviding shelter under the protective umbrella of s.24(2) of the Act Cof 2013 – Repeal. (Per majority)

s.24 – Delayed claims – Maintainability of – Held: Stale claimscannot be entertained even though no time limit is prescribed –Once Panchnama has been drawn and by way of drawing thePanchnama physical possession has been taken, the case cannotDbe reopened under the guise of s.24 of Act of 2013 – The provisionsof s.24 do not invalidate those judgment/orders of the courtswhereunder rights/claims have been lost/negatived, neither do theyrevive those rights which have become barred, either due to inactionor otherwise by operation of law – Fraudulent and stale claims arenot at all to be raised under the guise of s.24. (Per majority)

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s.24(2) – Non-incorporation of word ‘deposit’ in s.24(2) –Whether casus omissus – Held: s.24(2) uses the expression“compensation has not been paid” – To complete the payment,deposit of payment in the court cannot be read as payment to thelandowners – In case the legislature wanted the ‘deposit in Court’Fto be included in ‘paid/ tender’, it could have easily said so – But ithas used expressions differently, with different consequences – Thereis casus omissus, i.e. conscious omission made by the Legislature inmain s.24(2) when the expression “deposited” has not been used inthe expression “has been paid”, and it is only after amount tenderedGis declined, it is to be deposited in Court that too in certain exigenciesas per s.31(2).(Per majority)

s.24(2) – Casus omissus – Whether in the provisions of s.24,there is casus omissus – Absence of provision for excluding the periodof stay/ injunction of a Court order does not at all affect the provision H

of s.24(2) of the Act of 2013 – It intended that authority should notkeep pending acquisition due to laxity on their part for five yearsor more – It never intended to apply in case they were not able toperform obligation due to court order or conduct of landowners –The legal provisions have to be interpreted in the light of the settledprinciples of common law unless they are excluded, and in case aperson is litigating for several decades, non-acceptance ofcompensation and questioning the acquisition, cannot be permittedto ask for compensation or claim lapse under 2013 Act. (Permajority)

s.24(2) – Common law principles – It is well settled that thestatutory provision would prevail upon the common law principles– The statutory provisions, contained in s.24 of the Act of 2013, donot exclude the principles of common law – The principles that canbe excluded are only those in respect to which, provision has beenmade in the statute itself or the applicability is ousted by implication– The observations in respect of the principle of interpretation that

if something is expressed in a provision, anything contrary isimpliedly excluded, are themselves based on the maxim “expressiounius est exclusio alterius” – This maxim has been held to have limitof operation and is not of universal application – Thus, mere factthat in some of the provisions there is a mention about period ofstay being excluded, cannot be taken to be conclusive that in otherprovisions with respect to the effect of stay not to be considered orcommon law maxims have no applicability in the context of s.24(2)of the 2013 Act – The Common Law principles, cannot be ousted, todo complete justice to parties and to prevent miscarriage of justice,within purview of s.24 of Act of 2013 – Doctrines/Principles.(Permajority)

s.24(2) – Provision of lapse of acquisition, invocation of –Held: In case possession could not be taken, or compensation couldnot be paid or deposited, due to cover of courts’ order or conductof land-owner, provision of lapse cannot be invoked – s.24(2), apolicy of the law is not to benefit a litigant or confer undeservingbenefit by involving in the lis and to reap fruits on the basis ofpossession on illegal basis without any right and often lis is filed inland acquisition cases one after the other and intendment of law isnot to treat law-abiding incumbents differently – Litigation cannot ABCD

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Abe permitted to become lucrative industry for the unworthy litigant.(Per majority)

Effect of repeal – Held: The repeal of the Act of 1894 by Actof 2013 has been made without prejudice or affect the generalapplication of s.6 of the General Clauses Act, 1897 – s.6 of theBGeneral Clauses Act provides that unless a different intentionappears, the repeal shall not revive anything not in force – s.6(b)provides that it would not affect any previous operation of anyenactment so repealed or anything duly done or suffered thereunder– s.6(e) provides that it will not affect any investigation, legalproceedings or remedy in respect of any such right, privilege,Cobligation, liability, penalty, forfeiture or punishment unless differentintention appears, and any such investigation, legal proceeding orremedy may be instituted, or continued or enforced, and any suchpenalty, forfeiture or punishment may be imposed as if the repealingAct or Regulation had not been passed – The provisions of s.6 clearlyDsave such proceedings and pending litigation has to be decidedonly on the basis of 1894 Act except as provided specifically in Actof 2013 – General Clauses Act, 1897 – s.6. (Per majority)

s.24(2) – The acquisition proceedings do not lapse if theamount is deposited in the Treasury and such fact is made known toEthe claimants by the competent authority as required in law – Onlyinterest is attracted, in case if the deposit is not made in Court. (PerMohan M. Shantanagoudar, J.)

s.24(2) – Casus Omissus – The conscious omission referred toin paragraph 11 of the judgment in Sree Balaji does not make anyFsubstantial difference to the legal position with regard to theexclusion or inclusion of the period covered by an interim order ofthe Court for the purpose of determination of the applicability ofs.24(2) of the 2013 Act – In fact, excluding such periods of interimstay from the calculation of the time period of five years unders.24(2) makes a reading of the Act more consistent – InterpretationGof statutes – Interim order. (Per Mohan M. Shantanagoudar, J.)

s.24(2) – Casus Omissus – There is no bar much less absolutebar on the Court’s jurisdiction to supply casus omissus – If there isnecessity, such omission can be inferred – Casus omissus must besupplied to s.24(2) of the 2013 Act due to the necessity and theH

need for consistency – If a provision of the Act is inconsistent orAambiguous, the same needs to be clarified for bringing the meaningof the said provision consistent with the rest of the Act, if need be,by supplying meaning to such provision – In the instant case, thereare many provisions in the 2013 Act which exclude periods of interimstay, such as s.19(7) and the Explanation to s.69(2) of that Act – ItBonly makes the statute more consistent if s.24(2) is read in light ofother provisions such as s.19(7) and the Explanation to s.69(2),which make interim stay orders exceptions to calculating periodsof time under the Act – In this way, repugnancy and inconsistencywith the rest of the statute is avoided – There is a clear necessity toread the exclusion of interim stay into s.24(2) of the 2013 Act so asCto make its meaning consistent with the rest of the enactment, wherein similar situations the periods of stay areexcluded.(Per Mohan M. Shantanagoudar, J.)

s.24(2) – The principle of “actus curiae neminemgravabit”, i.ethe act of the court should not prejudice any parties, would beapplicable in the present case to exclude the period covered by aninterim order for the purpose of determining the question with regardto taking of possession as contemplated in s.24(2) of the 2013 Act– Doctrines/Principles. (Per Mohan M. Shantanagoudar, J.)

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s.24(2) and its proviso – “tender”, “payment”, and “deposit”– Interpretation of – Whether these terms can be usedinterchangeably – Word ‘deposit’ whether synonymous with the word‘payment’ – Held: The 2013 Act use “tender”, “payment”, and“deposit” at different places in the enactments – Tender andpayment are two different terms – However, “payment” has beentreated similar to “deposit” within s.24(2) itself, as well as in otherprovisions – A plain reading of sub-section 2 of s.24 of the 2013Act discloses that in case either the physical possession of the landhas not been taken, or the compensation has not been paid, theacquisition proceedings shall be deemed to have lapsed – However,the proviso to sub-section 2 of s.24 emphasizes that after the awardis made, if compensation in respect of majority of the land holdingshas not been deposited in the account of the beneficiary, then theowners of minority of the land holdings will be entitled tocompensation under the 2013 Act, which means that under theproviso, though the owners of a minority of the land holdings have EF

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Areceived compensation under the 1894 Act, they would be gettinghigher compensation under the 2013 Act in case compensation hasnot been deposited in the account of the beneficiaries in respect ofa majority of the land holdings – The word “deposit” in the accountof beneficiaries as contained in proviso to s.24(2) of the 2013 Actwould mean deposit in the account of beneficiaries in the TreasuryB– s.80 also recognises deposit of compensation as being equivalentto payment of compensation. (Per Mohan M. Shantanagoudar, J.)

s.24 – Whether the judgment in Pune Municipal Corporation isper incuriam – Held: A decision is rendered per incuriam if it ismade through some mistake, or under a misapprehension as to aCdecision or a dictum of a judge, which is the result of a materialoversight – A decision, judgment or verdict can be rendered perincuriam if given without considering any provision in a statutewhich was not brought to the notice of the court or if it is not possibleto reconcile its ratio with that of a previously pronounced judgmentDof a co-equal or larger bench; or if the decision of a High Court isnot in consonance with the views of the Supreme Court – Thejudgment in Pune Municipal Corporation was not rendered perincuriam, as the conclusion is reached by proceeding in detail onthe interpretation of relevant statutory provisions – However, thereasons assigned and conclusions arrived at by the Court in theEsaid judgment are not acceptable – Though the Rules are notadverted to in the case of Pune Municipal Corporation, the discussionas a whole, if looked into, would make it clear that the Court whiledeciding the said judgment, discussed in detail about the failure todeposit in the Court, so also, about the effect of deposit in TreasuryF– Hence, merely because the Rules of certain States are notconsidered, the judgment in Pune Municipal Corporation cannot betermed as per incuriam – In other words, merely because the Rulesare not referred to specifically in the judgment, it cannot be saidthat there is non-consideration of the effect of the Rules – Thus itcannot be said that the said judgment is through want of care orGinadvertence – The proper course is to refer the matter to a largerBench. (Per Mohan M. Shantanagoudar, J. – Dissenting view)

s.24(2) and its proviso – Interpretation of – The proviso tosub-section 2 of s.24 does not require the State to pay thecompensation in respect of minority holdings for saving acquisition –H

It is sufficient if the compensation is deposited in respect of minimumAholdings in the account for saving the acquisition – Since the provisoto sub-section 2 of s.24 does not envisage lapsing of acquisition,even if the payment is not made but is deposited that too with regardto the beneficiaries of a minority of holdings, the same would leadto the inevitable conclusion that the word “payment” as found inBsub-section 2 of s.24 has a strong link or co-relation with the word“deposit” – A reading of sub-section 2 of s.24 along with theproviso would make it clear that even if the compensation in respectof minority of the land holdings is deposited in the account of suchminority beneficiaries, the acquisition does not lapse – At the most,every land-loser is entitled to the higher compensation as per theCprovisions of the 2013 Act – Since the proviso does not refer to thewords “payment of compensation” and as the main provision i.e.sub-section 2 of s.24 does not refer to the word “deposit”, the onlyinterpretation that is possible is that, if either deposit is made in theTreasury in the name of minority holders or payment is made atDleast to minority holders, the acquisition does not lapse – If theword “paid” as found in sub-section 2 of s.24 is not treated as“deposited” in the account of beneficiaries, then the proviso tosub-section 2 of s.24 would become otiose.(Per Mohan M. Shantanagoudar, J.)

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Land Acquisition Act, 1894:

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Land Acquisition Act, 1894:

s.31 – Consequence of not depositing the amount under s.31of the 1894 Act – The expression used in s.31 is not “paid”, it isonly “tender payment” and there is obligation to pay compensationunless prevented by a cause under sub-section (2) of s.31 – In casethere is dispute as to person entitled to compensation or itsapportionment in between person interested or person was not evencompetent to make alienation of property that has been acquired itwould not be necessary to tender amount as it may not be so donedue to said exigencies as authority may decide not to pay it tillcourt orders then it is to be deposited in court to save further liabilityof exorbitant interest under s.34 of the Act of 1894 – Apart fromthat s.31(2) does not cover all the exigencies and it does not requirethat invariably the compensation has to be deposited with the court– It is only when reference is sought that reference court comes topicture not otherwise as provided in rules/orders in case person F

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Arefuses and seeks a reference to court it has to be deposited incourt where reference would be submitted otherwise as provided inthe rules it has to be deposited in treasury – Even s.31(2) comesinto play to “tender payment” is obligatory provision – Tender ofpayment is complete when it is made unconditionally available itcould not have been equated with the deposit in court under ss.31(2)Bor 24(2) of old and new Acts respectively as these are two differentexigencies and consequence of non-payment of compensation isclearly culled out in s.34. (Per majority)

ss.31, 34 – Prejudice due to non-deposit in court – Held: Asper the provisions contained in s.34, a person can claim the interestCin case amount is not deposited as envisaged under s.31(2) ifauthorities are at fault – In the given situation unless aggrievedparty makes out a case of prejudice and injustice, every infractionof law would not vitiate the act. (Per majority)

s.31(2), first proviso – Payment received under protest –DMaintainability of reference – Held: It is open to a person, underthe first proviso to s.31(2), to receive payment of compensation underprotest as to the sufficiency of the amount, and such person is alsoentitled to maintain a reference – In case awarded amount has beenaccepted without protest, reference cannot be maintained underEs.18.(Per majority)

s.31(2) – Expression “tender”, meaning – Consequence oftender – The meaning of expression “tender”: is when a personhas tendered the amount and made it unconditionally available - Ifthe landowner refused to receive it, the person who has tenderedFthe amount cannot be saddled with the liability, which is to be visitedfor non-payment of the amount. (Per majority)

s.31 – Expression ‘tender’ – Whether expression “deposited”in s.31 is included in expression ‘payment’ under s.24(2) of 2013Act – Held: The expression used in s.31 of Act of 1894 and s.77(1)Gof Act of 2013 is to “tender payment” – Once there is tender, thenin case of refusal to accept the same,the obligation to pay unders.31(1) is complete by tender, and that tantamount to making thepayment; and, that is precisely what is intended by the word “paid”in s.24(2) of 2013 Act – In s.31(2) of the 1894 Act, the word‘deposited in Court’ is used – The deposit in Court is not payment to H

the beneficiaries – It is only after their refusal to accept thecompensation tendered under s.31(1) of the Act of 1894 that it is tobe deposited in Court – Right to Fair Compensation andTransparency in Land Acquisition, Rehabilitation and ResettlementAct, 2013 – s.24(2). (Per majority)

s.31 – Deposit made in the court – Whether amounts to tender– Held: Deposit made in the court cannot be said to be paymentmade to the landowner i.e. persons interested/beneficiaries – Thus,in case deposit is directly made in the court without tender, it couldnot be said that it was tendered or paid – ‘Deposit in court’ simplyis the discharge of Collector’s liability of making payment of interestas envisaged under s.34 of the 1894 Act, and no more; deposit inCourt is not tender to landowner – Once the amount has beentendered and not accepted, obligation to pay is discharged, asenvisaged under s.31(1); no penal consequences can follow and,the person who has refused to accept cannot be permitted to takean advantage of his own wrong, or in case his conduct is of filinglitigations, delaying the passing of the award or obtaining stay ofthe proceedings; such action would tantamount to refusal to acceptcompensation, and the person then may not even be entitled to higherrate of interest as envisaged under s.34.(Per majority)

ss.31, 34 – Deposit in Treasury – Held: The various Stateshave made rules for unaccepted compensation to be deposited inthe Treasure as revenue deposits when the landowners do not appearon the notified date to collect their compensation – Thus, a depositin Court is not the only legal form of deposit under the 1894 Act –Compensation was being credited to the Treasury in the past, evenafter the same was deposited in Court – Thus, the issue where thecompensation is deposited is a matter of procedure – When the StateRules and High Court rules permit deposits in the Treasury, it fallsto reason that under the scheme of the 1894 Act, failure to pay ordeposit in Court under s.31(2) only had the effect of attractinginterest payment as per s.34 of the 1894 Act.(Per Mohan M. Shantanagoudar, J.)

s.55 – Dealing with public money – Effect of Rules framedunder s.55 and orders issued by State Governments – There arevarious state rules framed under s.55 by various state governmentsas well as there are instructions issued with respect to dealing with ABC

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Agovernment money as provided in Art. 283 of the Constitution ofIndia, and when it is the government money it has to be dealt with inaccordance with the instructions issued by the state governmentfrom time to time – There are other Financial Codes/Rules/ordersissued time to time by various State Governments with respect todealing with Government money – They have the force of law – TheBduty of the court is to harmonize rules with provision of Act.(Permajority)

s.55 – Public money – Mode of payment of compensation –Held: Art.283(1) of the Constitution of India mandates that matterspertaining to custody of the Consolidated Fund of India and theCContingency Fund of India, the payment of moneys into such Funds,the withdrawal of moneys therefrom, the custody of public moneysother than those credited to such Funds received by the Governmentof India etc. shall be regulated by law made by the Parliament –Art.283(2) mandates that similar matters of the States’ ConsolidatedDFunds etc. are to be regulated by law made by the State Legislatures– States have framed rules pursuant to Art.283(2) as to how thepublic moneys are to be handled – s.55 of the 1894 Act empowersthe State to make rules for guidance of officers – Pursuant toArt.283(2) and s.55 of the 1894 Act, various States, such as, Assam,Bihar, Orissa, Kerala, West Bengal, Delhi and Punjab have framedErules to govern the mode of payment of compensation – All of themprovide for deposit into the Treasury in case the landowners arenot present to receive the compensation, along with the notice tosuch landowners apprising them of such deposits – The Court inthe case of Pune Municipal Corporation did not consider such rulesFpassed by the States that direct the deposit of unclaimedcompensation in the Treasury – Constitution of India – Art.283.(Per Mohan M. Shantanagoudar, J.)

Land Acquisition:

Role of State when landowners do not accept compensation/Gacquisition – Duty of landowners/litigants – Held: State authoritiesare not expected to retain the money with them and run after thelandowners and match with their dilatory tactics with vigil to findout that one ultimate day, the litigation would attain finality – Onceby their conduct, there is refusal to accept the land acquisition itself,Hmuch less compensation, in such circumstances such landowners have to inform the authorities about the outcome of the litigationand in case they have lost, to ask for compensation – Authoritiesare not supposed to be on vigil so as to ascertain after lapse of somuch time even after decades in new generation, who has receivedthe compensation and who has not received the compensation.(Permajority)

Mode of taking physical possession – Recording ofpanchnama/memorandum by Land Acquisition Officer wouldconstitute taking possession of land – If possession is of a largetract of land, it may not be possible to take physical possession ofeach and every parcel of the land and it would be sufficient thatsymbolic possession is taken by preparing appropriate documentin the presence of independent witnesses and getting their signatures.(Per majority)

Challenge to acquisition – Claim for damages and interestafter losing the challenge – The maxim “nullus commodum caperepotest de injuria sua propria” i.e. ‘No man can take advantage of hisown wrong’ – A “tender” of the amount to be paid operates as abar upon any claim for damages and interest – Thus, when once“tender” of the amount had been made, in any of the prescribedmodes, which met with refusal to accept it and/or by the conduct ofindulging in incessant litigation which, in some instances, culminatedinto a stay/interim order, the party which thus refused to accept theamount, indulging instead in the ‘theater of the absurd’, cannotturn around and contend that the other party should now be visitedwith the penalty for non-payment – Maxims.(Per majority)

Delay/laches – Dilatory tactics – It is a settled propositionthat one cannot be permitted to take advantage of his own wrong –The doctrine “commodum ex-injuria sua Nemo habere debet” meansconvenience cannot accrue to a party from his own wrong – Noperson ought to have advantage of his own wrong – Normally meritof lis is to be seen on date of institution – One cannot be permittedto obtain unjust injunction or stay orders and take advantage ofown actions – Law intends to give redress to the just causes; at thesame time, it is not its policy to foment litigation and enable to reapfruits owing to the delay caused by unscrupulous persons by theirown actions by misusing the process of law and dilatory tactics –Maxims.(Per majority)

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ADoctrines/Principles:

Doctrine of impossibility – The maxims namely ‘nemo teneturad impossibilia’ regarding the impossibility of performance of an actmay not be strictly applicable, as acts, under s.31 or 24, were capableof being performed but authorities were disabled to perform themBas no fault on their part – However, the effect of Court orders, orthe conduct of the landowners/claimants/beneficiaries, is requiredto be considered, it was not an ‘impossibility’ to perform the acts inquestion by their very nature but the said aspect is relevant andunderlying principle of inability to perform has to be considered inthe backdrop of fact whether it was in the control or capacity ofCauthority to perform actions which were possible to be performedbut when it was not possible to perform or were incapacitated toperform – In such event, person responsible for interdicting cannotask him to be put in advantageous position for non-compliance ofan act, which possibly would have been performed, but for suchDaction – Land Acquisition Act, 1894 – s.31 – Right to FairCompensation and Transparency in Land Acquisition, Rehabilitationand Resettlement Act, 2013 – s.24. (Per majority)

Principle of Restitution – While construing provisions ofs.24(2) applicable in case of lis, the principle of restitution whichEenjoins a duty upon the courts to do complete justice to the party atthe time of final decision is to be kept in mind – Successful party atthe end of the litigation has to be placed as far as possible at thesame place unless it would have been had the interim order notbeing passed – In doing away the effect of interim order by resortingto fact of restitution is in fact obligation of the court – Right to FairFCompensation and Transparency in Land Acquisition, Rehabilitationand Resettlement Act, 2013 – s.24(2). (Per majority)

Interpretation of Statutes:

Addition to, or subtraction from, the Act – Permissibility – Itis not open to Court to either add or subtract, a word – The legalmaxim “A Verbis Legis Non Est Recedendum” means: from the wordsof law, there must be no departure – Before adding the word oromitting a word the court has to consider the intended purpose ofthe statute or the provision in question; that by inadvertence thedraftsman and Parliament failed to give effect to that purpose in G

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the provision in question, and substance of the provision Parliamentwould have made, although not necessarily the precise wordsParliament would have used, had the error in the Bill been noticed– Right to Fair Compensation and Transparency in Land Acquisition,Rehabilitation and Resettlement Act, 2013 – s.24(2).(Per majority)

Harmonious construction – While making statutoryinterpretation, inconsistency and repugnancy is to be avoided andharmonious construction has to be adopted – The construction tobe adopted should be such, as would make the statute as a whole, aconsistent enactment – Such a construction would have the merit ofavoiding any inconsistency or repugnancy, either within a givensection or as between a particular section on the one hand andother parts of the statute on the other. (Per majority)

Different expressions – When two different expressions havebeen used in the same provision of a statute, there is a presumptionthat they are not used in the same sense.(Per majority)

Purposive construction – A statute is to be read as a whole –A statute has to be understood by making construction on all theparts together and not of one part only by itself – Every clause ina statute is to be construed with reference to the context and otherclauses of the Act, as far as possible, to make a consistent enactmentof the whole statute – This would be more so if literal constructionof a particular clause leads to manifestly absurd or anomalousresults which could not have been intended by the Legislature – Anintention to produce unreasonable result is not be imputed to a statuteif there is some other construction available – Where, to apply wordsliterally would defeat the obvious intention of the legislation andproduce a wholly unreasonable result, something must be fed to theprovision so as to achieve the obvious intention and produce rationalconstruction – Land Acquisition Act, 1894 – Right to FairCompensation and Transparency in Land Acquisition, Rehabilitationand Resettlement Act, 2013. (Per Mohan M. Shantanagoudar, J.)

Interim order:

Consequence of interim order – Held: When there is interimstay with respect to possession or order of status quo, everythingcomes to stand still till the interim order is vacated – When once thecourt has restrained the State authorities to take possession, or to ABC

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Amaintain status quo, they cannot pay the amount or do anythingfurther, as such the consequences of interim orders cannot be usedagainst the State – Land acquisition. (Per majority)

Effect of – Held: It is settled proposition of law that no litigantcan derive the benefit of pendency of a case in a court of law – InBcase any interim order is passed during the pendency of litigation itmerges in the final order – In case, the case is dismissed the interimorder passed during its pendency is nullified automatically. (Permajority)

Per incuriam – Decision in Pune Municipal Corporation case –CPrinciple of ‘per incuriam’, applicability – The concept of “perincuriam” signifies those decisions rendered in ignorance orforgetfulness of some inconsistent statutory provisions, or of someauthority binding on the Court concerned – The concept meansthat a given decision is in disregard of the previous decisions of theCourt itself, or that it was rendered in ignorance of the terms of anDapplicable statute or of a rule having the force of law – In theinstant case, the decision in Pune Municipal Corporation case is heldper incuriam. (Per majority)

Repeal – Effect of repealing law on accrued rights – Held: Itis settled law that accrued rights cannot be taken away by repealingEstatutory provisions – The repealing law must provide for takingaway such rights expressly or by necessary implications. (Permajority)

Words and phrases – Vesting – Meaning of. (Per majority)Answering the reference, the CourtFHELD:

PER ARUN MISHRA, J. (For himself and forAdarsh Kumar Goel, J.) (MAJORITY VIEW)

1. INTERPRETATION OF SECTION 24G

1.1 In case the award has not been passed then as persection 24(1)(a), compensation has to be determined under theAct of 2013. Section 24(1)(b) provides that where an award undersection 11 of the 1894 Act has been made, then such proceedingsshall continue under the provisions of the said Act of 1894 as if it H

has not been repealed. However, in case physical possession ofthe land has not been taken, or the compensation has not beenpaid, the proceedings shall be deemed to have lapsed; and, incase of compensation with respect to a majority of landholdingshas not been deposited in the account of the beneficiaries, then,all beneficiaries i.e. landowners shall be entitled to compensationin accordance with the provisions of the Act of 2013. [Para 24][75-E-G]

1.2 In section 24(2), the expression that has been employedis “compensation has not been paid”. The expression“deposited”, which occurs in the proviso to sub-section (2), hasnot been used in the main section 24(2). Its proviso uses theexpression “deposited in the account of the beneficiaries”,meaning thereby, in the case with respect to the majority of landholdings amount has not been deposited in the account ofbeneficiaries, though the acquisition would not lapse, allbeneficiaries would get benefit of the compensation under theAct of 2013. Thus, the consequence of non-deposit of the amount,with respect to the majority of land holdings, in the account ofthe beneficiaries, is that the acquisition would not lapse, and onlycompensation under the new Act would be payable. Whereas,under the main part of section 24(2), it is apparent that, theexpression “compensation has not been paid” has been used.The word “deposited” is missing from main part of section 24(2),and it is only used in the proviso. Thus, the Legislature has usedtwo different expressions to carry, respectively different meanings;and, the proviso operates in a different field, where the acquisitionwould not lapse. The object is that a body or State Government,for whose benefit land has been acquired, must have possessedthe requisite funds for payment to the landowners. The provisois not attracted where compensation has been paid. The provisoto section 24(2) does not provide that amount of compensationhas to be deposited in the court. It obviously refers to a paymentdeposited with LAO or in treasury. [Paras 25, 26 and 27][75-H;76-A-E]

1.3 The expression used in section 31 of Act of 1894 andSection 77(1) of Act of 2013 is to “tender payment”. Once thereis tender, then in case of refusal to accept the same,the obligation AB

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Ato pay under section 31(1) is complete by tender, and thattantamount to making the payment; and, that is precisely what isintended by the word “paid” in section 24(2) of 2013 Act. InSection 31(2) of the 1894 Act, the word ‘deposited in Court’ isused. The deposit in Court is not payment to the beneficiaries.It is only after their refusal to accept the compensation tenderedBunder section 31(1) of the Act of 1894 it is to be deposited inCourt. It is further provided in the rules that in case reference issought, the amount is to be deposited in court where referencewould be submitted otherwise it is to be deposited in the treasury.If the expression “deposited”, used in the proviso to sectionC24(2), and expression “paid” used in main section 24(2), are bothtaken as contained in expression “paid” i.e. the tender; and, onrefusal it is deposited in court to make the “payment” complete;if expression “deposited” is included in expression ‘payment’under Section 24(2), inconsistency and repugnancy would becaused as between the proviso and the main sub-section; whichDhas to be eschewed. The Court cannot add the word “deposited”to the expression “paid”/ “tender” in Section 31 of Act 1894 orSection 24(2) of Act of 2013. [Paras 28, 29][76-F-H; 77-A-B]

2. MEANING OF“PAID” IN SECTION 31 OFTHE ACTOF 1894 ANDSECTION 24(2) OFTHE ACT OF 2013 :E2.1 The meaning of expression “tender”: is when a personhas tendered the amount and made it unconditionally availableand the landowner has refused to receive it, the person who hastendered the amount cannot be saddled with the liability, whichis to be visited for non-payment of the amount. “Tender” may Fsave the tendering party from the penalty for non-payment ornon-performance or penalty if another party unjustifiably refusingthe tender, places the other party in default. The expression“tender” has been used in section 31. The concept of depositedin court is different from “tender” and “paid”. [Para 32][77-F-G]

Straw Board Manufacturing Co. Ltd., Saharanpur v.GGobind AIR 1962 SC 1500 : [1962] Suppl. SCR 618;The Management of Delhi Transport Undertaking v. TheIndustrial Tribunal, Delhi & Anr. AIR 1965 SC 1503;Indian Oxygen Ltd. v. Narayan Bhoumik (1968) 1 PLJR94; N.B. Sanjana, Assistant Collector of Central Excise,HBombay & Ors. v. The Elphinstone Spinning & Weaving Mills Co. Ltd. (1971) 1 SCC 337; J. Dalmia v.Commissioner of Income Tax, New Delhi AIR 1964 SC1866 : [1964] SCR 579 – relied on.

Black’s law Dictionary – referred to.

2.2 The expression “paid” would mean in section 31(1) ofAct 1894 and section 24(2) of Act of 2013 as soon as it is offeredand made unconditionally available. Merely, if a landowner refusesto accept it, it cannot be said that it has not been paid. Onceamount has been tendered that would amount to payment. Thelegal maxim “A Verbis Legis Non Est Recedendum” means: fromthe words of law, there must be no departure. When language ofthe provision is clear, there is no scope for reading somethinginto it. Section 24(2) uses the expression “compensation has notbeen paid”. To complete the payment, deposit of payment in thecourt cannot be read as payment to the landowners. Deposit cannotand need not be added to expressions paid/ tender. In case thelegislature wanted the ‘deposit in Court’ to be included in ‘paid/tender’, it could have easily said so. But it has used expressionsdifferently, with different consequences. The legislature hasconsciously omitted the expression “deposited” in main section24(2), whereas, it is used in the proviso; both have differentobjectives. When the legislature has used different expressionswith respect to past events – the word “paid” is used in adiscernibly distinctive sense than the sense conveyed by the word“deposited” occurring in the proviso – both are required to begiven different meanings. There is casus omissus, i.e. consciousomission made by the Legislature in main Section 24(2) whenthe expression “deposited” has not been used in the expression“has been paid”, and it is only after amount tendered is declined,it is to be deposited in Court that too in certain exigencies as persection 31(2). [Paras 39, 41(a), 41(b), 42][81-D; 82-B; 85-A-B,E-H; 86-A]

Nali Nalinakhya Bysack v. Shyamsunder Halder AIR1953 SC 148 : [1953] SCR 533; State of MadhyaPradesh v. G.S. Dall and Flour Mills AIR 1991 SC 772: [1990] 1 Suppl. SCR 590; State of Gujarat and Ors.v. Dilipbhai Nathjibhai Patel and Anr. (1998) 3 SCC234 : [1998] 2 SCR 56; Competition Commission ofIndia v. Steel Authority of India Ltd. (2010) 10 SCC

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A744 : [2010] 11 SCR 112; Assessing Authority cum-Excise and Taxation Officer v. East India Cotton Mfg.Co. Ltd. (1981) 3 SCC 531 : [1982] 1 SCR 55; PaulEnterprises & Ors. v. Rajib Chatterjee & Co. & Ors.AIR 2009 SC 187 : [2008] 14 SCR 419; Sakshi v.Union of India (2004) 5 SCC 518 : [2004] 2 Suppl.BSCR 723; Commissioner of Income Tax, Kerala v. TataAgencies (2007) 6 SCC 429 : [2007] 8 SCR 136; RamNarain Medhi v. State of Bombay AIR 1959 SC 459: [1959] Suppl. SCR 489; S.P. Gupta v. President ofIndia AIR 1982 SC 149 : [1982] SCR 365; DadiCJagannadham v. Jammulu Ramulu (2001) 7 SCC 71 :[2001] 2 Suppl. SCR 60; P.K. Unni v. Nirmala IndustriesAIR 1990 SC 933 : [1990] 1 SCR 483; Royal TrustCompany v. Minister Of Finance AIR 1921 PC 184 –relied on.

DCrawford v. Spooner (1846) 6 Moore PC 1; LordHoward de Walden v. IRC (1948) 2 AER 825 – referredto.

“Principles of Statutory Interpretation” by G.P. Singh (14[th]edition) – referred to.

2.3 While making statutory interpretation, inconsistencyEand repugnancy is to be avoided and harmonious constructionhas to be adopted. The construction to be adopted should besuch, as would make the statute as a whole, a consistentenactment. Applying the rule of harmonious construction to theprovisions of section 24(2) of the Act of 2013, i.e. as between theFmain part of the section and its proviso, the word “paid” occurringin the main part, has to be construed differently (with a differentmeaning being given to it) from the word “deposited” occurringin the proviso; otherwise, inconsistency and repugnancy wouldbe the result of the provision contained in section 24(2) as a whole;and, that is what has to be avoided. In the instant case, proviso toGSection 24(2) cannot be ignored while interpreting the mainsubsection. The proviso is enacted as part of section 24(2); it isnot an independent provision and applies to an acquisition madefive years or before, in which amount, with respect to majority ofholdings, has not been deposited in court. There has to be H

harmonized construction of provision of section 24(2). Since thereis no ambiguity of drafting in the provisions contained in section24(2) of the Act of 2013, so also none is there in those containedin sections 31(1) and 31(2) of the Act of 1894. There is noaccidental omission as to the concept of payment in section 24(2)or section 31(1) of these Acts. Thus, it is not permissible to supplythe word “deposited” to include in the expression “payment”.[Paras 44-48][86-F-G; 87-A-E]

Raj Krushna v. Binod Kanungo AIR 1954 SC 202 :[1954] SCR 913; Sultana Begum v. Premchand JainAIR 1997 SC 1006 : [1996] 9 Suppl. SCR 707; KailashChandra v. Mukundi Lal (2002) 2 SCC 67 : [2002] 1SCR 83; CIT v. Hindustan Bulk Carriers (2003) 3 SCC57 : [2002] 5 Suppl. SCR 387; Balasinor NagrikCooperative Bank Limited v. Babubhai ShankerlalPandya (1987) 1 SCC 606 – relied on.

Inco Europe Ltd. v. First Choice Distribution (a firm)by the House of Lords in (2000) 2 All ER 109 – referredto.

2.4 Rule of literal construction lays down that words of astatute are first understood in their natural, ordinary or popularsense and phrases, and sentences are construed according totheir grammatical meaning. In the instant case, when giving theplain, natural and grammatical meaning to the word ‘paid’/ ‘tender’,which has been used in contradistinction to the words “depositedin court”, it is clear that tendering payment would not includedeposit in court, in that it is only when payment is refused, thatthe same is deposited in court; obligation to pay is over as soonas amount is tendered and refused. [Paras 49(a), 50][88-A; 89-E-F]

Harbhajan Singh v. Press Council of India AIR 2002SC 1351 : [2002] 2 SCR 369 – relied on G.P. Singh, in “Principles of Statutory Interpretation”(14[th] edition), at Page 91 – referred to.

2.5 When two different expressions have been used in thesame provision of a statute, there is a presumption that they arenot used in the same sense. This principles of statutoryconstruction that different words to be given different meaning A

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Aindicate that the expression ‘deposited’ cannot be added to‘tender’/‘paid’, both carry different consequences under section24, tender on lapse of acquisition/non-deposit higher interestunder section 34 of the Act of 1894. It is a settled proposition oflaw that when two different expressions have been used in section24(2) of the Act of 2013, as well as in section 31 of the Act ofB1894, i.e. “paid to the landowners” and “deposited in the court”,they both carry different meanings, and have to be interpreted asused in the respective contexts. It is not the expression usedthat deposit in the court is payment to landowners, neither it isused that amount deposited in the treasury is the payment to theClandowners. The payment indicates the obligation to pay; and,deposit is made in the court or revenue treasury only uponhappening of various exigencies as provided in Section 31, andthere can be several other exigencies which are not coveredunder section 31(2) of the Act of 1894 and in the statutory rules/

orders. [Paras 51(a), 51(d), 51(e)][89-H; 92-B-E]

DMember, Board of Revenue v. Arthur Paul Benthall AIR1956 SC 35 : [1955] SCR 842; CIT v. East West Import& Export (P) Ltd., Jaipur (1989) 1 SCC 760 : [1989] 1SCR 570; Kailash Nath Agarwal v. PradeshiyaIndustries and Investment Corporation of Uttar PradeshE(2003) 4 SCC 305 : [2003] 1 SCR 1159; TejmohammedHussainkhan Pathan v. V.J. Raghuvanshi (1993) Suppl.2 SCC 493; D.L.F. Qutab Enclave Complex EducationalCharitable Trust v. State of Haryana (2003) 5 SCC 622: [2003] 2 SCR 1; Pallawi Resources Ltd. v. ProtosFEngineering Company Pvt. Ltd. (2010) 5 SCC 196 :[2010] 3 SCR 847; Grasim Industries Ltd. v. Collectorof Customs, Bombay (2002) 4 SCC 297 : [2002] 2 SCR945; B.R. Enterprises v. State of U.P. AIR 1999 SC 1867: [1999] 2 SCR 1111; ShriIshar Alloy Steels Ltd. v.Jayaswals Neco Ltd. (2001) 3 SCC 609 : [2001] 2 SCRG36; Labour Commissioner, Madhya Pradesh v.Burhanpur Tapti Mills and Ors. AIR 1964 SC 1687 –referred to.

Brighton Parish Guardians v. Strand Union Guardians1891 QB 156 – referred to.H

G.P. Singh, in his treatise Interpretation of Statutes(14[th] Edition) at page 395 – referred to.

2.6 When considering the intendment of the beneficialprovisions of the Act of 2013, it addresses the concern of farmersand of those whose livelihood is dependent upon the land beingacquired, while at the same time facilitating land acquisition formyriad reasons, including urbanization, rural electrification et al.,in a timely and transparent manner. The legislature has not brookthe delay of five years or more on part of authorities in completingthe acquisition. When it says ‘timely’,it would mean without delayon the part of authorities, not delay due to dilatory tactics andconduct of land owners/interested persons. [Para 53][92-F-H]

3. EFFECT OF RULES FRAMED UNDER SECTION 55OF 1894 ACTAND ORDERS ISSUED BY STATEGOVERNMENTS

3.1 There are various State rules framed under section 55of the Act of 1894 by various State Governments as well as thereare instructions issued with respect to dealing with Governmentmoney as provided in Article 283 of the Constitution of India,and when it is the Government money it has to be dealt with inaccordance with the instructions issued by the State Governmentfrom time to time. There are other Financial Codes/Rules/ordersissued time to time by various State Governments with respectto dealing with Government money. It is apparent from rules thatwhen no reference is sought on refusal to accept, amount is to bedeposited in treasury. Rules have to be harmonized with theprovision in the Act, thus, it would be necessary to deposit incourt when reference is sought. Thus, under section 31(2)provision of deposit in court on refusal would be attracted, whenreference had been sought, as provided in rules. Section 31(2)does not come in play at all in cases of refusal to accept amountwhen reference has not been sought and deposit in treasury wouldbe valid deposit even otherwise where reference is sought andperson refuses to accept it only liability of non-compliance ofdeposit in Court would be higher interest under section 34.[Paras 54, 60][93-A-C; 98-B-C]

3.2 ‘Deposit-in-treasury’ is stipulated under the rules made A

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Awith reference to a constitutional provision, so also framed underSection 55 of the 1894 Act, as well as under other statutory oradministrative powers. The deposit in treasury is not, in anymanner, invalid. If the deposit is valid, there is no reason to holdthat the said deposit has to be ignored. Government finances,after all, have to be handled as per the applicable rules. TheBdeposit in treasury is as per binding procedural rules/ordersissued by Government of India and/or in exercise of the powersunder Article 283 of the Constitution of India. [Para 63][99-D-F]

Delhi Development Authority v. Sukhbir Singh & Ors.(2016) 16 SCC 258 : [2016] 5 SCR 227 – partlyCdissenting.4. PRACTICAL DIFFICULTY ON REFUSAL/NON-ACCEPTANCE OF COMPENSATION BY CONDUCT;PRACTICE AND LEGAL POSITION UNDER ACT OF 1894.

D4.1 One mode of refusal to acceptance of compensation iswhen it is tendered, it is refused. Another mode is of filing alitigation to question the very land acquisition, filing applicationfor an interim stay and contesting it for decades reflects clearconduct of non-acceptance of acquisition/compensation. Stateauthorities cannot retain the money in their own hands in suchEcircumstances and are bound to deposit the Government moneywhere it is supposed to be i.e. in the treasury as provided in rules.Thus, by conduct also, there can be non-acceptance ofcompensation. Once compensation is accepted, right to challengeacquisition would vanish. State authorities are not expected toFretain the money with them and run after the landowners andmatch with their dilatory tactics with vigil to find out that oneultimate day, the litigation would attain finality. Once by theirconduct, there is refusal to accept the land acquisition itself, muchless compensation, in such circumstances such landowners haveto inform the authorities about the outcome of the litigation andGin case they have lost, to ask for compensation. Same would bethe position in case amount is deposited in court. They have toapply for its withdrawal. The obligation of authorities is at initialstage. At subsequent stage, unless and until there is willingnessshown by landowners/interested persons to accept theHcompensation, authorities cannot presume that they would accept

it and that landowners are not going to question acquisition inthe higher forum and it is not open to the authorities to offer tothem compensation time and again, once amount is deposited intreasury during the pendency of litigation. In case of interim stayalso authorities cannot offer the compensation as that wouldtantamount to violation of court’s order and after interim stayceases to operate, it is for the landowners to apprise the authoritiesof their intention not to take the litigation further and theirwillingness to accept compensation. Section 24(2) does notprovide cover to such litigation. [Para 64][99-G-H; 100-A-G]

4.2 The law as prevailed under the Act of 1894 neverinvalidated any land acquisition in the absence of amount beingdeposited in court since the time immemorial in most cases wherereference is not sought, amount had been invariably deposited inthe Treasury as provided in statutory rules framed under section55 of Act of 1894 and other standing order issued by StateGovernments, and there were decisions of this Court which havesimply laid down that in case landowner is not responsible fordelay in payment, at the most he may be entitled to interest onsuch amount, in case it has not been tendered/paid to him whenpossession has been taken. Similar provisions are made undersections 77 and 80 of the Act of 2013. All of a sudden it would notbe appropriate considering the statutory rules which have beenframed under section 55 of the Act of 1894 and order to invalidateall such land acquisitions which have taken place in various Statesin the country by laying down that once amount has not beendeposited in the court but in treasury, acquisitions would lapseunder section 24. It will be a very harsh operation of law as oldAct never provided for such a consequence since 1894 the Actwas enacted till new 2013 Act came into force. When there weresuch anomalous situation, the statutory rules and statutory ordersissued by various State Governments dealing how theGovernment money has to be dealt with, it would not beappropriate to unsettle the legal position. The 1894 Act nevercontemplated such result and by and large, it was not the practiceto deposit in court. Only in those cases the amount used to bedeposited in court, where reference was sought under sections18 or 30, as provided under rules also and there was dispute as AB

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Ato person entitled to it or apportionment thereof between theclaimants. Primarily it is for the Land Acquisition Collector todistribute the compensation and poor farmers are not supposedto know the court and place where the reference would be made,if it was not sought person would not know a place where it wouldnot be submitted to court, the question of deposit in court wouldBnot arise. The court is not disbursing authority of compensationwhen reference is not sought. Farmers/ claimants are primarilyconcerned with the Land Acquisition Collector and for more thanone century this procedure of deposit in treasury was prevailingand by and large amounts had been deposited in the treasuryConly and thus it would not be appropriate to make the operationof law to be such as to invalidate land acquisition when deposit ismade in Treasury. Such an interpretation is not permissible asper the intendment of the Act of 2013. Though it is a beneficiallaw to benefit the incumbents it cannot be interpreted to be a law which would be to invalidate concluded transaction as perDprevailing law and divest the land which has vested in State,development has taken place, possession taken, awards passed,after litigation/several rounds of litigation lost and then land cannotbe ordered to revert back. The law does not intend that effect, asit may be termed as arbitrary and beyond legislative competence.ESuch misuse of provisions and anomalous results need to beavoided. [Para 66][101-G-H; 102-A-H; 103-A]4.3 The spirit of the provisions of the Act of 2013 is tobenefit farmers, at the same time, not to thwart the entiredevelopment which has taken place or to burden the Exchequer

Fwith such liability which is not contemplated in the Act of 2013and invalidate acquisitions that have taken place in 1912, 1950sand 1960s onwards and have attained finality, as are sought to bereopened under the guise of 2013 Act taking advantage of thesaid technical aspect. Courts are duty-bound to thwart all such attempts as the land which has been acquired long back, it wouldGnot be possible to make payment of compensation as of the rateas provided in the Act of 2013 to undeserving persons at thecost of public revenue, and it would not be appropriate to interpretthe provisions in such a manner to entertain stale and dead claimsand to revive them on the ground of technical and proceduralH

defaults, if any, and created by landowners conduct. Theintendment of section 24 is that acquisition to be completed early.If authorities for no good cause fail to take steps for five years ormore on their own the lapse of acquisition under section 24 tofollow. [Para 67][103-B-E]

5. PREJUDICE DUE TO NON-DEPOSIT IN COURT: Itis trite law that in the given situation unless aggrieved partymakes out a case of prejudice and injustice, every infraction oflaw would not vitiate the act. [Para 69][104-B-C]

Jankinath Sarangi v. State of Orissa (1969) 3 SCC 392;Sunil Kumar Banerjee v. State of West Bengal (1980) 3SCC 304 : [1980] 3 SCR 179; State of Andhra Pradeshv. Thakkidiram Reddy (1998) 6 SCC 554 : [1998] 3SCR 1088; Willie (William) Slaney v. State of MadhyaPradesh AIR 1956 SC 116 : [1955] SCR 1140; AbdulSayeed v. State of Madhya Pradesh (2010) 10 SCC 259: [2010] 13 SCR 311; State of Punjab v. Davinder PalSingh Bhullar AIR 2012 SC 364 : [2011] 15 SCR 540;Bahamans v. State of Karnataka (2012) 9 SCC 650 :[2012] 7 SCR 909 – relied on.

6. CONSEQUENCE OF NOT DEPOSITING THEAMOUNT UNDER SECTION 31 OFTHE 1894 ACT:

6.1 In case there is dispute as to person entitled tocompensation or its apportionment in between person interestedor person was not even competent to make alienation of propertythat has been acquired it would not be necessary to tender amountas it may not be so done due to said exigencies as authority maydecide not to pay it till court orders then it is to be deposited incourt to save further liability of exorbitant interest under section34 of the Act of 1894. Apart from that section 31(2) does notcover all the exigencies and it does not require that invariablythe compensation has to be deposited with the court. It is onlywhen reference is sought that reference court comes to picturenot otherwise as provided in rules/orders in case person refusesand seeks a reference to court it has to be deposited in courtwhere reference would be submitted otherwise as provided inthe rules it has to be deposited in treasury. It is only when court A

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Acomes into play then deposit in reference court is required inexigencies of section 31(2) read with 32 as provided in rules.Even section 31(2) comes into play to “tender payment” isobligatory provision. Tender of payment is complete when it ismade unconditionally available it could not have been equatedwith the deposit in court under section 31(2) or 24(2) of old andBnew Acts respectively as these are two different exigencies andconsequence of non-payment of compensation is clearly culledout in section 34. There is a liability for payment of interest. [Para71][105-C-G]

Delhi Development Authority v. Sukhbir Singh & Ors. (2016)C16 SCC 258 : [2016] 5 SCR 227; Hissar Improvement v. Smt.Rukmani Devi & Anr. AIR 1990 SC 2033; Kishan Das &Ors. v. State of U.P. & Ors. (1995) 6 SCC 240 : [1995] 3Suppl. SCR 584; Seshan & Ors. v. Special Tehsildar & LandAcquisition Officer, SPICOT, Pudukkottai (1996) 8 SCC 89 :D[1996] 1 SCR 1058; D Block Ashok Nagar (Sahibabad) PlotHolders’ Association (Regd.) v. State of U.P. & Ors. (1997)10 SCC 77 : [1997] 3 SCR 1096 – relied on.

6.2 Deposit in Treasury is permissible mode of deposit underthe proviso to section 24(2) and within the purview of mainEsection 24(2). The expression “deposited in the account oflandowners” would not mean deposited in the court as envisagedin Section 31(2) of the old Act, action as permissible as per thefinancial instructions having statutory or administrative ordershaving force of law as well as under the Rules framed by variousState Governments in exercise of power under section 55 of ActFof 1894 can always be taken. In various States, Financial Code/Order/Rules deals with Government money and as such amountis required to be deposited in the Treasury by opening separateaccounts of landowners/beneficiaries/claimants that would be fullcompliance of the proviso of section 24(2) of new Act.[ParaG76][107-D-G]

Mahavir & Ors. v. Union of India2018(1)SCALE 174; Nazir Ahmed v. King Emperor AIR 1936PC 253 (2) – relied on.

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7. WHETHER SECTION 24(2) DIVESTS THE STATE OFLAND

7.1 The concept of absolute vesting in the State under Actof 1894 is well settled and on award being passed, possessionbeing taken, compensation being offered but refused, section 24would not apply in such a situation to divest the State if the landis acquired. Merely by obtaining interim order or keeping thelitigation pending or filing it afresh that too by way of stale andbelated claim after the Act of 2013 came into force, no divestingof land is contemplated. It is only in exigencies provided deemedlapse take place either when possession not taken orcompensation not paid as provided in Section 24(2) and whereaward has not been passed, the provisions of section 24 of Act of2013 applies. [Para 79][109-C-E]

State of Punjab v. Sadhu Ram 1996 (7) JT 118 : [1995]5 Suppl. SCR 448; Star Wire (India) Ltd. v. State ofHaryana & Ors. (1996) 11 SCC 698 : [1996] 7 Suppl.SCR 6; Market Committee v. Krishan Murari (1996) 1SCC 311 : [1995] 4 Suppl. SCR 787; PuttuLal (dead)by LRs. v. State of U.P. & Anr. (1996) 3 SCC 99:[1996]2 SCR 638 – relied on.

Black’s Dictionary – referred to.

7.2 When there is absolute vesting in the State it is vestingalong with possession and thereafter a person who remains inpossession is only a trespasser not in rightful possession. Vestingcannot be considered with any rider as to title or possession.Vesting contemplates absolute title, possession in the State.There is no deemed lapse under section 24 in such a case. Incase of urgency also before award is passed as provided in section17(1), 17(3A) vesting takes place on fulfillment of conditions.[Paras 81(d), 82][113-G-H; 117-D]

Fruit and Vegetable Merchants Union v. DelhiImprovement Trust AIR 1957 SC 344 : [1957] SCR 1;Mosammat Bibi Sayeeda v. State of Bihar (1996) 9 SCC516 : [1996] 1 Suppl. SCR 799; J. S. Yadav v. State ofUttar Pradesh (2011) 6 SCC 570 : [2011] 5 SCR 460 –relied on.

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A7.3 It is settled law that accrued rights cannot be takenaway by repealing statutory provisions. The repealing law mustprovide for taking away such rights expressly or by necessaryimplications. There is no such express provision or necessaryimplication. The beneficial intendment of proviso to section 24(2)is that acquiring body must have arrangement of money forBpayment of compensation with respect to majority of holding. Lawdoes not permit court cover to be used as shield when there isno legality in the claim and one cannot be permitted to reap thefruits of one’s own dilatory tactics, money power to litigate tilleternity. The Act nowhere intends that only litigating incumbentsCwho are not accepting acquisition have to be given the benefit ofAct of 2013. Those who have obtained interim orders under guiseof prima facie case anyhow or somehow without any basis, withoutmerit in their claim, cannot be protected by providing shelterunder the protective umbrella of section 24(2) of the Act of 2013.[Para 83][117-E-G]D8. MODE OF TAKING PHYSICAL POSSESSION ASCONTEMPLATED UNDER SECTION 24(2) OF ACT OF 2013AND THE ACT OF 1894:

When the State is involved in taking possession of theEproperty acquired it can take possession by drawing a Panchnama.The normal rule of State possessing the land through somepersons would not be applicable in such cases. On open land,possession is deemed to be of owner. When the State acquiredthe land and has drawn memorandum of taking possession thatin the way the State take possession of large chunk of propertyFacquired as State is not going to put other persons in possessionor its police force or going to cultivate it or start residing orphysically occupy it after displacing who were physically inpossession as in the case of certain private persons, in case theyre-enter in possession of open land, start cultivation or residingGin the house. Lawful possession is deemed to be of the State.[Para 86][118-G-H; 119-A-B]

Balwant Narayan Bhagde v. M.D. Bhagwat & Ors(1976) 1 SCC 700 : [1975] Suppl. SCR 250; BandaDevelopment Authority, Banda v. Moti Lal Agarwal &HOrs. (2011) 5 SCC 394 : [2011] 7 SCR 435; State of INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THROUGH LRS.

Tamil Nadu & Anr. v. Mahalakshmi Ammal & Ors.(1996) 7 SCC 269 : [1995] 5 Suppl. SCR 451;Balmokand Khatri Educational and Industrial Trust v.State of Punjab (1996) 4 SCC 212 : [1996] 2 SCR 643;P. K. Kalburqi v. State of Karnataka & Ors. (2005) 12SCC 489 : [2005] 1 SCR 545; Raghbir Singh Sehrawatv. State of Haryana & Ors. (2012) 1 SCC 792 : [2011]14 SCR 1113; Sita Ram Bhandar Society, New Delhi v.Lieutenant Governor, Government of NCT, Delhi & Ors.(2009) 10 SCC 501 : [2009] 14 SCR 507; Om PrakashVerma & Ors. v. State of Andhra Pradesh & Ors. (2010)13 SCC 158 : [2010] 15 SCR 302; M. Venkatesh &Ors. v. Commissioner, Bangalore Development Authorityetc. (2015) 17 SCC 1 – relied on.

Narmada Bachao Andolan v. State of Madhya Pradesh& Anr. AIR 2011 SC 1989 : [2011] 6 SCR 443 –distinguished.

Velaxan Kumar v. Union of India & Ors. (2015) 4 SCC325 – overruled.

9. WHETHER SECTION 24 OF THE ACT OF 2013REVIVES STALE/BARRED CLAIMS?

9.1 Section 24 cannot be used to revive the dead or staleclaims and the matters, which have been contested up to thisCourt or even in the High Court having lost the cases or wherereference has been sought for enhancement of the compensation.Compensation obtained and still it is urged that physicalpossession has not been taken from them, such claims cannot beentertained under the guise of section 24(2). Section 24 of theAct of 2013 does not supersede or annul the court’s decision andthe provisions cannot be misused to reassert such claims onceover again. Once Panchnama has been drawn and by way ofdrawing the Panchnama physical possession has been taken, thecase cannot be reopened under the guise of section 24 of Act of2013. [Para 98][133-D-E, G]

9.2 Section 24 is not intended to come to the aid of thosewho first deliberately refuse to accept the compensation, and thenindulge in ill-advised litigation, and often ill-motivated dilatory A

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Atactics, for decades together. On the contrary, the section isintended to help those who have not been offered or paid thecompensation despite it being the legal obligation of the acquiringbody so to do, and/or who have been illegally deprived of theirpossession for five years or more; in both the scenarios, fault/cause not being attributable to the landowners/claimants. StaleBor dead claims cannot be the subject-matter of judicial probingunder section 24 of the Act of 2013. The provisions of section 24do not invalidate those judgment/orders of the courts where underrights / claims have been lost / negatived,neither do they revive those rights which have come barred,Ceither due to inaction or otherwise by operation of law. Fraudulentand stale claims are not at all to be raised under the guise ofsection 24. Misuse of provisions of section 24(2) cannot bepermitted. Protection by the courts in cases of such blatant misuseof the provisions of law could never have been the intentionbehind enacting the provisions of section 24 (2) of the 2013 Act.D[Paras 99, 100][133-H; 134-A-D]

Mahavir & Ors. v. Union of India & Anr. 2018 (1)SCALE 174; Tamil Nadu Housing Board, Chennai v.M. Meiyappan & Ors. (2010) 14 SCC 309 : [2010] 12SCR 1184; Jasveer Singh v. State of U.P. & Ors. (2017)E6 SCC 787; Dharappa v. Bijapur Co-operative MilkProducers Societies Union Ltd. (2007) 9 SCC 109 :[2007] 5 SCR 729; State of Karnataka v. Laxuman(2005) 8 SCC 709 : [2005] 4 Suppl. SCR 535 – reliedon.F

10. Whether conscious omission referred to in paragraph11 of judgment in Shree Balaji Nagar Residential Association v.State of Tamil Nadu makes any substantial difference to the legalposition with regard to the exclusion or inclusion of the periodcovered by an interim order of the Court for the purpose ofGdetermination of the applicability of section 24(2) of 2013 Act?

10.1 In Shree Balaji, this Court has opined that there isconscious omission made by the legislature in section 24(2) ofAct, 2013 to exclude the period covered by the interim order ofthe Court staying the acquisition proceedings. It was observedHthat in the Act of 1894 by making amendment of the provisions contained in sections 6 and 11A by providing extension of periodof limitation the period during which interim order of the courthas operated has been excluded. It has not been so provided inSection 24(2). [Para 101][134-E-F]

Yogesh Neema & Ors. v. State of M.P. & Ors. [2016] 6SCC 387 – referred to.

10.2 EFFECT OF INTERIM ORDER OF A COURT: Whenonce the court has restrained the State authorities to takepossession, or to maintain status quo they cannot pay the amountor do anything further, as such the consequences of interim orderscannot be used against the State. It is basic principle that when aparty is disabled to perform a duty and it is not possible for himto perform a duty, is a good excuse. The doctrine “commodumex-injuria sua Nemo habere debet” means convenience cannotaccrue to a party from his own wrong. One cannot be permittedto obtain unjust injunction or stay orders and take advantage ofown actions. Law intends to give redress to the just causes; atthe same time, it is not its policy to foment litigation and enableto reap the fruits owing to the delay caused by unscrupulouspersons by their own actions by misusing the process of law anddilatory tactics. [Paras 104, 106][136-G-H; 137-A-B; 143-B-C]

Abhey Ram (Dead) by LRs. & Ors. v. Union of India &Ors. (1997) 5 SCC 421 : [1997] 3 SCR 931;OmParkash v. Union of India & Ors. (2010) 4 SCC 17 :[2010] 2 SCR 447; Suresh Chand v. Gulam Chisti(1990) 1 SCC 593 : [1990] 1 SCR 186; Atma Ram Mittalv. Ishwar Singh Punia (1988) 4 SCC 284 : [1988] 2Suppl. SCR 528; Shyam Sunder & Ors. v. Ram Kumar& Anr. (2001) 8 SCC 24 : [2001] 1 Suppl. SCR 115;Dau Dayal v. State of Uttar Pradesh AIR 1959 SC 433: [1959] Suppl. SCR 639 – relied on.

10.3 CASUS OMISSUS: Merely because certain provisionshave been made in sections 19 and 69 excluding the period ofstay, it would not mean that in the provisions of section 24, thereis casus omissus it is not to be readily inferred. In the provisionscontained in section 19 of the Act of 2013. there is prescriptionof the period of limitation in which a declaration has to be issued, A

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Ait was equivalent to section 6 of the Act of 1894, as such theprovision of exclusion has been made alike the previousprovision, so also in section 69. Section 24 as couched did notcontemplate providing cover to the litigation and its fruits to bereaped. The absence of provision for excluding the period of stay/injunction of a Court order does not at all affect the provision ofBsection 24(2) of the Act of 2013. It intended that authority shouldnot keep pending acquisition due to laxity on their part for fiveyears or more. It never intended to apply in case they were notable to perform obligation due to court order or conduct oflandowners. [Para 109][144-C-F]

CUnion of India v. Shiv Raj (2014) 6 SCC 564 : [ 2014]8 SCR 751; Karnail Kaur & Ors. v. State of Punjab &Ors. (2015) 3 SCC 206 : [2016] 5 SCR 227 – Notcorrect law.

Padma Sundara Rao (Dead) & Ors. v. State of TamilDNadu & Ors. (2002) 3 SCC 533 : [2002] 2 SCR 383 –distinguished.

N. Narasimhaiah v. State of Karnataka (1996) 3 SCC88 : [1996] 1 SCR 698; State of Karnataka v. D.C.Nanjudaiah (1996) 10 SCC 619 : [1996] 5 Suppl. SCR222;Rana Girders Ltd. v. Union of India (2013) 10ESCC 746 : [2013] 14 SCR 58; Union of India v. SicomLimited & Ors. (2009) 2 SCC 121: [2008] 17 SCR 120– relied on.

10.4 It is well settled that the statutory provision wouldprevail upon the common law principles. The statutory provisions,Fcontained in section 24 of the Act of 2013, do not exclude theprinciples of common law. The principles that can be excludedare only those in respect to which, provision has been made inthe statute itself or the applicability is ousted by implication. Theobservations in respect of the principle of interpretation that ifGsomething is expressed in a provision, anything contrary isimpliedly excluded, are themselves based on the maxim “expressiounius est exclusio alterius”. This maxim has been held to havelimit of operation and is not of universal application. Thus, merefact that in some of the provisions there is a mention about periodof stay being excluded, cannot be taken to be conclusive that inH

other provisions with respect to the effect of stay not to beconsidered or common law maxims have no applicability in thecontext of Section 24(2) of the 2013 Act. The Common Lawprinciples, cannot be ousted, to do complete justice to partiesand to prevent miscarriage of justice, within purview of section24 of the Act of 2013. [Paras 113-116][148-A, F-H; 149-A-B;150-F]

Mary Angel v. State of Tamil Nadu (1999) 5 SCC 209 :[1999] 3 SCR 594; Assistant A.C.E., Calcutta versusNational Tobacco Co. Ltd. of India Ltd (1972) 2 SCC560 : [1973] 1 SCR 822 – relied on.

11. DOCTRINE OF IMPOSSIBILITY

11.1 The maxims namely ‘nemo tenetur ad impossibilia’regarding the impossibility of performance of an act may not bestrictly applicable, as acts, under section 31 or 24, were capableof being performed but authorities were disabled to perform themas no fault on their part. However, the effect of Court orders, orthe conduct of the landowners/claimants/ beneficiaries, is requiredto be considered, it was not an ‘impossibility’ to perform the actsin question by their very nature but the said aspect is relevantand underlying principle of inability to perform has to beconsidered in the backdrop of fact whether it was in the controlor capacity of authority to perform actions which were possibleto be performed but when it was not possible to perform or wereincapacitated to perform. In such event person responsible forinterdicting cannot ask him to be put in advantageous positionfor non-compliance of an act, which possibly would have beenperformed, but for such action. [Para 125][156-A-C]

Chander Kishore Jha v. Mahabir Prasad (1999) 8 SCC266 : [1999] 2 Suppl. SCR 754; Mohd Gazi v. State ofMadhya Pradesh (2000) 4 SCC 342 : [2000] 2 SCR871; Industrial Finance Corporation of India Ltd. v.Cannanore Spinning and Weaving Mills Ltd. (2002) 5SCC 54 : [2002] 2 SCR 1093; HUDA v. BabeswarKanhar (2005) 1 SCC 191 : [2004] 6 Suppl. SCR 282;Re: Presidential Poll (1974) 2 SCC 33 : [1975] 1 SCR504; Standard Chartered Bank v. Directorate ofEnforcement AIR 2005 (2) SC 2622 : [2005] 1 Suppl.SCR 49 – relied on.

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A11.2 The maxim “nullus commodum capere potest de injuriasua propria” i.e. ‘No man can take advantage of his own wrong’.A “tender” of the amount to be paid operates as a bar upon anyclaim for damages and interest. Thus, when once “tender” of theamount had been made, in any of the prescribed modes, whichmet with refusal to accept it and/or by the conduct of indulging inBincessant litigation which, in some instances, culminated into astay/interim order, the party which thus refused to accept theamount, indulging instead in the ‘theater of the absurd’, cannotturn around and contend that the other party should now be visitedwith the penalty for non-payment.[Paras 125, 126, 127][156-D-CH]

12. Whether the principle of “actus curiae neminemgravabit” namely act of the Court should not prejudice any partieswould be applicable in the present case to exclude the periodcovered by an interim order for the purpose of determining theDquestion with regard to taking of possession as contemplated insection 24(2) of the 2013 Act?

12.1 No litigant can derive the benefit of pendency of acase in a court of law. In case any interim order is passed duringthe pendency of litigation it merges in the final order. In case,Ethe case is dismissed the interim order passed during its pendencyis nullified automatically. It is also settled that a party cannot beallowed to take benefit of his own wrong as ‘commodum ex injuriasua nemo habere debet’ i.e. convenience cannot accrue to a partyfrom his own wrong. In case litigation has been filed without anybasis and interim order is passed it would be giving illegal benefitFor wrongful gain for filing untenable claim. The principle “ActusCuria Neminem Gravabit” is essence of administration of law andgood sense. [Paras 129, 131(g)][157-F-G; 162-A]

Sarah Mathew v. Institute of Cardio Vascular Diseases(2014) 2 SCC 62 : [2013] 12 SCR 674 – followed.

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Mrutunjay Pan v. Narmada Bala Sasmal & Anr. AIR1961 SC 1353 : [1962] SCR 290; GTC Industries Ltd.v. Union of India (1998) 3 SCC 376; Jaipur MunicipalCorpn. v. C.L. Mishra (2005) 8 SCC 423; Ram KrishnaVerma v. State of U.P. (1992) 2 SCC 620 : [1992] 2

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SCR 378; Grindlays Bank Ltd. v. Income Tax Officer,Calcutta (1980) 2 SCC 191; Mahadeo Savlaram Shelkev. Pune Municipal Corporation (1995) 3 SCC 33 :[1995] 1 SCR 543; Amarjeet Singh v. Devi Ratan &Ors. (2010) 1 SCC 417 : [2009] 15 SCR 1010;Karnataka Rare Earth & Anr. v. Senior Geologist,Department of Mines & Geology & Anr. (2004) 2 SCC783 : [2004] 1 SCR 965; A.R. Antulay v. R.S. Nayakand Ors. AIR 1988 SC 1531 : [1988] 1 Suppl. SCR 1 –relied on.

Suptd. of Taxes, Dhubri & Ors. v. Assam Jute SupplyLtd & Ors. (1976) 1 SCC 766 : [1975] 0 Suppl. SCR365 – distinguished.

Neeraj Kumar Sainy & Ors. v. State of UP & Ors. (2017)SCC Online SC 258 – referred to.

“Selection of Legal Maxims” by Herbert Broom –referred to.

12.2 An incumbent must succeed or fail in final decision ina pending litigation on what case he has set up in the petition. Incase possession has continued under the cover of the court’sorder or compensation could not be disbursed due to the courtsorder the provision contained in Section 24(2) cannot be invokedin such a situation, as such a situation is not covered thereunder,as holding otherwise would amount to giving a litigant premiumfor his dilatory tactics in spite of there is no merit in his challengeto acquisition. [Para 134][166-F-G]

Uma Devi v. State of Karnataka (2006) 6 SCC 1 : [2006]3 Suppl. SCR 548 – relied on.

12.3 The common law principles are rules of equity, justice,and sound logic. In the absence of there being prohibition in thelaw, these principles would be attracted. The efficacy and bindingnature of such common law principles cannot be diminished orwhittled down in the absence of any express prohibition in law.They are interpretation of section 24 of Act of 2013. In casepossession could not be taken, or compensation could not bepaid or deposited, due to cover of courts’ order or conduct of A

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Aland-owner, such cases provision of lapse cannot be invoked.Section 24(2), a policy of the law is not to benefit a litigant orconfer undeserving benefit by involving in the lis and to reapfruits on the basis of possession on illegal basis without any rightand often lis is filed in land acquisition cases one after the otherand intendment of law is not to treat law-abiding incumbentsBdifferently. Operation of law and beneficial provisions of law inthe Act of 2013 are not meant to benefit litigants and to permitthem to reap the fruits of unworthy or frivolous litigation. Litigationcannot be permitted to become lucrative industry for the unworthylitigant; it cannot be permitted to be device providing for fruitsCin respect of a meritless lis. The maxims nullus commodum caperepotest de injuria sua propria and actus curiae neminem gravabitetc. come into play while interpreting the provisions of section24 including the principle of restitution. They are not excludedfrom the purview of section 24 of the Act of 2013. [Paras 135,137, 138][167-C, F-H; 168-A-B]D13. PRINCIPLE OF RESTITUTION: While construingprovisions of section 24(2) applicable in case of lis, the principleof restitution which enjoins a duty upon the courts to do completejustice to the party at the time of final decision is to be kept inmind. Successful party at the end of the litigation has to be placedEas far as possible at the same place unless it would have beenhad the interim order not being passed. It is incumbent uponcourt not to confer benefit upon an unscrupulous litigant, not toconfer undeserved gain, attempt to abuse legal provisions mustbe thwarted, prolonging of litigation by money power, dilatoryFtactics or otherwise not to confer benefit, person with merits inthe case cannot succeed, perpetuation of illegality cannot beprovided shelter by court to unjust enrichment to be saved, thedoctrine of restitution compels court to not to provide benefit tosuch litigants of provisions of section 24 of Act of 2013. [Paras139, 141][168-C-D; 178-H; 179-A-B]GSouth Eastern Coal Field Ltd. v. State of MadhyaPradesh & Ors. (2003) 8 SCC 648 : [2003] 4 Suppl.SCR 651; State of Gujarat v. Essar Oil Ltd. (2012) 3SCC 522 : [2012] 2 SCR 1127; A. Shanmugam v. AriyaKshatriya Rajakula Vamsathu Madalaya NandhavanaHParipalanai Sangam (2012) 6 SCC 430 : [2012] 4 SCR

74; Indian Council for Enviro-Legal Action v. Unionof India (2011) 8 SCC 161; Krishnaswamy S. Pd. & Anrv. Union of India & Ors. (2006) 3 SCC 286 : [2006]2 SCR 390 – relied on.

14. EFFECT OF REPEAL: The Act of 2013 has repealedthe Act of 1894. The repealing and saving is provided in section114 of the Act of 2013. The repeal of the Act of 1894 has beenmade without prejudice or affect the general application of section6 of the General Clauses Act, 1897. Section 6 of the GeneralClauses Act provides that unless a different intention appears,the repeal shall not revive anything not in force. Section 6(b)provides that it would not affect any previous operation of anyenactment so repealed or anything duly done or sufferedthereunder. Section 6(e) provides that it will not affect anyinvestigation, legal proceedings or remedy in respect of any suchright, privilege, obligation, liability, penalty, forfeiture orpunishment unless different intention appears, and any suchinvestigation, legal proceeding or remedy may be instituted, orcontinued or enforced, and any such penalty, forfeiture orpunishment may be imposed as if the repealing Act or Regulationhad not been passed. The provisions of section 6 clearly savesuch proceedings and pending litigation has to be decided onlyon the basis of 1894 Act except as provided specifically in Act of2013. [Paras 142, 143 and 144][179-C-E; 180-C-D]

Ivo Agnelo Santimano Fernandes v. State of Goa (2011)11 SCC 506 : [2011] 2 SCR 1142; Prem Nath Kapur v.National Fertilizers Corporation of India Ltd. (1996) 2SCC 71 : [1995] 5 Suppl. SCR 790; Bharat Kumar v.State of Haryana & Anr. (2014) 6 SCC 586; Bimla Devi& Ors. v. State of Haryana & Ors. (2014) 6 SCC 583– distinguished.

Union of India & Ors. v. Shiv Raj & Ors. (2014) 6 SCC564 : [2014] 8 SCR 751; Magnum Promoters Pvt. Ltd.v. Union of India & Ors. (2015) 3 SCC 327; RadianceFincap Pvt. Ltd. & Ors. v. Union of India & Ors. (2015)8 SCC 544; Working Friends Cooperative HouseBuilding Society Ltd. v. State of Punjab & Ors. (2016)15 SCC 464; Delhi Development Authority v. Sukhbir A

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42SUPREME COURT REPORTS

ASingh & Ors. (2016) 16 SCC 258 : [2016] 5 SCR 227;State of Haryana & Anr. v. Devander Sagar & Ors.(2016) 14 SCC 746; Aligarh Development Authority v.Megh Singh & Ors. (2016) 12 SCC 504; Sharma AgroIndustries v. State of Haryana & Ors. (2015) 3 SCC341; Pawan Kumar Aggarwal v. State of Punjab & Ors.B(2016) 7 SCC 614 – referred to.15. PRINCIPLE OF ‘PER INCURIAM’: The concept of“per incuriam” signifies those decisions rendered in ignoranceor forgetfulness of some inconsistent statutory provisions, or ofsome authority binding on the Court concerned. The decision inCPune Municipal Corporation case, has to be held per incuriam,inter alia for the following reasons: (1) The High Court hasquashed land acquisition, in Pune Municipal Corporation case, assuch provisions of section 24(2) of the Act of 2013 could not besaid to be applicable. It was not surviving acquisition thenDcompliance of section 24(2) by taking possession or by paymentof compensation for five years or more did not arise as acquisitionhad been quashed by the High Court in 2008. (2) It was not heldin Pune Municipal Corporation that High Court has illegally setaside the acquisition. In case, High Court had set aside theacquisition in an illegal manner then also maxim ‘actus curiaeEneminum gravabit’ would have come to the rescue to saveacquisition from being lapsed and a period spent in appeal in thisCourt was to be excluded. (3) The provisions of Section 24(2)could not be said to be applicable to the case once acquisitionstood quashed in 2008 by the High Court. Thus, there was no Foccasion for this court to decide the case on aforesaid aspectenvisaged under section 24(2) of the Act of 2013. (4) That statutoryrules framed under section 55 of Act of 1894 and orders havingstatutory force issued under, constitutional provisions orotherwise by various State Governments were not placed for

Analysis

consideration before this court in Pune Municipal CorporationGcase. (5) Provisions of section 34 prevailing practice of deposit,and binding decisions thereunder section 34 of the Act of 1894were not placed for consideration of this court while deciding thecase. (6) The proviso to section 24(2) was not placed forconsideration which uses different expression ‘deposited’ thanH

‘paid’ in main section 24(2) which carry a different meaning. (7)What is the meaning of expression ‘paid’ as per various bindingdecisions of this court when the obligation to pay is completewere not placed for consideration. (8) The binding decisions ofthe court as to the consequence of non-deposit were not placedfor consideration while deciding the case. (9) The maxim “nulluscommodum capere potest de injuria sua propria” i.e. no man cantake advantage of his own wrong of filing litigation and effect ofrefusal to receive compensation was not placed for considerationwhile deciding the aforesaid case. (10) There is no lapse ofacquisition due to the non deposit of amount under the provisionsof Act of 1894 or Act of 2013. In this regard, the provision ofsection 77 and 80 relating to payment and deposit under Act of2013 which corresponds to section 31 and 34 were not placed forconsideration of this court while rendering the said decision. (11)The past practice for more than a century, of deposit in treasury,as per rules/ orders and decisions were not placed forconsideration. It was not open to invalidate such deposits madein treasury without consideration of the provisions, prevailingpractice, and decisions under the Act of 1894. The decisionsrendered on the basis of Pune Municipal Corporation case areopen to be reviewed in appropriate cases on the basis of thisdecision. [Paras 146, 152][184-F; 189-F-G]

Pune Municipal Corporation & Anr. v. HarakchandMisirmal Solanki (2014) 3 SCC 183 – per incurium.

Shree Balaji Nagar Residential Association v. State ofTamil Nadu (2015) 3 SCC 353 – overruled.

Mamleshwar Prasad v. Kanahaiya Lal (1975) 2 SCC232 : [1975] 3 SCR 834; A.R. Anutulay v. R.S. Nayak(1988) 2 SCC 602 : [1988] 1 Suppl. SCR 1; State ofUttar Pradesh v. Synthetics and Chemicals Ltd. (1991)4 SCC 139; Municipal Corporation of Delhi v. GurnamKaur (1989) 1 SCC 101 : [1988] 2 Suppl. SCR 929;Sant Lal Gupta v. Modern Coop. Societies Ltd. (2010)13 SCC 336 : [2010] 13 SCR 621; Union of India &Ors. v. Shivraj & Ors. (2014) 6 SCC 564 : [2014] 8SCR 751 – referred to.

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APER MOHAN M. SHANTANAGOUDAR, J: (partlydissenting)

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APER MOHAN M. SHANTANAGOUDAR, J: (partlydissenting)

1. A statute is to be read as a whole. Where, to applywords literally would defeat the obvious intention of the legislationand produce a wholly unreasonable result, something must beBfed to the provision so as to achieve the obvious intention andproduce rational construction. The 2013 Act use “tender”,“payment”, and “deposit” at different places in the enactments.Section 31(1) of the 1894 Act directs that the Collector “…shalltender payment…” and “…shall pay it to the beneficiaries unlessprevented by some one or more of the contingencies mentionedCin the next sub-section.” Clearly, tender and payment are twodifferent terms. However, “payment” has been treated similarlyto “deposit” within Section 24(2) itself, as well as in otherprovisions. The word “deposit” in the account of beneficiariesas contained in proviso to section 24(2) of the 2013 Act wouldDmean deposit in the account of beneficiaries in the Treasury. Theproviso does not refer to the word “payment”, as is referred toin the main provision, i.e., sub-section 2 of Section 24 of the 2013Act. The proviso to sub-section 2 of Section 24 does not requirethe State to pay the compensation in respect of minority holdingsfor saving acquisition. It would be sufficient if the compensationEis deposited in respect of minimum holdings in the account forsaving the acquisition. Since the proviso to sub-section 2 of Section24 does not envisage lapsing of acquisition, even if the paymentis not made but is deposited that too with regard to thebeneficiaries of a minority of holdings, the same would lead toFthe inevitable conclusion that the word “payment” as found insub-section 2 of Section 24 has a strong link or co-relation withthe word “deposit”. A reading of sub-section 2 of Section 24 alongwith the proviso would make it clear that even if the compensationin respect of minority of the land holdings is deposited in theaccount of such minority beneficiaries, the acquisition does notGlapse. At the most, every land-loser is entitled to the highercompensation as per the provisions of the 2013 Act. If the word“paid” as found in sub-section 2 of Section 24 is not treated as“deposited” in the account of beneficiaries, then the proviso tosub-section 2 of Section 24 would become otiose. It is well settled H

that no provision under the act can be rendered nugatory orotiose. [Paras 14, 15][204-B-G; 205-A-F]

Tata Cellular v. Union of India (1994) 6 SCC 651 :[1994] 2 Suppl. SCR 122 – relied on.

Prem Nath Kapur v. National Fertilizers Corporationof India Ltd. (1996) 2 SCC 71 : [1995] 5 Suppl. SCR790;Ivo Agnelo Santiamo Fernandes v. Governmentof Goa (2011) 11 SCC 506 : [2011] 2 SCR 1142; Unionof India v. Shiv Raj (2014) 6 SCC 564 : [2014] 8 SCR751; Karnail Kaur v. State of Punjab (2015) 3 SCC206; Radiance Fincap (P) Ltd. v. Union of India (2015)8 SCC 544; Delhi Development Authority v. SukhbirSingh (2016) 16 SCC 258 : [2016] 5 SCR 227; TheWorking Friends Cooperative House Building SocietyLtd. v. State of Punjab (2016) 15 SCC 464; BharatKumar v. State of Haryana (2014) 6 SCC 586; BimlaDevi &Ors. v. State of Haryana (2014) 6 SCC 583;Vijay Latka v. State of Haryana (2016) 12 SCC 487;Maharana Partap Charitiable Trust v. State of Haryana(CWP 6860 of 2007) – referred to.

2. Section 31 of the 1894 Act is akin to Section 77 of the2013 Act. Of course, under Section 77 of the 2013 Act, thelegislature has gone a step further and has mandated the Collectorto pay the compensation awarded by him to the persons interestedby depositing the amount in their bank accounts unless preventedby some or more contingencies provided under sub-section 2.Under Section 80 of the 2013 Act, which is akin to Section 34 ofthe 1894 Act, the Collector shall pay the amount awarded withinterest thereon at the rate of 9% or 15%, as the case may be, incase the amount of such compensation is not paid or depositedon or before taking possession of the land. Thus, it is clear thatSection 80 also recognises deposit of compensation as beingequivalent to payment of compensation. Even under Section 34of the 1894 Act, the land loser will be entitled to compensationwith interest at the rate of 9% or 15%, as the case may be, incase the compensation is not paid or deposited on or before takingpossession of the land. Thus, the word “deposit” is treatedsynonymous with the word “payment”. However, Section 31 of A

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Athe 1894 Act states that the Collector at the first instance shalltender payment of compensation to the persons interested andpay the compensation to such interested persons unlessprevented by some or more contingencies mentioned in sub-section 2 of Section 31 of the 1894 Act. Three contingencies arefound in sub-section 2 of Section 31 wherein the Collector willBnot pay the compensation to the persons interested, viz., (a)persons interested do not give consent to receive thecompensation; (b) if there is no person competent to alienate theland; (c) if there is any dispute as to the title or as to theapportionment of compensation. In case any such contingenciesCarise, the Collector shall deposit the amount of compensation inCourt to which a reference under Section 18 would be submitted.If Section 31 is to be read with Section 34 harmoniously, the samewould make it clear that non-deposit or non-payment ofcompensation will make State liable to pay interest as prescribed.

In other words, in case the Collector does not deposit the amountDof compensation in Court as contemplated under Section 31(2)of the 1894 Act, at the most the persons interested may be entitledto interest of 9% or 15% as the case may be. Such act ofCollector depositing the amount in the Treasury and such act ofCollector in not depositing the amount in Court as mandated inEsub-section 2 of Section 31 may not result in extremeconsequence of lapsing of acquisition. [Paras 16, 17][205-F-H;206-A-F]

3.1 Article 283(1) of the Constitution of India mandates thatmatters pertaining to custody of the Consolidated Fund of India Fand the Contingency Fund of India, the payment of moneys intosuch Funds, the withdrawal of moneys therefrom, the custody ofpublic moneys other than those credited to such Funds receivedby the Government of India etc. shall be regulated by law madeby the Parliament. Article 283(2) of the Constitution of India mandates that similar matters of the States’ Consolidated fundsGetc. are to be regulated by law made by the State Legislatures.States have framed rules pursuant to Article 283(2) of theConstitution of India as to how the public moneys are to behandled. Section 55 of the 1894 Act empowers the State to makerules for guidance of officers. Pursuant to Article 283(2) of theH

Constitution of India and Section 55 of the 1894 Act, various States,such as, Assam, Bihar, Orissa, Kerala, West Bengal, Delhi andPunjab have framed rules to govern the mode of payment ofcompensation. All of them provide for deposit into the Treasuryin case the landowners are not present to receive thecompensation, along with the notice to such landowners apprisingthem of such deposits. It appears that the Court in the case ofPune Municipal Corporation did not consider such rules passedby the States that direct the deposit of unclaimed compensationin the Treasury. [Para 18][206-G-H; 207-A-B]

3.2 The various State Rules make it clear that the paymentinto the Treasury is nothing but a residuary mode of paymentafter efforts as per Rules have been made by the authorities tosecure the attendance of the person entitled to compensation.The existence of such express provision in the rules, and thefact that this Court did not consider any of these rules in PuneMunicipal Corporation, had led to a unique situation where therules are seemingly not in conformity with the meaning given toSection 24(2) of the 2013 Act and Section 31(2) of the 1894 Actby this Court in Pune Municipal Corporation. While PuneMunicipal Corporation held that all unaccepted compensationmust necessarily be deposited in Court for the acquisition toremain valid, the States have made rules for unacceptedcompensation to be deposited in the Treasury as revenuedeposits. On a combined reading of the two statutes and theState Rules, it is clear that a deposit in the Treasury is not madeillegal or impermissible. In fact, deposits in the Treasury areallowed as a valid means of payment by these State Rules. TheState Rules provide for deposits in the Treasury as revenuedeposits when the landowners do not appear on the notified dateto collect their compensation. [Para 21][210-B-E]

3.3 It is merely a matter of procedure as to where the depositis made. Certain High Court Rules viz. Punjab & Haryana andDelhi, provide that a deposit in Court under Section 31 of the1894 Act must be lodged into the Treasury as a Revenue or CivilCourt deposit. Rule 10 of the Uttar Pradesh Rules for the Paymentof Compensation for Land Taken Up Under the Land AcquisitionAct I of 1894 provides for the money paid in Court to be credited AB

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Aas Civil Court Deposits, the accounts of which are ultimately keptby the Treasury (according to paragraph 355 of Chapter XV ofthe Financial Handbook issued by the Government of U.P.).Thus, it is not the position that a deposit in Court is the onlylegal form of deposit under the 1894 Act. Compensation was beingcredited to the Treasury in the past, even after the same wasBdeposited in Court. Thus, the issue where the compensation isdeposited is a matter of procedure. When the State Rules andHigh Court rules permit deposits in the Treasury, it falls to reasonthat under the scheme of the 1894 Act, failure to pay or depositin Court under Section 31(2) only had the effect of attractingCinterest payment as per Section 34 of the 1894 Act. [Paras 22-24][210-H; 211-A-E]Hissar Improvement Trust v. Rukmani Devi and Anr.(1990) Suppl. 1 SCC 806 – relied on.Damadilal v. Parashram AIR 1976 SC 2229 : (1976) 4DSCC 855 : [1976] Suppl. SCR 645 – held inapplicableJogesh Chandra v. Yakub Ali29 IC 111 (Cal) –referred to.4. “Payment” of compensation and “deposit” ofEcompensation have been used to describe the instance wherethe State gives landowners their compensation. Both signify anobligation of the State. As per Section 31(1), compensation mustbe paid to the landowners. As per Section 31(2), if the landownersdo not consent to receive compensation, the State shall depositit in Court. It is often that when a beneficiary does not appear toFcollect compensation, the State has to deposit the compensationin the Treasury as per the relevant State Rules. But that doesnot mean that the State has shirked its obligation to compensatethe affected persons. It may not always be the case that personswho do not appear on the appointed date are refusing to acceptGcompensation. It may also be that such affected persons hadconsented to receive compensation, but simply could not appearor could not be traced for some reason or the other. There maybe thousands of such beneficiaries. In such a case, the Collectorcannot hand over compensation to each beneficiary in person,but also cannot keep the money with him. He has to keep it inH

the Treasury. In fact, the State Rules have been framed to givenotice to the landowners that their compensation has beendeposited in the Treasury instead of the Court. In light of this,there is no harm done or prejudice caused if the State depositscompensation in the Treasury when landowners do not appear.In fact, the compensation deposited in Courts is often kept inthe Treasury. It is merely a matter of procedure as to where thelandowners who do not appear on the appointed date, or thelandowners who refuse to receive compensation, shall take theircompensation from the Treasury. [Para 28][212-F-H; 213-A-B]

5. The objective of directing a deposit of compensation inCourt in the 1894 Act was to prevent unnecessary prolongationof the proceedings, and accumulation of the Collector’s liabilityto pay interest under Section 34, when compensation is not paidor deposited on or before taking possession. The landownerscannot take advantage of their own act of refusing to receivecompensation, and contend that compensation has never beenpaid to them, when it has actually been deposited in the Treasury.Once the State deposits the money in the Treasury, it has shownits bona fide intention to go through with the acquisition and givethe beneficiaries their due compensation. In such a case, it canhardly be punished with a lapse, except that it is liable to payinterest as prescribed under the Act. Moreover, practicalconsiderations make it clear that the Collector may not be ableto individually reach out to thousands of claimants and pay themthe compensation in person at the earliest. It is only reasonablethat the Collector be allowed to deposit the compensation in theaccounts of individual claimants in the Treasury, and to informthe claimants to get the same released. Thus, a deposit in theaccounts of individual landowners in the Treasury, and informingthem about such deposit for getting the same released in theirfavour where they do not appear to accept compensation as underthe State Rules, does not result in the lapse of acquisitionproceedings. [Paras 29, 30][213-C-F, G]

6.1 The judgment in Pune Municipal Corporation cannot besaid to have been through lack of care, or out of ignorance ofcertain important factors. Per incuriam is a Latin term whichmeans “through lack of care” or through inadvertence (of a AB

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Ajudicial decision) wrongly decided, mainly because the judges wereill-informed about the applicable law. The word “incuria” literallymeans “carelessness”. A decision is rendered per incuriam if itis made through some mistake, or under a misapprehension asto a decision or a dictum of a judge, which is the result of a materialoversight. A decision, judgment or verdict can be rendered perBincuriam if given without considering any provision in a statutewhich was not brought to the notice of the court or if it is notpossible to reconcile its ratio with that of a previously pronouncedjudgment of a co-equal or larger bench; or if the decision of aHigh Court is not in consonance with the views of the SupremeCCourt. A judgment that was decided per incuriam does not haveto be followed as precedent by a court. [Paras 31, 32][213-H;214-A-D]

A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602 : [1988]1 Suppl. SCR 1; Siddharam Satlingappa Mhetre v. StateDof Maharashtra (2011) 1 SCC 694 : [2010] 15SCR 201 – relied on

6.2 The judgment in Pune Municipal Corporation was notrendered per incuriam, as the conclusion is reached by proceedingin detail on the interpretation of relevant statutory provisions.EHowever, the reasons assigned and conclusions arrived at bythe Court in the said judgment are not acceptable. It is no doubttrue that the Court in Pune Municipal Corporation was notinformed about the Rules of certain States framed under Section55 of the 1894 Act and certain Rules of High Courts on the pointregarding deposit to be made in the Treasury. Though the RulesFare not adverted to in the case of Pune Municipal Corporation ,the discussion as a whole, if looked into, would make it clear thatthe Court while deciding the said judgment, discussed in detailabout the failure to deposit in the Court, so also, about the effectof deposit in Treasury. Hence, merely because the Rules of certainGStates are not considered, the judgment in Pune MunicipalCorporation cannot be termed as per incuriam. In other words,merely because the Rules are not referred to specifically in thejudgment, it cannot be said that there is non-consideration of theeffect of the Rules. In the case of Sukhbir Singh, the Court didconsider the effect of the Rules framed by Delhi, Punjab andH

Haryana Governments. But the conclusion rendered in SukhbirSingh was in conformity with the judgment in Pune MunicipalCorporation. The judgment in Pune Municipal Corporation is thefirst judgment on the issue in question by a three-Judge Benchof this Court. Hence, it cannot also be concluded that the decisionin Pune Municipal Corporation is not in consonance with therelevant line of decisions rendered by this Court earlier. Thejudgment in Pune Municipal Corporation cannot be said that thesaid judgment is through want of care or inadvertence. Hence,the proper course is to refer the matter to a larger Bench. [Paras35-38][215-B-H]

Pune Municipal Corporation &Anr. v. HarakchandMisirimal Solanki &Anr. (2014) 3 SCC 183 : [2014] 1SCR 783 – Needs reconsideration by larger bench.

Sant Lal Gupta v. Modern Cooperative Group HousingSociety Ltd. (2010) 13 SCC 336 : [2010] 13 SCR 621– relied on Sree Balaji Nagar Residential Association v. State ofTamil Nadu (2015) 3 SCC 353 : [2014] 7 SCR 799 –overruled.

7.1 Stay orders by the Court constrain the State fromcontinuing with the acquisition proceedings. It may also lead toconsequences of contempt. In such a situation, the legal positionon the exclusion or inclusion of the period of stay in Section 24(2)of the 2013 Act cannot be readily inferred to be against the Statedue to the omission of the Legislature. Sree Balaji has ruled thatcasus omissus cannot be supplied to the provision in question.The decision in Sree Balaji has relied on Padma Sundara Rao.However, the reason for not supplying casus omissus was differentin that case. In Padma Sundara Rao, the language of Section 6(1)and its proviso are such, that it would make it difficult to haveany distinction between the two limitation periods in the proviso,if the starting point of the limitation period itself was changedfrom the Section 4 notification to another undecided starting pointby supplying casus omissus. In the facts of Sree Balaji as well asin the facts of the present case, however, there is nothing in thelanguage of Section 24(2) that would defeat the purpose of the A

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Shri Kishan Das & Ors. v. State of U.P. & Ors. (1995) 6SCC 240 – relied on.

7.2 Casus omissus means an omitted case. When a statuteBor an instrument of writing undertakes to foresee and to providefor certain contingencies, and through mistake, or some othercause, a case remains to be provided for, it is said to be a casusomissus. There is no bar much less absolute bar on the Court’sjurisdiction to supply casus omissus. If there is necessity, suchComission can be inferred. The grammatical and ordinary sense ofthe words in the statute must be adhered to unless it would leadto absurdity, repugnance or inconsistency with the rest of theinstrument. The Constitution Bench in Padma Sundara Rao heldthat casus omissus may be supplied when there is “clear necessityand when reason for it is found in the four corners of the statuteDitself”. This means that while casus omissus must not be readilyinferred, “all the parts of a statute or section must be construedtogether and every clause of a section should be construed withreference to the context and other clauses thereof so that theconstruction to be put on a particular provision makes a consistentEenactment of the whole statute.” This applies squarely to thefacts of the case on hand. Casus omissus must be supplied toSection 24(2) of the 2013 Act due to the necessity and the needfor consistency. Undoubtedly, the power to legislate remains withthe Legislature. If a provision of the Act is inconsistent orambiguous, the same needs to be clarified for bringing the meaningFof the said provision consistent with the rest of the Act, if needbe, by supplying meaning to such provision. In the present case,there are many provisions in the 2013 Act which exclude periodsof interim stay, such as Section 19(7) and the Explanation toSection 69(2) of that Act. It only makes the statute moreGconsistent if Section 24(2) is read in light of other provisionssuch as Section 19(7) and the Explanation to Section 69(2), whichmake interim stay orders exceptions to calculating periods oftime under the Act. In this way, repugnancy and inconsistencywith the rest of the statute is avoided. There is a clear necessityto read the exclusion of interim stay into Section 24(2) of theH

2013 Act so as to make its meaning consistent with the rest ofthe enactment, where in similar situations the periods of stay areexcluded. [Paras 54-56][226-D-F; 228-A-F]

Padma Sundara Rao v. State of Tamil Nadu (2002) 3SCC 533 : [2002] 2 SCR 383; Shiv Shakti Coop.Housing Society, Nagpur v. Swaraj Developers and Ors.(2003) 6 SCC 659 : [2003] 3 SCR 762; Union of India

v. Dharamendra Textile Processors (2008) 13 SCC 369: [2008] 14 SCR 13; Dr. Manjula Krippendorf v. State(Govt. of NCT of Delhi) & Anr 2017 (8) SCALE 112;Union of India v. Shiv Raj (2014) 6 SCC 564: [2014]8 SCR 751; Magnum Promoters v. Union of India(2015) 3 SCC 327; CIT v. National Taj Traders (1980)1 SCC 370 : [1980] 2 SCR 268 – referred to.

7.3 No litigant can derive any benefit from mere pendencyof the case in a Court of Law, as the interim order always mergesinto 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 benefit of itsown wrongs by getting an interim order and blame the Court.Ultimately, if the writ petition is found to be devoid of any merit,the same would be dismissed. In such a situation, the Court isunder an obligation to undo the wrong done to a party by the actof the Court. Any undeserved or unfair advantage gained by theparty invoking the jurisdiction of the Court must be neutralized,as the institution of litigation cannot be permitted to confer anyadvantage on a suitor from delayed action by the act of the Court.It is the duty of the Court to ensure that dishonesty or any attemptto abuse the legal process must be effectively curbed and theCourt must ensure that there is no wrongful, unauthorised orunjust gain for anyone by abusing of the process of the Court.No one should be permitted to use the judicial process for earningundeserved gains for unjust profits. The Courts’ constantendeavour should be to ensure that everyone gets just and fairtreatment. “Actus curiae neminemgravabit”, or the principle thatan act of Court cannot prejudice any of the parties, is a settledprinciple of law. [Paras 57-58][228-G-H; 229-A-B]

Amarjeet Singh v. Devi Ratan (2010) 1 SCC 417

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A: [2009] 15 SCR 1010; A.R. Antulay v. R.S. Nayak andAnr. (1988) 2 SCC 602 : [1988] 1 Suppl. SCR 1 –relied on.

7.4 It is often the case in proceedings against landacquisitions that the affected parties seek an interim stay of theBacquisition proceedings until the matter has attained finality. Aninterim stay prevents the State from acquiring the land andfollowing subsequent procedure under the Act, be it thepublication of notifications, making of the award, taking possessionof the acquired land, or paying and depositing of compensation.If the State does not adhere to the stay order, it will be held upCfor contempt. In such a situation, it may take months and indeedyears before the matter attains finality, during which the State isprevented from carrying out the acquisition proceedings. In agiven case, it may take five to ten years or more before the casepasses through the Single Judge of the High Court, the DivisionDBench of the High Court, and finally the Supreme Court, or evensent back to the High Court to be decided afresh on some point.It may well be years before possession is taken and compensationis paid to the landowners. The State is precluded from takingpossession for no fault of its own. Failing to supply casus omissuswill lead to a situation where the acquisition proceedings will lapseEsolely to the detriment of the State due to an act of the party tothe litigation and at the intervention of the Court, namely an orderof interim stay. Large amounts of public money will go to waste inkeeping the proceedings pending. While the Act is admittedly abeneficial legislation, it cannot be that the landowners cause aFvalidly initiated acquisition to lapse by filing cases andcontinuously delaying acquisition or legal proceedings. Justicemust be done to all parties to litigation. It will not serve thepurpose of the enactment if the State is stopped from completingthe acquisition for no mistake of its own, while certain

opportunistic litigants seek to frustrate the State’s attempts atGlegally acquiring the land. In fact, when the Legislature hasexcluded interim stay orders in other provisions of the same Act,there is nothing that prevents this Court from applying theseexclusions ejusdem generis to Section 24(2) of the 2013 Act. Thus,the period of interim stay must necessarily be excluded for theH

purposes of calculation of the time period under Section 24(2) ofAthe 2013 Act. It follows then that the absence of a specificamendment by the Legislature to Section 24(2) does not make asubstantial difference to the legal position on excluding the periodof interim stay for the purposes of calculating five years underSection 24(2) of the 2013 Act. In other words, the period of fiveByears must necessarily exclude such period of stay orders. [Paras59-62][229-A-C; 230-A-E]

Case Law Reference

PER ARUN MISHRA, J. (For himself and forAdarsh Kumar Goel, J.)

[2018] 2 S.C.R.

H

INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THROUGH LRS.

AIR 1936 PC 253 (2)relied onPara 78A[1995] 5 Suppl. SCR 448relied onPara 81 (a)[1996] 7 Suppl. SCR 6relied onPara 81 (b)[1995] 4 Suppl. SCR 787relied onPara 81 (c)[1996] 2 SCR 638relied onPara 81 (c)B[1957] SCR 1relied onPara 81 (d)[1996] 1 Suppl. SCR 799relied onPara 81 (c)[2011] 5 SCR 460relied onPara 81 (f)C[1975] Suppl. SCR 250relied onPara 87 (a)[2010] 12 SCR 1184relied onPara 87 (b)[2011] 7 SCR 435relied onPara 87 (c)[1995] 5 Suppl. SCR 451relied onPara 87 (d)D[1996] 2 SCR 643relied onPara 87 (e)[2005] 1 SCR 545relied onPara 87 (f)[2011] 14 SCR 1113relied onPara 87 (g)[2009] 14 SCR 507relied onPara 87 (h)E[2010] 15 SCR 302relied onPara 87 (i)(2015) 17 SCC 1relied onPara 87 (j)[2011] 6 SCR 443distinguishedPara 87 (m)(2015) 4 SCC 325overruledPara 89F(2017) 6 SCC 787relied onPara 94[2007] 5 SCR 729relied onPara 95[2005] 4 Suppl. SCR 535relied onPara 96[2014] 8 SCR 751not correct lawPara 102G[1997] 3 SCR 931relied onPara 105[2010] 2 SCR 447relied onPara 105 (b)[1990] 1 SCR 186relied onPara 105 (d)H

58SUPREME COURT REPORTS

[2018] 2 S.C.R.

INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THROUGH LRS.

[2018] 2 S.C.R.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 20982of 2017.

From the Judgment and Order dated 03.11.2014 of the High Courtof Madhya Pradesh, Bench at Indore, in Writ Appeal No. 166 of 2007.

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Special Leave Petition (C) No. 10742 of 2008.

Special Leave Petition (C) Nos. 20920, 26574-26575 and 28993of 2011.

Special Leave Petition (C) Nos. 30198, 30192, 30142, 30128,30203, 25289, 22356, 31678, 22527, 30577-30580, 27389, 27383 and 34787of 2015.

Civil Appeal Nos. 4835 and 4836 of 2015.

Special Leave Petition (C)………………CC No. 9842 of 2016.

Special Leave Petition (C)..Diary No. 24901 of 2017.

Special Leave Petition (C) Nos. 4705, 38290, 9571, 15127, 15144,15131, 15139, 16425, 15117, 15140, 15113, 16438, 15119, 15126, 15125,15118, 15124, 15112, 11824, 15143, 15141, 15142, 17324, 38368, 23846,23097, 19804-19805, 22127-22128 and 21997-21998 of 2016.

Special Leave Petition (C) Nos. 10190-10200, 15213-15217 and5182-5184 of 2017.

W.P. (C) No.602 of 2017.

B. K. Satija, Anil Grover, Ajay Bansal, Birendra Kumar Chaudhary,Amit Kumar, Hemant Gupta, Anish Kumar Gupta, AAGs, Ms. InduMalhotra, P. S. Patwalia, Amrendra Sharan, Narender Hooda, Sr. Advs.,Tanvir Nayar, Ms. Rakhi Mohanty, Prashant Singh, Sandeep Chhabra,Vikas Mehta, Gaurav Yadav, Sanjay Kr. Visen, Ms. Natasha Dalmia,Ms. Harshika Verma, Dhruv Sheoran, Mrs. MeenakshiArora, Ms. Monisha Handa, Ankit Jain, Mohit D. Ram, Vishnu B. Saharya,Viresh B. Saharya, M/s Saharya & Co., Mrs. Veena Bansal, DheerajGupta, Ranbir Yadav, Anzu K. Varkey, Abishek Yadav, S.Wasim A. Qadri,Jubair Ahmad Khan, Zaid Ali, Tamim Qadri, Mudasir Nabi, Saeed Qadri,L. R. Singh, Ashwani Kumar, Ravinder Naina, Naveen Kumar, PiyushHans, Anish Kumar Gupta, Vishwa Pal Singh, Puneet Jain, Ms. ChristiJain, Pankaj Sharma, Abhinav Gupta, Ms. Ankita Gupta, Ms. Priyal Jain,Ms. Pratibha Jain, Ms. Binu Tamta, Dhruv Tamta, Amit Kumar, VijayPratap Yadav, Dr. Monika Gusain, Ranbir Yadav, Ms. Anzu K. Varkey,Abhishek Yadav, Ms. Manpreet Kaur Bhalla, Ms. Payal Gupta, SudhanshuS. Chaudhari, Ms. Surabhi Guleria, Ms. Jaikriti S. Jadeja, Ms. Garima A

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AParashad, Kuldip Singh, Siddharth Singla, Lakshmi Raman Singh, SanjayKapur, Baldev Atreya, Deepak Goel, Kamal Kumar Pandey, PrashantTyagi, D. P. Mohanty, Abhiram Naik, Sarthak Gaur, M/s Parekh & Co.,Deepak Thukral, Piyush Hans, Ms. Monisha Handa, Ankit Jain, AnkitSwarup, Dushyant Tiwari, Chandra Shekhar Suman, R. K. Rajwanshi,Avdhesh Kumar Singh, Ms. Deepshikha Bharati, Ms. Rita Gupta, SamarBVijay Singh, Ankur Mittal, Abhinash Jain, Satish Kumar, Ms. NoopurSinghal, Mishra Saurabh, Ankit Kr. Lal, Dr. Hans Raj Yadav, ShailendraKr. Yadav, Brij Bhushan, Ms. Rashmi Chopra, Ms. Asiya, SiddharthMittal, Nayan Nepal, D. K. Sharma, Ms. Monika Sharma, Rohit Vats,Rajesh Saharan, Braj Kishore Mishra, Ms. Aparna Jha, Dr. M. S. Verma,CN. N. Jha, Kailash Mudgal, Mrs. Santosh Singh, Rakesh Kumar, KedarNath Tripathy, Vishal Chauhan, Ms. Rachana Srivastava, Sukrit R.Kapoor, Nitya Madhusoodhanan, Sandeep Narain, Ms.Anjali Agarwal,Rajesh Bhardwaj, M/s S.Narain & Co., Saurabh Mishra, Onkar Singh,Jitendra Vashisth, Puneet Sharma, Pankaj Sharma, Puneet Jain, Ms.Priyal Jain, Ms. Sujaina Srivastava, Ram S. Sharma, Toshar Mathur,DJagjit Singh Chhabra, Saksham Maheshwari, Vikas Mehta, Rajat Sehgal,Ms. Anushree Menon, Mithun Rao, Adith Nair, Gopal Sankarnarayan,Ms. Devika Mohan, Ms. Parul Shukla, E. C. Agrawala, Harsha Peechara,Ashish Tiwari, Arjun Krishnan, Rakesh Kumar, K. N. Tripathi, DushyantParashar, Arun Sharma, Amit Andlay, Ms. Tatini Basu, Aditya Soni, Mrs.EMayank Datta, Shree Pal Singh, Atul Kumar, Ms. Sweety Singh, Ms.Archana Kumari, Rahul Pandey, Sumit Bansal, Ms. Richa Oberoi,Prateek Kohli, Gagan Gupta, Ankit Swarup, Ms. Anu Gupta, KamalMohan Gupta, Atul Kumar, Siddharth Mittal, Punit Dutt Tyagi, SubhasishBhowmick, Pradeep Misra, Rao Ranjit, Sibo Sankar Mishra, B. KrishnaPrasad, Braj Kishore Mishra, Bankey Bihari, Nishant RamakantraoFKatneshwarkar, Ms.Anubha Agrawal, Rabin Majumder, Advs. for theappearing parties.

The following Judgments and Order of the Court were delivered by GARUN MISHRA, J. 1. In Indore Development Authority v.Shailendra (Dead) through LRs. & Others [C.A No.20982 of 2017]correctness of the decision of Pune Municipal Corporation & Anr. v.Harakchand Misirimal Solanki [2014 (3) SCC 183] has been doubted.The main issue is interpretation of section 24 of the Right to FairCompensation and Transparency in Land Acquisition, Rehabilitation andH

INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [ARUN MISHRA, J.]

Resettlement Act, 2013 (for short, ‘the Act of 2013’) and section 31 ofthe Land Acquisition Act, 1894 (for short, ‘the Act of 1894’).

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2. In Yogesh Neema & Ors. v. State of M.P. & Ors. [S.L.P. [C]No.10742 of 2008] vide order of 12.1.2016, observing that other question,that may arise undoubtedly to be considered question Nos. IV and Vhave been referred.

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Following questions arises for consideration:

I. What is the meaning of the expression ‘paid’/ ‘tender’ in Section24 of the Act of 2013 and section 31 of the Act of 1894?Whether non-deposit of compensation in court under sectionC31(2) of the Act of 1894 results into a lapse of acquisitionunder section 24(2) of the Act of 2013. What are theconsequences of non-deposit in Court especially whencompensation has been tendered and refused under section31(1) of the Act of 1894 and section 24(2) of the Act of 2013?Whether such persons after refusal can take advantage of theirDwrong/conduct?

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II. Mode of taking physical possession as contemplated undersection 24(2) of the Act of 1894.

III.Whether section 24 of Act of 2013 revives barred and staleclaims?

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IV. Whether the conscious omission referred to in paragraph 11of the judgment in Shree Balaji Nagar ResidentialAssociation v. State of Tamil Nadu [(2015) 3 SCC 353] makesany substantial difference to the legal position with regard tothe exclusion or inclusion of the period covered by an interimorder of the Court for the purpose of determination of theapplicability of Section 24(2) of the 2013 Act?

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“”V.Whether the principle of actus curiae neminem gravabit,namely act of the Court should not prejudice any parties wouldbe applicable in the present case to exclude the period coveredby an interim order for the purpose of determining the questionwith regard to taking of possession as contemplated in Section24(2) of the 2013 Act?

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AIn Re: Question No.1

3. Question that has been referred in as to meaning of theexpression ‘paid’ used in section 24 of Act of 2013 and expression ‘tender’used in section 31(1) of Act of 1894 when deposit under section 31(2) ofAct of 1894 is necessary, effect of refusal to accept compensation andBwhether deposit in treasury is permissible and effect of non-deposit ofcompensation in Court.

4. In order to appreciate the various questions to be answered, itis appropriate to first consider the provisions contained in the Act of1894 with respect to the passing of the award, together with itsCcommunication and payment; the following then is a ‘bird’s eye view’ ofthe same.

SCHEME OF ACT & RELEVANT PROVISIONS :

5. After notification under section 4 and declaration under section6 have been issued under the Act of 1894, the Collector is required toDproceed to pass an award under section 11. Section 12 requires theCollector to give immediate notice of the award to such persons interestedas are not present personally or by their representatives when the awardis made. Section 16 deals with the power of the Collector to takepossession of the land after an award has been made under section 11.EIt is open to the Collector to take possession of the land, which shall,thereupon, vest absolutely in the Government. Section 16 is extractedhereunder:

“16. Power to take possession – When the Collector has made anaward under section 11, he may take possession of the land, whichFshall thereupon vest absolutely in the Government, free from allencumbrances. (emphasis supplied)

6. Section 17 deals with special powers in cases of urgency. Thesame authorizes the Collector to take possession before passing of theaward as provided in section 17(1) of the Act of 1894, and on takingGpossession of any land, such land shall thereupon vest absolutely in theGovernment, free from all encumbrances. Section 17 is extractedhereunder:

“17. Special powers in case of urgency – (1) In cases of urgencywhenever the [appropriate Government], so directs, the Collector, H

though no such award has been made, may, on the expiration offifteen days from the publication of the notice mentioned in section9, subsection 1). [take possession of any land needed for a publicpurpose]. Such land shall thereupon [vest absolutely in the[Government], free from all encumbrances.

(2) Whenever owing to any sudden change in the channel of anynavigable river or other unforeseen emergency, it becomesnecessary for any Railway Administration to acquire the immediatepossession of any land for the maintenance of their traffic or forthe purpose of making thereon a river-side or ghat station, or ofproviding convenient connection with or accesses to any suchstation, [or the appropriate Government considers it necessary toacquire the immediate possession of any land for the purpose ofmaintaining any structure or system pertaining to irrigation, watersupply, drainage, road communication or electricity,] the Collectormay immediately after the publication of the notice mentioned insub-section (1) and with the previous sanction of the [appropriateGovernment], enter upon and take possession of such land, whichshall thereupon [vest absolutely in the [Government]] free fromall encumbrances : Provided that the Collector shall not takepossession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eighthours notice of his intention so to do, or such longer notice as maybe reasonably sufficient to enable such occupier to remove hismovable property from such building without unnecessaryinconvenience.

(3) In every case under either of the preceding sub-sections theCollector shall at that time of taking possession offer to the personsinterested compensation for the standing crops and trees (if any)on such land and from any other damage sustained by them causedby such sudden dispossession and not excepted in section 24;and, in case such offer is not accepted, the value of such cropsand trees and the amount of such other damage shall be allowedfor in awarding compensation for the land under the provisionsherein contained.

3[(3A) Before taking possession of any land under sub-section-(1) or subsection (2), the Collector shall, without prejudice to the--provisions of subsection (3) (a) tender payment of eighty per A

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Acentum of the compensation for such land as estimated by him tothe person interested entitled thereto, and (b) pay it to them, unlessprevented by some one or more of the contingencies mentioned-in section 31, subsection (2), and where the Collector is so-prevented, the provisions of section 31, subsection (2), (exceptthe second proviso thereto), shall apply as they apply to the paymentBof compensation under that section.

(3B) The amount paid or deposited under section (3A), shall betaken into account for determining the amount of compensationrequired to be tendered under section 31, and where the amountso paid or deposited exceeds the compensation awarded by theCCollector under section 11, the excess may, unless refunded withinthree months from the date of Collector’s award, be recoveredas an arrear of land revenue]. [(4) In the case of any land towhich, in the opinion of the [appropriate Government], the provisionsof sub-section (1) or sub-section (2) are applicable, the [appropriateDGovernment] may direct that the provisions of section 5A shallnot apply, and, if it does so direct, a declaration may be madeunder section 6 in respect of the land at any time [after the dateof the publication of the notification] under section 4, sub-section(1).” (emphasis supplied)

EBefore taking possession of the land, it is necessary under Section17(3A) to tender payment of 80% compensation unless prevented bysome one or more of the contingencies mentioned in sub-section (2) ofsection 31, and where the Collector is so prevented, the provisions ofsection 31(2), except the second proviso, shall apply as they apply to thepayment of compensation under that section. As required under sectionF17(3A) and section 17(3B), the amount paid or deposited under sub-section (3A) shall be taken into account for determining the amount ofcompensation to be tendered under section 31. Section 18 of the Act of1894 provides that any person interested, who has not accepted theaward, may ask for a reference to be made to the court with respect toG(1) measurement of the land; (2) the amount of compensation (3) thepersons to whom it is payable or (4) the apportionment of thecompensation among the persons interested. Under section 30, therecan be a reference to the court; its scope is confined to any disputearising as to the apportionment of the amount of compensation or anypart thereof, or as to the persons to whom the same or any part thereofH

is payable. In a reference under section 30, measurement of land andquantum of compensation cannot be questioned. There is a limitation forreference under section 18(2); whereas, the limitation is not prescribedin the Act of 1894 for seeking reference under section 30.

7. There is yet another reference under the Act of 1894, i.e. undersection 28A. The provisions of section 28A aim at removal of the disparityin the matter of payment of compensation which provides for re-determination of the amount of compensation, on the basis of the awardof the court, in respect of a person who had not sought reference, andhad accepted the Collector’s award; such a person can seek re-determination of compensation within three months from the date of theaward of the court. In case a person is not satisfied with the re-determination so made under section 28A(2), he can seek a referenceto court under section 28A(3).

8. The payment of compensation and deposit of it in Court is dealtwith in Part V of the Act of 1894, in section 31. Section 31 is extractedhereunder:

“31. Payment of compensation or deposit of same in Court. - (1)On making an award under section 11, the Collector shall tenderpayment of the compensation awarded by him to the personsinterested entitled thereto according to the award and shall pay itto them unless prevented by some one or more of thecontingencies mentioned in the next sub-section.

(2) If they shall not consent to receive it, or if there be no personcompetent to alienate the land, or if there be any dispute as to thetitle to receive the compensation or as to the apportionment of it,the Collector shall deposit the amount of the compensation in theCourt to which a reference under section 18 would be submitted:Provided that any person admitted to be interested may receivesuch payment under protest as to the sufficiency of the amount:Provided also that no person who has received the amountotherwise than under protest shall be entitled to make anyapplication under section 18: Provided also that nothing hereincontained shall affect the liability of any person, who may receivethe whole or any part of any compensation awarded under thisAct, to pay the same to the person lawfully entitled thereto.

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A(3) Notwithstanding anything in this section the Collector may,with the sanction of the [appropriate Government] instead ofawarding a money compensation in respect of any land, makeany arrangement with a person having a limited interest in suchland, either by the grant of other lands in exchange, the remissionof land-revenue on other lands held under the same title, or inBsuch other way as may be equitable having regard to the interestsof the parties concerned.

(4) Nothing in the last foregoing sub-section shall be construed tointerfere with or limit the power of the Collector to enter into anyarrangement with any person interested in the land and competentCto contract in respect thereof.”

9. The provision of section 31(2) makes it clear that only in theexigencies as provided in section 31(2), the amount has to be depositedin reference court, not in all exigencies. As discussed hereinafter rulesframed under section 55 provide that in case a person seeks no referenceDand he refuses to accept the compensation it has to be deposited in thetreasury. An attempt has to be made to harmonize the Act and the rules.The expression used in section 31(2) is that on refusal amount to bedeposited in Court where reference would be submitted. When noreference is sought there is no question of it being submitted to the Court.EHence, Reference Court does not come into picture then the deposit isto be obviously made in treasury as provided in Rules/ Order discussedhereinafter.

10. Sub-section (1) of section 31 deals with “payment”, whereas,sub-section (2) of section 31 deals with “deposit” of the amount ofFcompensation in court in certain contingencies. “Payment” ofcompensation is differently dealt with in section 31(1), and “deposit” isseparately dealt with in section 31(2) of the Act of 1894. Section 31(1)provides tender of the amount to be the mode to pay. The provisions ofsub-section (1) deal with payment, and sub-section (2) of section 31deals with deposit in the Court “where reference would be submitted”,Gonly in the contingencies mentioned, i.e. (1) if the person interested shallnot consent to receive it, and has sought reference to Court or (2) ifthere be no person competent to alienate the land, or (3) if there be anydispute as to the entitlement to receive the compensation, or (4) if therebe any dispute as to the apportionment of compensation between the H

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interested persons. The Collector is required to deposit the amount ofthe compensation in the Court to which a reference under section 18would be submitted. It is also provided in section 31(2) that no personwho has received the amount otherwise than under protest shall beentitled to make an application for seeking reference under section 18.It is open to a person, under the first proviso to section 31(2), to receivepayment of compensation under protest as to the sufficiency of theamount, and such person is also entitled to maintain a reference. Thethird proviso to section 31(2) makes it clear that any person who hasreceived the whole or any part of compensation awarded under the Act,shall still be liable to pay the same to a person who is lawfully entitledthereto. It is with the purpose as provided in section 31 when the amountis tendered it can be accepted under protest and still a reference can bemaintained. In case awarded amount has been accepted without protest,reference cannot be maintained under section 18.

11. In case of incompetency of a person to alienate the land inquestion, amount has to be deposited in the reference court under section31(2), and when money of such person is deposited in Court, court mayorder the money to be invested in the purchase of another land to beheld under the like title and conditions of ownership, as the land, in respectof which, such money shall have been deposited, was held, or if suchpurchase cannot be effected forthwith, money can be invested inGovernment or other approved securities as the court shall think fit andhas to be dealt with in accordance with the provisions contained in section32. Section 33 deals with an investment of money deposited in othercases.

12. In case money is deposited in court otherwise than as providedunder section 32, any party interested can apply to the court for investingthe same in Government or other approved securities, is the purpose ofdeposit. The provisions of sections 32 and 33 of the Act of 1894 areextracted hereunder:

“32. Investment of money deposited in respect of lands belongingto persons incompetent to alienate. -

(1) If any money shall be deposited in Court under sub-section(2) of the last preceding section and it appears that the land inrespect whereof the same was awarded belonged to any personwho had no power to alienate the same, the Court shall- A

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(a) order the money to be invested in the purchase of otherlands to be held under the like title and conditions of ownershipas the land in respect of which such money shall have beendeposited was held, or (b) if such purchase cannot be effected forthwith, then in suchGovernment of other approved securities as the Court shallthink fit; and shall direct the payment of the interest or other proceedsarising from such investment to the person or persons whowould, for the time being, have been entitled to the possessionof the said land, and such moneys shall remain so depositedand invested until the same be applied-

(i) in the purchase of such other lands as aforesaid; or

(ii) in payment to any person or persons becoming absolutelyentitled thereto.

(2) In all cases of money deposited to which this section appliesthe Court shall order the costs of the following matters, includingtherein all reasonable charge and expenses incident thereon,to be paid by the Collector, namely: - (a) the costs of such investments as aforesaid; (b) the costsof the orders for the payment of the interest or other proceedsof the securities upon which such moneys are for the timebeing invested, and for the payment out of Court of the principalof such moneys, and of all proceedings relating thereto, exceptsuch as may be occasioned by litigation between adverseclaimants.

33. Investment of money deposited in other cases - When anymoney shall have been deposited in Court under this Act for anycause other than mentioned in the last proceeding section, thecourt may, on the application of any party interested or claimingan interest in such money, order the same to be invested in suchGovernment or other approved securities as it may think proper,and paid in such manner as it may consider will give the partiesinterested therein the same benefit the reform as they might havehad from the land in respect whereof such money shall have beendeposited or as near thereto as may be.”

13. The provisions contained in section 34 deals with the exigencieswhere the amount of compensation is not paid or deposited on or beforetaking possession of the land. The Collector shall pay the amount awardedwith interest thereon @ 9% from the time of so taking possession until itshall have been so paid or deposited; and if such compensation or anypart thereof is not paid or deposited within one year from the date onwhich possession is taken, interest @ 15% per annum shall follow. Section34 of 1894 Act is extracted hereunder:

“34. Payment of interest - When the amount of such compensationis not paid or deposited on or before taking possession of the land,the Collector shall pay the amount awarded with interest thereonat the rate of (nine per centum) per annum from the time of sotaking possession until it shall have been so paid or deposited:

[Provided that if such compensation or any part thereof is notpaid or deposited within a period of one year from the date onwhich possession is taken, interest at the rate of fifteen per centumper annum shall be payable from the date or expiry of the saidperiod of one year on the amount of compensation or part thereofwhich has not been paid or deposited before the date of suchexpiry.”

14. The expression “paid”/”tender” and the expression “deposited”have both been used separately in section 31, as well as in section 34, ofthe Act of 1894; so also in Section 24(2) of the Act of 2013. They carrydifferent meanings, and different consequences flow from them.Significantly, it is clear under Section 16 of the Act of 1894, that onceaward has been passed and possession has been taken, land absolutelyvests in the State, and in the case of contingencies as provided in section17(1) when possession is taken in the case of urgency, even beforepassing of the award, land vests absolutely in the State under section17(3A), 80% amount is required to be tendered before taking possessionunder sections 17(1) and 17(2); and, the same is to be paid in the modeas provided for under section 31(1) and, in case of refusal, incompetencyetc. to alienate and other such cases as provided under section 31(2), ithas to be deposited in the court and in case it is not so deposited,consequences, as prescribed under section 34, shall follow i.e. from thedate of taking possession 9% interest for the first year and after 1 year,15% interest has to be paid on the amount not so paid or deposited.

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AUnder the provisions of the Act of 1894, there is no divesting of the landwhich has vested absolutely in the State; and, the consequences of non-payment, or of non-tendering of compensation, or of non-depositing ofthe same in court, would only be that of the additional liability of interestas provided in section 34. The provision with respect to the payment of15% interest has been inserted via the proviso to section 34, w.e.f.B24.9.1984, vide Amendment Act No.68/1984.

15. When we consider the provisions of the Act of 2013, vis-à-vis those of the Act of 1894, it becomes apparent that Section 11 of theAct of 2013 is akin to section 4 of the Act of 1894. Section 19 dealswith publication of declaration and summary of Rehabilitation andCSettlement, it is equivalent to section 6 of the Act of 1894. Section 23deals with matters to be considered while determining compensation bythe Collector.

16. Section 24 of the Act of 2013 deals with land acquisition processinitiated under the Act of 1894, which shall be deemed to have lapsed inDcertain cases. With respect to acquisition, when award, under the Act of1894, has not been passed, then, as per Section 24(1)(a) of the Act of2013, all the provisions of the Act of 2013 relating to the determinationof compensation shall apply; where, however, an award under section11 of the act of 1894 has been made, then such proceedings shallEcontinue,as per section 24(1)(b), under the Act of 1894, as if the saidAct has not been repealed.

17. Section 24(2) begins with a non-obstante clause — asnotwithstanding anything contained in sub-section (1). The provisions ofsub-section (2) of section 24 shall, under the exigencies provided therein,Fhave the overriding effect, i.e. in case of award, under Act of 1894, hasbeen made five years or more prior to the commencement of the Act of2013, but either the physical possession has not been taken, orcompensation has not been paid, the said proceedings shall be deemedto have lapsed. The proviso to section 24(2) lays down when the awardhas been made and compensation in respect of majority of holdings hasGnot been deposited in the account of the beneficiaries, the acquisitionwould not lapse; however, all the beneficiaries shall be entitled tocompensation in accordance with the provisions of the Act of 2013.

18. When we consider the scheme of the Act of 2013 also withrespect to the mode of payment of compensation, we find provisions ofH

INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [ARUN MISHRA, J.]

section 77 are almost akin to those of section 31. The provisions ofsection 77 of the Act of 2013 are extracted hereunder:

“77. Payment of compensation or deposit of same in Authority. –(1) On making an award under section 30, the Collector shalltender payment of the compensation awarded by him to thepersons interested entitled thereto according to the award andshall pay it to them by depositing the amount in their bank accountsunless prevented by someone or more of the contingenciesmentioned in sub-section (2).

(2) If the person entitled to compensation shall not consent toreceive it, or if there be no person competent to alienate the land,or if there be any dispute as to the title to receive the compensationor as to the apportionment of it, the Collector shall deposit theamount of the compensation in the Authority to which a referenceunder section 64 would be submitted:

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

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

Provided also that nothing herein contained shall affectthe liability of any person, who may receive the whole or any partof any compensation awarded under this Act, to pay the same tothe person lawfully entitled thereto.”

19. Section 80 of the Act of 2013, is equivalent to section 34 ofthe Act of 1894, the same is extracted hereunder:

“80. Payment of interest. –When the amount of such compensationis not paid or deposited on or before taking possession of the land,the Collector shall pay the amount awarded with interest thereonat the rate of nine percent. per annum from the time of so takingpossession until it shall have been so paid or deposited:

Provided that if such compensation or any part thereofis not paid or deposited within a period of one year from the dateon which possession is taken, interest at the rate of fifteen percent.per annum shall be payable from the date or expiry of the said A

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74SUPREME COURT REPORTS

Aperiod of one year on the amount of compensation or part thereofwhich has not been paid or deposited before the date of suchexpiry.”

20. It is apparent, from the provisions contained in section 77 ofthe Act of 2013, that, the expression used in section 77 that the CollectorBshall “tender” payment of the compensation to landowners/interestedpersons, and the obligation is to pay it to them by depositing the amountin their bank accounts unless prevented by exigencies provided in section77(2), are akin to section 31(2) of the Act of 1894.

21. In proviso to section 24(2), expression used is compensationChas not been “deposited” in the account of the beneficiaries, which maybe deposited separately in treasury also; whereas, in section 77, of theAct of 2013 the deposit is required, in the “bank” account of beneficiaries,unless refused. The expression “bank-account” has not been used insection 31 of the Act of 1894 or in section 24(2) of Act of 2013. Inproviso to section 24(2), the expression used “deposited in account”Dwould mean deposited only in Treasury or with the Land Acquisitioncollector for payment.

22. It is pertinent to mention that section 80 of the Act of 2013also imposes a liability of interest, akin to Section 34 of the Act of 1894,upon amount not being deposited; i.e. 9% for the first year and, thereafter,E15% per annum. The Act of 2013 does not envisage the consequence oflapse of the acquisition on non-deposit of compensation in court, andneither was it so provided for in section 31 of the Act of 1894. Theprovision of section 24 thus does not contemplate deposit of amount inCourt. In our opinion, the expression “paid” and “deposited” are separatelyFused in both enactments, and they both carry a different meaning. Theaforesaid provisions deal with tender and deposit; and, consequencesare similar.

INTERPRETATION OF SECTION 24

23. Section 24 of the Act of 2013 is extracted hereunder:-G

“24. Land acquisition process under Act No. 1 of 1894 shallbe deemed to have lapsed in certain cases.–(1)Notwithstanding anything contained in this Act, in any case ofland acquisition proceedings initiated under the Land AcquisitionAct, 1894,—

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(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 (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 caseof 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 itso 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 specifiedin the notification for acquisition under section 4 of the said LandAcquisition Act, shall be entitled to compensation in accordancewith the provisions of this Act.”

24. When we consider the provisions of section 24 of the 2013Act, it is clear that in case of the award has not been passed then as persection 24(1)(a), compensation has to be determined under the Act of2013. It is also clear that section 24(1)(b) provides that where an awardunder section 11 of the 1894 Act has been made, then such proceedingsshall continue under the provisions of the said Act of 1894 as if it has notbeen repealed. However, in case physical possession of the land has notbeen taken, or the compensation has not been paid, the proceedingsshall be deemed to have lapsed; and, in case of compensation with respectto a majority of landholdings has not been deposited in the account of thebeneficiaries, then, all beneficiaries i.e. landowners shall be entitled tocompensation in accordance with the provisions of the Act of 2013.

25. In section 24(2), the expression that has been employed is“compensation has not been paid”. The expression “deposited”, whichoccurs in the proviso to sub-section (2), has not been used in the main A

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Asection 24(2). Its proviso uses the expression “deposited in the accountof the beneficiaries”, meaning thereby, in the case with respect to themajority of land holdings amount has not been deposited in the accountof beneficiaries, though the acquisition would not lapse, all beneficiarieswould get benefit of the compensation under the Act of 2013. Thus, theconsequence of non-deposit of the amount, with respect to the majorityBof land holdings, in the account of the beneficiaries, is that the acquisitionwould not lapse, and only compensation under the new Act would bepayable. Whereas, under the main part of section 24(2), it is apparentthat, the expression “compensation has not been paid” has been used.The word “deposited” is missing from main part of section 24(2), and itCis only used in the proviso. Thus it is crystal clear that the Legislaturehas used two different expressions to carry, respectively differentmeanings; and, the proviso operates in a different field, where theacquisition would not lapse. The object is that a body or StateGovernment, for whose benefit land has been acquired, must havepossessed the requisite funds for payment to the landowners. The provisoDis not attracted where compensation has been paid.

26. The proviso to section 24(2) does not provide that amount ofcompensation has to be deposited in the court. It obviously refers to apayment deposited with LAO or in treasury.

E27. The different expression “paid”, used in section 24(2) of the2013 Act, thus, cannot carry same meaning and include in it the depositto be made in Court under section 31(2) of the Act of 1894; it onlyreflects the mode of payment as envisaged under section 31(1) of theAct of 1894 i.e. “tender”.

F28. The expression used in section 31 of Act of 1894 and Section77(1) of Act of 2013 is to “tender payment”. Once there is tender, thenin case of refusal to accept the same,the obligation to pay under section31(1) is complete by tender, and that tantamount to making the payment;and, that is precisely what is intended by the word “paid” in section24(2) of 2013 Act.G

29. In Section 31(2) of the 1894 Act, the word ‘deposited in Court’is used. The deposit in Court is not payment to the beneficiaries. It isonly after their refusal to accept the compensation tendered under section31(1) of the Act of 1894 it is to be deposited in Court. It is furtherprovided in the rules that in case of reference is sought, the amount is to H

INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [ARUN MISHRA, J.]

be deposited in court where reference would be submitted otherwise itis to be deposited in the treasury.If the expression “deposited”, used inthe proviso to section 24(2), and expression “paid” used in main section24(2), are both taken as contained in expression “paid” i.e. the tender;and, on refusal it is deposited in court to make the “payment” complete;if expression “deposited” is included in expression ‘payment’ underSection 24(2), inconsistency and repugnancy would be caused as betweenthe proviso and the main sub-section; which has to be eschewed. TheCourt cannot add the word “deposited” to the expression “paid”/ “tender”in Section 31 of Act 1894 or Section 24(2) of Act of 2013.

30. The proviso to section 24(2) of the 2013 Act deals with ‘deposit’of compensation in treasury or with Land Acquisition Collector withrespect to the majority of holding it does obviously contemplate thatamount has not been ‘paid’ to landowners/ beneficiaries/ interestedpersons. Thus, when Scheme of entire section 24 is considered, theconcept of ‘paid’ in the main section 24(2) is different than the deposit.If the deposit is included in word paid the proviso to section 24(2), whichhas the different consequence of no lapse, but only higher compensationwould be otiose and become redundant and repugnancy would occur.

31. It is clear that expression ‘paid’ in section 24 is different than‘deposit’ which is provided in its proviso. The word ‘deposit’ is includedin section 24 in word ‘paid’. Same is the position even under section31(1) and 31(2). The provisions of section 24 cannot be rendered whollyunworkable by the inclusion of ‘deposit’ in ‘paid’.

MEANING OF “PAID” IN SECTION 31 OF THE ACT OF 1894AND SECTION 24(2) OF THE ACT OF 2013 :

32. The question arises what is the meaning of the expression‘paid’ in section 24 and ‘tender’ in section 31(2) of the Act of 1894.Whether the tender of compensation amount to discharge of obligationsto make payment. The meaning of expression “tender”: is when a personhas tendered the amount and made it unconditionally available and thelandowner has refused to receive it, the person who has tendered theamount cannot be saddled with the liability, which is to be visited fornon-payment of the amount. “Tender” has been defined in Black’s LawDictionary thus:

“tender, n. (16c) 1. A valid and sufficient offer of performance;specific, an unconditional offer of moneyor performance to satisfy A

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Aa debt or obligation a tender of delivery.The tender may save the--tendering party from a penalty for nonpayment or nonperformance or may, if the other party unjustifiably refuses thetender, place the other party in default. Cf. OFFER ORPERFORMANCE; CONSIGNATION.”

BIt is apparent from aforesaid that “tender” may save the tenderingparty from the penalty for non-payment or non-performance or penaltyif another party unjustifiably refusing the tender, places the other partyin default. A formal offer duly made by one party to another especiallyan offer of money in discharge of liability fulfills the terms of the law andof the liability. Tender is to offer of money in satisfaction of a debt, byCproducing and showing the amount to a creditor or party claiming andexpressing verbally, willingness to pay it. The expression “tender” hasbeen used in section 31.The concept of deposited in court is differentfrom tender and “paid”.

33. This Court in the Straw Board Manufacturing Co. Ltd.,DSaharanpur v. Gobind, AIR 1962 SC 1500 has held in the context ofsection 33 of the Industrial Disputes Act where payment of one month’swages was necessary. It was held that the payment of one-month wagescan always mean that the employer has tendered his wages and thatwould amount to payment for otherwise a workman could always makeEthe section unworkable by refusing to take wages. The Court observedthus:

“8. Let us now turn to the words of the proviso in the backgroundof what we have said above. The proviso lays down that noworkman shall be discharged or dismissed unless he has beenFpaid wages for one month and an application has been made bythe employer to the authority before which the proceeding ispending for approval of the action taken by the employer. It willbe clear that two kinds of punishment are subject to the conditionsof the proviso, namely, discharge or dismissal. Any other kind ofpunishment is not within the proviso. Further, the proviso lays downGtwo conditions, namely (i) payment of wages for one month and(ii) making of an application by the employer to the authority beforewhich the proceeding is pending for approval of the action taken.It is not disputed before us that when the proviso lays down thecondition as to payment of one month’s wages, all that the employer H

INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [ARUN MISHRA, J.]

is required to do in order to carry out that condition is to tender thewages to the employee. But if the employee chooses not to acceptthe wages, he cannot come forward and say that there has beenno payment of wages to him by the employer. Therefore, thoughs. 33 speaks of payment of one month’s wages it can only meanthat the employer has tendered the wages and that would amount,for payment, for otherwise, a workman could always make thesection unworkable by refusing to take the wages. So far as thesecond condition about the making of the application is concerned.”(emphasis supplied)

34. In The Management of Delhi Transport Undertaking v.The Industrial Tribunal, Delhi &Anr. AIR 1965 SC 1503, a 3-JudgeBench of this Court considered the question of payment of wages underthe proviso to section 33(3) of Industrial Disputes Act and has taken asimilar view and observed:

“The proviso does not mean that the wages for one month shouldhave been actually paid because in many cases the employer canonly tender the amount before the dismissal but cannot force theemployee to receive the payment before dismissal becomeseffective. In this case, the tender was definitely made before theorder of dismissal became effective and the wages would certainlyhave been paid if Hari Chand had asked for them. There was nofailure to comply with the provision in this respect.”

35. This Court in Indian Oxygen Ltd. v. Narayan Bhoumik (1968)1 PLJR 94 has discussed the concept of ‘paid’ and has observed:

“4. The proviso to Section 33(2)(b) lays down that no workmanshall be discharged or dismissed unless he has been paid wagesfor one month and an application has been made by the employerto the authority before which the proceeding is pending for approvalof the action taken by him. Though the word used in the proviso is‘paid’, the proviso does not mean that the employer must actuallyhand over or pay to the workman dismissed or discharged his onemonth’s wages. In (1962) 3 Suppl. S.C.R. 618] StrawboardManufacturing Co. v. Gobind this Court while construing thisproviso, observed that when it lays down the condition as topayment of one month’s wages all that the employer is requiredto do to carry out that condition is to tender the wages to the AB

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Aemployee. But if the employee chooses not to accept them, hecannot come forward and say that there has been no payment ofwages to him by the employer, Therefore, though Section 33 speaksof payment of one month’s wages, it can only mean that theemployer has tendered the wages and that would amount topayment, for otherwise, a workman could always make the sectionBunworkable by refusing to take the wages. In (1964) 2 SCR 104,109 P.H. Kalyani v. M/s. Air France, the employer had offeredone month’s wages to the workman before the order of dismissalagainst him came into force. The offer was held to be sufficientcompliance of the said condition laid down in the proviso, [(1955)C1 SCR 998] Management of Delhi Transport Undertaking v.Industrial Tribunal, Delhi was a case where the wages wereremitted by money order but the workman purposely refused toreceive them. It was held that the employer could not be said notto have complied with the condition laid down by the proviso. It isthus clear that the condition as to payment in the proviso does notDmean that the wages have to be actually paid but if wages aretendered or offered, such a tender or offer would be sufficientcompliance for the purposes of Section 33(2)(b) proviso.”

36. The word “paid” means applied, settled or satisfied. Theconcept of paid has also been considered by this Court in The BenaresEState Bank Ltd. v. The Commissioner of Income Tax, Lucknow, (1969)2 SCC 316, in the context of section 14(2)(c) of Income Tax Act, 1922.This Court observed that the expression “paid” in section 16(2) does notcontemplate actual receipt of the dividend by the members of thecommunity; in general, the dividend may be said to be paid when companyFdischarges its liability and makes the amount of dividend unconditionallyavailable to the member entitled thereto. The Court has observed:

“5. …..This Court observed in J. Dalmia v. Commissioner ofIncome-tax, Delhi 53 ITR 83 that the expression “paid” in Section16(2) does not contemplate actual receipt of the dividend by theGmember : in general, dividend may be said to be paid within themeaning of Section 16(2) when the Company discharges its liabilityand makes the amount of dividend unconditionally available to themember entitled thereto…….” (emphasis supplied)

37. In N.B. Sanjana, Assistant Collector of Central Excise,HBombay & Ors. v. The Elphinstone Spinning & Weaving Mills Co.

Ltd. (1971) 1 SCC 337, the court observed that literal meaning of theword “paid” need not be adopted.

38. In J.Dalmia v. Commissioner of Income Tax, New Delhi,AIR 1964 SC 1866 at 1869, this Court has observed that the expression“paid” does not contemplate actual receipt of the dividend by the member.The dividend may be said to be paid within the meaning of section 16(2)when the company discharges its liability and makes amountunconditionally available the members entitled thereto.

“The expression “paid” in s. 16(2) it is true does not contemplateactual receipt of the dividend by the member. In general, dividendmay be said to be paid within the meaning of s. 16(2) when thecompany discharges its liability and makes the amount of dividendunconditionally available to the member entitled thereto.

39. The expression “paid” would mean in section 31(1) of Act1894 and section 24(2) of Act of 2013 as soon as it is offered and madeunconditionally available. Merely, if a landowner refuses to accept it, itcannot be said that it has not been paid. Once amount has been tenderedthat would amount to payment. Thus, word “paid” does not mean actualpayment to be made but whatever is possible for an incumbent to makethe payment is only contemplated. “Paid” does not mean receipt ordeposited in Court. There may be refusal to receive an amount in spiteof its tender. Thus, in view of the decisions of this court in CIT Kerala(supra), N.B. Sanjana (supra) and J. Dalmia (supra), the provisions ofsection 24(2) have to be construed to mean tender of amount wouldmean payment as envisaged.

40. It is settled that a Court cannot add or subtract a word; theexpression “compensation has not been paid” is used in section 24(2); itis not open to the court to add to these words, or to substitute the saidexpression with any further expression, such as ‘deposit’. In the“Principles of Statutory Interpretation” by G.P. Singh (14[th] edition), ithas been observed that court has to avoid addition or substitution of thewords. Thus, when the word “paid” is there, it is not open to adding“deposited”, particularly when the scheme of the Act of 1894 also containsdifferent provisions in section 31(1) with respect to tender is payment,while section 31(2)deals with deposit in the court; on non-depositconsequence in section 34, later is not a payment made to the landowner.

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AThe deposit is only in certain exigencies with a view to wiping off theliability of making payment of interest as provided in section 34.

41(a). While interpreting a statutory provision, no addition to, orsubtraction from, the Act is permissible. It is not open to Court to eitheradd or subtract, a word. The legal maxim “A Verbis Legis Non EstBRecedendum” means: from the words of law, there must be nodeparture. The learned author in Interpretation of Statutes has referredto the Privy Council decision in Crawford v. Spooner, (1846) 6 MoorePC 1 and Lord Howard de Walden v. IRC, (1948) 2 AER 825 and otherdecisions of the Court and observed:

C“…….(a) Avoiding addition or substitution of words As stated by the Privy Council: “We cannot aid the Legislature’sdefective phrasing of an Act, we cannot add ormend and, byconstruction makeup deficiencies which are left there”. “It iscontrary to all rules of construction to read words into an Actunless it is absolutely necessary to do so.” Similarly, it is wrongand dangerous to proceed by substituting some other words forwords of the statute. Speaking briefly the court cannot reframethe legislation for the very good reason that it has no power tolegislate.

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While interpreting section 621-A(1) of the Companies Act, 1956,the Supreme Court held that the Court must avoid rejection oraddition of words and resort to that only in exceptionalcircumstances to achieve the purpose of the Actor to give apurposeful meaning to the section. Section 621-A provides forcompounding, by the Company Law Board, of any offencepunishable under the Act, not being an offence punishable withimprisonment only, or with imprisonment and also with fine, eitherbefore or after the institution of any prosecution. It was held thatthe Company Law Board has the power to compound suchoffences without the permission of the Court. Since the Legislature,in its wisdom, has not put the rider of prior permission in the section,addition of the words ‘with the prior permission of the court’ tothe provision is not permissible.

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Section 2(2) of the Arbitration and Conciliation Act, 1996, whichis in Part I of the Act, provides that ‘This Part shall apply wherethe place of arbitration is in India. In Bharat Aluminium Companyv. Kaiser Aluminium Technical Services Inc., a ConstitutionBench of the Supreme Court rejected the contention that Part Iof the Act was also applicable to arbitrations seated in foreigncountries on the ground that in such a case certain words wouldhave to be added to section 2(2), which would then have to providethat ‘this part shall apply where the place of arbitration is in Indiaand to arbitrations having its place out of India’. This would amountto a drastic and unwarranted rewriting or alteration of the languageof section 2(2), and it is not permissible for the Court to reconstructa statutory provision.In this case, the Constitution Benchprospectively overruled the decision of a three-Judge Bench ofthe Supreme Court in Bhatia International v. Bulk Trading SA,which had held that provisions of Part I would apply to internationalcommercial arbitrations held outside India unless the parties, byagreement, express or implied, exclude all or any of its provisions.

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And, in construing section 14(f) of the U.P. Town Areas Act,1914, which reads ‘A tax on persons assessed according to theircircumstances and property not exceeding such rate and subjectto such limitations and restrictions as may be prescribed’, theSupreme Court refused to read residence within the town area asa necessary part of the condition for imposition of the said tax.S.K. DAS, J. said, “To do so will be to read in clause (f) wordswhich do not occur there”.

Further, in interpreting section 6(a) and section 43 of the Transferof Property Act, 1882, the Supreme Court refused to read a furtherexception in section 43 excluding its operation in cases of transferof spessuccessionis. VENKATARAMA AIYER, J. quoted withapproval the observations of LORD LOREBURN, L.C., “Weare not entitled to read words into an Act of Parliament unlessclear reason for it is to be found within the four corners of the Actitself”.

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0n the same principle the House of Lords refused to read theword ‘satisfied’ in section 4 of the Matrimonial Causes Act, 1950to mean ‘satisfied beyond reasonable doubt’.

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Sections 12(5) and 15(5) of the Right to Information Act, 2005,Bwhile providing that the Chief Information Commissioner andInformation Commissioners shall be persons of eminence in publiclife, with wide knowledge and experience in law, science, andtechnology, social science, management, journalism, mass mediaor administration and governance, do not further prescribe anyCbasic qualification which such persons must have in the respectivefields in which they work. As a result, the Court cannot read intothe provisions of sections 12(5) and 15(5) of the Act the wordsthat such persons must have a basic degree in their respectivefields.’”

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41(b). This Court in Nali Nalinakhya Bysack v. ShyamsunderHalder, AIR 1953 SC 148 at 152, State of Madhya Pradesh v. G.S.Dall and Flour Mills, AIR 1991 SC 772, State of Gujarat and Othersv. Dilipbhai Nathjibhai Patel and Another (1998) 3 SCC 234,ECompetition Commission of India v. Steel Authority of India Ltd.(2010) 10 SCC 744, Assessing Authority cum-Excise and TaxationOfficer v. East India Cotton Mfg. Co. Ltd. (1981) 3 SCC 531, PaulEnterprises & Ors. v. Rajib Chatterjee & Co. & Ors., AIR 2009 SC187, Sakshi v. Union of India (2004) 5 SCC 518, Commissioner ofIncome Tax, Kerala v. Tata Agencies (2007) 6 SCC 429, Ram NarainFMedhi v. State of Bombay AIR 1959 SC 459, S.P. Gupta v. Presidentof India AIR 1982 SC 149, Dadi Jagannadham v. Jammulu Ramulu(2001) 7 SCC 71, P.K. Unni v. Nirmala Industries AIR 1990 SC 933,Crawford v. Spooner (1846) 6 Moore PC 1, Royal Trust Company v.Minister of Finance AIR 1921 PC 184, Padma Sundara Rao (dead)G& Ors. v. State of T. N. & Ors. (2002) 3 SCC 533 has observed thatwhat legislation wanted has been stated in the provision. The courtcannot give extended meaning to the expression. It is not open to theCourt to aid defective phrasing of the Act or to make up for thedeficiencies. It is not open to the Court to recast, rewrite, or reframethe provision. The court cannot assume omission and add or amend H

words. Plain and unambiguous construction has to be given withoutaddition and substitution of the words. The temptation of substitutingwords by explaining what it thought legislation is endeavoring is to bediscouraged. Court has to consider what has been said and what hasnot been said. It is wrong and dangerous to proceed by substitutingsome other words for the words of the statute. When literal readingproduces an intelligible result it is not open to read words or add wordsto statute. Making any generous addition to the language of the Actwould not be a construction of the statutory provision; rather, would bean amendment thereof. While interpreting the provision the Court onlyinterprets the law. The intention of the legislation must be found by thewords used by the legislature itself. The legislative casus omissus cannotbe supplied by judicial interpretative process. When language of theprovision is clear, there is no scope for reading something into it. Thescenario that thus emerges in relation to an interpretationof a statute canbe explained as follows. It is a salutary principle that it is not open to theCourt to add or substitute some words in place of the words of thestatute. The court cannot reframe the legislation. The court cannot addto, or amend, the provisions; neither can the expressions used in thestatute be treated as fungible.

We need not add any word when Section 24(2) uses the expression“compensation has not been paid”. To complete the payment, we cannotread words into it to the effectthat deposit of payment in the court ispayment to the landowners. It is clear that unless it is absolutely necessaryto do so, it is not open to read the word “deposited” in court as part of‘paid’ when payment is contemplated to the landowners. Theconsequence of nondeposit is culled out in proviso to section 24(2). It isnot that section 31(2) would become meaningless. Hence, deposit cannotand need not be added to expressions paid/ tender. In case the legislaturewanted the ‘deposit in Court’ to be included in ‘paid/ tender’, it couldhave easily said so. But it has used expressions differently, with differentconsequences.

42. What follows from the aforesaid enunciation is that thelegislature has consciously omitted the expression “deposited” in mainsection 24(2), whereas, it is used in the proviso; both have differentobjectives. When the legislature has used different expressions withrespect to past events — the word “paid” is used in a discernibly distinctivesense than the sense conveyed by the word “deposited” occurring in the A

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Aproviso — both are required to be given different meanings. There iscasus omissus, i.e. conscious omission made by the Legislature in mainSection 24(2) when the expression “deposited” has not been used in theexpression “has been paid”, and it is only after amount tendered isdeclined, it is to be deposited in Court that too in certain exigencies asper section 31(2).

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43. The word “paid”, in view of the different consequences ofpaid and deposited, has to be given different meaning from “deposited”.Otherwise, if it were the case that ‘deposit’ is included in the ‘payment’,then there would have been no necessity of using two differentexpressions, in different provisions, carrying different consequences.CDeposit made in the court cannot be said to be payment made to thelandowner i.e. persons interested/beneficiaries. Thus, in case of depositis directly made in the court without tender, it could not be said that itwas tendered or paid. ‘Deposit in court’ simply is the discharge ofCollector’s liability of making payment of interest as envisaged underDsection 34 of the 1894 Act, and no more; deposit in Court is not tender tolandowner. Once the amount has been tendered and not accepted,obligation to pay is discharged, as envisaged under section 31(1); nopenal consequences can follow and, the person who has refused to acceptcannot be permitted to take an advantage of his own wrong, or in casehis conduct is of filing litigations, delaying the passing of the award orEobtaining stay of the proceedings; such action would tantamount to refusalto accept compensation, and the person then may not even be entitled tohigher rate of interest as envisaged under section 34.

44. While making statutory interpretation, inconsistency andrepugnancy is to be avoided and harmonious construction has to beFadopted. The construction to be adopted should be such, as would makethe statute as a whole, a consistent enactment. Such a constructionwould have the merit of avoiding any inconsistency or repugnancy, eitherwithin a given section or as between a particular section on the one handand other parts of the statute on the other. It is the duty of the courts toGavoid “a head-on clash”, as held in Raj Krushna v. Binod Kanungo,AIR 1954 SC 202, at 203; Sultana Begum v. Premchand Jain, AIR1997 SC 1006, at page 1109; Kailash Chandra v. Mukundi Lal, (2002)2 SCC 67; and, CIT v. Hindustan Bulk Carriers, (2003) 3 SCC 57, atp.74.

45. When we apply the rule of harmonious construction to theprovisions of section 24(2) of the Act of 2013, i.e. as between the mainpart of the section and its proviso, the word “paid” occurring in the mainpart, has to be construed differently (with a different meaning beinggiven to it) from the word “deposited” occurring in the proviso; otherwise,inconsistency and repugnancy would be the result of the provisioncontained in section 24 (2) as a whole; and, that is what has to be avoided.As discussed, the provisions would be irreconcilable, and an anomalousresult would be occasioned.

46. This Court, in Balasinor Nagrik Cooperative Bank Limitedvs. Babubhai Shankerlal Pandya, (1987) 1 SCC 606, held that a sectionis to be interpreted by reading all its parts altogether, and it is notpermissible to omit any part thereof. Thus, in the instant case, proviso toSection 24(2) cannot be ignored while interpreting the main subsection.

47. The proviso is enacted as part of section 24(2); it is not anindependent provision and applies to an acquisition made five years orbefore, in which amount, with respect to majority of holdings, has notbeen deposited in court. There has to be harmonized construction ofprovision of section 24(2).

48. Since there is no ambiguity of drafting in the provisions containedin section 24(2) of the Act of 2013, so also none is there in those containedin sections 31(1) and 31(2) of the Act of 1894. Thus, in discharging itsinterpretative function, to exercise the power to correct obvious draftingerrors that can be done only in suitable cases where there is error ofdrafting. Before adding the word or omitting a word the court has toconsider 3 matters : (1) the intended purpose of the statute or the provisionin question, (2) that by inadvertence the draftsman and Parliament failedto give effect to that purpose in the provision in question, and (3)substance of the provision Parliament would have made, although notnecessarily the precise words Parliament would have used, had the errorin the Bill been noticed. As observed in Inco Europe Ltd. v. First ChoiceDistribution (a firm) by the House of Lords in (2000) 2 All ER 109 at115. There is no accidental omission as to the concept of payment insection 24(2) or section 31(1) of the aforesaid Acts. Thus, it is notpermissible to supply the word “deposited” to include in the expression“payment”.

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49(a). Rule of literal construction lays down that words of a statuteare first understood in their natural, ordinary or popular sense and phrases,and sentences are construed according to their grammatical meaning.The learned author G.P. Singh, in “Principles of Statutory Interpretation”(14[th] edition), at Page 91 onwards, has observed:

“……..Natural and grammatical meaning. The words of a statuteare first understood in their natural, ordinary or popular sense andphrases and sentences are construed according to theirgrammatical meaning, unless that leads to some absurdity or unlessthere is something in the context, or in the object of the statute tosuggest the contrary.” “The true way”, according to LORDBROUGHAM is, “to take the words as the Legislature have giventhem, and to take the meaning which the words given naturallyimply,unless where the construction of those Words is, either bythe preamble or by the context of the words in question, controlledor alter “; and in the words of VISCOUNT HALDANE, L.C., ifthe language used “has a natural meaning we cannot depart fromthat meaning unless reading the statute as a whole, the contextdirects us to do so.In an oft-quoted passage, LORDWENSLEYDALE stated the rule thus: “In construing wills andindeed statutes and all written instruments, the grammatical andordinary sense of the word is adhered to, unless that would lead

to some absurdity, or some repugnance or inconsistency with therest of the instrument in which case the grammatical and ordinarysense of the words may be modified, so as to avoid that absurdity,and inconsistency, but no further”. And stated LORD ATKINSON:“In the construction of statutes, their words must be interpreted intheir ordinary grammatical sense unless there be something in thecontext, or in the object of the statute in which they occur or inthe circumstances in which they are used, to show that they wereused in a special sense different from their ordinary grammaticalsense”.28 VISCOUNT SIMON, L.C., said: “The golden rule isthat the words of a statute must prima facie be given their ordinarymeaning”. Natural and ordinary meaning of words should not bedeparted from “unless it can be shown that the legal context inwhich the words are used requires a different meaning”. Such ameaning cannot be departed from by the judges “in the light oftheir own views as to policy” although they can “adopt a purposive interpretation if they can find in the statute read as a whole or inmaterial to which they are permitted by law to refer as aids tointerpretation an expression of Parliament’s purpose or policy”.For a modern statement of the rule, one may refer to the speechof LORD SIMON OF GLAISDALE in a case where he said:“Parliament is prima facie to be credited with meaning what issaid in an Act of Parliament. The drafting of statutes, so importantto a people who hope to live under the rule of law, will never besatisfactory unless courts seek whenever possible to apply ‘thegolden rule’ of construction, that is to read the statutory language,grammatically and terminologically, in the ordinary and primarysense which it bears in its context, without omission or addition.Of course, Parliament is to be credited with good sense; so thatwhen such an approach produces injustice, absurdity, contradictionor stultification of statutory objective the language may be modifiedsufficiently to avoid such disadvantage,though no further”. Therules stated above have been quoted with approval by the SupremeCourt…….”

49(b). This Court, in Harbhajan Singh v. Press Council ofIndia, AIR 2002 SC 1351, at 1354 has observed thus :

“Legislature does not waste its words. Ordinary, grammatical andfull meaning is to be assigned to the words used while interpreting—a provision to honour the rule Legislature chooses appropriatewords to express what it intends, and therefore, must be attributedwith such intention as is conveyed by the words employed so longas this does not result in absurdity or anomaly or unless material— intrinsic or external — is available to permit a departure fromthe rule.”(emphasis supplied)

50. Thus, in the instant case, when we give the plain, natural andgrammatical meaning to the word ‘paid’/ ‘tender’, which has been usedin contradistinction to the words “deposited in court”, it is clear thattendering payment would not include deposit in court, in that it is onlywhen payment is refused, that the same is deposited in court; obligationto pay is over as soon as amount is tendered and refused.

51(a) When two different expressions have been used in the sameprovision of a statute, there is a presumption that they are not used in the AB

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Asame sense. In this regard, G.P. Singh, in his treatise Interpretation ofStatutes (14[th] Edition) at page 395, has observed thus:

“…….When in relation to the same subject matter, different wordsare used in the same statute, there is a presumption that they arenot used in the same sense.

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In construing the words ‘distinct matters’ occurring in section 5of the Stamp Act, 1899, and in concluding that these words havenot the same meaning as the words ‘two or more of the descriptionsin Schedule I’ occurring in section 6, VENKATARAMA AIYAR,

J., observed: “When two words of different import are used ina statute in two consecutive provisions, it would be difficultto maintain that they are used in the same sense.” Similarly,while construing the word ‘gain’ under Section 3(ff) of the BombayMunicipal Corporation Act, 1888, which used the words ‘profit orgain’, the Supreme Court relied on the dictionary meanings of thewords to hold that the word ‘gain’ is not synonymous with theword ‘profit’ as it is not restricted to pecuniary or commercialprofits, and that any advantage or benefit acquired or value additionmade by some activities would amount to ‘gain’…….”

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***14.Brighton Parish Guardians v. Strand Union Guardians,(1891) 2 QB 156, p. 167 (CA); Member, Board of Revenue v.Arthur Paul Benthall, AIR 1956 SC 35, p. 38: 1955 (2) SCR 842;CIT v. East West Import & Export (P.) Ltd., Jaipur, AIR 1989 SC836, p.838 : (1989) 1 SCC 760; B.R. Enterprises v. State of U.P.,AIR 1999 SC 1867, p.1902 : (1999) 9 SCC 700 (‘trade and business’in Article 298 have different meaning from ‘trade and commerce’in Article 301); ShriIshal Alloy Steels Ltd. v. JayaswalasNecoLtd., JT 2001 (3) SC 114, p. 119 : (2001) 3 SCC 609 : AIR 2001SC 1161 (The words ‘a bank’ and ‘the bank’ in section 138 N.I.Act, 1881 do not have the same meaning); The Oriental InsuranceCo. Ltd. v. Hansrajbhai v. Kodala, AIR 2001 SC 1832, p. 1842 :(2001) 5 SCC 175; KailashNathAgarwal v. PradeshiyaIndust andInv. Corp. of U.P., 2003 AIR SCW 1358, p. 1365 : (2003) 4 SCC305, p. 313. (The words ‘proceeding’ and ‘suit’ used in the samesection construed differently); But in Paramjeet Singh Pathak v.ICDS Ltd, (2006) 13 SCC 322 : AIR 2007 SC 168 different viewwas taken therefore in Zenith Steel Tubes v. Sicom Ltd, (2008) 1SCC 533 : AIR 2008 SC 451 case referred to a larger Bench; E

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D.L.F. Qutab Enclave Complex Educational Charitable Trust v.State of Haryana, 2003 AIR SCW 1046, p. 1057: AIR 2003 SC1648: (2003) 5 SCC 622 (The expressions ‘at his own cost’ and‘at its cost’, used in one section given different meanings)”

51(b). The author has referred to the decisions in Brighton ParishGuardians v. Strand Union Guardians, 1891 QB 156, Member, Boardof Revenue v. Arthur Paul Benthall, AIR 1956 SC 35 at p.38, and CITv. East West Import & Export (P) Ltd., Jaipur, (1989) 1 SCC 760, inthat case this Court has observed :

“7. The Explanation has reference to the point of time at twoplaces: the first one has been stated as “at the end of the previousyear” and the second, which is in issue, is “in the course of suchprevious year”. Counsel for the Revenue has emphasised uponthe feature that in the same Explanation reference to time hasbeen expressed differently and if the legislative intention was notto distinguish and while stating “in the course of such previousyear” it was intended the convey the idea of the last day of theprevious year, there would have been no necessity of expressingthe position differently. There is abundant authority to support thestand of the counsel for the Revenue that when the situation hasbeen differently expressed the legislature must be taken to haveintended to express a different intention.”

(emphasis supplied)”

(emphasis supplied)”

51(c). In Kailash Nath Agarwal v. Pradeshiya Industries andInvestment Corporation of Uttar Pradesh, (2003) 4 SCC 305,Tejmohammed Hussainkhan Pathan v. V.J. Raghuvanshi, 1993 supp.(2) SCC 493, D.L.F. Qutab Enclave Complex Educational CharitableTrust v. State of Haryana, (2003) 5 SCC 622, Pallawi Resources Ltd.v. Protos Engineering Company Pvt. Ltd., (2010) 5 SCC 196, GrasimIndustries Ltd. v. Collector of Customs, Bombay, (2002) 4 SCC 297,B.R. Enterprises v. State of U.P., AIR 1999 SC 1867, ShriIshar AlloySteels Ltd. v. Jayaswals Neco Ltd., (2001) 3 SCC 609, LabourCommissioner, Madhya Pradesh vs. Burhanpur Tapti Mills and Ors.AIR 1964 SC 1687 this Court has observed that as a general rule whentwo different words are used by statute prima facie one has to construedifferent words as carrying different meanings. Rule of ‘purposive A

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Aconstructions’ would be resorted to only when the statute to observe orwhen read literally it leads to manifest injustice or absurdity. The Courthas to keep in mind that the provision enacted by the legislature in acertain manner as had intended. Different words are used in differentsenses.

B51(d) The aforesaid principles of statutory construction, differentwords to be given different meaning as also the binding precedents ofthis Court, indicate that the expression ‘deposited’ cannot be added to‘tender’ / ‘paid’, both carry different consequences under section 24,tender on lapse of acquisition/non-deposit higher interest under section34 of the Act of 1894.C

51(e). It is a settled proposition of law that when two differentexpressions have been used in section 24(2) of the Act of 2013, as wellas in section 31 of the Act of 1894, i.e. “paid to the landowners” and“deposited in the court”, they both carry different meanings, and have tobe interpreted as used in the respective contexts. It is not the expressionDused that deposit in the court is payment to landowners, neither it is usedthat amount deposited in the treasury is the payment to the landowners.The payment indicates the obligation to pay; and, deposit is made in thecourt or revenue treasury only upon happening of various exigencies asprovided in Section 31, and there can be several other exigencies whichEare not covered under section 31(2) of the Act of 1894 and in the statutoryrules/orders.

52. In section 24 of the Act of 2013, brooks no lethargy on thepart of authorities, the expression “possession of the land has not beentaken” indicates a failure on the part of authorities to take for five yearsFor more.

53. When we consider the intendment of the beneficial provisionsof the Act of 2013, it addresses the concern of farmers and of thosewhose livelihood is dependent upon the land being acquired, while at thesame time facilitating land acquisition for myriad reasons, includingGurbanization, rural electrification et al., in a timely and transparent manner.The legislature has not brook the delay of five years or more on part ofauthorities in completing the acquisition. When it says ‘timely’,it wouldmean without delay on the part of authorities, not delay due to dilatorytactics and conduct of land owners/interested persons.

EFFECT OF RULES FRAMED UNDER SECTION 55 OF 1894ACTAND ORDERS ISSUED BY STATE GOVERNMENTS

54. There are various State rules framed under section 55 of theAct of 1894 by various State Governments as well as there are instructionsissued with respect to dealing with Government money as provided inArticle 283 of the Constitution of India, and when it is the Governmentmoney it has to be dealt with in accordance with the instructions issuedby the State Government from time to time. There are other FinancialCodes/Rules/orders issued time to time by various State Governmentswith respect to dealing with Government money. The Land Acquisition(Bihar and Orissa) Rules were framed under the Act of 1894 and Rule10 thereof provided thus :

“10. In giving notice of the award under section 12(2) and tenderingpayment under section 31(1), to such of the persons interested aswere not present personally or by their representatives when theaward was made, the officer shall require them to appearpersonally or by representatives by a certain date to receivepayment of the compensation awarded to them, intimating alsothat no interest will be allowed to them if they fail to appear. Ifthey do not appear, and do not apply for reference to the CivilCourt under section 18, the officer shall after any further endeavourto secure their attendance that may seem desirable, cause theamounts due to be paid into the Treasury as Revenue depositspayable to the persons to whom they are respectively due andvouched for in the accompanying form (marked E). The officershall also give notice to the payees of such deposits, the Treasuryin which the deposits specifying have been made. When thepayees ultimately claim payment of sums placed in deposit, theamounts will be paid to them in the same manner as ordinaryrevenue deposits. The officer should, as far as possible, arrangeto make the payments due in or near the village to which thepayees belong, in order that the number of undisbursed sums tobe placed in deposit on account of non-attendance may be reducedto a minimum. Whenever payment is claimed through arepresentative whether before or after deposit of the amountawarded, such representative, must show legal authority forreceiving the compensation on behalf of his principal.”

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55. The Karnataka Land Acquisition Rules 1965 were also framedunder section 55 of the Land Acquisition Act, 1894. Similarly in the Stateof Kerala Rule 14(2) of the Land Acquisition (Kerala) Rules, 1990 wereframed under section 55 of the Act of 1894 provided that the paymentrelating to an award shall be made or the amount credited to the court orRevenue deposit (Treasury) within one month from the date of award.

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56. The state of Assam has also framed the rules dealing withdeposit in exercise of power under Section 55 of the Act of 1894. Rule9 whereof provides that on failure to collect the compensation iflandowner/interested person does not appear, and do not apply for areference to the civil court under section 18, the Collector shall afterCmaking endeavour to secure their attendance or make payment thatmay seem desirable, cause the amounts due to be paid into the Treasuryas revenue deposits payable to the persons to whom they are respectivelydue, and vouched for in the form prescribed or approved by Governmentfrom time to time. He shall also give notice to the payee of such deposits,Dspecifying the Treasury in which the deposits have been made. Whenno reference is sought for amount has to be deposited in treasury only.Rule 9 of Assam Rules is extracted hereunder:

“9. In giving notice of the award under section 12(2) and tenderingpayment under section 31(1), to such of the persons interested aswere not present personally or by their representatives when theaward was made, the Collector shall require them to appearpersonally or by representatives by a certain date, to receivepayment of the compensation awarded to them intimating alsothat no interest will be allowed to them, if they fail to appear. Ifthey do not appear and do not apply for a reference to the CivilCourt under section 18, he shall, after any further endeavour tosecure their attendance or make payment that may seem desirable,cause the amounts due to be paid into the WW as revenue depositspayable to the persons to whom they are respectively due, andvouched for in the form prescribed or approved by Governmentfrom time to time. He shall also give notice to the payees of suchdeposits, specifying the Treasury in which the deposits have beenmade. When the payees ultimately claim payment of sums placedin deposit, the amount will be paid to them in the same manner asordinary revenue deposits. The Collector should, as far as possible,arrange to make the payment due in or near the village to which E

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INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [ARUN MISHRA, J.]

the land pertains in order that the number of undisbursed sum tobe placed in deposit on account of nonattendance may be reducedto a minimum. Whenever payment is claimed through arepresentative, such representative, must show legal authority forreceiving the compensation on behalf of the principal.”

57. Identical is the rule for Bihar and Orissa. Similar instructionshave been issued by the other State Government so as to deal withpublic money. They have the force of law. The duty of the court is toharmonize rules with provision of Act. In State of West Bengal alsosimilar rules had been framed under section 55 of the Act of 1894.

58. Standing Order No.28 issued in 1909 the State of Punjab isapplicable to Delhi also, provides 5 modes of payment in Para 74 and 75based on Government of India’s orders, which are extracted hereunder:

“74. Methods of making payments-There are five methods ofmaking payments:

(1) By direct payments, see paragraph 75(I) infra

(2) By order on treasury, see paragraph 75(II) infra

(3) By Money Order, see paragraph 75(III) infra

(4) By cheque, see paragraph 75(IV) infra

(5) By deposit in a treasury, see paragraph 75(V) infra

75. Direct payments

(V) By treasury deposit-In giving notice of the award Under Section12(2) and tendering payment Under Section 31(1) to such of thepersons interested as were not present personally or by theirrepresentatives when the award was made, the officer shall requirethem to appear personally or by representatives by a certain dateto receive payment of the compensation awarded to them,intimating also that no interest will be allowed to them if they failto appear, if they do not appear and do not apply for a referenceto the civil court Under Section 18, the officer shall after anyfurther endeavours to secure their attendance that may seemdesirable, cause the amounts due to be paid to the treasury asrevenue deposited payable to the persons to whom they are A

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Arespectively due and vouched for in the Form marked E below.The officer shall also give notice to the payees of such deposits,specifying the treasury in which the deposit has been made. Whenthen payees ultimately claim payment of sums placed in deposit,the amounts will be paid to them in the same manner as ordinaryrevenue deposit. The officer should, as far as possible, arrange toBmake the payments due in or near the village to which the payeebelong in order that the number of un-disbursed sums to be placedin deposits on account of non-attendance may be reduced to aminimum. Whenever payment is claimed through a representativewhether before or after deposit of the amount awarded, suchCrepresentative, must have legal authority for receiving thecompensation on behalf of his principal.”

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59. In Delhi Development Authority v. Sukhbir Singh & Ors.(2016) 16 SCC 258. This court with respect to mode under section 31(1)has held:

“18. Para 73 makes it clear that payment may be accepted eitherwithout protest or under protest, and Paragraph 74 makes it clearthat there are five methods of making payment. The first fourmethods are all methods strictly in consonance with Section 31 ofthe Land Acquisition Act in that they are all direct payments thathave to be made to persons ready to accept compensation. Thisis clear from a reading of sub-paragraphs (I) to (IV) of paragraph74. Even the second method, which is payment by order on thetreasury, is a direct method of payment in cases where no officeris specially deputed for acquisition of land. In such cases insteadof making a direct payment, a receipt is countersigned making itimmediately payable at the treasury to the payee. Otherwise, incertain circumstances, payment is to be made by money orderand/or by cheque. When we come to paragraph (V), it is clearthat payment is made into the treasury only when persons whoare served notice Under Section 12(2) are not present personallyat the time the award is delivered. Even though they may notappear at that stage, the officer shall require them to appearpersonally or by representatives by a certain date to receivepayment of compensation awarded. It is only if they fail to appearafter such an intimation, and if the officer, after further endeavoursto secure their attendance, cannot so secure their attendance,that amounts due are to be paid to the treasury as revenue depositedpayable to persons to whom they are due. It is clear, therefore,that sub-para (V), when read in its proper perspective, is not aseparate mode of payment by itself as is contended by learnedCounsel for the Appellants. It is a residuary mode of paymentafter all necessary efforts have been made by the authorities tosecure the attendance of the persons entitled to compensation,and it is only after all such methods have failed that, as a lastresort, the money is then to be deposited in the treasury. In anycase, such deposit in the treasury is referable only to Section 31(1)and cannot ever be a substitute for deposit before the referencecourt as provided Under Section 31(2) of the Land AcquisitionAct, which applies in the circumstances mentioned in the aforesaidSub-section.

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AWe agree with aforesaid part of Sukhbir Singh (supra) relatedto section 31(1), however, not with respect to part relating section 31(2).

60. It is apparent from rules that when no reference is sought onrefusal to accept, amount is to be deposited in treasury. Rules have tobe harmonized with the provision in the Act, thus, it would be necessaryBto deposit in court when reference is sought. Thus, under section 31(2)provision of deposit in court on refusal would be attracted, when reference had been sought, as provided in rules. Section 31(2) does not come inplay at all in cases of refusal to accept amount when reference has notbeen sought and deposit in treasury would be valid deposit even otherwisewhere reference is sought and person refuses to accept it only liabilityCof non-compliance of deposit in Court would be higher interest undersection 34.

61. Though as per subsection (2) of section 31 in the certainexigencies the amount has to be deposited in court where the referencewould be made, it does not cover the entire situation when it is not possibleDto disburse the compensation and deposit in treasury has to be made asper rules and if not deposited in Court at the most would be merely aprocedural irregularity and the maximum liability would be as envisagedunder section 34 of Act of 1894 in case it has not been “tendered”. Dueto non deposit at the most it could be said that amount could not beEinvested in Government security etc. under section 32 or 33 of Act of1894. In such securities the interest is not more than 15 % as such.

62. Moreover, the proviso to section 24(2) which prescribes amountto be deposited with respect to ‘majority of holding’, in the account ofbeneficiaries, it is not provided that such amount has to be deposited inFcourt. Section 31 of the Act of 1894 does not deal with the deposit of theamount with respect to “the majority of holdings” in the court in theaccount of landowners. Section 31(2) of the Act of 1894 onlycontemplates certain exigencies i.e. (1) refusal to accept, and referenceis sought (2) incompetence to alienate the land, (3) there is dispute as toentitlement or (4) apportionment and authority decides not to disburseGcompensation in later two exigencies. In such cases, it has to be depositedin court. It is not necessary to make tender of amount of compensationunder Section 31(1) in the 3 latter exigencies provided in section 31(2)itself. The proviso to section 24(2) of the Act of 2013 does not envisageany of the exigencies as contemplated under section 31(2) it clearlyHdeals with deposit of money before the Land Acquisition Collector or in the treasury with respect to “majority of the holding” as the State/authoritywho is acquiring the land or has acquired it, must have arrangement topay the money to the landowners and in case such money has not beendeposited with the Land Acquisition Collector or with the treasury or inany other permissible mode consequence enumerated in proviso to follow,regarding payment of higher compensation under the Act of 2013 to allland holders. In the Treasury also separate accounts are opened of thelandowners and money is kept in such separate accounts. As is apparentfrom the standing order 28 of Punjab and the rules framed under section55 of Act of 1894 by various State Governments in case the amount hasbeen deposited as per the proviso to section 24(2) in the treasury or withthe Land Acquisition Collector with respect to majority of the holdingthe provisions contained in proviso to section 24(2), in our opinion, wouldbe fully complied with.

63. A perusal of Section 24(2)of the Act of 2013 shows that theexpression ‘paid’ does not include deposit in it. The expression ‘deposit’would include deposit in terms of the rules also. Section 24(2) does not,in any manner, lay down that the amount cannot be said to have been‘deposited’ even when a deposit is made in terms of the mandatoryrules, or in accordance with the applicable instructions. ‘Deposit-in-treasury’ is stipulated under the rules made with reference to aconstitutional provision, so also framed under Section 55 of the 1894

Act, as well as under other statutory or administrative powers. Thedeposit in treasury is not, in any manner, invalid. If the deposit is valid,there is no reason to hold that the said deposit has to be ignored.Government finances, after all, have to be handled as per the applicablerules. The deposit in treasury was as per binding procedural rules/ordersissued by Government of India and/or in exercise of the powers underArticle 283 of the Constitution of India.

PRACTICAL DIFFICULTY ON REFUSAL/NON ACCEPTANCEOF COMPENSATION BY CONDUCT, PRACTICE AND LEGALPOSITION UNDER ACT OF 1894.

64. One mode of refusal to acceptance of compensation is whenit is tendered, it is refused. Another mode is of filing a litigation to questionthe very land acquisition, filing application for an interim stay and contestingit for decades reflects clear conduct of nonacceptance of acquisition/compensation. State authorities cannot retain the money in their ownhands in such circumstances and are bound to deposit the Government AB

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Amoney where it is supposed to be i.e. in the treasury as provided inrules. Thus, by conduct also, there can be non-acceptance ofcompensation. Once compensation is accepted, right to challengeacquisition would vanish. State authorities are not expected to retain themoney with them and run after the landowners and match with theirdilatory tactics with vigil to find out that one ultimate day, the litigationBwould attain finality. Once by their conduct, there is refusal to acceptthe land acquisition itself, much less compensation, in such circumstancessuch landowners have to inform the authorities about the outcome of thelitigation and in case they have lost, to ask for compensation. Authoritiesare not supposed to be on vigil so as to ascertain after lapse of so muchCtime even after decades in new generation, who has received thecompensation and who has not received the compensation. There is nosuch data readily available to them. Thus once by conduct, suchlandowners refuse to accept the land acquisition/compensation, so as tosaddle liability on authority, they have to inform the outcome/ willingness to the concerned authorities to apply for payment and to show theirDreadiness to accept. Same would be the position in case amount isdeposited in court. They have to apply for its withdrawal. The obligationof authorities is at initial stage. At subsequent stage, unless and untilthere is willingness shown by landowners/interested persons to accept the compensation, authorities cannot presume that they would accept itEand that landowners are not going to question acquisition in the higherforum and it is not open to the authorities to offer to them compensationtime and again, once amount is deposited in treasury during the pendencyof litigation. In case of landowner interdict, initial offer/ tender by refusalor otherwise by questioning the land acquisition itself would mean theydo not want to accept the compensation, is reflected by their conduct inFthe litigation. In case of interim stay also authorities cannot offer thecompensation as that would tantamount to violation of court’s order andafter interim stay ceases to operate, it is for the landowners to apprisethe authorities of their intention not to take the litigation further and theirwillingness to accept compensation. Section 24(2) does not provide coverGto such litigation. The intent of 2013 Act has been discussed in DDA v.Sukhbir Singh (supra) thus:

“13. The picture that therefore emerges on a reading of Section24(2) is that the State has no business to expropriate from a citizenhis property if an award has been made and the necessary stepsHto complete acquisition have not been taken for a period of five INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [ARUN MISHRA, J.]

years or more. These steps include the taking of physical possessionof land and payment of compensation. What the legislature is ineffect telling the executive is that they ought to have put theirhouse in order and completed the acquisition proceedings within areasonable time after pronouncement of award. Not having doneso even after a leeway of five years is given, would cross thelimits of legislative tolerance, after which the whole proceedingwould be deemed to have lapsed. It is important to notice that theSection gets attracted if the acquisition proceeding is not completedwithin five years after pronouncement of the award.”

The intent is that authority to complete acquisition within five years,the legislature frowns upon delay of more than five years.

65. In case it is held in spite of refusal to receive payment, it isnecessary to deposit in Court, most of the acquisition would lapse. Theacquisition of Raisina Hills in Lutyen’s zone of Delhi made in 1913 wasquestioned in said case but this Court never intended such misuse of theprovision. There is no dearth of ingenuity left in misusing the provisionsof section 24 of the 2013 Act whereas it is meant to beneficial legislation.Its intention is to resettle the incumbents to offer better compensation ascompared to the 1894 Act. In the various ways, the provision has beensought to be blatantly misused. The law never envisages such absurdresults as is being sought to be achieved. The beneficial provisions of2013 Act are put to misuse that tantamounts to grossest abuse of theprovisions of law to reopen such acquisitions and court has to thwart allsuch attempts at threshold and not to receive such cases even forconsideration for a moment. We see development has taken place in thearea that has been acquired, there have been several rounds of litigationwhich have been lost by landowners even up to this Court; thereaftersome persons are filing cases on the basis of power of attorneys or saledeeds which are not permissible after land has vested in the State andpurchase after issuance of notification under section 4 is illegal and voidand no such right is given to such incumbents to re-open the wholegamut of issues and to even contend that acquisition has lapsed underthe provisions of the 2013 Act.

66. The law as prevailed under the Act of 1894 never invalidatedany land acquisition in the absence of amount being deposited in courtsince the time immemorial in most cases where reference is not sought,amount had been invariably deposited in the Treasury as provided in AB

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Astatutory rules framed under section 55 of Act of 1894 and other standingorder issued by State Governments, and there were decisions of thisCourt which have simply laid down that in case landowner is notresponsible for delay in payment, at the most he may be entitled to intereston such amount, in case it has not been tendered/paid to him whenpossession has been taken. Similar provisions are made under sectionsB77 and 80 of the Act of 2013. All of a sudden it would not be appropriateconsidering the statutory rules which have been framed under section55 of the Act of 1894 and order to invalidate all such land acquisitionswhich have taken place in various States in the country by laying downthat once amount has not been deposited in the court but in treasury,Cacquisitions would lapse under section 24. It will be a very harsh operationof law as old Act never provided for such a consequence since 1894 theAct was enacted till new 2013 Act came into force. Same is notconsequence in case acquisition is made under Act of 2013 is apparentfrom conjoint reading of sections 77 and 80 thereof. When there were

such anomalous situation, the statutory rules and statutory orders issuedDby various State Governments dealing how the Government money hasto be dealt with, it would not be appropriate to unsettle the legal position.The 1894 Act never contemplated such result and by and large, it wasnot the practice to deposit in court. Only in those cases the amount usedto be deposited in court, where reference was sought under sections 18Eor 30, as provided under rules also and there was dispute as to personentitled to it or apportionment thereof between the claimants. Primarilyit is for the Land Acquisition Collector to distribute the compensationand poor farmers are not supposed to know the court and place wherethe reference would be made, if it was not sought person would notknow a place where it would not be submitted to court, the question ofFdeposit in court would not arise. The court is not disbursing authority ofcompensation when reference is not sought. Farmers/ claimants areprimarily concerned with the Land Acquisition Collector and for morethan one century this procedure of deposit in treasury was prevailingand by and large amounts had been deposited in the treasury only andGthus it would not be appropriate to make the operation of law to be suchas to invalidate land acquisition when deposit is made in Treasury. Suchan interpretation is not permissible as per the intendment of the Act of2013. Though it is a beneficial law to benefit the incumbents it cannot beinterpreted to be a law which would be to invalidate concluded transactionas per prevailing law and divest the land which has vested in State,H

development has taken place, possession taken, awards passed, afterlitigation/several rounds of litigation lost and then land cannot be orderedto revert back. The law does not intend that effect, as it may be termedas arbitrary and beyond legislative competence. We have to prevent themisuse of provisions and avoid anomalous results.

67. The court has to be cautious and duty-bound to prevent suchmisuse of the provisions of law and to make the purposive interpretation,considering the experience and after-effect of decisions. At the sametime we have to forward the intendment and spirit of the provisions ofthe Act of 2013 to benefit farmers, at the same time, not to thwart theentire development which has taken place or to burden the Exchequerwith such liability which is not contemplated in the Act of 2013 andinvalidate acquisitions that have taken place in 1912, 1950s and 1960sonwards and have attained finality, as are sought to be reopened underthe guise of 2013 Act taking advantage of the aforesaid technical aspect.Courts are duty-bound to thwart all such attempts as the land which hasbeen acquired long back, it would not be possible to make payment ofcompensation as of the rate as provided in the Act of 2013 to undeservingpersons at the cost of public revenue, and it would not be appropriate tointerpret the provisions in such a manner to entertain stale and deadclaims and to revive them on the ground of technical and proceduraldefaults, if any, and created by landowners conduct. The intendment ofsection 24 is that acquisition to be completed early. If authorities for nogood cause fail to take steps for five years or more on their own thelapse of acquisition under section 24 to follow.

68. It would be appropriate to refer to maxim - “Omnis InnovatioPlus Novitate Perturbat Quam Utilitate Prodest” i.e. ‘Every innovationmade has to be, ultimately, adjudged from stand point of the events thatfollow it’; and, when we consider the after-effects of the decision inPune Municipal Corporation (supra), the fact leaps out at us that,there being no dearth of unyielding ‘talent’ in this regard, tenacious effortsare being made at mis-utilizing the dictum contained in the said decision,by finding out ever newer and innovative methods to do so.

PREJUDICE DUE TO NON-DEPOSIT IN COURT

PREJUDICE DUE TO NON-DEPOSIT IN COURT

69. Yet another aspect arises, as to, what prejudice or injusticewould be caused in case the amount is not deposited in the court and isdeposited in the treasury particularly when the provision contained in A

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Asection 31 of the Act of 1894 has to be read conjointly with those insection 34. As per the provisions contained in section 34, a person canclaim the interest in case amount is not deposited as envisaged undersection 31(2) if authorities are at fault. Even assuming that amount isrequired to be deposited only in the court where reference would bemade and deposit in the treasury is not a permissible mode of deposit, asBper the mode prescribed by law in section 31(2) of the Act of 1894. It istrite law that in the given situation unless aggrieved party makes out acase of prejudice and injustice, every infraction of law would not vitiatethe act. This court in Jankinath Sarangi v. State of Orissa (1969) 3SCC 392 observed:C“5. From this material, it is argued that the principles of naturalJustice were violated because the right of the appellant to havehis own evidence recorded was denied to him and further that thematerial which was gathered behind his back was used indetermining his guilt.

DIn support of these contentions, a number of rulings are citedchief among which are State of Bombay v. NurulLatif Khan 19662 L.L.J.595 State of Uttar Pradesh and another v. C.S. Sharma1969 1 L.L.J. 509 and Union of India v. T.R. Varma 19582L.L.J.259EThere is no doubt that if the principles of natural Justice are violatedand there is a gross case, this Court would interfere by strikingdown the order of dismissal; but there are cases and cases.

We have to look to what actual prejudice has been caused to aperson by the supposed denial to him of a particular right.”F70. In Sunil Kumar Banerjee v. State of West Bengal, (1980) 3SCC 304, it was observed:

“3. ......It may be noticed straightaway that this provision is akinto Section 342 of the Criminal Procedure Code of 1898 and Section313 of the Criminal Procedure Code of 1974. It is now wellGestablished that mere non-examination or defective examinationUnder Section 342 of the 1898 Code is not a ground forinterference unless prejudice is established, vide, K.C. Mathewv. State of Travancore-Cochin 1956 CriLJ 444, Bibhuti BhusanDas Gupta and Anr. v. State of West Bengal 1969 CriLJ 654......”

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Similar view of the matter is taken in State of Andhra Pradeshv. Thakkidiram Reddy, (1998) 6 SCC 554; Willie (William) Slaney v.State of Madhya Pradesh, AIR 1956 SC 116; Abdul Sayeed v. Stateof Madhya Pradesh, (2010) 10 SCC 259; State of Punjab v.DavinderPal Singh Bhullar, AIR 2012 SC 364; and Bahamans v. Stateof Karnataka, (2012) 9 SCC 650.

CONSEQUENCE OF NOT DEPOSITING THE AMOUNT UNDERSECTION 31 OF THE 1894 ACT :

71. The expression used in section 31 is not “paid”, it is only “tenderpayment” and there is obligation to pay compensation unless preventedby a cause under sub-section (2) of section 31. In case there is disputeas to person entitled to compensation or its apportionment in betweenperson interested or person was not even competent to make alienationof property that has been acquired it would not be necessary to tenderamount as it may not be so done due to said exigencies as authority maydecide not to pay it till court orders then it is to be deposited in court tosave further liability of exorbitant interest under section 34 of the Act of1894. Collector need not tender the payment invariably. It can bedeposited in the court in the exigencies as provided in section 31(2).Apart from that section 31(2) does not cover all the exigencies and itdoes not require that invariably the compensation has to be depositedwith the court. it is only when reference is sought that reference courtcomes to picture not otherwise as provided in rules/ orders in case personrefuses and seeks a reference to court it has to be deposited in courtwhere reference would be submitted otherwise as provided in the rulesit has to be deposited in treasury. It is only when court comes into playthen deposit in reference court is required in exigencies of section 31(2)read with 32 as provided in rules. Even section 31(2) comes into play to“tender payment” is obligatory provision. Tender of payment is completewhen it is made unconditionally available it could not have been equatedwith the deposit in court under section 31(2) or 24(2) of old and newActs respectively as these are two different exigencies and consequenceof non-payment of compensation is clearly culled out in section 34. Thereis a liability for payment of interest. This court in Delhi DevelopmentAuthority v. Sukhbir Singh & Ors. [(2016) 16 SCC 258], hasconsidered modes of payment in section 31(1) and has held in Para 18quoted above that deposit in the treasury is residuary mode of paymentunder section 31(1) of Act of 1894.

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A72. This court has considered the question of effect of non-depositin Hissar Improvement v. Smt. Rukmani Devi & Anr., AIR 1990 SC2033 and observed that in case of compensation is not being paid ordeposited in time in court before taking possession of the land, Collectorhas to deposit the amount awarded in section 31 failing which he is liableto pay interest as provided in section 34. The Court has observed:B

“5. It cannot be gainsaid that interest is due and payable to thelandowner in the event of the compensation not being paid ordeposited in time in court. Before taking possession of the land,the Collector has to pay or deposit the amount awarded, as statedin Section 31, failing which he is liable to pay interest as providedCin Section 34.

6. In the circumstances, the High Court was right in stating thatinterest was due and payable to the landowner. The High Courtwas justified in directing the necessary parties to appear in theexecuting court for determination of the amount.”D

73. In Kishan Das & Ors. v. State of U.P. & Ors. (1995) 6 SCC240 this Court has laid down that in case the landowners have themselvesdelayed in disposal of acquisition proceedings, cannot claim higher rateof interest as that would amount to payment of premium for dilatorytactics. Even the interest under section 34 cannot be claimed as a matterEof right. In case a person is indulging in litigation for adopting dilatorytactics, no divesting of land is provided under the Act of 1894 in case itis not deposited in court. Neither it is so provided in section 24(1) of the2013 Act. The obligation to pay is discharged as soon as it is tenderedunconditionally and made available to the landowners. Thereafter thereFis no further obligation to deposit it in court so as to save the acquisition.Only to save acquiring body from liability to pay interest at exorbitantrates, it may be deposited in court in certain cases where referencecourt comes into picture to discharge obligation by State but deposit inCourt would not be payment to landowners. In case there is failure onthe part of the State authorities in depositing the compensation in courtGin the given exigencies then only the provisions of section 34 would beattracted and it would be then for the court to examine in each casewhether it would make order for the higher rate of interest and examineif it was due to failure of the State authorities and in case possession hasbeen taken then liability may arise to make payment of interest it cannot H

be premium for dilatory tactics of landowners that they can claim evenhigher rate of interest.

74. In Seshan & Ors. v. Special Tehsildar & Land AcquisitionOfficer, SPICOT, Pudukkottai (1996) 8 SCC 89 this Court laid downthat in case compensation is not deposited after expiry of one year, theprovisions of section 34 would be attracted so as to claim the interest @15%, it shall be interest payable on compensation not paid or depositedafter expiry of one year, and 9% for first year both from the date oftaking possession till date of payment or deposit in court.

75. In D Block Ashok Nagar (Sahibabad) Plot Holders’Association (Regd.) v. State of U.P. & Ors. (1997) 10 SCC 77, thisCourt has held that liability to pay interest under section 34 arises fromthe date of taking possession.

76. Thus, when the Act of 1894 provides the consequence ofnon-deposit in the in Court. In our opinion deposit in Treasury ispermissible mode of deposit under the proviso to section 24(2) and withinthe purview of main section 24(2), the word “paid” could not have beentaken to include the “deposit”, it is contemplated in proviso only, and incase with respect to the “majority of holding” the amount is not depositedin the account of beneficiary/landowner in case award has been passedbefore five year or more then acquisition would not lapse however allbeneficiary/landowners would become entitled to higher compensationas provided in the Act of 2013. The expression “deposited in the accountof landowners” would not mean deposited in the court as envisaged inSection 31(2) of the old Act, action as permissible as per the financialinstructions having statutory or administrative orders having force oflaw as well as under the Rules framed by various State Governments inexercise of power under section 55 of Act of 1894 can always be taken.In various States, Financial Code/Order/Rules deals with Governmentmoney and as such amount is required to be deposited in the Treasuryby opening separate accounts of landowners/beneficiaries/claimants thatwould be full compliance of the proviso of section 24(2) of new Act. InDelhi Development Authority v. Sukhbir Singh & Ors. also, this courthas rightly held that deposit in treasury by Land Acquisition Collector ispermissible mode of deposit under section 31(1).

77. In Mahavir & Ors. v. Union of India, [SLP [C] No. 26281/2017] this Court has held:

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A“9. Section 31(1) of the Act requires tender of compensation whichis tendered in terms of section 12 of the Act. Section 12 providesa mode of informing claimants as to compensation. Section 31(2)of the Act requires Collector to deposit amount in court in case itis not received by the persons interested or there is some dispute.Under the Act, the deposit is required only with a view to avoidingBliability to pay interest. Deposit in the Court is not a paymentmade to the owner. It is only to avoid liability to pay interest thattoo at higher rates on the failure of deposit. Once it is depositedthe liability to pay interest ceases. Section 34 of the Act makes itclear that if the compensation is not deposited on or before takingCthe possession of the land, interest at the rate of nine percent shallfollow from the time of so taking the possession until compensationso paid or deposited in the court. The proviso to section 34 makesit clear that in case it is not so deposited in court as per section31(1) within a period of one year from the date of taking possessioninterest at the rate of 15 percent per annum shall be payable.DThus, it is clearly provided under section 34 that interest at therate of 15 percent per annum shall be payable from the date ofexpiry of the said period of one year till it is so paid or deposited.As soon as the deposit is made under Section 31(2) of the Act,liability ceases to make the payment of interest on the compensationEamount so deposited.”

78. Reliance was placed by landowners on the decision in NazirAhmed v. King Emperor, AIR 1936 PC 253 (2), wherein the courtobserved, that “where a power is given to do a certain thing in a certainway, the thing must be done in that way or not at all. Other methods of Fperformance are necessarily forbidden”. There is no dispute with thesaid proposition, and the same has been followed by this Court umpteennumber of times. However, the consistent practice that has been followedin land acquisition cases is that it is only when reference is sought, andthe amount has not been paid for one or other reason as per section31(2), that the amount is deposited in the court to which the referenceGwould be submitted, and not otherwise. The action is as per rules. Theamount of compensation, qua the incumbents/landowners who have notsought the reference, is ordinarily deposited in treasury, by openingaccounts in their separate names; the same is apparent from the forms,rules framed under section 55 of 1894 Act and various statutory orders H

issued by various State Governments. Section 31(2) cannot be said to becovering all the exigencies of depositing amount. It was not necessaryfor various other exigencies to deposit the amount in the Court. Particularlyin view of the Government rules and instructions in financial matterswhich were binding and consistently followed by making the deposit intreasury for more than 100 years since 1894.

WHETHER SECTION 24(2) DIVESTS THE STATE OF LAND

Issues

79. The question arises when there is absolute vesting of the landin the State under the provisions of the Act of 1894 whether it can bedivested by virtue of the provisions made in section 24 of 2013 Act. Theconcept of absolute vesting in the State under Act of 1894 is well settledand on award being passed, possession being taken, compensation beingoffered but refused, section 24 would not apply in such a situation todivest the State if the land is acquired. No different intention appearsfrom section 24 to divest the land once it has absolutely vested in theState in accordance with the provisions of the Act of 1894. Merely byobtaining interim order or keeping the litigation pending or filing it afreshthat too by way of stale and belated claim after the Act of 2013 hascome into force, no divesting of land is contemplated. It is only inexigencies provided deemed lapse take place either when possessionnot taken or compensation not paid as provided in Section 24(2) andwhere award has not been passed, the provisions of section 24 of Act of2013 applies. In a catena of decisions, this Court has laid down that asprovided in section 16 of the Act of 1894, when an award is passed andpossession is taken, the land vests absolutely in the Government freefrom all encumbrances the only legality of procedure is open to beingquestioned. The provision contained in section 17(1) also provides absolutevesting in the Government free from all encumbrances in the case ofurgency even before passing of an award.

80. The vested right cannot be taken away. In Black’s LawDictionary “vested” is defined thus:

“vested, adj. (18c) Having become a completed, consummatedright for present or future enjoyment; not contingent; unconditional;absolute a vested interest in the estate.

“Unfortunately, the word ‘vested’ is used in two senses. Firstly,an interest may be vested in possession, when there is a rightto present enjoyment, e.g. when I own and occupy Blackacre.

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But an interest may be vested, even where it does not carry aright to immediate possession if it does confer a fixed right oftaking possession in the future.” George Whitecross Paton, ATextbook of Jurisprudence 305 (CW. Paton & David P. Derhameds., 4th ed. 1972).

“A future interest is vested if it meets two requirements: first,that there be no condition precedent to the interest’s becominga present estate other than the natural expiration of thoseestates that are prior to it in possession; and second, that it betheoretically possible to identify who would get the right topossession if the interest should become a present estate atany time.” Thomas F. Bergin 8. Paul C. Haskell, Preface toEstates in Land and Future Interests 66-67 (2d ed. 1984).”

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In Webster’s Dictionary, it is defined as:

“vested adj. [pp. of vest] 1. Clothed; robed, especially in churchvestments. 2. inlaw, fixed; settled; absolute; not contingent uponanything: as, a vested interest.”

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81(a). In State of Punjab v. Sadhu Ram, 1996 (7) JT 118, thisCourt has laid down that when possession is taken by the Governmentafter passing of the award and compensation has been paid, right, titleEand interest of the owner stand extinguished. Government becomesabsolute owner of the said land. No one can claim any title/equitable titleby remaining in possession thereafter. This Court has observed:

“3. The learned Judge having noticed the procedure prescribed indisposal of the land acquired by the Government for public purposeshas held that the said procedure was not followed for surrenderingthe land to the erstwhile owners. The respondent had purchasedthe land had improved upon the land and is, therefore, entitled tobe an equitable owner of the land. We wholly fail to appreciatethe view taken by the High Court. The learned Judge had netreferred to the relevant provisions of the Act and law. It is anundisputed fact that consequent upon the passing of the awardunder Section 11 and took possession of the land, by operation ofSection 16 of the Act, the right, title and interest of the erstwhileowner stood extinguished and the Government became absoluteowner of the property free from all encumbrances. Thereby, noone has nor claimed any right, title and interest in respect of the F

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INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [ARUN MISHRA, J.]

acquired land. Before the possession could be taken, theGovernment have power under Section 48(1) of the Act to denotifythe land. In that event, land is required to be surrendered to theerstwhile owners. That is not the case on the facts of this case.Under these circumstances, the Government has become theabsolute owner of the property free from all encumbrances, unlessthe title is conferred on any person in accordance with a procedureknown to law, no one can claim any title much less equitable titleby remaining in possession. The trial Court as well as the appellateCourt negatived the plea of the respondent that he was inductedinto possession as a lessee for a period of 20 years. On the otherhand, the finding was that he was in possession as a lessee onyearly basis. Having lawfully come into possession as a lessee ofthe Government, Session 116 of Evidence Act estops him fromdenying title of the Government and set it up in the third party. Bydisclaiming Government title, he forfeited even the annual lease.Under these circumstances, having come into possession as alessee, after expiry and forfeiture of the lease, he has no right.Illegal and unlawful possession of the land entails payment ofdamages to the Government.” (emphasis supplied)

81(b). In Star Wire (India) Ltd. v. State of Haryana & Ors.(1996) 11 SCC 698, this Court has laid down that when award has beenpassed, possession has been taken, land vests in the State free from allencumbrances. Any encumbrance created by erstwhile owner afterpublication of notification under section 4 has no valid title and is notbinding on the State. Subsequent purchaser has no right to challenge thelegality of acquisition proceedings. This Court has laid down thus:

“2. Shri P.P. Rao, learned senior counsel for the petitioner, contendsthat the petitioner had no knowledge of the acquisition proceedings;as soon as it came to know of the acquisition, it had challengedthe validity of the acquisition proceedings and, therefore, it furnishescause of action to the petitioner. He further contends that the writpetition could not be dismissed on the ground of laches but wasrequired to be considered on merits. We find no force in thecontention. Any encumbrance created by the erstwhile owner ofthe land after publication of the notification under Section 4(1)does not bind the State if the possession of the land is alreadytaken over after the award came to be passed. The land stood AB

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Avested in the State free from all encumbrances under Section 16.In Gunnukh Singh and Ors. v. The State of Haryana JT (1995) 8SC 208, this Court has held that a subsequent purchaser is notentitled to challenge the legality of the acquisition proceedings onthe ground of lack of publication of the notification.In Y.N. Gargv. State of Rajasthan [1996] 1 SCC 284 and SnehPrabha v. StateBof U.P. [1996] 7 SCC 325, this Court had held the alienationsmade by the erstwhile owner of the land after publication of thenotification under Section 4(1), do not bind either the StateGovernment or the beneficiary for whose benefit the land wasacquired. The purchaser does not acquire any valid title. Even theCcolour of title claimed by the purchaser was void. The beneficiaryis entitled to have absolute possession free from encumbrances.In U.P. Jal Nigam, Lucknow through its Chairman and Anr. v.M/s. Kalra Properties (P) Ltd., Lucknow, and Ors. [1996] 1SCC 124, this Court had further held that the purchaser of theproperty, after the notification under Section 4(1) was published,Dis devoid of right to challenge the validity of the notification orirregularity in taking possession of the land before publication ofthe declaration under Section 6. As regards laches in approachingthe Court, this Court has been consistently taking the view startingfrom State of Madhya Pradesh and Anr. v. Bhailal Bhai and Ors.E[1964]6SCR261 wherein a Constitution Bench had held that it isnot either desirable or expedient to lay down a rule of universalapplication but the unreasonable delay denies to the petitioner, thediscretionary extraordinary remedy of mandamus, certiorari orany other relief. The same was view reiterated in catena ofdecisions, viz., F

Rabindranath Bose and Ors. v. The Union of India and Ors.[1970]2SCR697 ; State of Mysore and Ors. v. Narsimha Ram Naik,[1976]1SCR369 ; GAflatoon and Anr. v. Lt. Governor of Delhi [1975]1SCR802 ; M/s. TilokchandMotichand and Ors. v. H.B. Munshi, Commissionerof Sales Tax, Bombay, and Anr. [1969]2SCR824 ; State of Tamil Nadu and Ors. Etc. v. L. Krishnan and Ors. Etc.,(1996)1SCC250 ; H

Improvement Trust, Faridkot, and Ors. v. Jagjit Singh and Ors. ;State of Punjab and Ors. v. Hari Om Co-operative House BuildingSociety Ltd., Amritsar; Market Committee, Hodal v. KrishanMurariand Ors. , (1996)1SCC311 and; State of Haryana v. Dewan Singh AIR1996SC675

wherein this Court had held that the High Court was not justifiedin interfering with the acquisition proceedings. This Court in thelatest judgment in Municipal Corporation of Great Bombay v.The Industrial Development & Investment Co. Pvt. Ltd. andOrs., AIR1997SC482 , reviewed the entire case law and heldthat the person who approaches the Court belatedly will be toldthat laches close the gates of the Court for him to question thelegality of the notification under Section 4(1), declaration underSection 6 and the award of the Collector under Section 11.”(emphasis supplied)

81(c). In Market Committee v. Krishan Murari (1996) 1 SCC311 award was passed, possession was taken; it was observed that theland vests in the Government free from all encumbrances. In PuttuLal(dead) by LRs. v. State of U.P. & Anr. (1996) 3 SCC 99, possessionhad been taken and compensation paid to the owner. It was held thatland vests in the State free from all encumbrances. Consequently, Statebecomes absolute owner and is entitled to file suit for possession.

81(d). The word “vest” has been considered by this Court in Fruitand Vegetable Merchants Union v. Delhi Improvement Trust, AIR1957 SC 344, to mean that the property acquired becomes the propertyof the Government without any condition or limitation either as to title orpossession. Thus when there is absolute vesting in the State it is vestingalong with possession and thereafter a person who remains in possessionis only a trespasser not in rightful possession. Vesting cannot beconsidered with any rider as to title or possession. Vesting contemplatesabsolute title, possession in the State as laid down in the aforesaiddecisions. Of course, the procedure of vesting can be looked by court ifquestioned and once entry is handful, it vests absolutely in State and theAct of 2013 does not reopen and divest State Government of the land.2013 Act would come only in the cases where vesting of land has nottaken place in the State Government. In Fruit and Vegetable Merchants A

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AUnion v. Delhi Improvement Trust, AIR 1957 SC 344, this Court hasobserved thus:

“25. That the word “vest” is a word of variable import is shownby provisions of Indian statutes also. For example, s. 56 of theProvincial Insolvency Act (5 of 1920) empowers the court at theBtime of the making of the order of adjudication or thereafter toappoint a receiver for the property of the insolvent and furtherprovides that “such property shall thereupon vest in the receiver.”The property vests in the receiver for the purpose of administeringthe estate of the insolvent for the payment of his debts afterrealising his assets. The property of the insolvent vests in theCreceiver not for all purposes but only for the purpose of theInsolvency Act and the receiver has no interest of his own in theproperty. On the other hand, Sections 16 and 17 of the LandAcquisition Act (Act I of 1894), provide that the property soacquired, upon the happening of certain events, shall “vestDabsolutely in the Government free from all encumbrances”. Inthe cases contemplated by Sections, 16 and 17 the propertyacquired becomes the property of Government without anyconditions or limitations either as to title or possessions. Thelegislature has made it clear that the vesting of the property is notfor any limited purpose or limited duration. It would thus appearEthat the word “vest” has not got a fixed connotation, meaning inall cases that the property is owned by the person or the authorityin whom it vests. It may vest in title, or it may vest in possession,or it may vest in a limited sense, as indicated in the context inwhich it may have been used in a particular piece of legislation.FThe provisions of the Improvement Act, particularly Sections 45to 49 and 54 and 54A when they speak of a certain building orstreet or square or other land vesting in a municipality or otherlocal body or in a trust, do not necessarily mean that ownershiphas passed to any of them.”

G81(e). In Mosammat Bibi Sayeeda v. State of Bihar (1996) 9SCC 516, the concept of “vest” has been discussed thus:

“17. The word ‘vested’ is defined in Black’s Law Dictionary(6th Edn.) at p. 1563 as:

“Vested; fixed; accrued; settled; absolute; complete. Having the H

character or given the rights of absolute ownership; not contingent;not subject to be defeated by a condition precedent.”

Rights are ‘vested’ when right to enjoyment, present or prospective,has become property of some particular person or persons aspresent interest; mere expectancy of future benefits, or contingentinterest in property founded on anticipated continuance of existinglaws, does not constitute vested rights. In Webster’sComprehensive Dictionary, (International Edn.) at p. 1397‘vested’ is defined as:

“[L]aw held by a tenure subject to no contingency; complete;established by law as a permanent right; vested interests.”

In State of W.B. v. Suburban Agriculture Dairy & Fisheries(P) Ltd., the question was whether after the abolition of the estateunder the West Bengal Estates Acquisition Act, 1953 (1 of 1954)the fishery right of the intermediary was saved by that Act? ABench of three Judges had held in paragraphs 9 and 11 that thepre-existing rights of the intermediary in the estate to which thedeclaration applied, shall stand vested in the State free from allencumbrances. Section 6 does not have the effect of divestingthe State of the vested right, title and interest of the intermediary.One of the rights is the right to take possession of the land held bythe intermediary. The section excluded the operation of Sections4 and 5, viz., the interest of the respondent to retain khas possessionwas saved subject to his making the application in the prescribedform. It was held that the fishery rights stood vested in the State.

18. In Brighu Nath Sahay Singh v. Mohd. Khalilur Rahmanthe appellants were proprietors of certain lands in Touzi (new)No. 8655 in Saraunja village in District Begusarai in Bihar whichwas sought to be declared as private lands in a civil suit. Thecourts granted the decree but the High Court reversed the decree.On appeal, this Court had held that on publication of the notificationunder Section 3, the lands stood vested in the State. The pre-existing right, title, and interest held by the appellants stood ceased.They cannot, therefore, claim khas possession of the lands inoccupation of the tenants.

19. In Labanya Bala Devi v. State of Bihar Patna Secretariat,the tank and tankail settled by the intermediary were held to have AB

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Abeen vested in the State after the Act had come into force.Therefore, the pre-existing rights of the tenure-holder in the tankstood ceased since they were not saved under Section 6(1)(b) ofthe Act.

20. It would thus be clear that on and with effect from the date ofBthe publication of the notification under Section 3, the totality ofthe right, title and interest held by an intermediary stands abolished.The consequences thereof, as enumerated in Section 4(a), isextinguishment of the pre-existing right, title and interest over theentire estate including the enumerated items in Section 4(a) whichinclude hats and bazars in the State and the pre-existing right, titleCand interest held by the intermediary/tenure-holder stood divested.”

“Vest” means an absolute or indefeasible right. Thus, the provisionscontained under the Act of 2013 have not taken vested rights away.

81(f). In J. S. Yadav v. State of Uttar Pradesh (2011) 6 SCCD570, this Court has observed:“20. “The word ‘vested’ is defined in Black’s Law Dictionary(6th Edition) at page 1563, as:

vested; fixed; accrued; settled; absolute; complete. Having thecharacter or given the rights of absolute ownership; notEcontingent; not subject to be defeated by a condition precedent.’

Rights are ‘vested’ when right to enjoyment, present or prospective,has become property of some particular person or persons aspresent interest; mere expectancy of future benefits, or contingentinterest in property founded on anticipated continuance of existingFlaws, does not constitute vested rights. In Webster’sComprehensive Dictionary (International Edition) at page 1397,‘vested’ is defined as :

Law held by a tenure subject to no contingency; complete;established by law as a permanent right; vested interest.”G(See Mosammat Bibi Sayeeda and Ors. etc. v. State of Bihar andOrs. etc. AIR 1996 SC 1936 at SCC p.527, para 17)

21. The word “vest” is normally used where an immediate fixedright in present or future enjoyment in respect of a property iscreated. With the long usage, the said word “vest” has also acquiredH

a meaning as “an absolute or indefeasible right”. It had a“legitimate” or “settled expectation” to obtain right to enjoy theproperty etc. Such “settled expectation” can be renderedimpossible of fulfillment due to change in law by the Legislature.Besides this, such a “settled expectation” or the so-called “vestedright” cannot be countenanced against public interest andconvenience which are sought to be served by amendment of thelaw. (Vide: Howrah Municipal Corpn. and Ors. v. Ganges RopeCo. Ltd. and Ors. (2004) 1 SCC 663.

22. Thus, “vested right” is a right independent of any contingency.Such a right can arise from a contract, statute or by operation oflaw. A vested right can be taken away only if the law specificallyor by necessary implication provide for such a course.”

82. On proper reading of section 24, it is clear that no divesting iscontemplated under the provision. Provisions of section 24 when awardis passed, possession is taken, compensation has been tendered, vestingtakes place. There is no deemed lapse under section 24 in such a case.In case of urgency also before award is passed as provided in section17(1), 17(3A) vesting takes place on fulfillment of conditions.

83. It is settled law that accrued rights cannot be taken away byrepealing statutory provisions. The repealing law must provide for takingaway such rights expressly or by necessary implications. There is nosuch express provision or necessary implication. The beneficialintendment of proviso to section 24(2) is that acquiring body must havearrangement of money for payment of compensation with respect tomajority of holding. It never envisages misuse of the provision. Lawdoes not contemplate or permit a litigant to misuse of the provisions.Law does not permit court cover to be used as shield when there is nolegality in the claim and one cannot be permitted to reap the fruits ofone’s own dilatory tactics, money power to litigate till eternity. The Actnowhere intends that only litigating incumbents who are not acceptingacquisition have to be given the benefit of Act of 2013. Those who haveobtained interim orders under guise of prima facie case anyhow orsomehow without any basis, without merit in their claim, cannot beprotected by providing shelter under the protective umbrella of section24(2) of the Act of 2013.

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A84. There are various decisions which have been rendered interse parties declining the challenge to land acquisition. It has been held inthe previous judgments that the land is vested in the State and acquisitionhas been legally made and possession has been taken and such incumbentsare responsible for not receiving compensation. Now those judgmentsare sought to be get rid of under the subsequent legislation, particularlyBunder section 24 of the Act of 2013.

85. In relation to the maxim ‘nemo debet bis vexari pro una eteadem causa’, which means that it is a rule of law that a man shouldnot be twice vexed for one and the same cause, Broom, in Legal Maxims,has discussed thus:C

“When a party to litigation seeks improperly to raise again theidentical question which has been decided by a competent Court,a summary remedy may be found in the inherent jurisdiction which our Courts possess of preventing an abuse of process.”

DThus, the provisions of section 24 cannot be interpreted by ignoringand overlooking the previous verdicts. What has been held in them isbinding and rights cannot be taken away. When issues raised withinsection 24 have already been decided and vesting has already takenplace it is final. Exception as carved out in section 24 when award hasnot been passed under section 24(1)(a) for determination of compensationEonly the provisions of the Act of 2013 would apply. Once possession hasbeen taken Compensation tendered but not accepted under section 17(1)of the Act or section 16 of Act of 1894 vesting takes place.

IN RE: QUESTION NO.II: MODE OF TAKING PHYSICALPOSSESSION AS CONTEMPLATED UNDER SECTION 24(2) OFFACT OF 2013 AND THE ACT OF 1894:

86. Intrinsically connected with Question No.1 is the question oftaking physical possession as contained in section 24(2) of Act of 2013when it can be said that possession has been taken. When we considerthe same, question arises what is the meaning of “physical possessionGnot taken” in section 24(2) when the State is involved in taking possessionof the property acquired it can take possession by drawing a Panchnama.The normal rule of State possessing the land through some persons wouldnot be applicable in such cases. On open land, possession is deemed tobe of owner. When the State acquired the land and has drawnmemorandum of taking possession that in the way the State takeH

possession of large chunk of property acquired as State is not going toput other persons in possession or its police force or going to cultivate itor start residing or physically occupy it after displacing who werephysically in possession as in the case of certain private persons, in casethey re-enter in possession of open land, start cultivation or residing inthe house. Lawful possession is deemed to be of the State. This Court ina number of decisions has accepted the mode of drawing Panchnamaby State consistently to be a mode of taking possession.

87(a). In Balwant Narayan Bhagde v. M.D. Bhagwat & Ors.,(1976) 1 SCC 700 in the majority view, it was held that the act of Tehsildarin going on the spot and inspecting the land was sufficient to constitutetaking of possession. Neither the Government nor the Commissionercould withdraw from the acquisition of the land under section 48(1) ofthe Act. This Court observed thus:

“28. We agree with the conclusion reached by our brother Untwalia,J., as also with the reasoning on which the conclusion is based.But we are writing a separate judgment as we feel that thediscussion in the judgment of our learned brother Untwalia, J., inregard to delivery of ‘symbolical’ and ‘actual’ possession underRules 35, 36, 95 and 96 of Order XXI of the CPC, is not necessaryfor the disposal of the present appeals’ and we do not wish tosubscribe to what has been said by our learned brother Untwalia,J., in that connection, nor do we wish to express our assent withthe discussion of the various authorities made by him in hisjudgment. We think it is enough to state that when the Governmentproceeds to take possession of the land acquired by it under theLand Acquisition Act, 1894, it must take actual possession of theland since all interests in the land are sought to be acquired by it.There can be no question of taking ‘symbolical’ possession in thesense understood by judicial decisions under the CPC. Nor wouldpossession merely on paper be enough. What the Act contemplatesas a necessary condition of vesting of the land in the Governmentis the taking of actual possession of the land. How such possessionmay be taken would depend on the nature of the land. Suchpossession would have to be taken as the nature of the land admitsof. There can be no hard and fast rule laying down what, actwould be sufficient to constitute taking of possession of land. Weshould not, therefore, be taken as laying down an absolute and AB

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Ainviolable rule that merely going on the spot and making adeclaration by beat of drum or otherwise would be sufficient toconstitute taking of possession of land in every case. But here, inour opinion, since the land was lying fallow and there was no cropon it at the material time, the act of the Tehsildar in going on thespot and inspecting the land for the purpose of determining whatBpart was waste and arable and should, therefore, be takenpossession of and determining its extent, was sufficient to constitutetaking of possession. It appears that the appellant was not presentwhen this was done by the Tehsildar, but the presence of theowner or the occupant of the land is not necessary to effectuateCthe taking of possession. It is also not strictly necessary as a matterof legal requirement that notice should be given to the owner orthe occupant of the land that possession would be taken at aparticular time, though it may be desirable where possible, to givesuch notice before possession is taken by the authorities, as thatwould eliminate the possibility of any fraudulent or collusiveDtransaction of taking of mere paper possession, without theoccupant or the owner ever coming to know of it.”

87(b). In Tamil Nadu Housing Board v. A.Viswam (Dead) byLRs., (1996) 8 SCC 259, this Court has held that recording ofmemorandum/ Panchnama by Land Acquisition Officer in the presenceEof witnesses signed by them would constitute taking possession of land.This Court observed:

“8. It is settled law by series of judgments of this Court that oneof the accepted modes of taking possession of the acquired landis recording of a memorandum or Panchnama by the LAO in theFpresence of witnesses winged by him/them and that wouldconstitute taking possession of the land as it would be impossibleto take physical possession of the acquired land. It is commonKnowledge that in some cases the owner/interested person maynot co-operate in taking possession of the land.”

G87(c). In Banda Development Authority, Banda v. Moti LalAgarwal & Ors. (2011) 5 SCC 394 this Court observed that preparing aPanchnama is sufficient to constitute taking of possession. If acquisitionis of a large tract of land, it may not be possible to take physical possessionof each and every parcel of the land and it would be sufficient thatHsymbolic possession is taken by preparing an appropriate document in the presence of independent witnesses and getting their signatures. Evensubsequent utilization of a portion of acquired land for public purposewas still sufficient to prove taking possession. This Court in BandaDevelopment Authority (supra) has considered various decisions andlaid down thus:

“37. The principles which can be culled out from the above-notedjudgments are:

i) No hard and fast rule can be laid down as to what act wouldconstitute taking of possession of the acquired land.

ii) If the acquired land is vacant, the act of the concerned Stateauthority to go to the spot and prepare a panchnama will ordinarilybe treated as sufficient to constitute taking of possession.

iii) If crop is standing on the acquired land or building/structureexists, mere going on the spot by the concerned authority will, byitself, be not sufficient for taking possession. Ordinarily, in suchcases, the concerned authority will have to give notice to theoccupier of the building/structure or the person who has cultivatedthe land and take possession in the presence of independentwitnesses and get their signatures on the panchnama. Of course,refusal of the owner of the land or building/structure may not leadto an inference that the possession of the acquired land has notbeen taken.

iv) If the acquisition is of a large tract of land, it may not bepossible for the acquiring/designated authority to take physicalpossession of each and every parcel of the land and it will besufficient that symbolic possession is taken by preparingappropriate document in the presence of independent witnessesand getting their signatures on such document.

v) If beneficiary of the acquisition is an agency/instrumentality ofthe State and 80% of the total compensation is deposited in termsof Section 17(3A) and substantial portion of the acquired land hasbeen utilized in furtherance of the particular public purpose, thenthe Court may reasonably presume that possession of the acquiredland has been taken.”

87(d). In State of Tamil Nadu & Anr. v. Mahalakshmi Ammal& Ors. (1996) 7 SCC 269, this Court has held: “Possession of the acquired A

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Aland would be taken only by way of memorandum, Panchnama which isa legally accepted form.” This Court observed:

“9. It is well settled law that publication of the declaration underSection 6 gives conclusiveness to public purpose. Award was madeon September 26, 1986 and for Survey No. 2/11 award was madeBon August 31, 1990. Possession having already been undertakenon November 24, 1981, it stands vested in the State under Section16 of the Act free from all encumbrances and thereby theGovernment acquired absolute title to the land. The initial awardhaving been made within two years under Section 11 of the Act,the fact that subsequent award was made on 31st August, 1990Cdoes not render the initial award invalid. It is also to be seen thatthere is stay of dispossession. Once there is stay of dispossession,all further proceedings necessarily could not be proceeded withas laid down by this Court. Therefore, the limitation also does notstand as an impediment as provided in the proviso to Section 11ADof the Act. Equally, even if there is an irregularity in service ofnotice under Sections 9 and 10, it would be a curable irregularityand on account thereof, award made under Section 11 does notbecome invalid. Award is only an offer on behalf of the State. Ifcompensation was accepted without protest, it binds such partybut subject to Section 28A. Possession of the acquired land wouldEbe taken only by way of a memorandum, Panchanama, which is alegally accepted norm. It would not be possible to take any physicalpossession. Therefore, subsequent continuation, if any, had by theerstwhile owner is only illegal or unlawful possession which doesnot bind the Government nor vested under Section 16 divested inFthe illegal occupant. Considered from this perspective, we holdthat the High Court was not justified in interfering with the award.”

87(e). In Balmokand Khatri Educational and Industrial Trustv. State of Punjab (1996) 4 SCC 212 it was observed that it is difficultto take physical possession of land under compulsory acquisition. TheGnormal rule of taking possession is drafting the Panchnama in the presenceof Panchas, is accepted mode of taking possession of land. This Courtobserved:

“4. It is seen that the entire gamut of the acquisition proceedingsstood completed by April 17, 1976, by which date possession ofthe land had been taken. No doubt, Shri Parekh has contended H

that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possessionof the land under compulsory acquisition. The normal mode oftaking possession is drafting the Panchanama in the presence ofPanchas and taking possession and giving delivery to thebeneficiaries is the accepted mode of taking possession of theland. Subsequent thereto, the retention of possession wouldtantamount only to illegal or unlawful possession.

5. Under these circumstances, merely because the appellantretained possession of the acquired land, the acquisition cannotbe said to be bad in law. It is then contended by Shri Parekh thatthe appellant-Institution is running an educational institution andintends to establish a public school and that since other land wasavailable, the Government would have acquired some other landleaving the acquired land for the appellant. In the counter-affidavitfiled in the High Court, it was stated that apart from the acquiredland, appellant also owned 482 canals 19 marlas of land. Thereby,it is seen that the appellant is not disabled to proceed with thecontinuation of the educational institution which it seeks to establish.It is then contended that an opportunity may be given to theappellant to make a representation to the State Government. Wefind that it is not necessary for us to give any such liberty sinceacquisition process has already been completed.”

87(f). In P. K. Kalburqi v. State of Karnataka & Ors. (2005)12 SCC 489, this Court held that if land were vacant and unoccupied,taking symbolical possession would be enough. This Court held that incase land was vacant only symbolical possession could be taken andsuch possession would amount to vesting the land in the Government.Thus power under section 48 could not be exercised.

87(g). In Raghbir Singh Sehrawat v. State of Haryana & Ors.(2012) 1 SCC 792, it was observed:

“28. If the Appellant’s case is examined in the light of thepropositions culled out in Banda Development Authority, Bandav. MotiLalAgarwal and Ors. we have no hesitation to hold thatpossession of the acquired land had not been taken from theAppellant on 28.11.2008, i.e. the day on which the award was AB

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Adeclared by the Land Acquisition Collector because crops werestanding on several parcels of land including the Appellant’s landand possession thereof could not have been taken without givingnotice to the landowners. That apart, it was humanly impossibleto give notice to large number of persons on the same day andtake actual possession of land comprised in various survey numbersB(total measuring 214 Acres 5 Kanals and 2 Marlas).”

This Court has laid down that since the land was lying fallow withno crop on it, the Tehsildar going on the spot and inspecting the land wasenough to constitute taking possession. No notice was required to begiven to the occupant of the land.

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87(i). In Om Prakash Verma & Ors. v. State of Andhra Pradesh& Ors. (2010) 13 SCC 158, this Court observed:

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“85. As pointed out earlier, the expression `civil appeals are allowed’carry only one meaning, i.e., the judgment of the High Court is setaside and the writ petitions are dismissed. Moreover, thedetermination of surplus land based on the declaration of ownershas become final long back. The notifications issued under Section10 of the Act and the panchanama taken possession are also final.On behalf of the State, it was asserted that the possession ofsurplus land was taken on 20.07.1993 and the Panchanama wasexecuted showing that the possession has been taken. It is signedby witnesses. We have perused the details which are available inthe paper book. It is settled law that where possession is to betaken of a large tract of land then it is permissible to take possessionby a properly executed Panchanama. [videSita Ram BhandarSociety, New Delhi v. Lieutenant Governor, Govt. of NCT, Delhi(2009) 10 SCC 501].

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86. It is not in dispute that the Panchnama has not been questionedin any proceedings by any of the appellants. Though it is statedthat Chanakyapuri Cooperative Society is in possession at onestage and ShriVenkateshawar Enterprises was given possessionby the owners and possession was also given to Golden Hill H

Construction Corporation and thereafter it was given to thepurchasers, the fact remains that the owners are not in possession.In view of the same, the finding of the High Court that thepossession was taken by the State legally and validly through aPanchnama is absolutely correct and deserves to be upheld.”

87(j). In M. Venkatesh & Ors. v. Commissioner, BangaloreDevelopment Authority etc. (2015) 17 SCC 1, a three-Judge Bench ofthis Court has opined:

“17. To the same effect are the decisions of this Court in AjayKrishan Shinghal v. Union of India, Mahavir v. Rural Institute,Gian Chand v. Gopala, Meera Sahni v. Lt. Governor of Delhiand Tika Ram v. State of U.P. More importantly, as on the date ofthe suit, the respondents had not completed 12 years in possessionof the suit property so as to entitle them to claim adverse possessionagainst BDA, the true owner. The argument that possession ofthe land was never taken also needs notice only to be rejected forit is settled that one of the modes of taking possession is by drawinga panchnama which part has been done to perfection accordingto the evidence led by the defendant BDA. Decisions of this Courtin T.N. Housing Board v. A. Viswam and Larsen & Toubro Ltd.v. State of Gujarat, sufficiently support BDA that the mode of”taking possession adopted by it was a permissible mode.

87(k). However, view has been taken in Velaxan Kumar v. Unionof India & Ors. (2015) 4 SCC 325 that actual physical possession isrequired to be taken and the court has seen the photographs to hold thatpossession was not taken. The view taken in Velaxan Kumar (supra)cannot be said to be correct and in accordance with law. Drawing ofPanchnama is the accepted mode of taking possession and oncePanchnama has been drawn in the presence of witnesses, in casePanchnama has been signed by official witnesses as to its correctnessas there is presumption of correctness of the official act under section114 of the Act of 2013. A photograph cannot show actual/ legal possessionmuch less proof of possession as person may enter/re-enter by committingtrespass to have photographed. That would not negate the proceedingsheld for taking possession and drawing panchnama.

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A87(l). In Raghbir Singh Sehrawat (supra) also the observationshave been made that it was not possible to take possession of the entireland in a day, cannot be accepted. The State is not going to put their ownpersons/ police/ or other officials to possess the land. Thus the mode oftaking possession by drawing Panchnama has been accepted in a largenumber of decisions, which appears to be the consistent view of thisBCourt, and must prevail.

87(m). In Narmada Bachao Andolan v. State of MadhyaPradesh & Anr. AIR 2011 SC 1989, this Court has observed that itwould depend upon the facts of individual case whether possession hasbeen taken or not. However, this Court had appointed a CommissionerCin the said case to find out the possession on the spot and DVDs. andCDs were seen to hold that landowners were in possession. DistrictJudge, Indore, recorded the statements of the tenure-holders, which werereferred to by this Court in the said judgment. Said decision has to betreated as confined to its own facts, as the mode adopted for determiningDthe possession by the help of Commissioner is doubtful. TheCommissioner could not have determined the factum of possession. It isthe function of the court and this cannot abdicate to Commissioner itsfunction. Even under Order XXVII CPC function of Commissioner isnot to determine possession and once possession has been taken, whetherthere was re-entry or trespass had not been examined in the said case.EHowever, statements recorded by the District Judge were also takeninto consideration in Narmada Bachao Andolan (supra). The decisionin said case is to be taken as confined to the facts and cannot be said tobe of universal application. Subsequent DVD/CD are not going to establishwhether possession, in fact, was taken earlier. Such mode of determiningFthe possession by subsequent material is not of much value as there canbe re-entry in possession after possession had been taken. In the decisionof Banda Development Authority (supra), it appears that the law laiddown has been properly discussed and propositions have been laid downproperly.

G88. We find that while this Court examined several aspects of thematter in Banda Development Authority, Banda versus Moti LalAgarwal [(2011) 5 SCC 394], contrary view has been taken in somesubsequent judgments. In Banda Development Authority (supra), thisCourt has held that if land was vacant, going to the spot and preparing apanchnama by a state authority would ordinarily be treated as sufficientHto constitute the taking of possession. If crop is standing, notice was required to be given to the occupier of building or structure and thereaftertaking possession in presence of independent witnesses and in spite ofrefusal by the owner did not mean that possession of the has not beentaken. If acquisition is of a large tract of land, it would not be possible totake physical possession of each and every parcel of such land. Taking‘symbolic’ possession, by preparing an appropriate document, in presenceof independent witnesses, was sufficient. Where urgency clause wasinvoked and substantial portion of land was acquired or utilized infurtherance of the particular public purpose, taking of possession waspresumed. Utilization of a major portion of acquired land for publicpurpose was itself sufficient to prove taking over possession.

89. We find that in Velaxan Kumar versus Union of India [(2015)4 SCC 325], the Court held that Section 24(2) of the 2013 Act being abenevolent provision, even though possession had been taken, but if dueprocedure was not followed and, the photographs showed that thelandowners were in possession, the proceedings would lapse. Such aview, in our opinion, is contrary to the settled law as referred to in BandaDevelopment Authority (supra). The same will, accordingly, standoverruled.

In Re: Question No.III :

WHETHER SECTION 24 OFTHE ACT OF 2013 REVIVESSTALE/ BARREDCLAIMS?

90. In several cases, the challenge to the acquisition has becomestale and otherwise barred. The question arises whether a beneficialprovision of section 24 of the Act of 2013 revives such claims and theCourts can entertain them.

91. Arguments to the effect, that section 24 of the Act of 2013does have the effect of re-opening claims of the beneficiaries, quaacquisitions that had, in certain instances, been made as far back as thefirst and the second decade of the 20[th] century or decades before, arebeing routinely urged before various courts, including this Court and isinvolved in several instant cases. To that end, proceedings are beingfiled anew, even though everything appertaining the concerned acquisitionproceedings, including several rounds of legal challenge to the same, hasattained finality decades ago. The question is whether it is permissible toassert for resuscitation of such claims, placing them under the umbrellaof the provisions of Section 24.

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A92. An instance of such a claim, put forth before this Court, wasargued and decided within the confines of the case titled as Mahavir &Ors. v. Union of India & Anr., numbered as SLP (C) No. 26281/2017,decided on 8.9.2017. This was a petition filed with respect to an areaknown as the ‘Raisina Hills’, located in the ‘Lutyens Zone’ of NewDelhi.B

93. The question arose as to whether the court can interfere insuch cases? The Court’s discussion on the legal aspects involved inMahavir’s case (supra), and its decision thereon, is summarizedhereunder. The petition was dismissed on the ground of delay and laches,holding that it destroyed the remedy. It was further held that section 24Cdoes not revive non-existing or dead claims; it only ensures that claims,which were alive, would be examined.

94. In Mahavir’s case (supra), this Court has also referred to thedecision in Tamil Nadu Housing Board, Chennai v. M. Meiyappan &Ors. [(2010) 14 SCC 309], and in Jasveer Singh v. State of U.P. &DOrs. [(2017) 6 SCC 787]. The delay and laches are enough to destroythe remedy.

Mahavir’s case (supra) also contains the observation to the effectthat, if the conduct and neglect of the landowner or his successor isallowed to prevail, permitting them to assert their claim at this belatedEjuncture, it would place the Estate Authority in a position in which itwould not be reasonable to place them; and that in such cases, lapse oftime and delay are one of the most material considerations. The Court’sobservations in Mahavir’s case (supra) are extracted hereunder:

“15. In U.P. State Jal Nigam & Anr. v. Jaswant Singh & Anr.F(2006) 11 SCC 464 this court has observed that in determiningwhether there has been delay so as to amount to laches in casepetitioner/claimant is aware of the violation of the right, where aremedy by his conduct tantamount to waiver of it or where, by hisconduct or neglect, though not waiving the remedy, he has put theGother party in a position in which it would not be reasonable toplace him if the remedy were afterwards to be asserted. In suchcases lapse of time and delay are most material. Upon theseconsiderations rests the doctrine of laches.

16. The Constitution Bench of this court in Rabindranath Bose&Ors. v. Union of India &Ors. (1970) 1 SCC 84 has observed:

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INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [ARUN MISHRA, J.]

“32 …we are of the view that no relief should be given topetitioners who, without any reasonable explanation, approachthis Court under Article 32 of the Constitution after inordinatedelay. The highest Court in this land has been given OriginalJurisdiction to entertain petitions under Article 32 of theConstitution. It could not have been the intention that this Courtwould go into stale demands after a lapse of years. It is saidthat Article 32 is itself a guaranteed right. So it is, but it doesnot follow from this that it was the intention of the Constitutionmakers that this Court should discard all principles and grant”relief in petitions filed after inordinate delay.

(emphasis supplied)”

95. This Court, in Dharappa v. Bijapur Co-operative MilkProducers Societies Union Ltd. [(2007) 9 SCC 109], had an occasionto consider the effect and operation of section 10(4A) of the IndustrialDisputes Act, 1947; the section had been inserted via an amendmentmade to the Act. With regard to the same, the Court observed that delay,if has resulted in material evidence relevant to adjudication being lost orrendered unavailable, would be fatal. It was held that the time limit of 6months, prescribed by section 10(4A), should be interpreted so as not torevive stale and dead claims, for it would not be possible to defend suchclaims due to lapse of time and due to material evidence having beenlost or rendered unavailable. In Dharappa (supra), it was observed; “29. This Court while dealing with Section 10(1)(c)and (d) of theID Act, has repeatedly held that though the Act does not providea period of limitation for raising a dispute under Section 10(1)(c)or(d), if on account of delay, a dispute has become stale or ceasesto exist, the reference should be rejected. It has also held thatlapse of time results in losing the remedy and the right as well.The delay would be fatal if it has resulted in material evidencerelevant to adjudication being lost or rendered unavailable [vide -Nedungadi Bank Ltd. v. K.P. Madhavan Kutty (2000) I LLJ561 SC; Balbir Singh v. Punjab Roadways 2000 (8) SCALE180; Asst. Executive Engineer v. Shivalinga (2002) I LLJ 457SC; and S.M. Nilajkar v. Telecom DT. Manager (2003) II LLJ359 SC. When belated claims are considered as stale and non-existing for the purpose of refusing or rejecting a reference underSection 10(1)(c)or (d), in spite of no period of limitation being AB

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prescribed, it will be illogical to hold that the amendment to theAct inserting Section 10(4A)prescribing a time limit of six months,should be interpreted as reviving all stale and dead claims.

30. The object of Section 10(4A)is to enable workmen to applydirectly to the Labour Court for adjudication of disputes relatingto termination, without going through the laborious process ofseeking a reference under Section 10(1)of ID Act. The Legislativeintent was not to revive stale or non-existing claims. Section 10(4A)clearly requires that a workman who wants to directly approachthe Labour Court should do so within six months from the date ofcommunication of the order. Then come the words “or the date ofcommencement of the Industrial Disputes (KarnatakaAmendment) Act, 1987, whichever is later”. The reason for thesewords is obvious. In cases where the cause of action arose priorto 7.4.1988, some additional time had to be provided to make theprovisions effective. Let us take the example of a workman whohad received the termination order on 10-10-1987. IfSection 10(4A), which come into effect on 7.4.1988, had merelystated that the application had to be filed within six months fromthe date of communication, he had to file the application before10-4-1988, that is hardly three days from the date when theamendment came into effect. The Legislature thought thatworkmen should be given some reasonable time to know aboutthe new provision and take steps to approach the Labour Court.Therefore, all workmen who were communicated orders oftermination within six months prior to 7-4-1988 were given thebenefit of uniform six months time from 7-4-1988, irrespective of the date of expiry of six months. When a new remedy or relief isprovided by a statute, such a transitional provision is made to ensurethat persons who are given a special right, do not lose it for wantof adequate time to enforce it, though they have a cause of actionor right as on the date when the new remedy or relief comes intoeffect.

31. Section 10(4A)does not, therefore, revive non-existing or staleor dead claims but only ensures that claims which were live, byapplying the six month rule in Section 10(4A)as on the date whenthe Section came into effect, have a minimum of six months timeto approach the Labour Court. That is ensured by adding the words “or the date of commencement of the Industrial Disputes(Karnataka Amendment) Act, 1987, which is later” to the words“within six months from, the date of communication to him of theorder of discharge, dismissal, retrenchment or termination.” Inother words all those who were communicated orders oftermination during a period of six months prior to 7-4-1988 weredeemed to have been communicated such orders of terminationas on 7-4-1988 for the purpose of seeking remedy. Therefore, thewords “within six months from the date of commencement of theIndustrial Disputes (Karnataka Amendment) Act, 1987, whicheveris later” only enables those who had been communicated order oftermination within six months prior to 7-4-1988, to apply under”Section 10(4A).

96. The stale claims cannot be entertained even though no timelimit is prescribed, it was observed in State of Karnataka v. Laxuman[(2005) 8 SCC 709] thus:

“9. As can be seen, no time for applying to the court in terms ofsub-section (3) is fixed by the statute. But since the application isto the court, though under a special enactment, Article 137, theresiduary article of the Limitation Act, 1963, would be attractedand the application has to be made within three years of theapplication for making a reference or the expiry of 90 days afterthe application. The position is settled by the decision of this Courtin The Addl. Spl. Land Acquisition Officer,Bangalore v. Thakoredas, Major and Ors., AIR 1994 SC 2227 Itwas held:

“3. Admittedly, the cause of action for seeking a referencehad arisen on the date of service of the award underSection 12(2)of the Act. Within 90 days from the date of theservice of notice, the respondents made the applicationrequesting the Deputy Commissioner to refer the cases to theCivil Court under Section 18. Under the amended sub-section 3(a)of the Act, the Deputy Commissioner shall, within90 days from September 1, 1970 make reference underSection 18to the Civil Court which he failed to do . Consequently,by operation of subsection 3(b) with the expiry of theaforestated 90 days, the cause of action had accrued to therespondents to make an application to the Civil Court with a ABC

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prayer to direct the Deputy Commissioner to make a reference.There is no period of limitation prescribed in subsection 3(b) tomake that application but it should be done within limitationprescribed by the Schedule to the Limitation Act. Since noArticle expressly prescribed the limitation to make suchapplication, the residuary article under Article 137 of theSchedule to the Limitation Act gets attracted. Thus, it could beseen that in the absence of any special period of limitationprescribed by clause (b) of subsection (3) of Section 18of theAct, the application should have been made within three yearsfrom the date of expiry of 90 days prescribed in Section 18(3)(b)i.e. the date on which cause of action had accrued to therespondent-claimant. Since the applications had been admittedlymade beyond three years, it was clearly barred by limitation.Since, the High Court relied upon the case in MunicipalCorporation of Athani,(1969) IILLJ651SC, which has stoodoverruled, the order of the High Court is unsustainable.”

This position is also supported by the reasoning in Kerala StateElectricity Board v. T.P. Kunhaliumma, 1977] 1 SCR 996. It maybe seen that under the Central Act sans the Karnataka amendmentthere was no right to approach the principal civil court of originaljurisdiction to compel a reference and no time limit was also fixedfor making such an approach. All that was required of a claimantwas to make an application for reference within six weeks of theaward or the notice of the award, as the case may be. But obviouslythe State Legislature thought it necessary to provide a time framefor the claimant to make his claim for enhanced compensationand for ensuring an expeditious disposal of the application forreference by the authority under the Act fixing a time within whichhe is to act and conferring an additional right on the claimant toapproach the civil court on satisfying the condition precedent ofhaving made an application for reference within the timeprescribed.

10. A statute can, even while conferring a right, provide also for arepose. The Limitation Act is not an equitable piece of legislationbut is a statute of repose. The right undoubtedly available to alitigant becomes unenforceable if the litigant does not approachthe court within the time prescribed. It is in this context that it has been said that the law is for the diligent. The law expects a litigantto seek the enforcement of a right available to him within areasonable time of the arising of the cause of action and thatreasonable time is reflected by the various articles of the LimitationAct.”

97. Thus, when we ponder as to the instant case, qua the re-opening of stale claims under section 24 of the 2013 Act, no ‘Johnnycome lately’ can be permitted to assert that he is in possession (claimingthat physical possession has not been taken away from him), when suchassertion has not been made for decades together. Such claims wouldnot be revived after the person has slept over them; the courts must notcondone sudden wakefulness from such slumber, especially in relationto claims over open pieces of land, and even houses/structures, whenthe person may have illegally reentered into the possession or may havecommitted trespass. Thus, for the aforesaid reasons, such claims cannotbe entertained or adjudicated under section 24 of the 2013 Act.

98. In our considered opinion section 24 cannot be used to revivethe dead or stale claims and the matters, which have been contested upto this Court or even in the High Court having lost the cases or wherereference has been sought for enhancement of the compensation.Compensation obtained and still it is urged that physical possession hasnot been taken from them, such claims cannot be entertained under theguise of section 24(2). We have come across the cases in which findingshave been recorded that by which of drawing a Panchnama, possessionhas been taken, now again under Section 24(2) it is asserted again thatphysical possession is still with them. Such claims cannot be entertainedin view of the previous decisions in which such plea ought to have beenraised and such decisions would operate as res judicata or constructiveres judicata. As either the plea raised is negatived or such plea ought tohave been raised or was not raised in the previous round of litigation.Section 24 of the Act of 2013 does not supersede or annul the court’sdecision and the provisions cannot be misused to reassert such claimsonce over again. Once Panchnama has been drawn and by way ofdrawing the Panchnama physical possession has been taken, the casecannot be reopened under the guise of section 24 of Act of 2013.

99. Section 24 is not intended to come to the aid of those who firstdeliberately refuse to accept the compensation, and then indulge in ill-advised litigation, and often ill-motivated dilatory tactics, for decades A

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Atogether. On the contrary, the section is intended to help those who havenot been offered or paid the compensation despite it being the legalobligation of the acquiring body so to do, and/or who have been illegallydeprived of their possession for five years or more; in both the scenarios,fault/cause not being attributable to the landowners/claimants.

B100. We are of the view that stale or dead claims cannot be thesubject-matter of judicial probing under section 24 of the Act of 2013.The provisions of section 24 do not invalidate those judgment/orders ofthe courts where under rights/claims have been lost/negatived, neitherdo they revive those rights which have come barred, either due to inactionor otherwise by operation of law. Fraudulent and stale claims are not atCall to be raised under the guise of section 24. Misuse of provisions ofsection 24(2) cannot be permitted. Protection by the courts in cases ofsuch blatant misuse of the provisions of law could never have been theintention behind enacting the provisions of section 24 (2) of the 2013Act; and, by the decision laid down in Pune Municipal CorporationD(supra), and this Court never, even for a moment, intended that suchcases would be received or entertained by the courts.

IN RE: QUESTION NOS. IV AND V

IN RE: QUESTION NOS. IV AND V

101. Question Nos. IV and V have been referred to in YogeshNeema & Ors. v. State of M.P. & Ors. (supra) by this Court relating toEcorrectness of the decision in Shree Balaji Nagar ResidentialAssociation v. State of Tamil Nadu (supra) and conscious omissionreferred in para 11 of the said judgment makes any substantial differenceto the legal position with regard to the exclusion or inclusion of the periodcovered by an interim order of the Court and applicability of the principleFof “actus curiae neminem gravabit” and its effect on Section 24(3) ofAct of 2013.

102. In Yogesh Kumar & Ors. v. State of M.P., this Court hasdoubted the correctness of decision in Shree Balaji Nagar ResidentialAssociation (supra) in which this Court has observed:

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G“11. From a plain reading of Section 24 of the 2013 Act, it is clearthat Section 24(2) of the 2013 Act does not exclude any periodduring which the land acquisition proceedings might have remainedstayed on account of stay or injunction granted by any Court. Inthe same Act, the proviso to Section 19(7) in the context of limitationfor publication of declaration under Section 19(1) and theH

Explanation to Section 69(2) for working out the market value ofthe land in the context of delay between preliminary notificationunder Section 11 and the date of the award, specifically providethat the period or periods during which the acquisition proceedingswere held up on account of any stay or injunction by the order ofany Court be excluded in computing the relevant period. In thatview of the matter, it can be safely concluded that the legislaturehas consciously omitted to extend the period of five years indicatedin Section 24(2) even if the proceedings had been delayed onaccount of an order of stay or injunction granted by a Court oflaw or for any reason. Such casus omissus cannot be supplied bythe Court in view of law on the subject elaborately discussed bythis Court in Padma Sundara Rao v. State of T.N. (2002) 3 SCC533.

12. Even in the Land Acquisition Act of 1894, the legislature hadbrought about amendment in Section 6 through an AmendmentAct of 1984 to add Explanation I for the purpose of excluding theperiod when the proceeding suffered stay by an order of the Court,in the context of limitation provided for publishing the declarationunder Section 6(1) of the Act. To a similar effect was theExplanation to Section 11-A which was added by AmendmentAct 68 of 1984. Clearly, the legislature has, in its wisdom, madethe period of five years under Section 24(2) of the 2013 Act absoluteand unaffected by any delay in the proceedings on account of anyorder of stay by a Court. The plain wording used by the legislatureare clear and do not create any ambiguity or conflict. In such asituation, the Court is not required to depart from the literal rule ofinterpretation.”

In Shree Balaji (supra) a Division Bench of this Court has opinedthat their conscious omission made by the legislature in section 24(2) ofAct, 2013 to exclude the period covered by the interim order of theCourt staying the acquisition proceedings, this Court has observed thatin the Act of 1894 by making amendment of the provisions contained insections 6 and 11A by providing extension of period of limitation theperiod during which interim order of the court has operated has beenexcluded. It has not been so provided in Section 24(2), reference hasalso been made in Shree Balaji, to the decision of a 3-Judge Bench ofthis Court in Union of India v. Shiv Raj (2014) 6 SCC 564. The Division ABCDE

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ABench in Yogesh Kumar & Ors. v. State of Madhya Pradesh andOrs. while referring the matter to the larger Bench has observed that inUnion of India & Anr. v. Shiv Raj (supra), there is no view expressedon the question whether the period during which the award had remainedstayed, should be excluded for the purpose of consideration of theprovisions of section 24(2) of the Act of 1894. A doubt has been expressedBas to the correctness of the decision in Shree Balaji (supra) on theground that it is an established principle of law that the act of courtcannot be construed to cause prejudice to any of the contesting partiesin litigation which is expressed in the maxim ‘actus curiae neminemgravabit’.CEFFECT OF INTERIM ORDER OF A COURT

103. It was contended on behalf of the landowners that there wasinterim stay only with respect to obtaining the possession and not withrespect to payment of compensation. Thus compensation ought to havebeen paid. While raising aforesaid submission the basic concept ofDacquisition under 1894 Act is ignored and overlooked as right to receivecompensation is a statutory right and that comes into being only whenthe Government takes possession of the property acquired. It is a ‘rightin debitum in praesenti’, and not dependent on the quantum of thecompensation, either by the Land Acquisition Officer under section 11Eof the Act or by Court under section 26 of the Act of 1894. Section 17(1)also provides that compensation has to be offered when the possessionis taken and in case interim stay on possession is obtained in any litigationor orders of status quo and or such other order is passed, it is not open tosuch persons to contend that they ought to have been paid thecompensation notwithstanding that they have been resisting the acquisitionFand taking of possession.

104. In our opinion, when there is interim stay with respect topossession or order of status quo or stay on further proceedings etc.,there is no justification for authorities to proceed any further with respectto payment of compensation or otherwise as these obligations areGintertwined in the scheme of land acquisition. Everything stands still tillthe interim order is vacated. There are cases also in which we havecome across that the High Court in writ petition has illegally set asidethe acquisition on impermissible reasons and during the pendency of thewrit appeal or matter before this Court, the provisions of Act of 2013have come into force. Such matters have to be decided on their ownH

merits and the benefit of any illegal quashment of land acquisition by theHigh Court cannot come in the way of adjudication of the dispute onmerits considering situation when it was filed as Act does not covercause of illegal order, in view of the provisions contained in repeal andsaving in section 114 of the Act of 2013 read with and section 6(e) of theGeneral Clauses Act and no different intention appears in such mattersin view of provisions contained in section 24 of the Act of 2013.

105(a). In Abhey Ram (Dead) by LRs. & Ors. v. Union of India& Ors. (1997) 5 SCC 421, this Court considered the extended meaningof words “stay of the action or proceedings” and referring to variousdecisions observed that any type of the orders passed by this Courtwould be an inhibitive action on the part of the authorities to proceedfurther. In said decision this Court has observed thus :

“9. Therefore, the reason given in B.R. Gupta v. U.O.I. and Ors.37(1989) DLT 150 are obvious with reference to the quashing ofthe publication of the declaration under Section 6 vis-a-vis thewrit petitioners therein. The question thus arise for considerationis: whether the stay obtained by some of the persons whoprohibited the respondents from publication of the declaration underSection 6 would equally be extendible to the cases relating to theappellants? We proceed on the premise that the appellants hadnot obtained any stay of the publication of the declaration butsince the High Court in some of the cases has, in fact, prohibitedthem as extracted hereinbefore, from publication of the declaration,necessarily, when the Court has not restricted the declaration inthe impugned orders in support of the petitioners therein, theofficers had to hold back their hands till the matters are disposedof. In fact, this Court has given extended meaning to the orders ofstay or proceeding in various cases, namely, YusufbhaiNoormohmed Nendoliya v. State of Gujarat and Anr.AIR1991SC2153;Hansraj Jain v. State of Maharashtra and Ors.(1993) 4 JT 360; Sangappa Gurulingappa Sajjan v. State ofKamataka and Ors. (1994) 4 SCC 145; Gandhi Grah NirmanSahkari Samiti Ltd. Etc. Etc. v. State of Rajasthan andOrs.JT(1993) 3 194; G. Narayanaswamy Reddy (dead) by Lrs.and Anr. v. Govt. of Karnataka and Anr. JT (1991) 312 andRoshnara Begum Etc. v. U.O.I. and Ors.(1986) 1 apex Dec 6.Thewords “stay of the action or proceeding” have been widely AB

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Ainterpreted by this Court and mean that any type of the orderspassed by this Court would be an inhibitive action on the part ofthe authorities to proceed further. When the action of conductingan enquiry under Section 5-A was put in issue and the declarationunder Section 6 was questioned, necessarily unless the Court holdsthat enquiry under Section 5-A was properly conducted and theBdeclaration published under Section 6 to be valid, it would not beopen to the officers to proceed further into the matter. As aconsequence, the stay granted in respect of some would beapplicable to others also who had not obtained stay in that behalf.We are not concerned with the correctness of the earlier directionCwith regard to Section 5-A enquiry and consideration of objectionsas it was not challenged by the respondent union. We express noopinion on its correctness, though it is open to doubt.”

105(b). In Om Parkash v. Union of India & Ors. (2010) 4 SCCD17, this Court observed thus :

“72. Thus, in other words, the interim order of stay granted in oneof the matters of the landowners would put complete restraint onthe respondents to have proceeded further to issue notificationunder Section 6 of the Act. Had they issued the said notificationEduring the period when the stay was operative, then obviouslythey may have been hauled up for committing contempt of court.The language employed in the interim orders of stay is also suchthat it had completely restrained the respondents from proceedingfurther in the matter by issuing declaration/ notification underSection 6 of the Act.”F

105(c). In Shiv Raj (supra), it was noted by this Court that therewas stay of dispossession when the writ petition was pending but thisCourt passed no interim order. There was no stay for the last 7 yearsGand thereafter respondent took no action in pursuance of the award.That was also one of the distinguishing features of Shiv Raj’s case(supra) and it was largely based upon circular issued on the basis of theopinion of the Solicitor General.

INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [ARUN MISHRA, J.]

105(d). A Three-Judge Bench of this Court in Suresh Chand v.Gulam Chisti (1990) 1 SCC 593, while referring to Atma Ram Mittal v.Ishwar Singh Punia (1988) 4 SCC 284, had observed:

“17. It was argued that the words ‘commencement of this Act’should be construed to mean the date on which the moratoriumperiod expired and the Act became applicable to the demisedbuildings. Such a view would require this Court to give differentmeanings to the same expression appearing at two places in thesame section. The words ‘on the date of commencement of thisAct’ in relation to the pendency of the suit would mean 15th July1972 as held in Om Prakash Gupta (supra) but the words ‘fromsuch date of commencement’ appearing immediately thereafterin relation to the deposit to be made would have to be construedas the date of actual application of the act at a date subsequent to15th July 1972. Ordinarily the rule of construction is that the sameexpression where it appears more than once in the same statute,more so in the same provision, must receive the same meaningunless the context suggests otherwise Besides, such aninterpretation would render the use of prefix ‘such’ before theword ‘commencement’ redundant. Thirdly such an interpretationwould run counter to the view taken by this Court in Atma RamMittal’s case (supra) wherein it was held that no man can bemade to suffer because of the court’s fault or court’s delay in thedisposal of the suit. To put it differently if the suit could be disposedof within the period of ten years, the tenant would not be entitledto the protection of Section 39 but if the suit is prolonged beyondten years the tenant would be entitled to such protection. Such aninterpretation would encourage the tenant to protract the litigationand if he succeeds in delaying the disposal of the suit till the expiryof ten years he would secure the benefit of Section 39, otherwisenot. We are, therefore, of the opinion that it is not possible to”uphold the argument.

105(e). A Constitution Bench of this Court in Shyam Sunder &Ors. v. Ram Kumar & Anr. (2001) 8 SCC 24, held that substantiverights of the parties are to be examined on the date of the suit unless thelegislature makes such rights retrospective. This Court observed:

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A“28. From the aforesaid decisions the legal position that emergesis that when a repeal of an enactment is followed by a freshlegislation such legislation does not affect the substantive rightsof the parties on the date of suit or adjudication of suit unless sucha legislation is retrospective and a court of appeal cannot takeinto consideration a new lawbrought into existence after theBjudgment appealed from has been rendered because the rights ofthe parties in an appeal are determined under the law in force onthe date of suit. However, the position in law would be different inthe matters which relate to procedural law but so far as substantiverights of parties are concerned they remain unaffected by theCamendment in the enactment. We are, therefore, of the view thatwhere a repeal of provisions of an enactment is followed by freshlegislation by an amending Act such legislation is prospective inoperation and does not affect substantive or vested rights of theparties unless made retrospective either expressly or by necessaryintendment. We are further of the view that there is a presumptionDagainst the retrospective operation of a statue and further a statuteis not to be construed to have a greater retrospective operationthan its language renders necessary, but an amending act whichaffects the procedure is presumed to be retrospective unlessamending act provides otherwise. We have carefully looked intoEnew substituted section 15 brought in the parent Act by AmendmentAct 1995 but do not find it either expressly or by necessaryimplication retrospective in operation which may affect the rightof the parties on the date of adjudication of suit and the same isrequired to be taken into consideration by the appellate Court. InShanti Devi (Smt) and another vs. Hukum Chand AIR 1996 SCF3525 this Court had occasion to interpret the substituted section15 with which we are concerned and held that on a plain readingof section 15 it is clear that it has been introduced prospectivelyand there is no question of such section affecting in any mannerthe judgment and decree passed in the suit for pre-emption affirmedGby the High Court in the second appeal. We are respectfully inagreement with the view expressed in the said decision and holdthat the substituted Section 15 in the absence of anything in it toshow that it is retrospective, does not affect the right of the partieswhich accrued to them on the date of suit or on the date of passingof the decree by the Court of the first instance. We are also of the H

view that present appeals are unaffected by change in law in sofar it related to determination of the substantive rights of the partiesand the same are required to be decided in light of law ofpreemption as it existed on the date of passing of the decree.”

105(f).In Dau Dayal v. State of Uttar Pradesh, AIR 1959SC 433, it was observed that in case complaint has been filed withintime and in case issue of process is permitted by the court, it was heldthat it would be an unfortunate state of the law if the trader whose rightshad been infringed and who takes up the matter promptly before thecriminal court, is nevertheless denied redress owing to the delay in theissue of process which occurs in court. The Court observed:

“6.It will be noticed that the complainant is required to resort tothe Court within one year of the discovery of the offence if he isto have the benefit of proceeding under the Act. That means thatif the complaint is presented within one year of such discovery,the requirements of Section 15 are satisfied. The period oflimitation, it should be remembered, is intended to operate againstthe complainant and to ensure diligence on his part in prosecutinghis rights, and not against the Court. Now, it will defeat the objectof the enactment and deprive traders of the protection which thelaw intended to give them if we were to hold that unless processis issued on their complaint within one year of the discovery ofthe offence, it should be thrown out. It will be an unfortunatestate of the law if the trader whose rights had been infringed andwho takes up the matter promptly before the Criminal Court is,nevertheless, denied redress owing to the delay in the issue ofprocess which occurs in Court.” (emphasis supplied)

105(g). This Court in Sarah Mathew v. Institute of CardioVascular Diseases, (2014) 2 SCC 62, relied upon decision in DauDayal(supra) and observed:

“29. Section 473 reads as under:

473. Extension of period of limitation in certain cases. -Notwithstanding anything contained in the foregoing provisionsof this Chapter, any Court may take cognizance of an offenceafter the expiry of the period of limitation, if it is satisfied on A

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the facts and in the circumstances of the case that the delayhas been properly explained or that it is necessary so to do inthe interests of justice.

37. We are inclined to take this view also because there has to besome amount of certainty or definiteness in matters of limitationrelating to criminal offences. If, as stated by this Court, takingcognizance is application of mind by the Magistrate to the suspectedoffence, the subjective element comes in. Whether a Magistratehas taken cognizance or not will depend on facts andcircumstances of each case. A diligent complainant or theprosecuting agency which promptly files the complaint or initiatesprosecution would be severely prejudiced if it is held that therelevant point for computing limitation would be the date on whichthe Magistrate takes cognizance. The complainant or theprosecuting agency would be entirely left at the mercy of theMagistrate, who may take cognizance after the limitation periodbecause of several reasons; systemic or otherwise. It cannot bethe intention of the legislature to throw a diligent complainant outof the court in this manner. Besides it must be noted that thecomplainant approaches the court for redressal of his grievance.He wants action to be taken against the perpetrators of crime.The courts functioning under the criminal justice system are created for this purpose. It would be unreasonable to take a view thatdelay caused by the court in taking cognizance of a case woulddeny justice to a diligent complainant. Such an interpretation ofSection 468 of the Code of Criminal Procedure would beunsustainable and would render it unconstitutional. It is well settledthat a court of law would interpret a provision which would helpsustaining the validity of the law by applying the doctrine ofreasonable construction rather than applying a doctrine whichwould make the provision unsustainable and ultra vires theConstitution. (U.P. Power Corporation Ltd. v. Ayodhaya PrasadMishra).”

106. When once the court has restrained the State authorities totake possession, or to maintain status quo they cannot pay the amount ordo anything further, as such the consequences of interim orders cannot be used against the State. It is basic principle that when a party is disabledto perform a duty and it is not possible for him to perform a duty, is agood excuse. It is a settled proposition that one cannot be permitted totake advantage of his own wrong. The doctrine “commodum ex-injuriasua Nemo habere debet” means convenience cannot accrue to a partyfrom his own wrong. No person ought to have advantage of his ownwrong. A litigant may be right or wrong. Normally merit of lis is to beseen on date of institution. One cannot be permitted to obtain unjustinjunction or stay orders and take advantage of own actions. Law intendsto give redress to the just causes; at the same time, it is not its policy tofoment litigation and enable to reap the fruits owing to the delay causedby unscrupulous persons by their own actions by misusing the processof law and dilatory tactics.

107. In Suresh Chandra v. Gulam Chisti (supra), it has been laiddown that no man can be made to suffer because of court’s faults orcourt’s delay in disposal of suits. It was held that in case it could not bethe argument that if the suit prolonged beyond 10 years, tenant would beentitled to protection and if disposed of within 10 years, tenant would notbe entitled to the protection. The argument on the rights based on gainsof delay of litigation was rejected and such party could not take thebenefit of change in law.

CASUS OMISSUS:

108. It was urged that there was casus omissus while notexcluding the period of interim stay in the provisions of section 24. WhileParliamentary Committee discussed the matter, Delhi Government hasput forward its case that the period spent during the stay should beexcluded and such provision be inserted in section 24. Later on, by wayof Ordinance it was to be incorporated as the second proviso, theOrdinance has lapsed. It was also urged that it is a case of casus omissusas wherever the legislature wanted exclusion of stay period in section19(7) of the Act of 2013, specific provision has been made for exclusionof the period spent during the currency of stay and injunction order.Section 19 of the new Act corresponds to section 6 of the Act of 1894.It was also urged that there is also a provision made in the Explanationappended to section 69(2) to exclude the period spent during the stay/injunction. Section 69 deals with determination of amount of compensationto be awarded and interest thereupon.

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A109. We have gone through the Minutes of the ParliamentaryCommittee; it has simply noted the views of the concerned Government/authorities. The report of the Standing Committee on rural developmentsimply mentions in the recommendations that the Committee would likethe Government to re-examine the issue as the acquisition, which hasbeen made, should not lapse. Committee has noted the suggestions.BWhether it was necessary to incorporate such a provision was not goneinto by the Committee. Its recommendation is bald. Though the Ordinancehad been promulgated, the second proviso was to be added for exclusionof the time of stay. Proviso also wanted to validate deposit in treasury toremove the basis of decision of Pune Municipal Corporation (supra).CThat would not mean that in the absence of addition of proviso, theactual legal position could be ignored. The position of law discussed byus makes it clear that it cannot be said to be a casus omissus and merelybecause certain provisions have been made in sections 19 and 69 excludingthe period of stay, it would not mean that in the provisions of section 24,

there is casus omissus it is not to be readily inferred. In the provisionsDcontained in section 19 of the Act of 2013 there is prescription of theperiod of limitation in which a declaration has to be issued, it was equivalentto section 6 of the Act of 1894, as such the provision of exclusion hasbeen made alike the previous provision, so also in section 69. Section 24as couched did not contemplate providing cover to the litigation and itsEfruits to be reaped. The absence of provision for excluding the period ofstay/ injunction of a Court order does not at all affect the provision ofsection 24(2) of the Act of 2013. It intended that authority should notkeep pending acquisition due to laxity on their part for five years ormore. It never intended to apply in case they were not able to performobligation due to court order or conduct of landowners. Obviously theFlegal provisions have to be interpreted in the light of the settled principlesof common law unless they are excluded, and in case a person is litigatingfor several decades, non-acceptance of compensation and questioningthe acquisition, cannot be permitted to ask for compensation or claimlapse under 2013 Act.G

110. In Shivraj (supra), this court did not consider the question ofexclusion of the time. In Karnail Kaur (supra), and in Balaji NagarResidential Association (supra), various aspects, having a bearing onthe issue, were not considered. Thus, they cannot be said to be layingdown the correct law.

INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [ARUN MISHRA, J.]

111. The landowners placed reliance on a decision of this Court,rendered in Padma Sundara Rao (Dead) & Ors. v. State of TamilNadu & Ors., (2002) 3 SCC 533, in which this court considered casusomissus and observed:

“12. The rival pleas regarding re-writing of statute and casusomissus need careful consideration. It is well settled principle inlaw that the Court cannot read anything into a statutory provisionwhich is plain and unambiguous. A statute is an edict of thelegislature. The language employed in a statute is the determinativefactor of legislative intent. The first and primary rule of constructionis that the intention of the Legislation must be found in the wordsused by the Legislature itself. The question is not what may besupposed and has been intended but what has been said. “Statutesshould be construed not as theorems of Euclid”. Judge LearnedHand said, “but words must be construed with some imaginationof the purposes which lie behind them”. (See Lehigh Valley CoalCo. v. Yensavage 218 FR 547). The view was reiterated in Unionof India and Ors. v. Filip Tiago De Gama of Vedem Vasco DeGama (1990)1SCC277 .

13. In Dr. R. Venkatchalam and Ors. etc. v. Dv. TransportCommissioner and Ors. etc. [1977] 2 SCR 392 it was observedthat Courts must avoid the danger of apriority determination ofthe meaning of a provision based on their own pre-conceivednotions of ideological structure or scheme into which the provisionto be interpreted is somewhat fitted. They are not entitled to usurplegislative function under the disguise of interpretation.

14. While interpreting a provision the Court only interprets thelaw and cannot legislate it. If a provision of law is misused andsubjected to the abuse of process of law, it is for the legislature toamend, modify or repeal it, if deemed necessary.

[See Rishabh Agro Industries Ltd. v. P.N.B Capital Services Ltd.(2000)5SCC515 ]. The legislative casus omissus cannot be suppliedby judicial interpretative process. Language of Section 6(1) is plainand unambiguous. There is no scope for reading something into it,as was done in Narasimhaiah’s case (supra). In Nanjudaiah’scase (supra), the period was further stretched to have the timeperiod run from date of service of High Court’s order. Such a A

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view cannot reconciled with the language of Section 6(1). If theview is accepted it would mean that a case can be covered by notonly Clauses (i) and/or (ii) of the proviso to Section 6(1), but alsoby a non-prescribed period. Same can never be the legislativeintent.

15. Two principles of construction - one relating to casus omissusand the other in regard to reading the statute as a whole - appearto be well settled. Under the first principle a casus omissus cannotbe supplied by the Court except in the case of clear necessity andwhen reason for it is found in the four corners of the statute itselfbut at the same time a casus omissus should not be readily inferredand for that purpose all the parts of a statute or section must beconstrued together and every clause of a section should beconstrued with reference to the context and other clauses thereofso that the construction to be put on a particular provision makesa consistent enactment of the whole statute.

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This would be more so if literal construction of a particular clauseleads to manifestly absurd or anomalous results which could nothave been intended by the Legislature. “An intention to producean unreasonable result”, said Danckwerts, L.J., in Artemiou v.Procopiou (1966 1 QB 878), “is not to be imputed to a statute ifEthere is some other construction available”. Where to apply wordsliterally would “defeat the obvious intention of the legislation andproduce a wholly unreasonable result” we must “do some violenceto the words” and so achieve that obvious intention and produce arational construction. [Per Lord Reid in Luke v. I.R.C. 1966 AC557 where at p. 577 he also observed: “this is not a new problem,Fthough our standard of drafting is such that it rarely emerges”.]

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16. The plea relating to applicability of the stare decisis principlesis clearly unacceptable. The decision in K. Chinnathambi Gounder(supra) was rendered on 22.6.1979 i.e. much prior to theamendment by 1984 Act. If the Legislature intended to give anew lease of life in those cases where the declaration underSection 6 is quashed, there is no reason why it could not havedone so by specifically providing for it. The fact that legislaturespecifically provided for periods covered by orders of stay orinjunction clearly shows that no other period was intended to beexcluded and that there is no scope for providing any other period G

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of limitation. The maxim ‘actus curiae neminem gravabit’highlighted by the Full Bench of the Madras High Court has noapplication to the fact situation of this case.

17. The view expressed in Narasimhaiah’s case (supra) andNanjudaiah’s case (supra), is not correct and is over-ruled whilethat expressed in A.S. Naidu’s case (supra) and Oxford’s case(supra) is affirmed.”

In Padma Sundara Rao (supra), this court considered the periodof limitation for issuance of declaration under section 6 of the Act of1894. It was observed that the language of section 6 was plain andunambiguous; there was no scope for reading something into it, as hadbeen done in N. Narasimhaiah v. State of Karnataka, (1996) 3 SCC88. In State of Karnataka v. D.C. Nanjudaiah, (1996) 10 SCC 619,the period had been stretched further, so as to have the time period runfrom date of service of the High Court’s order. This Court, in PadmaSundaraRao (supra), held that such a view could not be reconciledwith the language of section 6(1), and in this regard, further observed,that explanation to section 6 excluded only that period during which anyaction or proceeding, initiated in pursuance of the notification issuedunder section 4 (1), had been stayed by an order of a court. When thelegislature has specifically provided for the periods covered by the orderof stay and injunction, the Court observed no other period could be saidto be intended to be excluded, by providing time period to run from dateof service of the High Court’s order; in that, it was not open to the courtto add to that period.

112. The question for consideration in Padma Sunder Rao (supra)was entirely different from what we are concerned with. In the instantcase, the question is not of the exclusion of period, but is of the applicationof the Common Law maxims, and of what it is that section 24 of the Actof 2013 intends; the issue before us is not as to add to the period oflimitation, with which the Court in the case of Padma Sunder Rao(supra) was concerned. Thus, the ratio of the said decision has a differentfield to operate on, and consequently, renders no support to the submissionraised on behalf of the landowners.

113. Reliance has been placed by land owners in Rana GirdersLtd. v. Union of India (2013) 10 SCC 746 which is relied upon in Unionof India v. Sicom Limited & Ors. (2009) 2 SCC 121. This court has A

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Aobserved that the statutory provision would prevail upon the commonlaw principles thus:

“9. Generally, the rights of the crown to recover the debt wouldprevail over the right of a subject. Crown debt means the debtsdue to the State or the king; debts which a prerogative entitles theBCrown to claim priority for before all other creditors. [SeeAdvanced Law Lexicon by P. Ramanatha Aiyar (3rd Edn.) p.1147]. Such creditors, however, must be held to mean unsecuredcreditors. Principle of Crown debt as such pertains to the commonlaw principle. A common law which is a law within the meaningof Article 13 of the Constitution is saved in terms of Article 372Cthereof. Those principles of common law, thus, which were existingat the time of coming into force of the Constitution of India aresaved by reason of the aforementioned provision. A debt which issecured or which by reason of the provisions of a statute becomesthe first charge over the property having regard to the plain meaningDof Article 372 of the Constitution of India must be held to prevailover the Crown debt which is an unsecured one.

10. It is trite that when a Parliament or State Legislature makesan enactment, the same would prevail over the common law. Thus,the common law principle which was existing on the date of comingEinto force of the Constitution of India must yield to a statutoryprovision.To achieve the same purpose, the Parliament as alsothe State Legislatures inserted provisions in various statutes, someof which have been referred to hereinbefore providing that thestatutory dues shall be the first charge over the properties of thetax-payer. This aspect of the matter has been considered by thisFCourt in a series of judgments.” (Emphasis supplied)

114. There is no dispute with the aforesaid proposition; and, in ouropinion, the statutory provisions, contained in section 24 of the Act of2013, do not exclude the principles of common law which we have heldapplicable. The principles that can be excluded are only those in respectGto which, provision has been made in the statute itself or the applicabilityis ousted by implication.

115. The afore-extracted observations in respect of the principleof interpretation that if something is expressed in a provision, anythingcontrary is impliedly excluded, are themselves based on the maxim H

“expressio unius est exclusio alterius”. This maxim has been held tohave limit of operation and is not of universal application in Mary Angelv. State of Tamil Nadu (1999) 5 SCC 209. Thus, mere fact that in someof the provisions there is a mention about period of stay being excluded,cannot be taken to be conclusive that in other provisions with respect tothe effect of stay not to be considered or common law maxims have noapplicability in the context of Section 24(2) of the 2013 Act. The Courtin Mary Angel has observed :

“19. Further, for the rule of interpretation on the basis of the maxim“expressio unius est exclusio alterius”, it has been considered inthe decision rendered by the Queen’s Bench in the case of Deanv. Wiesengrund (1955) 2 QBD 120. The Court considered thesaid maxim and held that after all it is more than an aid toconstruction and has little, if any, weight where it is possible, toaccount for the “exclusiounius” on grounds other than intention toeffect the “exclusioalterius”. Thereafter, the Court referred tothe following passage from the case of Colquhoon v. Brooks (1887)19 QBD 400 wherein the Court called for its approval-”the maxim”‘expressiouniusestexclusioalterius’ has been pressed upon us. Iagree with what is said in the Court below by Wills J, about thismaxim. It is often a valuable servant, but a dangerous master tofollow in the construction of statutes of documents. The exclusiois often the result of inadvertence or accident, and the maximought not to be applied, when its application having regard to thesubject matter to which it is to be applied, leads to inconsistencyor injustice. In my opinion, the application of the maxim here wouldlead to inconsistency and injustice, and would make Section 14(1)of the Act of 1920 uncertain and capricious in itsoperation.”(emphasis supplied)

116. In Assistant A.C.E., Calcutta versus National TobaccoCo. Ltd. of India Ltd, (1972) 2 SCC 560, it was held:

“30. The question whether there was or was not an implied powerto hold an enquiry in the circumstances of the case before us, inview of the provisions of Section 4 of the Act read with Rule 10-A of the Central Excise Rule, was not examined by the CalcuttaHigh Court because it erroneously shut out consideration of themeaning and applicability of Rule 10A. The High Court’s viewwas based on an application of the rule of construction that where AB

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Aa mode of performing a duty is laid down by law it must beperformed in that mode or not at all. This rule flows from themaxim : “Expressio unius est exclusion alterius.” But, as we pointedout by Wills, J., in Colquohoun v. Brooks (1888) 2 1. Q.B. D. 52this maxim “is often a valuable servant, but a dangerous master”.... The rule is subservient to the basic principle that Courts mustBendeavour to ascertain the legislative intent and purpose, and thenadopt a rule of construction which effectuates rather than onethat may defeat these.Moreover the rule of prohibition bynecessary implication could be applied only where a specifiedprocedure is laid down for the performance of a duty. AlthoughCRule 52 makes an assessment obligatory before goods are removedby a manufacturer, yet, neither that rule nor any other, rule, asalready indicated above, has specified the detailed procedure foran assessment. There is no express prohibition anywhere againstan assessment at any other time in the circumstances of a caselike the one before us where no “assessment”, as it is understoodDin Jaw, took place at all. On the other hand, Rule 10A indicatesthat there are residuary powers of making a demand in specialcircumstances not foreseen by the framers of the Act or the rules.If the assessee disputes the correctness of the demand anassessment becomes necessary to protect the interests of theEassessee. A case like the one before us falls more properly withinthe residuary class of unforeseen cases. We think that, from theprovisions of Section 4 of the Act read with Rule 10A, an impliedpower to carry out or complete an assessment, not specificallyprovided for by the rules, can be inferred. No writs of prohibitionor mandamus were, therefore, called for in the circumstances ofFthe case.”

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Thus, the Common Law principles, as discussed by us, cannot beousted, to do complete justice to parties and to prevent miscarriage ofjustice, within purview of section 24 of the Act of 2013.

GDOCTRINE OF IMPOSSIBILITY

117. In several cases it is often seen that the landowners are notready to accept the compensation even though they have been offeredthe same; they have either refused to accept or have filed writ applicationsquestioning the land acquisitions. Further, it is also observed, thatHrepeatedly, successive writ applications have also been filed by the

persons who have purchased the property after issuance of notificationunder section 4 and, in some instances, even after passing of the award,possession taken and when the land has absolutely vested in the StateGovernment, that such persons are calling into question the landacquisition. We have come across several cases when the challenges toacquisition have been negatived right up to this court but, undeterred bythe same, fresh round of litigation is, thereafter, started again, with thecause again being agitated either by the same persons or by some othersuch purchasers. It has come to our notice that now, after the cominginto force of the Act of 2013, unsavory attempts are being made togrossly misuse the process of law by moving such petitions, and assertingtherein that though they themselves might not have accepted thecompensation, and have refused to accept the same, but, since it has‘not been paid to them’, by making deposit in court, or they have remainedin the actual possession of the land, though Panchnama of takingpossession might have been drawn, as such, land acquisition has lapsed.The aforementioned assertions are being made; notwithstanding evenearlier judicial finding that possession had been taken by drawingPanchnama etc. If section 24 is interpreted in the method and mannerso as to reopen all the cases, notwithstanding the fact that the land owners,or as the case may be their successors-in-interest are themselvesresponsible for not accepting or illegally refusing to accept thecompensation, or that they have, in an illegal manner, re-entered intopossession of land, then it becomes, and it has, in fact, become, virtuallyimpossible for the State Governments to save and carry into effect themuch-needed acquisition of the land, at the cost of public interest, leavingit with no viable legal defense with which to save the acquisition in suchproceedings made decades before.

118. Shri Patwalia has pressed into service the doctrine of ‘laxnon cogit ad impossibilia’ and has urged us to consider the scope andapplication of the same. He argued that a law does not expect the Stateauthorities to do what cannot possibly be performed by owing to theadamant attitude and conduct of such landowners; it is a settled propositionof law that law does not expect a party to do the impossible. It wasurged that the maxim ‘impossibilium nullaobligatio est’ would cometo the rescue of State authorities in such cases. The doctrine has beendealt with by this Court in Chander Kishore Jha v. Mahabir Prasad(1999) 8 SCC 266 thus:

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A“13. In our opinion insofar as an election petition is concerned,proper presentation of an election petition in the Patna High Courtcan only be made in the manner prescribed by Rule 6 of ChapterXXI-E. No other mode of presentation of an election petition isenvisaged under the Act or the Rules thereunder and therefore,an election petition could, under no circumstances, be presentedBto the Registrar to save the period of limitation. It is a well-settledsalutary principle that if a statute provides for a thing to be done ina particular manner, then it has to be done in that manner and inno other manner. [See with advantage: Nazir Ahmad v. KingEmperor; Rao Shiv Bahadur Singh and Anr. v. State of VindhyaCPradesh 1954 CriLJ 910 State of Uttar Pradesh v. Singhara Singhand Ors. [1964] 4 SCR 485. An election petition under the Rulescould only have been presented in the open Court upto 16.5.1995till 4.15 P.M. (working hours of the Court) in the manner prescribedby Rule 6 (supra) either to the Judge or the Bench as the casemay be to save the period of limitation. That, however, was notDdone. However, we cannot ignore that the situation in the presentcase was not of the making of the appellant. Neither the designatedelection Judge before whom the election petition could be formallypresented in the open Court nor the Bench hearing civil applicationsand motions was admittedly available on 16.5.1995 after 3.15 P.M.,Eafter the Obituary Reference since admittedly the Chief Justiceof the High Court had declared that “the Court shall not sit for therest of the day” after 3.15 P.M. Law does not expect a party todo the impossible-Impossible nulla obligation est—As in the instantcase, the election petition could not be filed on 16.5.1995 duringthe Court hours, as far all intent and purposes, the Court wasFclosed on 16.5.1995 after 3.15 P.M.”

119. In Mohd Gazi v. State of Madhya Pradesh (2000) 4 SCC342 this court has laid down thus:

“6. In the facts and circumstances of the case the maxim of equity,Gnamely, actus curiae neminem gravabit - an act of the Court shallprejudice no man, shall be applicable. This maxim is founded uponjustice and good sense which serves a safe and certain guide forthe administration of law. The other maxim is, lex non cogit adimpossibilia - the law does not compel a man to do which hecannot possibly perform. The law itself and its administration is H

understood to disclaim as it does in its general aphorisms, all intentionof compelling impossibilities, and the administration of law mustadopt that general exception in the consideration of particular cases.The applicability of the aforesaid maxims has been approved bythis Court in Raj Kumar Day and Ors. v. Tarapada Day and Ors.[1988] 1 SCR 118 and Gursharan Singh and Ors. v. NDMC andOrs. [1996] 1 SCR 1154.”

120. Shri Patwalia has also pressed into service the maxim ofRoman Law namely, ‘Nemo Tenetur ad Impossibilia’ (no one is boundto do an impossibility). Claimants/ landowners are filing successiveapplications/ litigations for obtaining interim stay that has been granted.There is no way to make them ready to accept the compensation asonce they accept the compensation their right to question the acquisitionwould stand wiped off. They could not even claim higher compensationin Reference Court, in case they accept the compensation withoutprotest. It is only after accepting the compensation under protest thatthey can seek reference under section 18 of the Act of 1894.

121. Learned Counsel has relied upon decision in IndustrialFinance Corporation of India Ltd. v. Cannanore Spinning andWeaving Mills Ltd. (2002) 5 SCC 54 in which the Court observed:

“30. The Latin Maxim referred to the English judgment “lax noncogit ad impossibilia” also expressed as “impotentia excusatlegem” in common English acceptation means, the law does notcompel a man to do that which he cannot possibly perform. Thereought always thus to be an invincible disability to perform theobligation and the same is akin to the Roman Maxim “nemo teneturad impossibilia” In Broom’s Legal Maxims the state of the situationhas been described as below:- “It is, then, a general rule which admits of ample practicalillustration, that impotentiaexcusatlegem; where the law createsa duty or charge, and the party is disabled to perform it, withoutany default in him, and has no remedy over, there the law willin general excuse him (t) : and though impossibility ofperformance is, in general, no excuse for not performing anobligation which a party has expressly undertaken by contract,yet when the obligation is one implied by law, impossibility ofperformance is a good excuse. Thus in a case in which AB

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consignees of a cargo were prevented from unloading aship promptly by reason of a dock strike, the Court, afterholding that in the absence of an express agreement to unloadin a specified time there was implied obligation to unload withina reasonable time, held that the maxim lax non cogit adimpossibilia applied, and Lindley, L.J., said: “We have to dowith implied obligations, and I am not aware of any case inwhich an obligation to pay damages is ever cast by implicationupon a person for not doing that which is rendered impossibleby causes beyond his control”. (emphasis supplied)

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122. In HUDA v. Babeswar Kanhar (2005) 1 SCC 191 this courtChas held:

“5. What is stipulated in Clause-4 of the letter dated 30.10.2001 isa communication regarding refusal to accept the allotment. Thiswas done on 28.11.2001. Respondent No. 1 cannot be put to lossfor the closure of the office of HUDA on 01.12.2001 andD02.12.2001 and the postal holiday on 30.11.2001. In fact he hadno control over these matters. Even the logic of Section 10 of theGeneral Clauses Act, 1897 can be pressed into service. Apartfrom the said Section and various provisions in various other Acts,there is the general principle that a party prevented from doing anEact by some circumstances beyond his control, can do so at thefirst subsequent opportunity(see Sambasiva Chari v. RamaswamiReddi (1898) (8) Madras Law Journal 265). The underlying objectof the principle is to enable a person to do what he could havedone on a holiday, on the next working day. Where, therefore, aperiod is prescribed for the performance of an act in a court orFoffice, and that period expires on a holiday, then the act should beconsidered to have been done within that period if it is done on thenext day on which the court or office is open. The reason is thatlaw does not compel the performance of an impossibility. (SeeHossein Ally v. Donzelle) ILR 5 Cal 906. Every consideration ofGjustice and expediency would require that the accepted principlewhich underlies Section 10 of the General Clauses Act should beapplied in cases where it does not otherwise in terms apply. Theprinciples underlying are lex non cogit ad impossibilia (the lawdoes not compel a man to do the impossible) and actus curiaeneminem gravabit (the act of Court shall prejudice no man). Above D

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being the position, there is nothing infirm in the orders passed bythe Forums below. However, the rate of interest fixed appears tobe slightly on the higher side and is reduced to 9% to be paid witheffect from 03.12.2001, i.e., the date on which the letter wasreceived by HUDA.”

123. In Re: Presidential Poll, (1974) 2 SCC 33 this court hasobserved:

“…………

(v) The maxim of law impotentia excusat legem is intimatelyconnected with another maxim of law lex non cogit ad impossibilia.Impotentia excusat legem is that when there is a necessary orinvincible disability to perform the mandatory part of the law thatimpotentia excuses, The law does not compel one to do that whichone cannot possibly perform. “Where the law creates a duty orcharge, and the party is disabled to perform it, without any defaultin him, and has no remedy over it, there the law will in generalexcuse him.” Therefore, when it appears that the performance ofthe formalities prescribed by a statute has been rendered impossibleby circumstances over which the persons interested had no control,like the act of God, the circumstances will be taken as a validexcuse.Where the act of God prevents the compliance of thewords of a statute, the statutory provision is not denuded of itsmandatory character because of supervening impossibility causedby the act of God. (Sec Broom’s Legal Maxims 10th Edition atpp. 1962-63 and Craies on Statute Law 6th Ed. p. 268)”.

124. In Standard Chartered Bank v. Directorate of Enforcement,AIR 2005 (2) SC 2622, this court held that there is an acceptable legalmaxim that law does not compel a man to do that which cannot possiblybe performed “impotentia excusat legem”. Basic principle of law isthat law compels no impossibility. It was urged that in case the landownerscreate such circumstances, which renders impossible performance ofthe statutorily prescribed formalities, such landowners couldn’t takeadvantage of their own act or wrong.

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A125. In our opinion, the maxims regarding the impossibility ofperformance of an act may not be strictly applicable, as acts, undersection 31 or 24, were capable of being performed but authorities weredisabled to perform them as no fault on their part. However, the effectof Court orders, or the conduct of the landowners/claimants/ beneficiaries,is required to be considered, it was not an ‘impossibility’ to perform theBacts in question by their very nature but the aforesaid aspect is relevantand underlying principle of inability to perform has to be considered inthe backdrop of fact whether it was in the control or capacity of authorityto perform actions which were possible to be performed but when itwas not possible to perform or were incapacitated to perform. In suchCevent person responsible for interdicting cannot ask him to be put inadvantageous position for non-compliance of an act, which possibly wouldhave been performed, but for such action.

The maxim “nullus commodum capere potest de injuria suapropria” i.e. ‘No man can take advantage of his own wrong’.D126. The author Broom, in Legal Maxims, has discussed the maxim,and observed:

“Tender: Again, where a creditor refuses a tender sufficient inamount, and duly made, he cannot afterwards, for purposes ofoppression or extortion, avail himself of such refusal; for, althoughEthe debtor still remains liable to pay whenever required so to do,yet the tender operates in bar of any claim for damages and interestfor not paying or for detaining the debt, and also of the costs of anaction brought to recover the demand (y).”

A “tender” of the amount to be paid operates as a bar upon anyFclaim for damages and interest.

127. Thus, in the context of the factual and legal scenario of theland acquisition proceedings, and of the conduct of the landowners/claimants, with which we are presently concerned, when once “tender”of the amount had been made, in any of the prescribed modes, whichGmet with refusal to accept it and/or by the conduct of indulging in incessantlitigation which, in some instances, culminated into a stay/interim order,the party which thus refused to accept the amount, indulging instead inthe ‘theater of the absurd’, cannot turn around and contend that theother party should now be visited with the penalty for non-payment.The author Broom, in regard to the maxim, has remarked thus:H

“Further, we may remark that the maxim which precludes a manfrom taking advantage of his own wrong is, in principle, closely allied tothe maxim, ex dolo malo non oritur action, which is likewise of generalapplication, and will be treated of hereafter in Chapter IX. The lattermaxim is, indeed, included in that above noticed; for it is clear, that sincea man cannot be permitted to take advantage of his own wrong, he willnot be allowed to found a claim upon his own iniquity: nemo ex propriodolo consequitur actionem; and, as before observed, frustra legis auxiliumquaerit qui in legem committit (g)”

DOCTRINE OF ACTUS CURIAE NEMINEM GRAVABIT.

128. Coupled with aforesaid maxim we have to considerapplicability of maxim ‘actus curiae neminem gravabit’ to the question.

In the book titled “Selection of Legal Maxims” by Herbert Broom,the author about the said maxim has observed:

“This maxim “is founded upon justice and good sense; and affordsa safe and certain guide for the administration of the law” (b). Invirtue of it, where a case stands over for argument on account ofthe multiplicity of business in the Court, or for judgment from theintricacy of the question, the party ought not to be prejudiced bythat delay, but should be allowed to enter up his judgmentretrospectively to meet the justice of the case (c); and, therefore,if one party to an action die during a curia advisari vult, judgmentmay be entered nunc pro tunc, for the delay is the act of theCourt, for which neither party should suffer(d).”

129. It is settled proposition of law that no litigant can derive thebenefit of pendency of a case in a court of law. In case any interimorder is passed during the pendency of litigation it merges in the finalorder. In case the case is dismissed the interim order passed during itspendency is nullified automatically. It is also settled that a party cannotbe allowed to take benefit of his own wrong as ‘commodum ex injuriasua nemo habere debet’ i.e. convenience cannot accrue to a partyfrom his own wrong. “No person ought to have advantage of his ownwrong.” In case litigation has been filed without any basis and interimorder is passed it would be giving illegal benefit or wrongful gain forfiling untenable claim. This Court in Mrutunjay Pan v. Narmada BalaSasmal & Anr. AIR 1961 SC 1353 has observed :

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A“…….The following three conditions shall be satisfied before S.90of the Indian Trusts Act can be applied to a case: (1) the mortgageshall avail himself of his position as mortgagee; (2) he shall gainan advantage; and (3) the gaining should be in derogation of theright of the other persons interested in the property. The section,read with illustration ©, clearly lays down that where an obligationBis cast on the mortgagee and in breach of the said obligation hepurchases the property for himself, he stands in a fiduciaryrelationship in respect of the property so purchased for the benefitof the owner of the property. This is only another illustration ofthe well-settled principle that a trustee ought not to be permittedCto make a profit out of the trust. The same principle is comprisedin the latin maxim commodum convenience cannot accrue to aparty from his own wrong. To put it in other words, no one can beallowed to benefit from his own wrongful act……..”

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130. It was submitted on behalf of the landowners that once thecourt finds prima facie case and interim order is granted, the litigantcouldn’t be said to be at fault. A merit ultimately examined finally in thecase and is found to be meritless. In such circumstances the maxim‘actus curiae neminem gravabit’ comes to the rescue of the oppositeEparty who has suffered due to interim order and was unable to takesteps. The principle that the act of the court shall prejudice no one isclearly applicable in such a case. The court is under an obligation toundo a wrong done to a party by the act of the court and to makerestitution under inherent powers. Thus any undeserved or unfairadvantage gained by a party invoking the jurisdiction of the court mustFbe neutralized, as institution of litigation cannot be permitted to conferany advantage on a suitor from the delayed action by the act of thecourt. Nor it was so contemplated by Section 24 of Act of 2013. It is notthe policy of law that those who are litigating, obtained interim ordersthough ultimately their claim may not be tenable. Gain due to delay orGtainted act is not permissible and sufferance of person who has abidedby law is not permissible. The provisions of section 24 aim only atexpeditious disposal of acquisition authorities, lethargy of authorities forfive years or more is not tolerated by legislature the provision does notprovide cover or protect such situation of pendency at litigation and doesnot confer rights on litigants.H

INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [ARUN MISHRA, J.]

131(a). This Court in GTC Industries Ltd. v. Union of India(1998) 3 SCC 376 has observed that while vacating stay it is court’sduty to account for the period of delay and to settle equities, the courtobserved:

“16. Section 11AAof the Central Excises and Salt Act, 1944 wasadded on 26th of May, 1995 by the Finance Act, 1995. This sectionprovides, inter alia, for interest on delayed payment of duty. Wherea person chargeable with duty determined under sub-section (2)of Section 11Afails to pay such duty within three months fromthe date of such determination, he shall pay, in addition to the duty,interest at such rate not below 10% and not exceeding 30% perannum as is for the time being fixed by the board on such dutyfrom the date immediately after the expiry of the said period ofthree months till the date of payment of such duty. Prior to theinsertion of Section 11AA, there was no specific provision in theCentral Excises and Salt Act, 1944 under which the departmentcould recover interest on delayed payment of duty. But this Courthad, in suitable cases, directed payment of interest.Two suchdecisions have been brought to our notice. In the case ofKashyapZip Ind vs. Union of India & Ors. 1993 (64) ELT161(SC), the recovery of disputed duty had been stayed by aninterim order of the High Court in the writ petition. While dismissingthe writ petition and revoking the Stay order, the High Courtdirected the appellant to pay interest at 17.5% per annum fromthe date of the order of Stay till recovery.This Court reduced therate of interest to 12% per annum and on the facts andcircumstances directed that this amount should be recovered from 1st of January, 1985 till payment, this being the year in which thematter was Finally decided by this Court as a result of which thewrit petition came to be dismissed by the High Court.” (emphasissupplied)

131(b). This Court in Jaipur Municipal Corpn. v. C.L. Mishra(2005) 8 SCC 423 has observed that interim order merges in final order,it cannot have independent existence, cannot survive beyond is. Thus,no benefit of interim order can be taken.

131(c). This Court in Ram Krishna Verma v. State of U.P. (1992)2 SCC 620, relying upon earlier decision in Grindlays Bank Ltd. v.Income Tax Officer, Calcutta (1980) 2 SCC 191, held that no one can A

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Asuffer from the act of the court and in case an interim order has beenpassed and petitioner takes advantage thereof and ultimately petition isfound to be without merit and is dismissed, the interest of justice requiresthat any undeserved or unfair advantage gained by a party invoking thejurisdiction of the court must be neutralized.

B131(d). This Court in Mahadeo Savlaram Shelke v. PuneMunicipal Corporation (1995) 3 SCC 33 has observed that the courtcan under inherent jurisdiction ‘ex debito justitiae’ has a duty to mitigatethe damage suffered by the defendants by the act of the court. Suchaction is necessary to put a check on abuse of process of court.

C131(e). In Amarjeet Singh v. Devi Ratan & Ors. (2010) 1 SCC417 this Court in Ramakrishna Verma has held that no person can sufferfrom the act of court and unfair advantage of interim order must beneutralized, the court observed:

“In Ram Krishna Verma v. State of U.P., this Court examinedDthe similar issue while placing reliance upon its earlier judgment inGrindlays Bank Ltd. v. ITO, (1980) 2 SCC 191, and held that noperson can suffer from the act of the Court and in case an interimorder has been passed and the Petitioner takes advantage thereofand ultimately the petition is found to be without any meritand is dismissed, the interest of justice requires that anyEunderserved or unfair advantage gained by a party invokingthe jurisdiction of the Court must be neutralized.”

131(f). This Court has considered the maxim of ‘actus curiaeneminem gravabit’ in Karnataka Rare Earth & Anr. v. SeniorFGeologist, Department of Mines & Geology & Anr. (2004) 2 SCC783, it was emphasized that parties should be placed in the same positionthey would have been but for courts order and observed :

“10. ….the doctrine of actus curiae neminem gravabit and heldthat the doctrine was not confined in its application only to suchGacts of the Court which were erroneous; the doctrine is applicableto all such acts as to which it can be held that the Court would nothave so acted had it been correctly apprised of the facts and thelaw. It is the principle of restitution which is attracted. When onaccount of an act of the party, persuading the Court to pass an H

order, which at the end is held as not sustainable, has resulted inone party gaining advantage which it would not have otherwiseearned,or the other party has suffered an improvement which itwould not have suffered but for the order of the Court and the actof such party, then the successful party finally held entitled to arelief, assessable in terms of money at the end of the litigation, isentitled to be compensated in the same manner in which the partieswould have been if the interim order of the Court would not havebeen passed. The successful party can demand (a) the deliveryof benefit earned 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 of the HighCourt, if the appellants would not have persuaded this Court topass the interim orders, they would not have been entitled to operatethe mining leases and to raise and remove and disposed of theminerals extracted. But for the interim orders passed by this Court,there is no difference between the appellants and any personraising, without any lawful authority, any mineral from any land,attracting applicability of Sub-section (5) of Section 21. As theappellants have lost from the Court they cannot be allowed toretain the benefit earned by them under the interim orders of theCourt. The High Court has rightly held the appellants liableto be placed in the same position in which they would havebeen if this Court would not have protected them by issuinginterim orders.All that the State Government is demanding fromthe appellants is the price of the minor minerals. Rent, royalty ortax has already been recovered by the State Government and,therefore, there is no demand under that Head. No penalproceedings, much less any criminal proceedings, have beeninitiated against the appellants. It is absolutely incorrect to contendthat the appellants are being asked to pay any penalty or are beingsubjected to any penal action. It is not the case of the appellantsthat they are being asked to pay a price more than what theyhave realised from the exports or that the price appointed by therespondent State is in any manner arbitrary orunreasonable………..”

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A131(g). The principle “Actus Curia Neminem Gravabit” isessence of administration of law and good sense. It has been consideredin A.R. Antulay v. R.S. Nayak and Ors., AIR 1988 SC 1531 thus:

“83. This case has caused us considerable anxiety. The appellant-accused has held an important position in this country, being theBChief Minister of a premier State of the country. He has beencharged with serious criminal offences. His trial in accordancewith law and the procedure established by law would have to bein accordance with the 1952 Act. That could not possibly be donebecause of the directions of this Court dated 16th February 1984,as indicated above. It has not yet been found whether the appellantCis guilty or innocent. It is unfortunate, unfortunate for the peopleof the State, unfortunate for the country as a whole, unfortunatefor the future working of democracy in this country which, thoughis not a plant of an easy growth yet is with deep root in the Indianpolity that delay has occurred due to procedural wrangles. TheDappellant may be guilty of grave offences alleged against him orhe may be completely or if not completely to a large extent,innocent. Values in public life and perspective of these values inpublic life have undergone serious changes and erosion during thelast few decades. What was unheard of before is common placetoday. A new value orientation is being undergone in our life andEin our culture. We are at the threshold of the cross-roads of values.It is, for the sovereign people of the country to settle those conflictsyet the Courts have vital roles to play in such matters. With theavowed object of speedier trial the case of the appellant had beentransferred to the High Court but on grounds of expediency ofFtrial, he cannot be subjected to a procedure unwarranted by law,and contrary to the constitutional provisions. The appellant mayor may not be an ideal politician. It is a fact, however, that theallegations have been brought against him by a person belongingto a political party opposed to his but that is not the decisive factor.If the appellant Shri Abdul Rehman Antulay has infringed law, heGmust be dealt with in accordance with the law. We proclaim andpronounce that no man is above thelaw, but at the same timereiterate and declare that no man can be denied his rights underthe Constitution and the laws. He has a right to be dealt with inaccordance with the law and not in derogation of it. this Court, in D

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its anxiety to facilitate the parties to have a speedy trial gavedirections on 16th February 1984 as mentioned hereinbeforewithout conscious awareness of the exclusive jurisdiction of theSpecial Courts under the 1952 Act and that being the onlyprocedure established by law, there can be no deviation from theterms of Article 21 of the Constitution of India. That is the onlyprocedure under which it should have been guided. By reason ofgiving the directions on 16th February 1984 this Court had alsounintentionally caused the appellant the denial of rights underArticle 14 of the Constitution by denying him the equal protectionof law by being singled out for a special procedure not providedfor by law. When these factors are brought to the notice of thisCourt, even if there are any technicalities this Court should notfeel shackled and decline to rectify that injustice or otherwise theinjustice noticed will remain forever a blot on justice. It has beensaid long time ago that “Actus Curiae Neminem Gravabit”- anact of the Court shall prejudice no man. This maxim is foundedupon justice and good sense and affords a safe and certain guidefor the administration of the law.

104. This being the apex Court, no litigant has any opportunity ofapproaching any higher forum to question its decisions. Lord Buck-master in 1917 A.C. 170 stated:

All rules of court are nothing but provisions intended to secureproper administration of justice. It is, therefore, essential that theyshould be made to serve and be subordinate to that purpose.

this Court in Gujarat v. Ram Prakash [1970]2SCR875 reiteratedthe position by saying:

Procedure is the handmaid and not a mistress of law, intended tosubserve and facilitate the cause of justice and not to govern orobstruct it, like all rules of procedure, this rule demands aconstruction which would 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, it isnot only appropriate but also the duty of the Court to rectify themistake by exercising inherent powers. Judicial opinion heavilyleans in favour of this view that a mistake of the Court can becorrected by the Court itself without any fetters. This is on the AB

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principle as indicated in Alexander Rodger’s case (supra). I amof the view that in the present situation, the Court’s inherent powerscan be exercised to remedy the mistake. Mahajan, J. speakingfor a four-Judge Bench in Kishan Deo v. Radha Kissen[1953]4SCR136 stated:

BThe Judge had jurisdiction to correct his own error without enteringinto a discussion of the grounds taken by the decree-holder or theobjections raised by the judgment-debtors.”

131(h).The Constitution Bench in Sarah Mathew v. Institute ofCardio Vascular Diseases, (2014) 2 SCC 62, has considered theCaforesaid maxim; it observed:

“39. As we have already noted in reaching this conclusion, lightcan be drawn from legal maxims. Legal maxims are referred toin Bharat Kale, Japani Sahoo and Vanka Radhamanohari (Smt.).The object of the criminal law is to punish perpetrators of crime.DThis is in tune with the well known legal maxim ‘nullum tempusaut locus occurritregi’, which means that a crime never dies. Atthe same time, it is also the policy of law to assist the vigilant andnot the sleepy. This is expressed in the Latin maxim ‘vigilantibuset non dormientibus, jura subveniunt’. Chapter XXXVI of the Codeof Criminal Procedure which provides limitation period for certainEtypes of offences for which lesser sentence is provided drawssupport from this maxim. But, even certain offences such asSection 384or 465of the Indian Penal Code, which have lesserpunishment may have serious social consequences. Provision is,therefore, made for condonation of delay. Treating date of filingFof complaint or date of initiation of proceedings as the relevantdate for computing limitation under Section 468of the Code issupported by the legal maxim ‘actus curiae neminem gravabit’which means that the act of court shall prejudice no man. It bearsrepetition to state that the court’s inaction in taking cognizancei.e. court’s inaction in applying mind to the suspected offenceGshould not be allowed to cause prejudice to a diligent complainant.Chapter XXXVI thus presents the interplay of these three legalmaxims.Provisions of this Chapter, however, are not interpretedsolely on the basis of these maxims. They only serve as guidingprinciples.”

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INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [ARUN MISHRA, J.]

132. Landowners have also placed reliance on Suptd. of Taxes,Dhubri & Ors. v. Assam Jute Supply Ltd & Ors. (1976) 1 SCC 766:

“17. The first contention on behalf of the State that it becameimpossible for the State to issue notice under Section 7(2) of theNew Act within two years of the expiry of the period of return isunsound on principle and facts. The maxim lex non cogit adimpossibilia means that the law does not compel a man to do thatwhich he cannot possibly perform. In the present appeals, theapplications were moved in the High Court for stay of proceedings.The respondents challenged the validity of the Act, and, therefore,asked for an injunction restraining the State from takingproceedings under the Act. At no stage, did the State ask forvariation or modification of the order of injunction. It is well knownthat if it is brought to the notice of a court that proceedings arelikely to be barred by time by reason of any order of injunction orstay the court passes such suitable or appropriate orders as willprotect the interest of the parties and will not prejudice eitherparty. Even when certificate to appeal to this Court was grantedon 1 August 1963, the State did not ask for any order for stay ofoperation of the judgment. That is quite often done. For the firsttime, on 10 August 1964 the State filed an application for stay ofoperation of the judgment of the High Court. The State did nottake steps at the appropriate time. This Court on 28 October 1964granted an interim order staying the operation of the High Courtjudgment. The interim order was made absolute on 28 January1965 with certain conditions. The State cannot take advantage ofits own wrong and lack of diligence. The State cannot contendthat it was impossible to issue any notice within the periodmentioned in Section 7(2) of the New Act. The State did notendeavour to obtain appropriate orders to surmount the difficultiesby reason of the injunction against taking steps within the timecontemplated in Section 7(2) of the New Act. The State is guiltyof default. The State had remedies open to take steps by askingfor modification of the order. The State had to assert the right thatthe State was entitled to demand taxes and the respondent wasliable to pay the same. The State followed the policy of inactivity.Inactivity is not impossibility. The order injunction is not to beequated with an act of God or an action of the enemy of the Stateor a general strike.”

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133. Reliance has also been placed in this regard on NeerajBKumar Sainy & Ors. v. State of UP & Ors., (2017) SCC Online SC258, wherein this court has observed:

“31. It is noticeable from the aforesaid passage that theinterpretation was made in accordance with the Code and thelegal maxim was taken as a guiding principle. Needless to say, itCis well settled in law that no one should suffer any prejudicebecause of the act of the court. The authorities that we havereferred to dealt with the different factual expositions. The legalmaxim that has been taken recourse to cannot operate in avacuum. It has to get the sustenance from the facts. As is manifest,after the admissions were over as per the direction of this Court,Dthe Appellants, who seemed to have resigned to their fate, wokeup to have control over the events forgetting that the law does notassist the non-vigilant. One cannot indulge in luxury of lethargy,possibly nurturing the feeling that forgetting is a virtue, andthereafter, when the time has slipped through, for it waits for none,Ewake up and take shelter under the maxim “actus curiae neminemgravabit”. It is completely unacceptable.”

The case pertains to lethargy that would depend on facts of acase to what extent benefit can be derived from legal principles.

134. An incumbent must succeed or fail in final decision in aFpending litigation on what case he has set up in the petition. In case ofpossession has continued under the cover of the court’s order orcompensation could not be disbursed due to the courts order in ourconsidered opinion the provision contained in Section 24 (2) cannot beinvoked in such a situation, as such a situation is not covered under theGprovisions of section 24(2), as holding otherwise would amount to givinga litigant premium for his dilatory tactics in spite of there is no merit inhis challenge to acquisition. In such an event no incumbents can bepermitted to urge though I might have obtained stay restraining you fromtaking possession, though I might have refused to receive compensationor otherwise due to the court’s proceedings, it was not paid/accepted.H

Now you must suffer due to said act of mine. This would be against allcanons of justice and settled propositions of law in Uma Devi v. State ofKarnataka (2006) 6 SCC 1 where this court has directed as one-timemeasure regularization of those incumbents only, those who have servedfor more than ten years without cover of the court’s order. It was alsobased upon aforesaid principles that no one can be permitted to takeadvantage of the courts cover to put the other party in disadvantageousposition.

135. The common law principles are in fact rules of equity, justice,and sound logic. In the absence of there being prohibition in the law,these principles would be attracted. The efficacy and binding nature ofsuch common law principles cannot be diminished or whittled down inthe absence of any express prohibition in law. They are interpretation ofsection 24 of Act of 2013.

136. The question then arises as to what the position would be incase State authorities were, by an order of the court, restrained fromtaking possession, though they would have otherwise taken the possessionin the absence of such an order; and, ultimately, there is no merit foundin the lis in which challenge to acquisition had been raised and interimorder had been passed. The question is whether the provisions of Section24 (2) contemplate such a situation, and whether such period is to beexcluded from within the purview of Section 24 of the Act of 2013,where the authorities have been, during the interregnum of a litigation,brought at the instance of landowner/beneficiary, restrained by the actof the court, interdicting the steps which would have been taken by theauthorities but for such an interim order or conduct of the litigant.

137. In case of possession could not be taken, or compensationcould not be paid or deposited, due to cover of courts’ order or conductof landowner, such cases provision of lapse cannot be invoked. Section24(2), a policy of the law is not to benefit a litigant or confer undeservingbenefit by involving in the lis and to reap fruits on the basis of possessionon illegal basis without any right and often lis is filed in land acquisitioncases one after the other and intendment of law is not to treat law-abiding incumbents differently. Operation of law and beneficial provisionsof law in the Act of 2013 are not meant to benefit litigants and to permitthem to reap the fruits of unworthy or frivolous litigation; and, if there isany merit in such a lis, the challenge therein must stand or fall on its ownfooting, irrespective of, and apart from, the coming into force of the AB

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A2013 Act. Litigation cannot be permitted to become lucrative industryfor the unworthy litigant; it cannot be permitted to be device providingfor fruits in respect of a meritless lis.

138. The maxims nullus commodum capere potest de injuriasua propria and actus curiae neminem gravabit etc. come into playBwhile interpreting the provisions of section 24 including the principle ofrestitution. They are not excluded from the purview of section 24 of theAct of 2013.

PRINCIPLE OF RESTITUTION

139. While construing provisions of section 24(2) applicable inCcase of lis, we have to keep in consideration the principle of restitutionwhich enjoins a duty upon the courts to do complete justice to the partyat the time of final decision. Successful party at the end of the litigationhas to be placed as far as possible at the same place unless it wouldhave been had the interim order not being passed. In doing away theDeffect of interim order by resorting to fact of restitution is in fact obligationof the court.

140(a). In South Eastern Coal Field Ltd. v. State of MadhyaPradesh & Ors. (2003) 8 SCC 648 this court held that no party cantake advantage of litigation; it has to disgorge the advantage gained dueEto delay in case lis is lost, the court has observed:

“26. In our opinion, the principle of restitution takes care of thissubmission. The word ‘restitution’ in its etymological sense meansrestoring to a party on the modification, variation or reversal of adecree or order, what has been lost to him in execution or decreeor order or the court or indirect consequence of a decree or orderF(See Zafar Khan and Ors. v. Board of Revenue, U.P., and Ors.,: [1985] 1 SCR 287. In law, the term ‘restitution’ is used in threesenses; (i) return or restoration of some specific thing to its rightfulowner or status; (ii) compensation for benefits derived from awrong done to another; (iii) compensation or reparation for theGloss caused to another.

(See Black’s Law Dictionary, Seventh Edition, p.1315).

The Law of Contracts by John D. Calamari & Joseph M. Perillohas been quoted by Black to say that ‘restitution’ is an ambiguousterm, sometimes referring to the disgorging of something which H

has been taken and at timesreferring to compensation for injurydone. “Often, the result in either meaning of the term would bethe same. ..... Unjust impoverishment, as well as unjust enrichment,is a ground for restitution. If the defendant is guilty of a non-tortuous misrepresentation, the measure of recovery is not rigidbut, as in other cases of restitution, such factors as relative fault,the agreed upon risks, and the fairness of alternative risk allocationsnot agreed upon and not attributable to the fault of either partyneed to be weighed.”

The principle of restitution has been statutorily recognized in Section144 of the Code of Civil Procedure, 1908. Section 144 of theC.P.C. speaks not only of a decree being varied, reversed, setaside or modified but also includes an order on par with a decree.The scope of the provision is wide enough so as to include thereinalmost all the kinds of variation, reversal, setting aside ormodification of a decree or order. The interim order passed bythe Court merges into a final decision. The validity of aninterim order, passed in favour of a party, stands reversed inthe event of final decision going against the party successfulat the interim stage. Unless otherwise ordered by the Court, thesuccessful party at the end would be justified with all expediencyin demanding compensation and being placed in the same situationin which it would have been if the interim order would not havebeen passed against it. The successful party can demand (a) thedelivery of benefit earned by the opposite party under the interimorder of the court, or (b) to make restitution for what it has lost;and it is the duty of the court to do so unless it feels that in thefacts and on the circumstances of the case, the restitution wouldfar from meeting the ends of justice, would rather defeat the same.Undoing the effect of an interim order by resorting to principlesof restitution is an obligation of the party, who has gained by theinterim order of the Court, so as to wipe out the effect of theinterim order passed which, in view of the reasoning adopted bythe court at the stage of final decision, the court earlier would notor ought not to have passed. There is nothing, wrong in an effortbeing made to restore the parties to the same position in whichthey would have been if the interim order would not have existed.

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27. Section 144 of the C.P.C. is not the fountain source of-restitution; it is rather a statutory recognition of a preexisting ruleof justice, equity and fair play. That is why it is often held thateven away from Section 144 the Court has inherent jurisdiction toorder restitution so as to do complete justice between the parties.

In Jai Berham v. Kedar Nath Marwari (1923) 25 BOMLR 643,their Lordships of the Privy council said: “It is the duty of theCourt under Section 144 of the Civil Procedure Code to place theparties in the position which they would have occupied but forsuch decree or such part thereof as has been varied or reversed.Nor indeed does this duty or jurisdiction arise merely under thesaid section. It is inherent in the general jurisdiction of the Courtto act rightly and fairly according to the circumstances towardsall parties involved. Cairns, L.C., said in Rodger v. Comptoird’Escompte de Paris, (1871) L.R. 3: “One of the first and highestduties of all Courts is to take care that the act of the Court doesno injury to any of the suitors and when the expression, the act ofthe Court is used, it does not mean merely the act of the primaryCourt, or of any intermediate Court of appeal, but the act of theCourt as a whole from the lowest court which entertains jurisdictionover the matter up to the highest Court which finally disposes ofthe case”. This is also on the principle that a wrong order shouldnot be perpetuated by keeping it alive and respecting it, A.A. Nadarv. S.P. Rathinasami, (1971) 1 MLJ 220 . In the exercise of suchinherent power the Courts have applied the principles of restitutionto myriad situations not strictly falling within the terms of Section144.

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28. That no one shall suffer by an act of the court is not a ruleconfined 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 andGthe law. The factor attracting applicability of restitution is not theact of the Court being wrongful or a mistake or error committedby the Court; the test is whether on account of an act of the partypersuading the Court to pass an order held at the end as notsustainable, has resulted in one party gaining an advantage whichit would not have otherwise corned, or the other party has suffered H

an impoverishment which it would not have suffered but for theorder of the Court and the set of such party.

The quantum of restitution, depending on the facts andcircumstances of a given case, may take into consideration notonly what the party excluded would have made but also what theparty under obligation has or might reasonably have made. Thereis nothing wrong in the parties demanding being placed in thesame position in which they would have been had the court notintervened by its interim order when at the end of the proceedingsthe court pronounces its judicial verdict which does not matchwith and countenance its own interim verdict. Whenever calledupon to adjudicate, the court would act in conjunction with what isthe real and substantial justice. The injury, if any, caused by theact of the court shall be undone and the gain which the partywould have earned unless it was interdicted by the order of thecourt would be restored to or conferred on the party by suitablycommanding the party liable to do so. Any opinion to the contrarywould lead to unjust if not disastrous consequences. Litigationmay turn into a fruitful industry. Though litigation is not gamblingyet there is an element of chance in every litigation. Unscrupulouslitigants may feel encouraged to approach the Courts, persuadingthe court to pass interlocutory orders favourable to them by makingout a prima facie case when the issues are yet to be heard anddetermined on merits and if the concept of restitution is excludedfrom application to interim orders, then the litigant would stand togain by swallowing the benefits yielding out of the interim ordereven though the battle has been lost at the end. This cannot becountenanced, we are, therefore, or 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 awardof interest at a suitable reasonable rate for the period for whichthe interim order of the court withholding the release of moneyhad remained in operation.”

140(b). The doctrine of restitution in common law principle lies inconscience of court, it had also been discussed in State of Gujarat v.Essar Oil Ltd., (2012) 3 SCC 522; it was held that:

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A“61. The concept of restitution is virtually a common law principleand it is a remedy against unjust enrichment or unjust benefit. Thecore of the concept lies in the conscience of the Court whichprevents a party from retaining money or some benefit derivedfrom anotherwhich he has received by way of an erroneousdecree of Court. Such remedy in English Law is generally differentBfrom a remedy in contract or in tort and falls within a third categoryof common law remedy which is called quasi-contract orrestitution.

62. If we analyze the concept of restitution one thing emergesclearly that the obligation to restitute lies on the person or theCauthority that has received unjust enrichment or unjust benefit(See Halsbury’s Laws of England, Fourth Edition, Volume 9, page434).

63. If we look at Restatement of the Law of Restitution byAmerican Law Institute (1937 American Law Institute Publishers,DSt. Paul) we get that a person is enriched if he has received abenefit and similarly a person is unjustly enriched if the retentionof the benefit would be unjust. Now the question is what constitutesa benefit. A person confers benefit upon another if he gives to theother possession of or some other interest in money, land, chattels,Eor performs services beneficial to or at the request of the other,satisfies a debt or a duty of the other or in a way adds to theother’s security or advantage. He confers a benefit not only wherehe adds to the property of another but also where he saves theother from expense or loss. Thus the word “benefit” thereforedenotes any form of advantage (page 12 of the Restatement ofFthe Law of Restitution by American Law Institute).

64. Ordinarily in cases of restitution, if there is a benefit to one,there is a corresponding loss to other and in such cases; thebenefiting party is also under a duty to give to the losing party, theamount by which he has been enriched.”

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140(c).In A. Shanmugam v. Ariya Kshatriya RajakulaVamsathu Madalaya Nandhavana Paripalanai Sangam, (2012) 6 SCC430, by relying upon the decision rendered in Indian Council for Enviro-Legal Action v. Union of India [(2011) 8 SCC 161]. The jurisdiction toH

restitution is inherent in every court. Court has to neutralize advantageof litigation. The person on right side of law should not be frustrated.The wrongful gain of frivolous litigation has to be eradicated if faith ofpeople in judiciary has to be sustained Court has to adopt pragmaticapproach. The doctrine of restitution has been considered thus:

“37. This Court in another important case in Indian Council forIndian Council for Enviro-Legal Action v. Union of India and Ors.(2011) 8 SCC 161 (of which one of us, Bhandari, J. was the authorof the judgment) had an occasion to deal with the concept ofrestitution. The relevant paragraphs of that judgment dealing withrelevant judgments are reproduced hereunder:

170. This Court in Grindlays Bank Limited v. Income TaxOfficer, Calcutta (1980) 2 SCC 191 observed as under:

When passing such orders the High Court draws on its inherentpower to make all such orders as are necessary for doingcomplete justice between the parties. The interests of justicerequire that any undeserved or unfair advantage gained by aparty invoking the jurisdiction of the court, by the merecircumstance that it has initiated a proceeding in the court,must be neutralised. The simple fact of the institution of litigationby itself should not be permitted to confer an advantage on theparty responsible for it.

171. In Ram Krishna Verma and Ors. v. State of U.P. andOrs. (1992) 2 SCC 620 this Court observed as under:

The 50 operators including the Appellants/ private operatorshave been running their stage carriages by blatant abuse ofthe process of the court by delaying the hearing as directed inJeevanNathBahl’s case and the High Court earlier thereto. Asa fact, on the expiry of the initial period of grant after Sept. 29,1959, they lost the right to obtain renewal or to ply their vehicles,as this Court declared the scheme to be operative. However,by sheer abuse of the process of law, they are continuing toply their vehicles pending hearing of the objections.This Courtin Grindlays Bank Ltd. v. Income-tax Officer - [1990] 2 SCC191 held that the High Court while exercising its power underArticle 226 the interest of justice requires that any undeservedor unfair advantage gained by a party invoking the jurisdiction A

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of the court must be neutralised. It was further held that theinstitution of the litigation by it should not be permitted to conferan unfair advantage on the party responsible for it. In the lightof that law and in view of the power under Article 142(1) ofthe Constitution this Court, while exercising its jurisdiction woulddo complete justice and neutralise the unfair advantage gainedby the 50 operators including the Appellants in dragging thelitigation to run the stage carriages on the approved route orarea or portion thereof and forfeited their right to hearing ofthe objections filed by them to the draft scheme dated Feb. 26,1959.

172. This Court in Kavita Trehan v. Balsara Hygiene Products(1994) 5 SCC 380 observed as under:

The jurisdiction to make restitution is inherent in every courtandwill be exercised whenever the justice of the case demands. Itwill be exercised under inherent powers where the case did notstrictly fall within the ambit of Section 144. Section 144 openswith the words “Where and in so far as a decree or an order isvaried or reversed in any appeal, revision or other proceeding oris set aside or modified in any suit instituted 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 and Company (I) Ltd. v. SahiOretrans (P) Ltd. and Anr. (1999) 2 SCC 325 observed as under:

From the narration of the facts, though it appears to us, primafacie, that a decree in favour of the Appellant is not being executedfor some reason or the other, we do not think it proper at thisstage to direct the Respondent to deliver the possession to theAppellant since the suit filed by the Respondent is still pending. Itis true that proceedingsare dragged for a long time on one countor the other and on occasion become highly technical accompaniedby unending prolixity, at every stage providing a legal trap to theunwary. Because of the delay, unscrupulous parties to theproceedings take undue advantage and person who is in wrongfulpossession draws delight in delay in disposal of the cases by takingundue advantage of procedural complications. It is also known fact that after obtaining a decree for possession of immovableproperty, its execution takes long time. In such a situation forprotecting the interest of judgment creditor, it is necessary to passappropriate order so that reasonable mesneprofit which may beequivalent to the market rent is paid by a person who is holdingover the property. In appropriate cases, Court may appoint Receiverand direct the person who is holding over the property to act as anagent of the Receiver with a direction to deposit the royalty amountfixed by the Receiver or pass such other order which may meetthe interest of justice. This may prevent further injury to the Plaintiffin whose favour decree is passed and to protect the propertyincluding further alienation.

174. In Padmawati v. Harijan Sewak Sangh CM (Main) No. 449of 2002 decided by the Delhi High Court on 6.11.2008, the courtheld as under:

‘6. The case at hand shows that frivolous defences and frivolouslitigation is a calculated venture involving no risks situation. Youhave only to engage professionals to prolong the litigationso as todeprive the rights of a person and enjoy the fruits of illegalities. Iconsider that in such cases where Court finds that using the Courtsas a tool, a litigant has perpetuated illegalities or has perpetuatedan illegal possession, the Court must impose costs on such litigantswhich should be equal to the benefits derived by the litigant andharm and deprivation suffered by the rightful person so as to checkthe frivolous litigation and prevent the people from reaping a richharvest of illegal acts through the Court. One of the aims of everyjudicial system has to be to discourage unjust enrichment usingCourts as a tool.The costs imposed by the Courts must in allcases should be the real costs equal to deprivation suffered by therightful person.’

We approve the findings of the High Court of Delhi in theaforementioned case.

175. The High Court also stated: (Padmavati case [(2008) 154DLT 411], DLT pp. 414-415, para 9)

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Aby the litigants and which is dragged as long as possible. Even ifthese litigants ultimately loose the lis,they become the real victorsand have the last laugh. This class of people who perpetuate illegalacts by obtaining stays and injunctions from the Courts must bemadeto pay the sufferer not only the entire illegal gains made bythem as costs to the person deprived of his right and also must beBburdened with exemplary costs. Faith of people in judiciary canonly be sustained if the persons on the right side of the law do notfeel that even if they keep fighting for justice in the Court andultimately win, they would turn out to be a fool since winning acase after 20 or 30 years would make wrongdoer as real gainer,Cwho had reaped the benefits for all those years.Thus, it becomesthe duty of the Courts to see that such wrongdoers are discouragedat every step and even if they succeed in prolonging the litigationdue to their money power, ultimately they must suffer the costs ofall these years-long litigation. Despite settled legal positions, theobvious wrongdoers, use one after another tier of judicial reviewDmechanism as a gamble, knowing fully well that dice is alwaysloaded in their favour, since even if they lose, the time gained isthe real gain. This situation must be redeemed by the Courts”.

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

’13. …[the] stay granted by the Court does not confer a rightupon a party and it is granted always subject to the final result ofthe matter in the Court and at the risk and costs of the partyobtaining the stay. After the dismissal, of the lis, the partyFconcerned is relegated to the position which existed prior to thefiling of the petition in the Court which had granted the stay. Grantof stay does not automatically amount to extension of a statutoryprotection.

188. In a relatively recent judgment of this Court in AmarjeetSingh and Ors. v. Devi Ratan and Ors. (2010) 1 SCC 417 theCourt in para 17 of the judgment observed as under: (SCC pp.422-23)

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’17. No litigant can derive any benefit from mere pendency ofcase in a court of law, as the interim order always merges in the H

final order to be passed in the case and if the writ petition isultimately dismissed, the interim order stands nullified automatically.A party cannot be allowed to take any benefit of its own wrongsby getting an interim order and thereafter blame the court. Thefact that the writ is found, ultimately, devoid of any merit, showsthat a frivolous writ petition had been filed. The maxim actuscuriae neminem gravabit, which means that the act of the courtshall prejudice no one, becomes applicable in such a case. In sucha fact situation the court is under an obligation to undo the wrongdone to a party by the act of the court. Thus, any undeserved orunfair advantage gained by a party invoking the jurisdiction of thecourt must be neutralised, as the institution of litigation cannot bepermitted to confer any advantage on a suitor from delayed actionby the act of the court...’

190. In consonance with the concept of restitution, it was observedthat courts should be careful and pass an order neutralizing theeffect of all consequential orders passed in pursuance of the interimorders passed by the court. Such express directions may benecessary to check the rising trend among the litigants to securethe relief as an interim measure and then avoid adjudication onmerits.

191. In consonance with the principle of equity, justice, and goodconscience judges should ensure that the legal process is notabused by the litigants in any manner. The court should neverpermit a litigant to perpetuate illegality by abusing the legal process.It is the bounden duty of the court to ensure that dishonesty andany attempt to abuse the legal process must be effectively curbedand the court must ensure that there is no wrongful, unauthorizedor unjust gain for anyone by the abuse of the process of the court.One way to curb this tendency is to impose realistic costs, whichthe Respondent or the Defendant has in fact incurred in order todefend himself in the legal proceedings. The courts would be fullyjustified even imposing punitive costs where legal process hasbeen abused. No one should be permitted to use the judicial processfor earning undeserved gainsor unjust profits. The court musteffectively discourage fraudulent, unscrupulous and dishonestlitigation.

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A192. The court’s constant endeavour must be to ensure thateveryone gets just and fair treatment. The court while renderingjustice must adopt a pragmatic approach and in appropriate casesrealistic costs and compensation be ordered in order to discouragedishonest litigation. The object and true meaning of the conceptof restitution cannot be achieved or accomplished unless the courtsBadopt a pragmatic approach in dealing with the cases.”

140(d). In Krishnaswamy S. Pd. & Anr v. Union of India &Ors., Civil Appeal Nos.3376-3377 of 2000 decided on 21.02.2006 thisCCourt has considered the question of restitution. This court has reliedupon Eastern Coalfield’s case (supra) and observed:

“The maxim ‘actus curiae neminem gravabit’ i.e. an act of Courtshall prejudice no man is an important one. The maxim “is foundedupon justice and good sense, and affords a safe and certain guideDfor the administration of the law”, said Cresswell J. in Freeman v.Tranah (12 C.B. 406). An unintentional mistake of the Court whichmay prejudice the cause of any party must and alone could berectified.

The maxim of equity, namely, actus curiae neminem gravabit:Ean act of court shall prejudice no man, is founded upon justice andgood sense which serves a safe and certain guide for theadministration of law. The other relevant maxim is, lex non cogitad impossibilia: the law does not compel a man to do what hecannot possibly perform. The law itself and its administration isunderstood to disclaim as it does in its general aphorisms, all intentionFof compelling impossibilities, and the administration of law mustadopt that general exception in the consideration of particular cases.(See: M/s U.P.S.R.T.C. v. lmtiaz Hussein (2006 (1) 800 380),ShaikhSalim Haji Abdul Khayumsab v. Kumar and Ors. (2006(1) SCC 46), Mohammod Gazi v. State of M.P. and othersG(2000(4) SCC 342) and Gursharan Singh v. New DelhiMunicipal Committee (1996 (2) SCC 459).”

141. The aforesaid legal exposition also makes it incumbent uponcourt not to confer benefit upon an unscrupulous litigant, not to confer H

undeserved gain, administration of land does not control performance ofAct which is not possible, attempt to abuse legal provisions must bethwarted, prolonging of litigation by money power, dilatory tactics orotherwise not to confer benefit, person with merits in the case cannotsucceed, perpetuation of illegality cannot be provided shelter by court tounjust enrichment to be saved, the doctrine of restitution compels courtto not to provide benefit to such litigants of provisions of section 24 ofAct of 2013.

EFFECT OF REPEAL:

142. The Act of 2013 has repealed the Act of 1894. The repealingand saving is provided in section 114 of the Act of 2013. The provisionsof section 114, is extracted hereunder:

“114. Repeal and saving.- (1) The Land Acquisition Act, 1894 (1of 1894) is hereby repealed.

(2) Save as otherwise provided in this Act the repeal under sub-section (1) shall not be held to prejudice or affect the generalapplication of section 6 of the General Clauses Act, 1897 (10 of1897) with regard to the effect of repeals.”

143. The repeal of the Act of 1894 has been made without prejudiceor affect the general application of section 6 of the General Clauses Act,1897 with regard to the effect such repealing provision we have to considerprovisions in Section 6 of the General Clauses Act. It is extractedhereunder:

“6. Effect of repeal. —Where this Act, or any 1 [Central Act] orRegulation made after the commencement of this Act, repealsany enactment hitherto made or hereafter to be made, then, unlessa different intention appears, the repeal shall not—

(a) revive anything not in force or existing at the time at whichthe repeal takes effect; or (b) affect the previous operation of any enactment so repealed oranything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accruedor incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respectof any offence committed against any enactment so repealed; or AB

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(e) affect any investigation, legal proceeding or remedy in respectof any such right, privilege, obligation, liability, penalty, forfeitureor punishment as aforesaid, and any such investigation, legal proceeding or remedy may beinstituted, continued or enforced, and any such penalty, forfeiture orBpunishment may be imposed as if the repealing Act or Regulation hadnot been passed.”

144. Thus, section 6 of the General Clauses Act provides thatunless a different intention appears, the repeal shall not revive anythingnot in force. Section 6(b) provides that it would not affect any previousCoperation of any enactment so repealed or anything duly done or sufferedthereunder. Section 6(e) provides that it will not affect any investigation,legal proceedings or remedy in respect of any such right, privilege,obligation, liability, penalty, forfeiture or punishment unless differentintention appears, and any such investigation, legal proceeding or remedymay be instituted, or continued or enforced, and any such penalty,Dforfeiture or punishment may be imposed as if the repealing Act orRegulation had not been passed. The provisions of section 6 clearlysave such proceedings and pending litigation has to be decided only onthe basis of 1894 Act except as provided specifically in Act of 2013.

VARIOUS DECISIONS:E

145(a). In Pune Municipal Corporation (supra), the High Courthad quashed the notification issued under section 4 on 30.9.2004. Awardwas passed on 31.1.2008. Writ petitions were filed in the High Courtwhich was allowed on the ground that for development of “forest garden”acquisition proceedings could not have been initiated without resolutionFof the General Body of the Corporation, not on the ground of section24(2) of Act of 2013. There was non-compliance with section 7 andother statutory breaches. The special leave petitions were filed in thisCourt in the year 2008. During pendency, the Act of 2013 came intoforce and this Court has taken the view that expression “paid” used inGsection 24(2) shall carry dual meaning, i.e.it has been offered to theperson interested and also that such compensation has been deposited incourt. The compensation is paid within the meaning of section 24(2)when the Collector has offered and in case of refusal deposited theamount of compensation in court and has discharged his obligation underSection 31(2). The Court has also laid down that amount of deposit of H

compensation in Government Treasury is not equivalent to the amountof compensation paid to landowners/persons interested. This Court heldthat deposit of the amount of compensation in State revenue is of noavail relying on Ivo Agnelo Santimano Fernandes v. State of Goa(2011) 11 SCC 506 and Prem Nath Kapur v. National FertilizersCorporation of India Ltd. (1996) 2 SCC 71.

145(b).In the decision in Ivo Agnelo (supra) it was held thatliability to pay interest subsists until amount is paid to the owner ordeposited in court. Whether the State has deposited the amount inrevenue account and utilized the same as it, was impermissible hence itcould not be said that the amount was deposited as required under Section31(2) of the Act of 1894. Reliance was also placed on the decision inPrem Nath Kapur (supra) wherein this Court had observed :

“13. Thus we hold that the liability to pay interest on the amountof compensation determined under Section 23(1) continues tosubsist until it is paid to the owner or interested person or depositedinto court under Section 34 read with Section 31. Equally, theliability to pay interest on the excess amount of compensationdetermined by the Civil Court under Section 26 over and abovethe compensation determined by the Collector/Land AcquisitionOfficer under Section 11 subsists until it is deposited into court.Propriovigore in case of further enhancement of the compensationon appeal under Section 54 to the extent of the said enhancedexcess amount or part thereof, the liability subsists until it isdeposited into court. The liability to pay interest ceases on thedate on which the deposit into court is made with the amount ofcompensation so deposited. As held earlier, the computation ofthe interest should be calculated from the date of taking possessiontill date of payment or deposit in terms of Section 34 or depositinto court in terms of Section 28, as the case may be.”

145(c).The question in aforesaid decisions was only withrespect to liability to pay interest from the date of taking possession tillthe amount is paid or deposited. The decisions are only authority withrespect to payment of interest under section 34 read with section 31. InPrem Nath Kapur (supra), the main question was how the appropriationof amount deposited towards cost price, an additional amount of interesthas to be made. In that context a three-Judge Bench of this Court hadmade the discussion. This Court also dealt with debtor’s right to specify A

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Ahow appropriation to be made of money paid under section 60 of theContract Act, 1872. The questions involved in the said cases weredifferent. There was no such issue involved with regard to the meaningof the word “paid”. The decision is only on liability to pay interest and isof no utility for interpretation of section 24(2) as to what is the meaningof the word “paid” did not arise for consideration in the said decisions.BThe provisions of section 24(2) used expression “paid” and “deposited”in different contexts at different places “paid” in the main section and“deposited” in proviso. Both are to be given the plain meanings and it isnot open to the court to add or substitute any word in statute.

As a matter of fact, the High Court had quashed acquisition inCPune Municipal Corporation in 2008 as such Act of 2013 was notattractive. There was no question of complying with section 24 of Act of2013.

145(d). The landowners have relied on the decision in BharatKumar v. State of Haryana & Anr. (2014) 6 SCC 586. What is theDmeaning of “paid” did not arise for consideration. It was not a casewhere amount was tendered or paid under Section 31(1) of the Act of1894 and there was refusal and in that case possession had also notbeen taken. There was no vesting of the land. The case is distinguishable.In the said decision various aspects were not urged for consideration.EThus, it cannot be said to be laying down the law as to what has not beendecided.

145(e). Reliance has also been placed on Bimla Devi & Ors. v.State of Haryana & Ors. (2014) 6 SCC 583 in which, similarly thedecision in Pune Municipal Corporation (supra) has been followed.Thus the decision is of no avail in view of the aforesaid discussion.F

145(f). In Union of India & Ors. v. Shiv Raj & Ors. (2014) 6SCC 564, decision in Pune Municipal Corpn. (supra) has been followed.A Circular of Government of India, Ministry of Urban Development hasalso been quoted to clarify the statutory provisions of the Act of 2013. AGCircular issued by the Government on advice of its law officer cannotbe said to have force of law. It was based on certain legal opinion. Thecircular issued cannot be said to have any binding force with respect toactual legal position. As already discussed there is no discussion in saidcase with respect to the impact of the interim order of stay or litigationwhich has prevented the authorities from taking action in Shiv Raj (supra).

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145(g). In Magnum Promoters Pvt. Ltd. v. Union of India &Ors.(2015) 3 SCC 327, Shree Balaji Nagar Residential Association (supra)and Pune Municipal Corpn. (supra) had been followed, for the reasonsmentioned above, and apart from that, it was found by the court thatpossession of the building was not taken and the record did not indicatethat it was ever taken.

145(h). In Karnail Kaur & Ors. v. State of Punjab & Ors.(2015) 3 SCC 206 the Amendment Ordinance to amend the Act of 2013came up for consideration. The second proviso to section 24(2) to beintroduced in Act was held to be prospective in operation. The correctnessof the decision need not be further examined as the Ordinance itself haslapsed and for various other reason, we are of opinion that law, as itstands, has to be examined. In Karnail Kaur (supra), reliance wasmainly placed upon Shree Balaji Nagar Residential Association (supra),Pune Municipal Corpn. (supra), Bharat Kumar (supra) and BimlaDevi (supra), we have already discussed the matter following PuneMunicipal Corporation (supra). Radiance Fincap Pvt. Ltd. & Ors.v. Union of India & Ors. (2015) 8 SCC 544 has also been pressed intoservice, it considered the second proviso to section 24(2) of the Ordinancethat has lapsed.

145(i). In Working Friends Cooperative House BuildingSociety Ltd. v. State of Punjab & Ors. (2016) 15 SCC 464 again theother decisions based on Pune Municipal Corporation (supra) referredto above have been followed. In Working Friends Cooperative HouseBuilding Society Ltd. (supra) compensation was not tendered to theappellant. When compensation was not tendered as per section 31, itcould not be said that it was paid. To that extent there is no dispute withrespect to applicability of section 24(2). Mere deposit in treasury or incourt was not going to help the authorities as it was obligatory on themto have tendered the amount unless saved by three out of four exigenciesprovided in section 31(2) as discussed above.

145(j). In Delhi Development Authority v. Sukhbir Singh &Ors. (2016) 16 SCC 258, Pune Municipal Corpn. (supra) has beenfollowed and deposit in treasury has been held, referable to section 31(1)of the Act of 1894 and not under section 31(2). We agree with discussionmade with respect to section 31(1). In view of the discussion made withrespect to the expressions “paid” and “tendered” the decision of PuneMunicipal Corpn. (supra) cannot be said to be laying down the correct A

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Alaw. It suffers to that extent from the same malady as it has simplyfollowed Pune Municipal Corpn. (supra). In State of Haryana &Anr. v. Devander Sagar & Ors. (2016) 14 SCC 746, this Court hasheld that the compensation had been paid; HUDA had taken possession.As per requirement of section 24, award was also passed. The acquisitionhad been allowed to become final. Thus challenge to acquisition underBthe Act of 2013 was repelled.

145(k). In Aligarh Development Authority v. Megh Singh &Ors. (2016) 12 SCC 504, the award was not passed when the Act of2013 came into force. Thus, it was rightly held by this Court that theacquisition proceedings would continue but with a rider that the awardCwill have to be passed and compensation determined under the provisionsof the 2013 Act. This Court has passed the aforesaid orders in view ofthe provisions contained in section 24(1)(a) of the Act of 2013. There isno dispute with the proposition.

145(l). In Sharma Agro Industries v. State of Haryana & Ors.,D(2015) 3 SCC 341, decisions of this Court in Pune Municipal Corpn.(supra), Bimla Devi (supra), Shree Balaji Residential Association(supra) and Shiv Raj (supra) have been followed. It proceeds on thesame reasoning as that of Pune Municipal Corpn. (supra).

145(m). In Pawan Kumar Aggarwal v. State of Punjab & Ors.E(2016) 7 SCC 614, decision in Karnail Kaur (supra) has been followed.In that case, there is not much discussion. Only the fact has beenmentioned that the appellant has not been dispossessed, as such protectionunder section 24(2) was available.

PRINCIPLE OF ‘PER INCURIAM’:F

146. The concept of “per incuriam” signifies those decisionsrendered in ignorance or forgetfulness of some inconsistent statutoryprovisions, or of some authority binding on the Court concerned. Inorder words, the concept means that a given decision is in disregard ofthe previous decisions of the Court itself, or that it was rendered inGignorance of the terms of an applicable statute or of a rule having theforce of law.

147(a). In practice, per incuriam, is taken to mean perignoratium, as observed by this Court in Mamleshwar Prasad v.Kanahaiya Lal, (1975) 2 SCC 232, thus:

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“5. A litigant cannot play fast and loose with the Court. His wordto the Court is as good as his bond and we must, without moreado, negative the present shift in stand by an astute discovery ofa plea that the earlier judgment was rendered per incuriam.

6. The wisdom which has fallen from Bowen, L.J. in Ex PartePratt 52 Q.B. 334, though delivered in a different context, haswider relevance to include the present position. The learned LordJustice observed :

“There is a good old-fashioned rule that no one has a right toconduct himself before a tribunal as if he accepted itsjurisdiction, and then afterwards, when he finds that it hasdecided against him, to turn round and say, “You have nojurisdiction”.

7. Certainty of the law, consistency of rulings and comity of courts-all flowering from the same principle-coverage to the conclusionthat a decision once rendered must later bind like cases. We donot intend to detract from the rule that, in exceptional instances,whereby obvious inadvertence or oversight a judgment fails tonotice a plain statutory provision or obligatory authority runningcounter to the reasoning and result reached, it may not have thesway of binding precedents. It should be a glaring case, anobtrusive omission. No such situation presents itself here and wedo not embark on the principle of judgment per incuriam.”

147(b).In A.R. Anutulay v. R.S. Nayak, (1988) 2 SCC 602,this Court has observed:

“42. It appears that when this Court gave the aforesaid directionson 16th February 1984, for the disposal of the case against theappellant by the High Court, the directions were given obliviousof the relevant provisions of law and the decision in Anwar AliSarkar’s case (supra). See Halsbury’s Laws of England, 4th End,Vol. 26, page 297, para 578 and page 300, the relevant notes 8, 11and 15; Dias on Jurisprudence, 5th Edn., pages 128 and 130; Youngv. Bristol Aeroplane Co. Ltd. [1944] 2 AER 293. Also see theobservations of Lord Goddard in Moore v. Hewitt [1947] 2 A.E.R.270-A and Penny v. Nicholas [1950] 2 A.E.R. 89.“per incuriam”are those decisions given in ignorance or forgetfulness of some A

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Ainconsistent statutory provision or of some authority binding onthe Court concerned, so that in such cases some part of the decisionor some step in the reasoning on which it is based, is found, onthat account to be demonstrably wrong. See Morelle v. Wakeling[1955] 1 All E.R. 708. Also, see State of Orissa v. The TitaghurPaper Mills Co. Ltd. [1985]3SCR26 . We are of the opinion thatBin view of the clear provisions of Section 7(2) of the CriminalLaw Amendment Act, 1952 and Articles 14 and 21 of theConstitution, these directions were legally wrong.”

47. In support of the contention that a direction to delete whollythe impugned direction of this Court be given, reliance was placedCon Satyadhvan Ghoshal v. Deorajini Devi [1960] 3 SCR 590 .The ratio of the decision as it appears from pages 601 to 603 isthat the judgment which does not terminate the proceedings, canbe challenged in an appeal from final proceedings. It may beotherwise if subsequent proceedings were independent ones.”

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147(c).In State of Uttar Pradesh v. Synthetics and ChemicalsLtd., (1991) 4 SCC 139, as to per incuriam this court has observed:

“40. ‘Incuria literally means ‘carelessness’. In practice per inEcurium appears to mean per ignoratium.’ English Courts havedeveloped this principle in relaxation of the rule of stare decisis.The ‘quotable in law’ is avoided and ignored if it is rendered, inignoratium of a statute or other binding authority’. 1944 1KB 718Young v. Bristol Aeroplane Ltd.. Same has been accepted,approved and adopted by this Court while interpreting Article 141Fof the Constitution which embodies the doctrine of precedents asa matter of law. In Jaisri Sahu v. Rajdewan Dubey AIR (1962)SC 83 this Court while pointing out the procedure to be followedwhen conflicting decisions are placed before a bench extracted apassed from Halsbury’s Laws of England incorporating one ofGthe exceptions when the decisions of an appellate court is notbinding.”

147(d). In Municipal Corporation of Delhi v. Gurnam Kaur,(1989) 1 SCC 101, it was held that decision of ignorance of rule is perincuriam,the court has observed:

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“11. ....A decision should be treated as given per incur am when itis given in ignorance of the terms of a statute or of a rule havingthe force of a statute......”

147(e). In Narmada Bachao Andolan (III) v. State of MadhyaPradesh, AIR 2011 SC 1989, this court has observed:

“61. Thus, “per incuriam” are those decisions given in ignoranceor forgetfulness of some statutory provision or authority bindingon the Court concerned, or a statement of law caused byinadvertence or conclusion that has been arrived at withoutapplication of mind or proceeded without any reason so that insuch a case some part of the decision or some step in the reasoningon which it is based, is found, on that account to be demonstrablywrong.”

148. To refer the case to larger Bench, reliance was placed bythe landowners on Sant Lal Gupta v. Modern Coop. Societies Ltd.2010 13 SCC 336 laying down thus:

“17. A coordinate bench cannot comment upon the discretionexercised or judgment rendered by another coordinate bench ofthe same court. The rule of precedent is binding for the reasonthat there is a desire to secure uniformity and certainty in law.Thus, in judicial administration precedents which enunciate rulesof law form the foundation of the administration of justice underour system. Therefore, it has always been insisted that the decisionof a coordinate bench must be followed. (Vide: TribhovandasPurshottamdas Thakkar v. Ratilal Motilal Patel and Ors. AIR1968 SC 372; Sub-Committee of Judicial Accountability v.Union of India and Ors. (1992) 4 SCC 97; and State of Tripurav. Tripura Bar Association and Ors.(1998) 5 SCC 637).

18. In Rajasthan Public Service Commission and Anr. v. HarishKumar Purohit and Ors. (2003) 5 SCC 480, this Court held that abench must follow the decision of a coordinate bench and takethe same view as has been taken earlier. The earlier decision ofthe coordinate bench is binding upon any latter coordinate benchdeciding the same or similar issues. If the latter bench wants totake a different view than that taken by the earlier bench, theproper course is for it to refer the matter to a larger bench.”

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A149. It was contended on behalf of the landowners that since thedecisions of Pune Municipal Corporation as well as of Shivraj case(supra) are of Three Judges bench then propriety requires that the caseshould be referred to a Larger Bench. With respect to Shivraj (supra)it is apparent that no view has been expressed by the Division Benchmaking reference itself, as observed that upon reading the decision ofBthis court in Union of India & Ors. v. Shivraj & Ors. (2014) 6 SCC564, they have not found any view on the question arising namely whetherthe period during which interim stay has been enjoyed should be extendedwhile considering the provisions of Section 24(2) of the Act of 2013.Division Bench of this court in order dated 12.1.2016, while makingCreference has rightly observed thus:

“We have considered the views expressed in Sree Balaji NagarResidential Association (supra) and Union of India &Ors. v. ShivRaj and others (supra). At the outset, we clarify that upon readingthe decision of the three Judge Bench of this Court in Union ofDIndia and other versus Shiv Raj and others, we do not find anyview of the bench on the question arising, namely, whether theperiod during which the award had remained stayed should beexcluded for the purposes of consideration of the provisions ofSection 24(2) of the Act of 2013. Insofar as the decision of thecoordinate bench of this Court in Sree Balaji NagarEResidential Association (supra) is concerned, having read andconsidered paragraphs 11 and 12 thereof, as extracted above, it isour considered view that the legal effect of the absence of anyspecific exclusion of the period covered by an interim order inSection 24(2) of the Act of 2013 requires serious reconsiderationFhaving regard to the fact that it is an established principle of lawthat the act of the court cannot be understood to cause prejudiceto any of the contesting parties in a litigation which is expressed inthe maxim “actus curiae neminem gravabit”.

150. In Pune Municipal Corporation (supra) the land acquisitionGhad been quashed by the High Court in the year 2008. Most of thespecial leave petitions were filed in this court in the year 2008. TheHigh Court has quashed the acquisition proceedings and has directedrestoration of the possession. When the High Court has quashed theacquisition, there was no room for this court to entertain the submissionsbased upon section 24(2) of the Act of 2013. There was no question ofH

payment of compensation to the owners or depositing it in the court asland acquisition itself had been quashed in 2008. There was no subsistingacquisition and award. When Act of 2013 came into force thus noquestion could have been raised as to non-compliance with section 24for five years or more. Thus, there was no question of taking possessionor payment of compensation as per provisions contained in section 24(2).The provisions contained in section 24 could not be said to be applicableafter quashing/lapse of the proceedings. Thus, when the provisions ofsection 24 were not attracted to the fact situation of the case in PuneMunicipal Corporation (supra), the decision cannot be said to be anauthority on a question which, in fact, did not arise for consideration ofthis court. Thus, the decision rendered on a question which was notgermane to the case cannot be said to be a binding precedent it is obiterdicta and thus has to be ignored.

151. When the High Court has quashed the land acquisition inPune Municipal Corporation (supra), as we have held that period ofinterim stay has to be excluded once the High Court has quashed theland acquisition in case it was illegally quashed, the maxim actus curiaeneminem gravabit would come to the rescue for the acquiring bodyand it could not have said that acquisition had lapsed, thus there was nolapse under section 24(2). There was no question of taking possessionor payment of compensation once the acquisition had been quashed.This court in Pune Municipal Corporation (supra) had not dwelledupon the merit of the decision of the High Court quashing the landacquisition and has outrightly decided the case on the basis of section24(2). It obviously had no application to the fact situation of the case.As such a decision cannot be said to be an authority on the aforesaid.

152. With respect to the decision of this court in Pune MunicipalCorporation (supra) we have given deep thinking whether to refer it tofurther Larger Bench but it was not considered necessary as we are ofthe opinion that Pune Municipal Corporation (supra) has to be heldper incuriam, inter alia for the following reasons:

1. The High Court has quashed land acquisition, in PuneMunicipal Corporation case (supra), as such provisions ofsection 24(2) of the Act of 2013 could not be said to beapplicable. It was not surviving acquisition then compliance ofsection 24(2) by taking possession or by payment of A

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Acompensation for five years or more did not arise as acquisitionhad been quashed by the High Court in 2008.

2. It was not held in Pune Municipal Corporation (supra) thatHigh Court has illegally set aside the acquisition. In case, HighCourt had set aside the acquisition in an illegal manner thenBalso maxim ‘actus curiae neminum gravabit’ would havecome to the rescue to save acquisition from being lapsed and aperiod spent in appeal in this Court was to be excluded.

3. The provisions of Section 24(2) could not be said to be applicableto the case once acquisition stood quashed in 2008 by the HighCCourt. Thus, there was no occasion for this court to decide thecase on aforesaid aspect envisaged under section 24(2) of theAct of 2013.

4. That statutory rules framed under section 55 of Act of 1894and orders having statutory force issued under, constitutionalDprovisions or otherwise by various State Governments werenot placed for consideration before this court in Pune MunicipalCorporation case (supra)

5. Provisions of section 34 prevailing practice of deposit, andbinding decisions thereunder section 34 of the Act of 1894Ewere not placed for consideration of this court while decidingthe case.

6. The proviso to section 24(2) was not placed for considerationwhich uses different expression ‘deposited’ than ‘paid’ in mainsection 24(2) which carry a different meaning.F7. What is the meaning of expression ‘paid’ as per various bindingdecisions of this court when the obligation to pay is completeas held in Straw Board Manufacturing Co. Ltd., Saharanpurv. Gobind (supra), Management of Delhi TransportUndertaking v. The Industrial Tribunal, Delhi & Anr.(supra), Indian Oxygen Ltd. v. Narayan Bhoumik (supra)Gand the Benares State Bank Ltd. v. The Commissioner ofIncome Tax, Lucknow, (supra) and other decisions were notplaced for consideration.

8. The binding decisions of the court as to the consequence ofnon-deposit in Hissar Improvement v. Smt. Rukmani Devi &H

INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [ARUN MISHRA, J.]

Anr. (supra), Kishan Das & Ors. v. State of U.P. & Ors.(supra) and Seshan & Ors. v. Special Tehsildar & LandAcquisition Officer, SPICOT, Pudukkottai (supra) etc. werenot placed for consideration while deciding the case.

9. The maxim “nullus commodum capere potest de injuriasua propria” i.e. no man can take advantage of his own wrongof filing litigation and effect of refusal to receive compensationwas not placed for consideration while deciding the aforesaidcase.

10. There is no lapse of acquisition due to the non deposit ofamount under the provisions of Act of 1894 or Act of 2013. Inthis regard, the provision of section 77 and 80 relating topayment and deposit under Act of 2013 which corresponds tosection 31 and 34 were not placed for consideration of thiscourt while rendering the aforesaid decision.

11. The past practice for more than a century, of deposit in treasury,as per rules/ orders and decisions were not placed forconsideration. It was not open to invalidate such deposits madein treasury without consideration of the provisions, prevailingpractice, and decisions under the Act of 1894.

The decision rendered in Pune Municipal Corporation (supra),which is related to Question No.1 and other decisions following, theview taken in Pune Municipal Corporation (supra) are per incuriam.The decision in Shree Balaji (supra) cannot be said to be laying downgood law, is overruled and other decisions following the said decision tothe extent they are in conflict with this decision, stand overruled. Thedecision in DDA v. Sukhbir Singh (supra) is partially overruled to theextent it is contrary to this decision. The decisions rendered on the basisof Pune Municipal Corporation (supra) are open to be reviewed inappropriate cases on the basis of this decision.

CONCLUSIONS :

153. Our answers to the questions are as follows:

Q. No. I :- The word ‘paid’ in section 24 of the Act of 2013 hasthe same meaning as ‘tender of payment’ in section 31(1) of the Act of1894. They carry the same meaning and the expression ‘deposited’ insection 31(2) is not included in the expressions ‘paid’ in section 24 of the A

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AAct of 2013 or in ‘tender of payment’ used in section 31(1) of the Act of1894. The words ‘paid’/tender’ and ‘deposited’ are different expressionsand carry different meanings within their fold.

In section 24(2) of the Act of 2013 in the expression ‘paid,’ it isnot necessary that the amount should be deposited in court as providedBin section 31(2) of the Act of 1894. Non-deposit of compensation incourt under section 31(2) of the Act of 1894 does not result in a lapse ofacquisition under section 24(2) of the Act of 2013. Due to the failure ofdeposit in court, the only consequence at the most in appropriate casesmay be of a higher rate of interest on compensation as envisaged undersection 34 of the Act of 1894 and not lapse of acquisition.C

Once the amount of compensation has been unconditionallytendered and it is refused, that would amount to payment and the obligationunder section 31(1) stands discharged and that amounts to discharge ofobligation of payment under section 24(2) of the Act of 2013 also and itis not open to the person who has refused to accept compensation, toDurge that since it has not been deposited in court, acquisition has lapsed.Claimants/landowners after refusal, cannot take advantage of their ownwrong and seek protection under the provisions of section 24(2).

Q. No. II :- The normal mode of taking physical possession underthe land acquisition cases is drawing of Panchnama as held in BandaEDevelopment Authority (supra).

Q. No. III :- The provisions of section 24 of the Act of 2013, donot revive barred or stale claims such claims cannot be entertained.

Q. No. IV :- Provisions of section 24(2) do not intend to cover theperiod spent during litigation and when the authorities have been disabledFto act under section 24(2) due to the final or interim order of a court orotherwise, such period has to be excluded from the period of five yearsas provided in section 24(2) of the Act of 2013. There is no consciousomission in section 24(2) for the exclusion of a period of the interimorder. There was no necessity to insert such a provision. The omissionGdoes not make any substantial difference as to legal position.

Q. No. V :- The principle of actus curiae neminem gravabit isapplicable including the other common law principles for determiningthe questions under section 24 of the Act of 2013. The period coveredby the final/ interim order by which the authorities have been deprived H

INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS.

of taking possession has to be excluded. Section 24(2) has no applicationwhere Court has quashed acquisition.

The questions referred to are answered accordingly.

MOHAN M. SHANTANAGOUDAR, J. 1. The matter is referred to our Bench to answer the following questions:

I Whether a deposit in the Treasury or with the Collector amountsto a payment of compensation under Section 24(2) of the Rightto Fair Compensation and Transparency in Land Acquisition,Rehabilitation and Resettlement Act, 2013 (hereinafter referredto as the ‘2013 Act’), especially when the landowners haverefused to accept compensation? (“Question No. 1”)

II Whether the conscious omission referred to in paragraph 11 ofthe judgment in Sree Balaji Nagar Residential Associationv. State of Tamil Nadu, (2015) 3 SCC 353 makes anysubstantial difference to the legal position with regard to theexclusion or inclusion of the period covered by an interim orderof the Court for the purpose of determination of the applicabilityof Section 24(2) of the 2013 Act? (“Question No. 2”)

IIIWhether the principle of “actus curiae neminemgravabit”,namely act of the court should not prejudice any parties wouldbe applicable in the present case to exclude the period coveredby an interim order for the purpose of determining the questionwith regard to taking of possession as contemplated in Section24(2) of the 2013 Act? (“Question No. 3”)

I RE: QUESTION NO. 1

2. I agree with the conclusions reached by my learned brotherson the question referred to us while differing with them on their conclusionthat Pune Municipal Corporation &Anr. v. HarakchandMisirimalSolanki &Anr., (2014) 3 SCC 183is per incuriam. However, I wishto place my reasons and views on the subject.

3. This question arises in Civil Appeal No. 20982/17 (IndoreDevelopment Authority v. Shailendra (dead) through LRs. &Ors.). Tounderstand the real controversy to be determined in this question, it isbetter to have the facts set out in brief, as hereunder:

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AThe Indore Development Authority (“the IDA”), acquired landfor the purpose of constructing a Ring Road and Link Road on the outskirtsof Indore city.

A notification under Section 4 (1) read with Section 17 (1) of theLand Acquisition Act, of 1894 (for brevity ‘1894 Act’) was issued onB23.12.1994. The compensation was deposited by the IDA with the LandAcquisition Collector. The landowners were informed to collect it, butthey refused and did not take the compensation. Enquiry under section5A was dispensed with. Declaration under section 6 was published on17.3.1995 under the 1894 Act. Award was passed by the LAO on14.03.1997. W.P. No.1182 of 1997 was filed seeking quashing of theCacquisition proceedings. It was allowed on 28.8.1998 holding that thescheme lapsed on expiry of three years, and that enquiry under section5A was illegally dispensed with. Letters Patent Appeal No.480 of 1998was preferred before the Division Bench and on 29.01.2000 an order ofstatus quo was passed. The LPA was dismissed as not maintainable.DHowever, this Court in a Special Leave Petition remitted the matter tothe High Court to file writ appeal under the provisions of the MadhyaPradesh UchchaNyayalaya (Khand NyaypeethKo Appeal) Adhiniyam,2005.

On 04.04.2007 the High Court again directed maintenance of status Equo. The respondent therein filed an application raising the grounds forquashing acquisition proceedings under Section 24(2) of the 2013 Act. Itwas resisted by the IDA on the ground that the acquisition had beencompleted and the amount has been deposited with the Land AcquisitionCollector; that the construction is substantially complete; if it is notcompleted in the remaining area, it will cause great hardship to the citizensFand widening of road was necessary for smooth flow of traffic.

The High Court by an order dated 03.11.2014 held that theacquisition proceedings had lapsed in view of the decisions of this Courtin Pune Municipal Corporation (supra) and Sree Balaji (supra).On appeal to this Court, the matter has been referred to this Bench byGan order of 07.12.2017 to consider the Question No. 1 as mentioned inparagraph 1 of this judgment.

4. It was submitted by the learned counsel for the State that thereis a distinction between the words “payment” and “deposit”, and thatthe acquisition does not lapse on a failure to “deposit” in Court; thisH

Court in Pune Municipal Corporation (supra) did not consider certainRules framed by various States under Section 55 of the Land AcquisitionAct, 1894 which direct the deposit of compensation in the accounts oflandowners in the Treasury.

5. On the other hand, it was contended by the learned counsel forthe landowners that a deposit must necessarily be made in Court underSection 31(2) of the 1894 Act, else the proceedings lapse under Section24(2) of the 2013 Act; the converse contention was also taken withrespect to the Rules of various States, with the argument that the Rulescannot override the express provision in Section 31(2) of the 1894 Act todeposit the compensation in Court.

6. In order to consider the question at hand, a reproduction of therelevant Sections is necessary.

Sections 24(1) and (2) of the 2013 Act read as follows, “24. (1) Notwithstanding anything contained in this Act, in anycase of land acquisition proceedings initiated under the LandAcquisition Act, 1894, -

a) where no award under section 11 of the said Land AcquisitionAct has been made, then, all provisions of this Act relatingto the determination of compensation shall apply; or

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 caseof 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 itso 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 holding has not been deposited in A

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the account of the beneficiaries, then, all beneficiaries specifiedin the notification for acquisition under section 4 of the said LandAcquisition Act, shall be entitled to compensation in accordancewith the provisions of this Act.”

This Court’s interpretation of Section 24(2) of the 2013 Act hasBproceeded in the past by referring to certain provisions of the 1894 Act,including Sections 31 to 34 of the said Act which deal with payment ofcompensation & interest. Sections 31 to 34 read as follows:

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

(2) If they shall not consent to receive it, or if there be no personDcompetent to alienate the land, or if there be any dispute as to thetitle to receive the compensation or as to the apportionment of it,the Collector shall deposit the amount of the compensation in theCourt to which a reference under section 18 would be submitted:

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

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

Provided also that nothing herein contained shall affect the liabilityFof any person, who may receive the whole or any part of anycompensation awarded under this Act, to pay the same to theperson lawfully entitled thereto.

(3) Notwithstanding anything in this section, the Collector may,with the sanction of the appropriate Government instead ofawarding a money compensation in respect of any land, makeany arrangement with a person having a limited interest in suchland, either by the grant of other lands in exchange, the remissionof land-revenue on other lands held under the same title, or insuch other way as may be equitable having regard to the interestsof the parties concerned.

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INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [MOHAN M. SHANTANAGOUDAR, J.]

(4) Nothing in the last foregoing sub-section shall be construed tointerfere with or limit the power of the Collector to enter into anyarrangement with any person interested in the land and competentto contract in respect thereof.

32. Investment of money deposited in respect of landsbelonging to person incompetent to alternate. - (1) If anymoney shall be deposited in Court under sub-section (2) of thelast preceding section and it appears that the land in respectwhereof the same was awarded belonged to any person who hadno power to alienate the same, the Court shall- (a) order the money to be invested in the purchase of otherlands to be held under the like title and conditions ofownership as the land in respect of which such money shallhave been deposited, was held, or (b) if such purchase cannot be effected forthwith, then in suchGovernment or other approved securities as the Court shallthink fit; and shall direct the payment of the interest or other proceedsarising from such investment to the person or persons whowould for the time being have been entitled to the possessionof the said land, and such moneys shall remain so depositedand invested until the same be applied-

(i) in the purchase of such other lands as aforesaid; or

(ii) in payment to any person or persons becoming absolutelyentitled thereto.

(2) In all cases of moneys deposited to which this section applies,the Court shall order the costs of the following matters, includingtherein all reasonable charges and expenses incident thereon, tobe paid by the Collector, namely: - (a) the costs of such investments as aforesaid; (b) the costs of the orders for the payment of the interest orother proceeds, of the securities upon which such moneysare for the time being invested, and for the payment out ofCourt of the principal of such moneys, and of all proceedings A

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Arelating thereto, except such as may be occasioned bylitigation between adverse claimants.

33. Investment of money deposited in other cases. -Whenany money shall have been deposited in Court under this Act forany cause other than mentioned in the last proceeding section, theBCourt may, on the application of any party interested or claimingan interest in such money, order the same to be invested in suchGovernment or other approved securities as it may think proper,and may direct the interest or other proceeds of any suchinvestment to be accumulated and paid in such manner as it mayconsider will give the parties interested therein the same benefitCthereform as they might have had from the land in respect whereofsuch money shall have been deposited or as near thereto as maybe.

34. Payment of interest - When the amount of suchcompensation is not paid or deposited on or before takingDpossession of the land, the Collector shall pay the amount awardedwith interest thereon at the rate of nine per centum per annumfrom the time of so taking possession until it shall have been sopaid or deposited: Provided that if such compensation or any partthereof is not paid or deposited within a period of one year fromEthe date on which possession is taken, interest at the rate of fifteenper centum per annum shall be payable from the date of expiry ofthe said period of one year on the amount of compensation or partthereof which has not been paid or deposited before the date ofsuch expiry.”

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F7. In Pune Municipal Corporation (supra), a Coordinate benchof this Court decided the question as to, “whether a deposit in the Treasuryamounts to compensation being “paid” under Section 24(2) of the 2013Act?” In that case, the landowners challenged the acquisition proceedingsunder Section 24(2) of the 2013 Act on the ground that the award wasmade over five years prior to the commencement of the 2013 Act, andGthat no compensation was paid to the landowners or deposited in Court.The State contended that as the landowners did not appear on the notifieddate to accept compensation and did not file an application for a referenceunder Section 18 of the 1894 Act, the State deposited the compensationamount in the Treasury. The Court, on examining the rival contentions, H

INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [MOHAN M. SHANTANAGOUDAR, J.]

interpreted Section 24(2) of the 2013 Act in light of Section 31 of the1894 Act to hold that where the landowners do not accept compensationpursuant to the Collector’s award, the compensation is “paid” only whenit is deposited “in Court”. If compensation is not deposited in Court insuch a case, it will not be considered as having been “paid” as per Section24(2) of the 2013 Act, and the acquisition proceedings lapse (providedthat the award was made five years or more prior to the commencementof the 2013 Act). The relevant paragraphs are extracted hereunder, “17. While enacting Section 24(2), Parliament definitely had in itsview Section 31 of the 1894 Act. From that one thing is clear thatit did not intend to equate the word “paid” to “offered” or“tendered”. But at the same time, we do not think that by use ofthe word “paid”, Parliament intended receipt of compensation bythe landowners/persons interested. In our view, it is not appropriateto give a literal construction to the expression “paid” used in thissub-section [sub-section (2) of Section 24]. If a literal constructionwere to be given, then it would amount to ignoring procedure,mode and manner of deposit provided in Section 31(2) of the 1894Act in the event of happening of any of the contingenciescontemplated therein which may prevent the Collector frommaking actual payment of compensation. We are of the view,therefore, that for the purposes of Section 24(2), the compensationshall be regarded as “paid” if the compensation has been offeredto the person interested and such compensation has been depositedin the court where reference under Section 18 can be made onhappening of any of the contingencies contemplated under Section31(2) of the 1894 Act. In other words, the compensation may besaid to have been “paid” within the meaning of Section 24(2)when the Collector (or for that matter Land Acquisition Officer)has discharged his obligation and deposited the amount ofcompensation in court and made that amount available to theinterested person to be dealt with as provided in Sections 32 and33.”

Pune Municipal Corporation (supra)relied on Prem NathKapur v. National Fertilizers Corporation of India Ltd., (1996) 2SCC 71, wherein it was observed that if compensation had beenenhanced, but the enhanced amount was not deposited in Court, Section34 would be attracted. It held that Section 34 mandates payment of A

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Ainterest if the amount is not deposited “in Court” as per Section 31, andproceeded to conclude as follows, “13. Thus we hold that the liability to pay interest on the amountof compensation determined under Section 23(1) continues tosubsist until it is paid to the owner or interested person or depositedBinto court under Section 34 read with Section 31. Equally, theliability to pay interest on the excess amount of compensationdetermined by the Civil Court under Section 26 over and abovethe compensation determined by the Collector/Land AcquisitionOfficer under Section 11 subsists until it is deposited into court.Propriovigore in case of further enhancement of the compensationCon appeal under Section 54 to the extent of the said enhancedexcess amount or part thereof, the liability subsists until it isdeposited into court. The liability to pay interest ceases on thedate on which the deposit into court is made with the amount ofcompensation so deposited…..”

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Pune Municipal Corporation (supra) also relied on IvoAgneloSantiamo Fernandes v. Government of Goa, (2011) 11 SCC506, which interpreted Section 34 of the 1894 Act in light of Prem Nath(supra) to hold that interest accrues on a deposit in the revenue accountof the State until such compensation amount is deposited in Court. ItEheld thus, “22. In the light of the abovesaid principle, we are of the view thatthe contentions of the respondents cannot be accepted. The Actrequires that the interest be deposited in court, and the same hasbeen upheld in Prem Nath Kapur (supra).

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23. In the present case, the respondents did not deposit the amountin court, but in their revenue account and utilized the same. Evenif the respondent State does pay the compensation to the claimantsdirectly, and the same is not collected, the respondent State cannotthen keep the said money with itself and utilize it. In such cases,Gafter a reasonable period, if the claimants do not come forward tocollect compensation, then it should be deposited in court by theState. Allowing the State to keep the compensation with itself andutilizing it cannot possibly be permitted being contrary to theprovisions of the Act and the law laid down in Prem Nath Kapur(supra). Hence, the judgment of the High Court is clearly erroneousHand deserves to be set side.”

Pune Municipal Corporation (supra)has been followed inseveral subsequent cases, including the cases of Union of India v. ShivRaj, (2014) 6 SCC 564, Karnail Kaur v. State of Punjab, (2015) 3SCC 206, andRadiance Fincap (P) Ltd. v. Union of India, (2015) 8SCC 544, wherein it has been held that the acquisition proceedingslapse when the compensation has been deposited with the Treasury orwith the Revenue Department instead of deposited in Court.

8. This Court in Delhi Development Authority v. SukhbirSingh, (2016) 16 SCC 258 conducted an incisive analysis of the PunjabStanding Order No. 28 of 1909, which directs that a deposit should bemade in the Treasury in certain instances (discussed later in Paragraphs13, 14 and 15). It held that a deposit in the Treasury is meant to satisfySection 31(1), but Section 31(2) cannot be satisfied without a deposit inCourt. If such deposit is not made in Court, the proceedings mustnecessarily lapse. The observation of the Court was,

“In any case, such deposit in the treasury is referable only toSection 31(1) and cannot ever be a substitute for deposit beforethe reference court as provided under Section 31(2) of the LandAcquisition Act, which applies in the circumstances mentioned inthe aforesaid sub-section. We are, therefore, of the opinion thatno distinction between the facts of this case and the facts in PuneMunicipal Corporation can be drawn on this ground, and the ratioof Pune Municipal Corporation will apply on all fours to the factsof the present case.”

9. In The Working Friends Cooperative House BuildingSociety Ltd. v. State of Punjab, (2016) 15 SCC 464,the deposit ofcompensation was made in the Treasury and not in the Court. Thiscompensation was subsequently deposited in the Court after 01.01.2014,i.e., after the commencement of the 2013 Act. However, the Court heldthat the acquisition proceedings lapsed, after the coming into force ofthe 2013 Act.

10. In fact, this Court in Bharat Kumar v. State ofHaryana, (2014) 6 SCC 586, applied Section 24(2) of the 2013 Act ina case where the possession was not taken and compensation had neitherbeen paid nor deposited before the appropriate forum. It stated as follows, “7. In our opinion though the award has been passed by the LandAcquisition Collector, they have not taken the physical possession AB

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Aof the land and have not paid the compensation to the appellant orhad deposited the said compensation before an appropriate forum.”

The same rationale was adopted in Bimla Devi &Ors. v. Stateof Haryana, (2014) 6 SCC 583. In Vijay Latka v. State of Haryana,(2016) 12 SCC 487, this Court extended the ratio of Pune MunicipalBCorporation (supra) to mean that the land owner is not required tocome and receive the payment in cases of compulsory acquisition. Itheld as follows, “5. The contention of the learned counsel appearing for therespondents is that whoever approached the Haryana UrbanCDevelopment Authority or the competent authority has been paidcompensation and since the appellants failed to approach thequarters concerned for the compensation, they cannot be grantedany relief. We find this contention difficult to appreciate. When aland is compulsorily acquired, it is for the requisitioning authorityto make the payment and does not require the landowner to comeDand receive the payment.

6. As and when land is taken over by way of acquisition, thelandowner has to be compensated with the amount ofcompensation duly determined under the Act. In case there is anydispute as to who is to be paid the amount, the same is to beEdeposited in Court in terms of Section 31 of the 1894 Act. In thiscase before us, the stand of the requisitioning authority, namely,Haryana Development Authority is that the money is ready withthem and it is for the landowner to come and receive the payment.This stand is not permissible under the law. It is for the authoritiesFconcerned to pay the money and take the land and in case there isany dispute as to whom the money should be paid, then the samehas to be deposited in Court.”

11. Various High Courts have followed Pune MunicipalCorporation (supra). The High Court of Punjab and Haryana inGMaharana Partap Charitable Trust v. State of Haryana (CWP No.6860 of 2007) held that Section 24(2) applied even where landownershave refused to accept compensation.

12. As per Section 24(2) of the 2013 Act, the proceedings lapse inone of the following situations: (i) when possession is not taken (even ifcompensation is paid), or(ii) when compensation is not paid (even ifH

INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [MOHAN M. SHANTANAGOUDAR, J.]

possession is taken), or (iii) when neither compensation is paid, norpossession is taken. This leads me to the issue of how to interpret the“payment” of compensation: i.e. whether, deposit into the Treasury andnot in the Court, can constitute “payment.”

13. To resolve this issue, it is necessary to first look into themeanings of “tender”, “deposit” and “payment.”

A tender is defined in Black’s Law Dictionary (p. 1606) asfollows:

“A valid and sufficient offer of performance; specif., anunconditional offer of money or performance to satisfy a debt orobligation.”

Deposit is defined in Black’s Law Dictionary (p. 504) as follows:

“The act of giving money or other property to another who promisesto preserve it or to use it and return it in kind; esp., the act ofplacing money in a bank for safety and convenience.”

Payment is defined in Black’s Law Dictionary (p. 1243)asfollows:

“The performance of an obligation by the delivery of money orsome other valuable thing accepted in partial or full discharge ofthe obligation.”

The definition of “tender” has been outlined by this Court in TataCellular v. Union of India, (1994) 6 SCC 651 as follows, “69. A tender is an offer. It is something which invites and iscommunicated to notify acceptance. Broadly stated, the followingare the requisites of a valid tender:

1. It must be unconditional.

2. Must be made at the proper place.

3. Must conform to the terms of obligation.

4. Must be made at the proper time.

5. Must be made in the proper form.

6. The person by whom the tender is made must be able andwilling to perform his obligations.

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A7. There must be reasonable opportunity for inspection.

8. Tender must be made to the proper person.

9. It must be of full amount.”

14. We are not entitled to read the words into an Act of ParliamentBunless clear reason for it is to be formed within the four corners of theAct itself. However, a statute is to be read as a whole. A statute has tobe understood by making construction on all the parts together and notof one part only by itself. Every clause in a statute is to be construedwith reference to the context and other clauses of the Act,as far aspossible, to make a consistent enactment of the whole statute. ThisCwould be more so if literal construction of a particular clause leads tomanifestly absurd or anomalous results which could not have beenintended by the Legislature. An intention to produce unreasonable resultis not be imputed to a statute if there is some other construction available.Where, to apply words literally would defeat the obvious intention of theDlegislation and produce a wholly unreasonable result, we must feedsomething to the provision so as to achieve the obvious intention andproduce rational construction.

15. The 2013 Act as well as the 1894 Act use “tender”, “payment”,and “deposit” at different places in the enactments. Section 31(1) of theE1894 Act directs that the Collector “…shall tender payment…” and“…shall pay it to [the beneficiaries] unless prevented by some one ormore of the contingencies mentioned in the next sub-section.” Clearly,tender and payment are two different terms. However, “payment” hasbeen treated similarly to “deposit” within Section 24(2) itself, as well asin other provisions. A plain reading of sub-section 2 of Section 24 of theF2013 Act discloses that in case either the physical possession of the landhas not been taken, or the compensation has not been paid, the acquisitionproceedings shall be deemed to have lapsed. However, the proviso tosub-section 2 of Section 24 emphasizes that after the award is made, ifcompensation in respect of majority of the land holdings has not beenGdeposited in the account of the beneficiary, then the owners of minorityof the land holdings will be entitled to compensation under the 2013 Act,which means that under the proviso, though the owners of a minority ofthe land holdings have received compensation under the 1894 Act, theywould be getting higher compensation under the 2013 Act in casecompensation has not been deposited in the account of the beneficiariesH

in respect of a majority of the land holdings. The word “deposit” in theaccount of beneficiaries as contained in proviso to section 24(2) of the2013 Act would mean deposit in the account of beneficiaries in theTreasury. The proviso does not refer to the word “payment”, as isreferred to in the main provision, i.e., sub-section 2 of Section 24 of the2013 Act. The proviso to sub-section 2 of Section 24 does not requirethe State to pay the compensation in respect of minority holdings forsaving acquisition. It would be sufficient if the compensation is depositedin respect of minimum holdings in the account for saving the acquisition.Since the proviso to sub-section 2 of Section 24 does not envisage lapsingof acquisition, even if the payment is not made but is deposited that toowith regard to the beneficiaries of a minority of holdings, the same wouldlead to the inevitable conclusion that the word “payment” as found insub-section 2 of Section 24 has a strong link or co-relation with the word“deposit”. A reading of sub-section 2 of Section 24 along with the provisowould make it clear that even if the compensation in respect of minorityof the land holdings is deposited in the account of such minoritybeneficiaries, the acquisition does not lapse. At the most, every land-loser is entitled to the higher compensation as per the provisions of the2013 Act. Since the proviso does not refer to the words “payment ofcompensation” and as the main provision i.e. sub-section 2 of Section 24does not refer to the word “deposit”, the only interpretation that is possibleis that, if either deposit is made in the Treasury in the name of minorityholders or payment is made at least to minority holders, the acquisitiondoes not lapse. If the word “paid” as found in sub-section 2 of Section24 is not treated as “deposited” in the account of beneficiaries, then theproviso to sub-section 2 of Section 24 would become otiose. It is wellsettled that no provision under the act can be rendered nugatory or otiose.

16. Section 31 of the 1894 Act is akin to Section 77 of the 2013Act. Of course, under Section 77 of the 2013 Act, the legislature hasgone a step further and has mandated the Collector to pay thecompensation awarded by him to the persons interested by depositingthe amount in their bank accounts unless prevented by some or morecontingencies provided under sub-section 2. Under Section 80 of the2013 Act, which is akin to Section 34 of the 1894 Act, the Collector shallpay the amount awarded with interest thereon at the rate of 9% or 15%,as the case may be, in case the amount of such compensation is not paidor deposited on or before taking possession of the land. Thus, it is clear ABCDEF

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Athat Section 80 also recognises deposit of compensation as beingequivalent to payment of compensation. Even under Section 34 of the1894 Act, the land loser will be entitled to compensation with interest atthe rate of 9% or 15%, as the case may be, in case the compensation isnot paid or deposited on or before taking possession of the land. Thus,the word “deposit” is treated synonymous with the word “payment”.B

17. However, Section 31 of the 1894 Act states that the Collectorat the first instance shall tender payment of compensation to the personsinterested and pay the compensation to such interested persons unlessprevented by some or more contingencies mentioned in sub-section 2 ofSection 31 of the 1894 Act. Three contingencies are found in sub-Csection 2 of Section 31 wherein the Collector will not pay thecompensation to the persons interested, viz., (a) persons interested donot give consent to receive the compensation; (b) if there is no personcompetent to alienate the land; (c) if there is any dispute as to the title oras to the apportionment of compensation. In case any such contingenciesDarise, the Collector shall deposit the amount of compensation in Court towhich a reference under Section 18 would be submitted. If Section 31is to be read with Section 34 harmoniously, the same would make it clearthat non-deposit or non-payment of compensation will make State liableto pay interest as prescribed. In other words, in case the Collector doesnot deposit the amount of compensation in Court as contemplated underESection 31(2) of the 1894 Act, at the most the persons interested may beentitled to interest of 9% or 15% as the case may be. Such act ofCollector depositing the amount in the Treasury and such act of Collectorin not depositing the amount in Court as mandated in sub-section 2 ofSection 31 may not result in extreme consequence of lapsing of acquisition.F

18. Article 283(1) of the Constitution of India mandates that matterspertaining to custody of the Consolidated Fund of India and theContingency Fund of India, the payment of moneys into such Funds, thewithdrawal of moneys therefrom, the custody of public moneys otherthan those credited to such Funds received by the Government of IndiaGetc. shall be regulated by law made by the Parliament.Article 283(2) ofthe Constitution of India mandates that similar matters of the States’Consolidated funds etc. are to be regulated by law made by the StateLegislatures. States have framed rules pursuant to Article 283(2) of theConstitution of India as to how the public moneys are to be handled.Section 55 of the 1894 Act empowers the State to make rules for guidance H

INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [MOHAN M. SHANTANAGOUDAR, J.]

of officers. Pursuant to Article 283(2) of the Constitution of India andSection 55 of the 1894 Act, various States, such as, Assam, Bihar, Orissa,Kerala, West Bengal, Delhi and Punjab have framed rules to govern themode of payment of compensation. All of them provide for deposit intothe Treasury in case the landowners are not present to receive thecompensation, along with the notice to such landowners apprising themof such deposits. It appears that the Court in the case of Pune MunicipalCorporation(supra) did not consider such rules passed by the Statesthat direct the deposit of unclaimed compensation in the Treasury.Extracts from these rules that permit deposit in the Treasury, along withthe requirement of notice of such deposits are furnished below:

19. The Assam Govt. Notification No.1211-R., dated April 19,1932, reads as follows,

“9. In giving notice of the award under Section 12(2) and tenderingpayment under section 31(1), to such of the persons interested aswere not present personally or by their representatives when theaward was made, the Collector shall require them to appearpersonally or by representatives by a certain date, to receivepayment of the compensation awarded to them intimating alsothat no interest will be allowed to them, if they fail to appear. Ifthey do not appear, and do not apply for a reference to the CivilCourt under section 18, he shall, after any further endeavour tosecure their attendance or make payment that may seem desirable,cause the amounts due to be paid into the Treasury as revenuedeposits payable to the persons to whom they are respectivelydue and vouched for in the form prescribed or approved byGovernment from time to time. He shall also give notice to thepayees of such deposits, specifying the Treasury in which thedeposits have been made.”

The Land Acquisition (Bihar & Orissa) Rules, 1894 read asfollows, “10. In giving notice of the award under Section 12(2) and tenderingpayment under Section 31(1), to such of the persons interested aswere not present personally or by their representatives when theaward was made, the officer shall require them to appearpersonally or by representatives by a certain date to receivepayment of the compensation awarded to them, intimating also A

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Athat no interest will be allowed, to them if they fail to appear. Ifthey do not appear, and do not apply for reference to the CivilCourt under Section 18, the officer shall after any furtherendeavour to secure their attendance that may seem desirable,cause the amounts due to be paid into the Treasury as Revenuedeposits payable to the persons to whom they are respectivelyBdue and vouched for in the accompanying form (marked E). Theofficer shall also give notice to the payees of such deposits, theTreasury in which the deposits specifying have been made. ..….”

The Uttar Pradesh Rules for the Payment of Compensation forLand Taken Up Under the Land Acquisition Act I of 1894 read as follows,C

“6. In giving notice of the award under section 12(2) and tenderingpayment under section 31(1) to such of the persons interested aswere not present personally or by their representatives when theaward was made, the special officer shall require them to appearpersonally or by representatives by a certain date, to receiveDpayment of the compensation awarded to them intimating alsothat no interest will be allowed to them if they fail to appear. Ifthey do not appear, and do not apply for a reference to the CivilCourt under section 18, the officer shall after any further endeavourto secure their attendance that may seem desirable, cause theEamounts due to be paid in the Treasury as revenue deposits payableto the persons to whom they are respectively due, and vouchedfor in form E. The officer shall also give notice to the payees ofsuch deposits, specifying the Treasury in which the deposits havebeen made. …….”

FThe West Bengal Notification No.29 T.R., dated April 24, 1895reads as follows:

“10. In giving notice of the award under Section 31(1) to such ofthe persons interested as were not present personally or by theirrepresentatives when the award was made, the officer shall requirethem to appear personally or by representatives by a certain date,to receive payment of the compensation awarded to them,intimating also that no interest will be allowed to them, if they failto appear. If they do not appear and do not apply for reference tothe Civil Court under Section 18, the officer shall, after any furtherendeavour to secure their attendance that may seem desirable, G

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INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [MOHAN M. SHANTANAGOUDAR, J.]

cause the amounts due to be paid into the Treasury as revenuedeposits payable to the persons to whom they are respectivelydue, and vouched for in the accompanying form (not given here).The officer shall also give notice to the payees of such deposits,specifying the Treasury in which the deposits have been made.”

The Land Acquisition (Kerala) Rules, 1990 read as follows, “13. (2) In case the awardees or their authorised agents fail toappear and accept the award or fail to apply for a reference tocourt under Section 18, the amount due shall be paid into thetreasury as Revenue Deposit payable to the persons to whom it isrespectively due and vouched for in Form E. A notice intimatingthe deposit of the amount into the Treasury shall also be servedon all the awardees and interested persons in Form No.11.”

The Punjab Standing Order No. 28 of 1909, applied to Delhi andPunjab reads as follows, “75. (V) In giving notice of the award Under Section 12(2) andtendering payment Under Section 31(1) to such of the personsinterested as were not present personally or by their representativeswhen the award was made, the officer shall require them to appearpersonally or by representatives by a certain date to receivepayment of the compensation awarded to them, intimating alsothat no interest will be allowed to them if they fail to appear, ifthey do not appear and do not apply for a reference to the civilcourt Under Section 18, the officer shall after any furtherendeavours to secure their attendance that may seem desirable,cause the amounts due to be paid to the treasury as revenuedeposited payable to the persons to whom they are respectivelydue and vouched for in the Form marked E below. The officershall also give notice to the payees of such deposits, specifyingthe treasury in which the deposit has been made. …..”

20. The Punjab Standing Order No. 28 of 1909 was consideredby this Court in the case of Sukhbir Singh (supra), wherein it wasobserved that the said Standing Order provides for five modes of paymentof compensation. The last one, namely, the payment of compensationinto the Treasury, is for cases where the landowners fail to appear toreceive their compensation. When such payment is made into theTreasury, the landowners for whom the deposits are made are required A

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Ato be served with a notice of the deposits as well as the Treasury inwhich such deposits are made. The same provision with respect to issuingof notice to non-appearing landowners is made in the State Rules forBihar, Orissa, Assam, West Bengal and Kerala.

21. It is clear that as per these State Rules, payment into theBTreasury is nothing but a residuary mode of payment after efforts as perRules have been made by the authorities to secure the attendance of theperson entitled to compensation. The existence of such express provisionin the rules, and the fact that this Court did not consider any of theserules in Pune Municipal Corporation (supra), had led to a uniquesituation where the rules are seemingly not in conformity with the meaningCgiven to Section 24(2) of the 2013 Act and Section 31(2) of the 1894 Actby this Court in Pune Municipal Corporation (supra). While PuneMunicipal Corporation (supra) held that all unaccepted compensationmust necessarily be deposited in Court for the acquisition to remain valid,the States have made rules for unaccepted compensation to be depositedDin the Treasury as revenue deposits. On a combined reading of the twostatutes and the State Rules, it is clear that a deposit in the Treasury isnot made illegal or impermissible. In fact, deposits in the Treasury areallowed as a valid means of payment by these State Rules. The StateRules provide for deposits in the Treasury as revenue deposits when thelandowners do not appear on the notified date to collect theirEcompensation.

22. It is merely a matter of procedure as to where the deposit ismade. It is also relevant to note that certain High Court Rules viz. Punjab& Haryana and Delhi, provide that a deposit in Court under Section 31of the 1894 Act must be lodged into the Treasury as a Revenue or CivilFCourt deposit. Rule 1 of Chapter 8-C of the Punjab and Haryana HighCourt Rules reads as under:

“1. Money paid into the District Court under section 31 of theLand Acquisition Act must be lodged into the Treasury as aRevenue or Civil Court deposit under the rules applicable to suchGdeposits, untilits investment as required by section 32 ibid.”

23. Rule 10 of the Uttar Pradesh Rules for the Payment ofCompensation for Land Taken Up Under the Land Acquisition Act I of1894 provides for the money paid in Court to be credited as Civil CourtDeposits, the accounts of which are ultimately kept by the Treasury H

INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [MOHAN M. SHANTANAGOUDAR, J.]

(according to paragraph 355 of Chapter XV of the Financial Handbookissued by the Government of U.P.). Rule 10 of the above Rules statesthat:

“10. All payments into Court for deposit under the Act should bemade by means of cheques in favour of the presiding officer ofthe Court, payable by order of the Court to credit of Civil CourtDeposits. The cheques should be accompanied by receipts intriplicate in form D, duly filled up, of which one will be retained bythe Court for record, and the other two returned duly signed tothe Collector. The amounts deposited in the Court will be chargedoff as expenditure in the public works accounts of the Collector,and the ultimate payments to the persons interested under theaward shall be arranged for by the Court under the rules for thepayment of Civil Court Deposits.”

Thus, it is not the position that a deposit in Court is the only legalform of deposit under the 1894 Act. Compensation was being creditedto the Treasury in the past, even after the same was deposited in Court.Thus, the issue where the compensation is deposited is a matter ofprocedure.

24. When the State Rules and High Court rules permit deposits inthe Treasury, it falls to reason that under the scheme of the 1894 Act,failure to pay or deposit in Court under Section 31(2) only had the effectof attracting interest payment as per Section 34 of the 1894 Act.

25. In Hissar Improvement Trust v. Rukmani Devi and Anr.(1990) Supp. 1 SCC 806, this Court held that where compensation hasnot been paid or deposited on time in Court, the Collector is liable to payinterest to the landowners as per Section 34. It stated thus, “5. It cannot be gainsaid that interest is due and payable to thelandowner in the event of the compensation not being paid ordeposited in time in Court. Before taking possession of the land,the Collector has to pay or deposit the amount awarded, as statedin Section 31, failing which he is liable to pay interest as providedin Section 34.

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Athe liability of the Collector in terms of the relevant provisions topay the amount awarded, together with interest in the event ofthe amount not being paid in time. The liability of the appellant-Trust arising under its agreement with the Government for paymentin respect of the property acquired is a matter on which we expressno view.”B

26. In Jogesh Chandra v. Yakub Ali, 29 IC 111 (Cal), wherethere was a dispute of title over the land between a landlord and hisalleged tenant, the Collector mistakenly paid the entire land acquisitioncompensation amount to the tenant, even though the dispute was apparenton the face of the record and the compensation should have been depositedCin Court as per Section 31(2) of the 1894 Act. The Calcutta High Courtheld that the Collector’s mistaken payment to the tenant, and the failureof the Collector to deposit in Court, does not bar a reference underSection 18 of the 1894 Act. That Court allowed the acquisitionproceedings to stand despite procedural lapses in the payment and depositDof compensation.

27. The case of Damadilal v. Parashram, AIR 1976 SC 2229: (1976) 4 SCC 855, relied upon by the learned counsel for the IDA inarguments before the referring Bench, is not relevant to the determinationof the issue at hand as it is a case of tenancy rights and merely reaffirmsEthat the payment by cheque is a valid tender.

28. To summarize, it must be emphasized that “payment” ofcompensation and “deposit” of compensation have been used to describethe instance where the State gives landowners their compensation. Bothsignify an obligation of the State. As per Section 31(1), compensationFmust be paid to the landowners. As per Section 31(2), if the landownersdo not consent to receive compensation, the State shall deposit it in Court.It is often that when a beneficiary does not appear to collectcompensation, the State has to depositthe compensation in the Treasuryas per the relevant State Rules. But that does not mean that the Statehas shirked its obligation to compensate the affected persons. It may notGalways be the case that persons who do not appear on the appointeddate are refusing to accept compensation. It may also be that suchaffected persons had consented to receive compensation, but simplycould not appear or could not be traced for some reason or the other.There may be thousands of such beneficiaries. In such a case, the H

Collector cannot hand over compensation to each beneficiary in person,but also cannot keep the money with him. He has to keep it in the Treasury.In fact, the State Rules have been framed to give notice to the landownersthat their compensation has been deposited in the Treasury instead ofthe Court. In light of this, there is no harm done or prejudice caused ifthe State deposits compensation in the Treasury when landowners donot appear. In fact, as mentioned supra the compensation deposited inCourts is often kept in the Treasury. It is merely a matter of procedureas to where the landowners who do not appear on the appointed date, orthe landowners who refuse to receive compensation, shall take theircompensation from the Treasury.

29. The objective of directing a deposit of compensation in Courtin the 1894 Actwas to prevent unnecessary prolongation of theproceedings, and accumulation of the Collector’s liability to pay interestunder Section 34, when compensation is not paid or deposited on orbefore taking possession. The landowners cannot take advantage oftheir own act of refusing to receive compensation, and contend thatcompensation has never been paid to them, when it has actually beendeposited in the Treasury. Once the State deposits the money in theTreasury, it has shown its bona fide intention to go through with theacquisition and give the beneficiaries their due compensation. In such acase, it can hardly be punished with a lapse, except that it is liable to payinterest as prescribed under the Act. Moreover, as discussed in thepreceding paragraph, practical considerations make it clear that theCollector may not be able to individually reach out to thousands ofclaimants and pay them the compensation in person at the earliest. It isonly reasonable that the Collector be allowed to deposit the compensationin the accounts of individual claimants in the Treasury, and to inform theclaimants to get the same released.

30. I am thus of the opinion that from both a legal and a practicalstandpoint, a deposit in the accounts of individual landowners in theTreasury, and informing them about such deposit for getting the samereleased in their favour where they do not appear to accept compensationas under the State Rules, does not result in the lapse of acquisitionproceedings.

31. However, with great respect, I may not subscribe to the viewsof my learned Brothers on their conclusion that judgment in Pune ABCDE

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AMunicipal Corporation(supra) was rendered per incuriaminasmuchas the judgment cannot be said to have been through lack of care, or outof ignorance of certain important factors.

32. Per incuriam is a Latin term which means “through lack ofcare” or through inadvertence (of a judicial decision) wrongly decided,Bmainly because the judges were ill-informed about the applicable law.Theword “incuria”literally means “carelessness”. A decision is renderedperincuriamif it is made through some mistake, or under a misapprehensionas to a decision or a dictum of a judge, which is the result of a materialoversight. A decision, judgment or verdict can be renderedper incuriamifgiven without considering any provisionin a statute which was not broughtCto the notice of the court or if it is not possible to reconcile its ratio withthat of a previously pronounced judgment of a co-equal or larger bench;or if the decision of a High Court is not in consonance with the views ofthe Supreme Court. A judgment that was decided perincuriam does nothave to be followed as precedent by a court.D33. The doctrine has been examined at length by us. As per A.R.Antulay v. R.S. Nayak, (1988) 2 SCC 602, the doctrine of perincuriam is defined as follows:

“42. ……”per incuriam” are those decisions given in ignoranceor forgetfulness of some inconsistent statutory provision or of someEauthority binding on the court concerned, so that in such casessome part of the decision or some step in the reasoning on whichit is based, is found, on that account to be demonstrably wrong.”

34. In SiddharamSatlingappaMhetre v. State ofMaharashtra,(2011) 1 SCC 694,this Courtdid not follow the decisionFof co-ordinate Benches which were opposed to the decision of an earlierConstitution Bench. The doctrine of per incuriam was explained asfollows:

“128. Now we deem it imperative to examine the issue of perincuriam raised by the learned counsel for the parties. In Young v.GBristol Aeroplane Company Limited (1944) All ER 293 the Houseof Lords observed that ‘incuria’ literally means ‘carelessness’. Inpractice per incuriam appears to mean per ignoratium. Englishcourts have developed this principle in relaxation of the rule ofstare decisis. The ‘quotable in law’ is avoided and ignored if it isrendered in ignoratium of a statute or other binding authority. TheH

INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [MOHAN M. SHANTANAGOUDAR, J.]

same has been accepted, approved and adopted by this court whileinterpreting Article 141 of the Constitution which embodies thedoctrine of precedents as a matter of law.”

35. In my considered opinion, the judgment in Pune MunicipalCorporation (supra) was not rendered per incuriam, as the conclusionis reached by proceeding in detail on the interpretation of relevant statutoryprovisions. However, we may not agree with the reasons assigned andconclusions arrived at by the Court in the said judgment. It is no doubttrue that the Court inPune Municipal Corporation (supra) was notinformed about the Rules of certain States framed under Section 55 ofthe 1894 Act and certain Rules of High Courts on the point regardingdeposit to be made in the Treasury. Though the Rules are not advertedto in the case of Pune Municipal Corporation (supra), the discussionas a whole, if looked into, would make it clear that the Court whiledeciding the said judgment, discussed in detail about the failure to depositin the Court, so also, about the effect of deposit in Treasury. Hence, inmy considered opinion, merely because the Rules of certain States arenot considered, the judgment inPune Municipal Corporation (supra)cannot be termed as per incuriam. In other words, merely because theRules are not referred to specifically in the judgment, it cannot be saidthat there is non-consideration of the effect of the Rules.

36. I may hasten to add here that in the case of Sukhbir Singh(supra), the Court did consider the effect of the Rules framed by Delhi,Punjab and Haryana Governments. But the conclusion rendered inSukhbir Singh (supra) was in conformity with the judgment in PuneMunicipal Corporation (supra).

37. The judgment in Pune Municipal Corporation (supra) isthe first judgment on the issue in question by a three-Judge Bench of thisCourt. Hence, it cannot also be concluded that the decision in PuneMunicipal Corporation (supra) is not in consonance with the relevantline of decisions rendered by this Court earlier.Having gone through thejudgment in Pune Municipal Corporation (supra), it cannot be saidthat the said judgment is through want of care or inadvertence.

38. In view of the discussion made supra, I conclude that Irespectfully differ with the judgment in Pune Municipal Corporation(supra) and agree with the conclusion reached by my learned brothers.However, I may not subscribe to the views of my learned brothers that A

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39. Hence, the proper course for me in light of my reasoning andopinion is to refer the matter to a larger Bench. In Sant Lal Gupta v.Modern Cooperative Group Housing Society Ltd., (2010) 13 SCCB336 this Court observed as under:

“17. A coordinate bench cannot comment upon the discretionexercised or judgment rendered by another coordinate bench ofthe same court. The rule of precedent is binding for the reasonthat there is a desire to secure uniformity and certainty in law.CThus, in judicial administration precedents which enunciate therules of law form the foundation of the administration of justiceunder our system. Therefore, it has always been insisted that thedecision of a coordinate bench must be followed. (Vide:TribhovandasPurshottamdas Thakkar v. Ratilal Motilal Patel. AIR1968 SC 372, Sub-Committee of Judicial Accountability v UnionDof India. (1992) 4 SCC 97, and State of Tripura v. Tripura BarAssociation (1998) 5 SCC 637.

18. In Rajasthan Public Services Commission v. Harish KumarPurohit (2003) 5 SCC 480, this Court held that a Bench mustfollow the decision of a coordinate Bench and take the same viewEas has been taken earlier. The earlier decision of the coordinateBench is binding upon any latter coordinate Bench deciding thesame or similar issues. If the latter Bench wants to take a differentview that that taken by the earlier Bench, the proper course is forit to refer the matter to a larger Bench.”

FFor this reason, the Question No. 1 may be referred to a largerbench.

II RE: QUESTION NO. 2 AND QUESTION NO. 3

Since Question No. 2 and Question No. 3 are interrelated, theyare dealt with by me jointly.G

40. I agree with the conclusions reached by my learned brotherson the abovementioned questions referred to us, so also that Sree Balaji(supra) will stand overruled. However, I wish to place my views on thesubject which may be in addition to the views of my brothers.

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41. These questions arise together in SLP (Civil) No. 10742/08(Yogesh Neema&Ors. v. State of M.P. &Ors.). To understand the realcontroversy to be determined in this question, the facts may be set out inbrief as follows:

The lands of several villagers were acquired for the OnkareshwarDam in Madhya Pradesh. Certain lands were acquired for theestablishment of rehabilitation sites. However, additional land of 31.70hectares was required to extend the Inpun rehabilitation site. Section 4notification was issued on 07.11.2007 for 17.52 hectares of land, but theremaining land could not be acquired due to the objections of the landowners (appellants therein). By an order of the Commissioner on15.11.2007, permission was granted to the Collector to invoke urgencyclause under Section 17 of the 1894 Act for 11.04 hectares of land andthe properties thereon. A declaration for this land was issued on26.11.2007.

The landowners filed writ petitions questioning the acquisition ofthe lands. The Single Judge dismissed these writ petitions on 14.01.2008.The High Court held that rehabilitation of displaced persons was aprerequisite to submerging any of the villages in the dam. Thus, such asituation did indeed warrant urgency under Section 17 (1); further, therewas an apprehension that the acquisition of land would get delayed bythe operation of S. 5A; that there was clear application of mind to theinvocation of the urgency clause. The High Court thus dismissed thewrit appeals. Being aggrieved, the landowners appealed to this Court.Pending appeal, the 2013 Act came into force.

42. A two-judge bench of this Court on 12.01.2016 referred thematter to a larger bench, on the abovementioned Question Nos. 2 and 3.

43. On one hand, it was contended by the learned counsel onbehalf of the landowners that periodof interim stay could not be excludedfrom the calculation of the period of five years or more under Section24(2) of the 2013 Act. The statute is a beneficial legislation. The Courtcould not supply casus omissus, as the intention of the Legislature inomitting it was evident. While it amended other provisions to excludestay period, it did not amend Section 24(2) of the 2013 Act.

44. On the other, it was submitted by the learned counsel on behalfof the State that period of interim stay ought to be excluded from thecalculation of five years under Section 24(2) of the 2013 Act. As it was A

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Anot an intentional omission of the Legislature, the Court could supplymeaning to the provision to make it consistent with the rest of the statute.

45. A two-Judge bench of this Court in Sree Balaji (supra)heldthat casus omissus could not be supplied to Section 24(2) of the 2013Act, as the Legislature has amended other Sections in the same Act toBexclude period of stay by the Court, while leaving Section 24(2) intact. Itobserved as follows:

“11. From a plain reading of Section 24 of the 2013 Act it is clearthat Section 24(2) of the 2013 Act does not exclude any periodduring which the land acquisition proceeding might have remainedstayed on account of stay or injunction granted by any court. Inthe same Act, the proviso to Section 19(7) in the context of limitationfor publication of declaration under Section 19(1) and theExplanation to Section 69(2) for working out the market value ofthe land in the context of delay between preliminary notificationunder Section 11 and the date of the award, specifically providethat the period or periods during which the acquisition proceedingswere held up on account of any stay or injunction by the order ofany court be excluded in computing the relevant period. In thatview of the matter it can be safely concluded that the Legislaturehas consciously omitted to extend the period of five years indicatedin Section 24(2) even if the proceedings had been delayed onaccount of an order of stay or injunction granted by a court of lawor for any reason. Such casus omissus cannot be supplied by thecourt in view of law on the subject elaborately discussed by thisCourt in the case of Padma Sundara Rao v. State of T.N. [(2002)3 SCC 533].

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12. Even in the Land Acquisition Act of 1894, the Legislature hadbrought about amendment in Section 6 through an AmendmentAct of 1984 to add Explanation 1 for the purpose of excluding theperiod when the proceeding suffered stay by an order of the court,in the context of limitation provided for publishing the declarationunder Section 6(1) of the Act. To a similar effect was Explanationto Section 11A which was added by Amendment Act 68 of 1984.Clearly the Legislature has, in its wisdom, made the period of fiveyears under Section 24(2) of the 2013 Act absolute and unaffectedby any delay in the proceedings on account of any order of stayby a court. The plain wordings used by the Legislature are clear G

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and do not create any ambiguity or conflict. In such a situation,the court is not required to depart from the literal rule ofinterpretation.”

46. In Padma Sundara Rao v. State of Tamil Nadu,(2002) 3SCC 533 this Court held that a Court cannot supply casus omissus intoSection 6 of the 1894 Act. After the High Court quashes a declarationmade under Section 6, there is no provision for a further limitation periodof one year for a fresh Section 6 declaration to run from the date ofreceipt of the High Court order. It stated that the limitation period mustnecessarily run from the date of the Section 4 notification as per clause(i) of the proviso to Section 6. The reasoning of this Court was as follows,

“12. The rival pleas regarding re-writing of statute and casusomissus need careful consideration. It is well settled principle inlaw that the Court cannot read anything into a statutory provisionwhich is plain and unambiguous. A statute is an edict of thelegislature. The language employed in a statute is the determinativefactor of legislative intent. The first and primary rule of constructionis that the intention of the Legislation must be found in the wordsused by the Legislature itself. The question is not what may besupposed and has been intended but what has been said. “Statutesshould be construed not as theorems of Euclid”. Judge LearnedHand said, “but words must be construed with some imaginationof the purposes which lie behind them”. (See Lenigh Valley CoalCo. v. Yensavage 218 FR 547). The view was reiterated in Unionof India v. Filip Tiago De Gama of Vedem Vasco De Gama (AIR1990 SC 981).

13. In Dr. R Venkatchalam vs. Dy. Transport Commissioner (1977)2 SCC 273 it was observed that Courts must avoid the danger ofapriori determination of the meaning of a provision based on theirown pre-conceived notions of ideological structure or scheme intowhich the provision to be interpreted is somewhat fitted. Theyare not entitled to usurp legislative function under the disguise ofinterpretation.

14. While interpreting a provision the Court only interprets thelaw and cannot legislate it. If a provision of law is misused andsubjected to the abuse of process of law, it is for the legislature toamend, modify or repeal it, if deemed necessary. [See Rishabh A

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Agro Industries Ltd. vs. P.N.B. Capital Services Ltd. [(2000) 5SCC 515]. ‘The legislative casus omissus cannot be supplied byjudicial interpretative process. Language of Section 6(1) is plainand unambiguous. There is no scope for reading something into it,as was done in N. Narasimhaiah v. State of Karnataka [(1996) 3SCC 88]. In State of Karnataka v. D.C. Nanjudaiah[(1996) 10SCC 619], the period was further stretched to have the time periodrun from date of service of High Court’s order. Such a view cannotbe reconciled with the language of Section 6(1). If the view isaccepted it would mean that a case can be covered by not onlyclauses (i) and/or Clause (ii) of the proviso to Section 6(1), but-also by a nonprescribed period. Same can never be the legislativeintent.

15. Two principles of construction one relating to casus omissusand the other in regard to reading the statute as a whole appear tobe well settled. Under the first principle a casus omissus cannotbe supplied by the Court except in the case of clear necessity andwhen reason for it is found in the four corners of the statute itselfbut at the same time a casus omissus should not be readily inferredand for that purpose all the parts of a statute or section must beconstrued together and every clause of a section should beconstrued with reference to the context and other clauses thereofso that the construction to be put on a particular provision makesa consistent enactment of the whole statute. This would be moreso if literal construction of a particular clause leads to manifestlyabsurd or anomalous results which could not have been intendedby the Legislature.“An intention to produce an unreasonableresult”, said Danckwerts, L.J., in Artemiou v. Procopiou (1966 1QB 878), “is not to be imputed to a statute if there is some otherconstruction available”. Where to apply words literally would“defeat the obvious intention of the legislation and produce a whollyunreasonable result”, we must “do some violence to the words”and so achieve that obvious intention and produce a rationalconstruction. [Per Lord Reid in Luke v. I.R.C. (1963 AC 557)where at p. 577 he also observed: “this is not a new problem,though our standard of drafting is such that it rarely emerges”.]

16. The plea relating to applicability of the stare decisis principlesis clearly unacceptable. The decision in K ChinnathambiGounder

INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [MOHAN M. SHANTANAGOUDAR, J.]

v. State of Tamil Nadu [AIR 1980 MAD 251]was rendered on22.6.1979 i.e. much prior to the amendment by the 1984 Act. Ifthe Legislature intended to give a new lease of life in those caseswhere the declaration under Section 6 is quashed, there is noreason why it could not have done so by specifically providing forit. The fact that legislature specifically provided for periods coveredby orders of stay or injunction clearly shows that no other periodwas intended to be excluded and that there is no scope for providingany other period of limitation. The maxim ‘actus curianeminemgravibit’ highlighted by the Full Bench of the MadrasHigh Court has no application to the fact situation of this case.”(emphasis supplied)

The reasoning in Padma Sundara Rao (supra) regarding casusomissus was followed verbatim in a catena of cases, including ShivShakti Coop. Housing Society, Nagpur v. Swaraj Developers andOrs., (2003) 6 SCC 659, Union of India v. Dharamendra TextileProcessors, (2008) 13 SCC 369 and recently inEera through Dr.Manjula Krippendorf v. State (Govt. of NCT of Delhi) &Anr, 2017(8) SCALE 112.

47. In Union of India v. Shiv Raj, (2014) 6 SCC 564 aCoordinate bench of this Court held that the period of litigation cannotbe excluded, as per a clarification issued by the Government of India. Itdid not, however, decide whether a stay period should be excluded fromthe calculation of 5 years under Section 24(2) of the 2013 Act. It observedas follows, “25. In order to clarify the statutory provisions of the 2013 Actwith respect to such lapsing, the Government of India, Ministry ofUrban Development, Delhi Division, came up with a circular dated14.3.2014 wherein on the basis of the legal opinion of the SolicitorGeneral of India, it has been clarified as under:

“3. Interpretation of five years period:

“With regard to this issue viz. interpretation of five years’ periodtwo situations have been envisaged in cases where theacquisition has been initiated under the Land Acquisition Act,1894 viz., (1) parties whose lands have been acquired haverefused to accept the compensation and (2) parties whose landshave been acquired having just parted with physical possession AB

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of the land. However, in both the above situations, as on1.1.2014, the period of 5 years would not have ended and insuch cases, the advisory seeks to clarify that the new law shallapply only if the situation of pendency continues unchangedfor a period that equals to or exceeds five years. In my view, itshould be further clarified that in none of the cases the periodof five years would have elapsed pursuant to an award madeunder Section 11 from the date of commencement of the Actand that the benefit of Section 24(2) will be available to thosecases which are pending and where during pendency, thesituation has remained unchanged with physical possession notbeing handed over or compensation not having been acceptedand the period equals to or exceeds five years.

4. Limitation:

4. Limitation:

As regards this item relating to the period spent during litigationwould also be accounted for the purpose of determining whetherthe period of five years has to be counted or not, it should beclarified that it will apply only to cases where awards were passedunder Section 11 of the Land Acquisition Act, 1894, 5 years ormore prior to 1.1.2014 as specified in Section 24(2) of the Act, toavoid any ambiguity.Since this legislation has been passed withthe objective of benefiting the land-losers, this interpretation isconsistent with that objective and also added as a matter ofabundant caution that the period spent in litigation challenging anaward cannot be excluded for the purpose of determining whetherthe period of five years has elapsed or not. If the possession hasnot been taken or compensation has not been paid due to thechallenge to the land acquisition proceedings, the pendente liteperiod will be included to determine the five year period andincluding such period if the award was made five years or moreprior to the commencement of the Act, then the said acquisitionproceedings will be deemed to have elapsed and fresh proceedings,if so desired, will have to be initiated in accordance with the newAct.”

26. The objects and reasons of the 2013 Act and particularly Clause18 thereof fortify the view taken by this Court in the judgmentsreferred to hereinabove. Clause 18 thereof reads as under:

“18. The benefits under the new law would be available in allthe cases of land acquisition under the Land Acquisition Act,1894 where award has not been made or possession of landhas not been taken.”

This has led to a unique situation in cases such as MagnumPromoters v. Union of India, (2015) 3 SCC 327 wherein the Courthas faulted the State for contending that they took possession as thatwould be in violation of the interim stay order, but has however held thatacquisition proceedings lapse for not taking possession within 5 yearsbecause of the time lost in the interim order. This decision was followedin Radiance Fincap(supra).

48. Stay period was also not excluded in the case of KarnailKaur (supra) wherein a two-Judge bench of this Court relied on theabove discussed cases to reject the contention of the Solicitor Generalthat the State was being prejudiced. It did so as follows, “20. The learned Solicitor General has also placed reliance uponA.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602] in support of hislegal submission that in the said case the majority view of thisCourt have succinctly laid down that the elementary rule of justiceis that no party should suffer by mistake/action of the Court. Whatthe court does ought not prejudice a litigant and therefore,respondents herein shall not be made to suffer or be deprived oftheir right by the reliance being placed by the landowners uponSection 24(2) of the 2013 Act due to the interim orders of theHigh Court and this Court as they have been in possession of theacquired land. The above contentions of the learned SolicitorGeneral cannot be accepted by us as the said principle of law laiddown by this Court in the above referred case has no applicationto the fact situation on hand in view of the clear statement of lawlaid down by this Court in the above referred cases afterinterpreting the provisions of the 2013 Act and therefore, thereliance placed upon the said decision is misplaced.

21. In Sree Balaji Nagar Residential Association (supra), it wasopined that after adverting to the decisions of the Privy Counciland this Court, that Section 24(2)of the 2013 Act does not excludeany period during which the land acquisition proceedings mighthave remained stayed on account of stay or injunction or “statusquo” order regarding possession of the land granted by any court.

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AIt was conclusively held that the Legislature has consciouslyomitted to extend the period of five years indicated in Section24(2)of the 2013 Act, even if the proceedings had been delayedon account of an order of stay or injunction granted by a court oflaw or for any reason.”

B49. Various High Courts have followed suit, such as the HighCourt of Punjab and Haryana in Maharana Partap Charitable Trust(supra) wherein it held that the principle of “actus curiaeneminemgravabit” has no application to the provisions of Section 24(2)of the 2013 Act and as per the law laid down by the Supreme Court inShiv Raj, Pune Municipal Corporation and Sree Balaji Nagar ResidentialCAssociation, the period of stay granted by the Courts is not to be excludedfor determining the period of 5 years under Section 24(2) of the 2013Act.

50. In my opinion, all these cases which followed Sree Balaji(supra) require to be revisited.It is not a wilful decision by the State toDdelay taking possession – it has to abide by the interim orders of theCourt. Interpreting the omission as referred to in paragraph 11 of SreeBalaji (supra) to mean a default inclusion of periods of stay in thecalculation of 5 years will lead tofar-reaching consequences, namelythat the State is faulted for something that is out of its control. LargeEamounts of public money will go to waste. An omission in the statute toexclude periods of stay orders should not necessarily mean by defaultthat such periods are not excluded.

51. Prior to the 2013 Act, a Coordinate Bench of this Court inShri Kishan Das &Ors. v. State of U.P. &Ors., 1995 (6) SCC 240,Fhas considered the detrimental impact of stay orders upon the State in adifferent context, and held that it cannot be made to pay interest for astay order-induced delay in making the award by observing:

“3. Shri B.B. Sanyal, learned senior counsel for the appellants,contended that the award was made on 22.3.1983 though theGacquisition was made in September 1976. Therefore, the appellantsshould be compensated by payment of interest @ 12 per cent perannum. In support of his contention, he placed reliance on thedecision of this Court in Ram Chand v. Union of India (1994) 1SCC 44 and in particular on paragraph 16 of the judgment. It isseen that in Ram Chander’s case even after the dismissal of theHwrit petitions by this Court in Aflatoon v. Lt. Governor of Delhi INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [MOHAN M. SHANTANAGOUDAR, J.]

[(1975) 4 SCC 285], no action was taken by the Land AcquisitionOfficer to pass the award. Thus, till 1980-81 no award was madein respect of any of the acquisitions. Under these circumstances,this Court had directed the Government to pay interest @ 12 percent on the amount awarded to compensate the loss caused tothe appellants therein. In this case, it is seen that though thenotification was issued in September 1976, the writ petitions cameto be filed in the High Court immediately thereafter in 1977 andobviously further proceedings were stayed. Accordingly, the LandAcquisition Officer delayed the award. After the dismissal of thewrit petitions, the appellants came to this Court and obtained statusquo. Obviously, the Land Acquisition Officer was not in a positionto pass the award immediately. Thereafter, it would appear thathe passed the award on 22.3.1983. Section 34 of the Act obligatesthe State to pay interest from the date of taking possession underthe unamended Act @ 6 per cent and after the Amendment Act68 of 1984 at different rates mentioned therein. The liability of theState to pay interest ceases with the deposit made as per Section34 of the Act. Further liability would arise only when the court onreference under Section 18 enhances the compensation underSection 28 of the Act. Similarly, in an appeal under Section 54 ofthe Act if the appellate court further increases the compensation,then again similar obligation under Section 28 arises.” (emphasissupplied)

Clearly, stay orders by the Court constrain the State from continuingwith the acquisition proceedings. It may also lead to consequences ofcontempt, as in Magnum Promoters (supra). In such a situation, thelegal position on the exclusion or inclusion of the period of stay in Section24(2) of the 2013 Act cannot be readily inferred to be against the Statedue to the omission of the Legislature.

52. As mentioned supra, Sree Balaji (supra) has ruled that casusomissus cannot be supplied to the provision in question. The decision inSree Balaji (supra) has relied on Padma Sundara Rao (supra).However, the reason for not supplying casus omissus was different inthat case.In Padma Sundara Rao (supra), the language of Section6(1) and its proviso are such, that it would make it difficult to have anydistinction between the two limitation periods in the proviso, if the startingpoint of the limitation period itself was changed from the Section 4notification to another undecided starting point by supplying casus ABCDEF

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Aomissus. In the facts of Sree Balaji (supra) as well as in the facts ofthe present case, however, there is nothing in the language of Section24(2) that would defeat the purpose of the Section if the period of interimstays were excluded. Shiv Raj (supra) does not specifically help thecase of the landowners as it did not consider the question of orders ofstay on the acquisition proceedings.

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53. As already observed in the previous paragraph, if literalconstruction of a particular clause leads to manifestly absurd oranomalous results which could not have been intended by the Legislature;where, to apply words literally would defeat the obvious intention of thelegislation and produce a wholly unreasonable result, we must feedCsomething to the provision so as to achieve the obvious intention andproduce rational construction.

54. Casus omissus means an omitted case. When a statute or aninstrument of writing undertakes to foresee and to provide for certaincontingencies, and through mistake, or some other cause, a case remainsDto be provided for, it is said to be a casus omissus.

55. I do not see why casus omissus cannot be supplied by theCourt when the parameters for supplying such casus omissus have beenmet. There is no bar much less absolute bar on the Court’s jurisdiction tosupply casus omissus. If there is necessity, such omission can be inferred.EThe grammatical and ordinary sense of the words in the statute must beadhered to unless it would lead to absurdity, repugnance or inconsistencywith the rest of the instrument. One of the earliest cases that discussedsupplying casus omissus in cases of necessity was CIT v. NationalTaj Traders, (1980) 1 SCC 370 where a two-Judge bench of thisFCourt held as follows, “10. Two principles of construction-one relating to casus omissusand the other in regard to reading the statute as a whole-appearto be well settled. In regard to the former the following statementof law appears in Maxwell on Interpretation of Statutes (12thEdn.) at page 33:

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Omissions not to be inferred-”It is a corollary to the generalrule of literal construction that nothing is to be added to ortaken from a statute unless there are adequate grounds to justifythe inference that the legislature intended something which itomitted to express. Lord Mersey said: ‘It is a strong thing to H

INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [MOHAN M. SHANTANAGOUDAR, J.]

read into an Act of Parliament words which are not there, andin the absence of clear necessity it is a wrong thing to do.’ ‘Weare not entitled,’ said Lords Loreburn L.C., ‘to read words intoan Act of Parliament unless clear reason for it is to be foundwithin the four corners of the Act itself.’ A case not providedfor in a statute is not to be dealt with merely because thereseems no good reason why it should have been omitted, andthe omission in consequence to have been unintentional.”

In regard to the latter principle the following statement of lawappears in Maxwell at page 47:

A statute is to be read as a whole-”It was resolved in thecase of Lincoln College [(1595) 3 Co. Rep. 58b, at p. 59b]that the good expositor of an Act of Parliament should ‘makeconstruction on all the parts together, and not of one part onlyby itself.’ Every clause of a statute is to ‘be construed withreference to the context and other clauses of the Act, so as, asfar as possible, to make a consistent enactment of the wholestatute.’ (Per Lord Davey in Canada Sugar Refining Co., Ltd.v. R : 1898 AC 735)”.

In other words, under the first principle a casus omissus cannotbe supplied by the Court except in the case of clear necessity andwhen reason for it is found in the four corners of the statute itselfbut at the same time a casus omissus should not be readily inferredand for that purpose all the parts of a statute or section must beconstrued together and every clause of a section should beconstrued with reference to the context and other clauses thereofso that the construction to be put on a particular provision makesa consistent enactment of the whole statute. This would be moreso if literal construction of a particular clause leads to manifestlyabsurd or anomalous results which could not have been intendedby the Legislature. “An intention to produce an unreasonableresult”, said Danckwerts L.J. in Artemiou v. Procopiou [1966 1QB 878] “is not to be imputed to a statute if there is some otherconstruction available.” Where to apply words literally would“defeat the obvious intention of the legislation and produce a whollyunreasonable result” we must “do some violence to the words”and so achieve that obvious intention and produce a rationalconstruction, (Per Lord Reid in Luke v. I.R.C.-1968 AC 557 where AB

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Aat p. 577 he also observed: “this is not a new problem, though ourstandard of drafting is such that it rarely emerges.)”

56. This was followed almost verbatim in Padma Sundara Rao(supra).It must be emphasized that the Constitution Bench in PadmaSundara Rao (supra) held that casus omissus may be supplied whenBthere is “clear necessity and when reason for it is found in the fourcorners of the statute itself”. This means that while casus omissus mustnot be readily inferred, “all the parts of a statute or section must beconstrued together and every clause of a section should be construedwith reference to the context and other clauses thereof so that theconstruction to be put on a particular provision makes a consistentCenactment of the whole statute.” This applies squarely to the facts ofthe case on hand. Casus omissus must be supplied to Section 24(2) ofthe 2013 Act due to the necessity and the need for consistency.Undoubtedly, the power to legislate remains with the Legislature. If aprovision of the Act is inconsistent or ambiguous, the same needs to beDclarified for bringing the meaning of the said provision consistent withthe rest of the Act, if need be, by supplying meaning to such provision. Inthe present case, there are many provisions in the 2013 Act which excludeperiods of interim stay, such as Section 19(7) and the Explanation toSection 69(2) of that Act. It only makes the statute more consistent ifSection 24(2) is read in light of other provisions such as Section 19(7)Eand the Explanation to Section 69(2), which make interim stay ordersexceptions to calculating periods of time under the Act. In this way,repugnancy and inconsistency with the rest of the statute is avoided.There is a clear necessity to read the exclusion of interim stay into Section24(2) of the 2013 Act so as to make its meaning consistent with the rest Fof the enactment, where in similar situations the periods of stay areexcluded.

Fof the enactment, where in similar situations the periods of stay areexcluded.

57. As has been held by this Court in Amarjeet Singh v. DeviRatan (2010) 1 SCC 417, no litigant can derive any benefit from merependency of the case in a Court of Law, as the interim order alwaysGmerges into the final order to be passed in the case and if the writ petitionis ultimately dismissed, the interim order stands nullified automatically.A party cannot be allowed to take benefit of its own wrongs by gettingan interim order and blame the Court. Ultimately, if the writ petition isfound to be devoid of any merit, the same would be dismissed. In sucha situation, the Court is under an obligation to undo the wrong done to aHparty by the act of the Court. Any undeserved or unfair advantage gained INDORE DEVELOPMENT AUTHORITY v. SHAILENDRA(DEAD) THR. LRS. [MOHAN M. SHANTANAGOUDAR, J.]

by the party invoking the jurisdiction of the Court must be neutralized, asthe institution of litigation cannot be permitted to confer any advantageon a suitor from delayed action by the act of the Court. Nobody shall bepermitted to take advantage of his own fault of delaying action. TheCourt should not permit a litigant to perpetuate the illegality by abusingthe legal process. It is the duty of the Court to ensure that dishonesty orany attempt to abuse the legal process must be effectively curbed andthe Court must ensure that there is no wrongful, unauthorised or unjustgain for anyone by abusing of the process of the Court. No one shouldbe permitted to use the judicial process for earning undeserved gains forunjust profits. The Courts’ constant endeavour should be to ensure thateveryone gets just and fair treatment.

58. “Actus curiae neminemgravabit”, or the principle that an actof Court cannot prejudice any of the parties, is a settled principle of law.In A.R. Antulay v. R.S. Nayak and Anr., (1988) 2 SCC 602, bymajority this Court held that the elementary rule of justice is that noparty should suffer by a mistake or an action of the Court. Shri KishanDas (supra) applied this principle to land acquisitions.

59. It is often the case in proceedings against land acquisitionsthat the affected parties seek an interim stay of the acquisition proceedingsuntil the matter has attained finality. An interim stay prevents the Statefrom acquiring the land and following subsequent procedure under theAct, be it the publication of notifications, making of the award, takingpossession of the acquired land, or paying and depositing of compensation.If the State does not adhere to the stay order, it will be held up forcontempt. In such a situation, it may take months and indeed years beforethe matter attains finality, during which the State is prevented from carryingout the acquisition proceedings. In a given case, it may take five to tenyears or more before the case passes through the Single Judge of theHigh Court, the Division Bench of the High Court, and finally the SupremeCourt, or even sent back to the High Court to be decided afresh on somepoint. It may well be years before possession is taken and compensationis paid to the landowners. As stated earlier, the State is precluded fromtaking possession for no fault of its own.

60. Failing to supply casus omissus will lead to a situation wherethe acquisition proceedings will lapse solely to the detriment of the Statedue to an act of the party to the litigation and at the intervention of theCourt, namely an order of interim stay. Large amounts of public money AB

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Awill go to waste in keeping the proceedings pending. While the Act isadmittedly a beneficial legislation, it cannot be that the landowners causea validly initiated acquisition to lapse by filing cases and continuouslydelaying acquisition or legal proceedings. Justice must be done to allparties to litigation. It will not serve the purpose of the enactment if theState is stopped from completing the acquisition for no mistake of itsBown, while certain opportunistic litigants seek to frustrate the State’sattempts at legally acquiring the land.

61. In fact, when the Legislature has excluded interim stay ordersin other provisions of the same Act, there is nothing that prevents thisCourt from applying these exclusions ejusdem generis to Section 24(2)Cof the 2013 Act.

Thus, the period of interim stay must necessarily be excluded forthe purposes of calculation of the time period under Section 24(2) of the2013 Act.

D62. It follows then that the absence of a specific amendment bythe Legislature to Section 24(2) does not make a substantial differenceto the legal position on excluding the period of interim stay for the purposesof calculating five years under Section 24(2) of the 2013 Act. In otherwords, the period of five years must necessarily exclude such period ofstay orders.E

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Conclusion:

63. The questions posed by the references stand answered by meas follows:

I QUESTION NO. 1: The acquisition proceedings do not lapse if theFamount is deposited in the Treasury and such fact is madeknown to the claimants by the competent authority as requiredin law. Only interest is attracted, in case if the deposit is notmade in Court. Consequently, I am unable to persuade myselfto agree with the outcome of Pune Municipal Corporation(supra). However, according to me the judgment in PuneGMunicipal Corporation (supra) is not rendered in perincuriam.

In view of the above, the judgment in Pune MunicipalCorporation (supra) may have to be reconsidered by a largerbench, inasmuch as Pune Municipal Corporation (supra)H

was decided by a bench of three judges. The Registry is directedto place the papers before the Hon’ble Chief Justice of Indiafor appropriate orders.

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IIQUESTION NO. 2 AND QUESTION NO. 3: For the aforementionedreasons, I am unable to persuade myself to agree with SreeBalaji (supra), and the samestands overruled. Question No.2 and Question No. 3 posed by the reference stand answeredas follows:

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i The conscious omission referred to in paragraph 11 of thejudgment in Sree Balaji (supra) does not make any substantialdifference to the legal position with regard to the exclusion orinclusion of the period covered by an interim order of the Courtfor the purpose of determination of the applicability of Section24(2) of the 2013 Act. In fact, excluding such periods of interimstay from the calculation of the time period of five years underS. 24(2) makes a reading of the Act more consistent.

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ii The principle of “actus curiae neminemgravabit”, or that the actof the court should not prejudice any parties, would beapplicable in the present case to exclude the period coveredby an interim order for the purpose of determining the questionwith regard to taking of possession as contemplated in Section24(2) of the 2013 Act.

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O R D E R

We unanimously agree to the answers given to all the questionsi.e. Nos.I to V, except to the aspect decided by majority whether PuneMunicipal Corporation & Anr. v. Harakchand Misirimal Solanki,2014 (3) SCC 183, is per incuriam or not. As the majority has takenthe view that it is per incuriam, it is declared to be per incuriam. Thequestions referred stand answered in terms of majority judgment. Hence,ordered accordingly.

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Mattes may now be listed on 16.2.2018 for orders before anGappropriate Bench, subject to the orders of the Hon’ble the Chief Justiceof India.

Devika Gujral

Referred questions answered.

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