DELHI DEVELOPMENT AUTHORITY versus VIRENDER LAL BAHRI & ORS. on 27 February 2019

[2019] 4 S.C.R. 469

DELHI DEVELOPMENT AUTHORITY

v.

VIRENDER LAL BAHRI & ORS.

(SLP (C ) No. 37375 of 2016)

FEBRUARY 27, 2019

[R. F. NARIMAN AND VINEET SARAN, JJ.]

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

s. 24 Proviso – Whether the proviso governs s. 24(1)(b) or s.24(2) – Held: The proviso governs s. 24(1)(b) and not s. 24 (2) –However the question is referred to larger Bench.

Referring the matter to larger Bench, the Court HELD: 1. Section 24(1) and (2) Right to Fair Compensationand Transparency in Land Acquisition, Rehabilitation andResettlement Act, 2013 deal with different subjects. Section24(1) deals with compensation whereas Section 24(2) deals withlapsing of the acquisition itself. There are many cogent reasonsas to why the proviso in Section 24 is really a proviso to Section24(1)(b) and not to Section 24(2). [Para 9][480-C, D]

2.1 Firstly, the scheme of Section 24(1) is to provideenhanced compensation under the 2013 Act even in cases wherea Section 4 notification has been made under a repealed statute,namely, the Land Acquisition Act, 1894, but where no award hasbeen pronounced on 01.01.2014, when the 2013 Act comes intoforce. This is clear from a reading of Section 24(1)(a). Section24(1)(b) then goes on to state that where an award has been madeunder the repealed Act prior to 01.01.2014, then compensationand all other provisions of the repealed Act will continue to applyto such award. To this, an exception has been carved out by theproviso, which states that even in such cases where compensationin respect of a majority of land holdings has not been depositedin the account of the beneficiaries, then allbeneficiaries specifiedin Section 4 notification shall be entitled to compensation underthe 2013 Act. Read thus, the proviso is an exception to Section

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A24(1)(b) in cases where a Section 4 notification covers many landholdings in the majority of which, compensation has not yet beendeposited, making it clear, therefore, that compensation nothaving been paid to substantially all such persons, the morebeneficial provisions of the 2013 Act should apply. Read thus,there is no inconsistency or repugnancy between the proviso andBSection 24(1)(b) of the Act. [Para 10][480-D-G]

2.2 If, on the other hand, the proviso is read as a proviso toSection 24(2), many anomalies arise. Firstly, for sub-section (2)of Section 24 to apply, (i) the award under Section 11 of the 1894Act should have been made five years or more prior to theCcommencement of the Act; and (ii) physical possession of theland has not been taken orcompensation has not been paid.[Para 11][480-H; 481-A-C]

3. Secondly, if read as a proviso to Section 24(2), arbitraryresults would ensue, rendering the proviso arbitrary, and hence,Dliable to be struck down under Article 14 of the Constitution ofIndia. [Para 12][483-D]

4. Thirdly, if converse case is taken where an award is madein respect of a large number of lands covered by the same Section4 notification, and compensation in respect of a majority of landEholdings has been deposited. Can it then be said that in such acase, lapsing will take place because the proviso in such a casewill not apply? Obviously, therefore, whether compensation inrespect of a majority of land holdings has or has not been depositedwould have no bearing on whether lapsing does or does not takeFplace under a totally independent provision, namely, Section 24(2).[Para 13][483-G, H; 484-A]

5. Fourthly, the language of the proviso makes it clear thatit does not refer to the award spoken of in Section 24(2) for tworeasons. First, the expression, “an award has been made” in theGproviso cannot be equated to “suchaward has been made”. Also,the words “an award” being made “five years or more prior tothe commencement of this Act” are conspicuous by their absencein the proviso. Reading these words in, when the legislature haschosen not to add them, would do violence to the literal languageand plain meaning of the proviso. However, if the proviso is readH

as a proviso to Section 24(1)(b), it would be perfectly compatiblewith all awards that are made under Section 11, whether within orbeyond five years prior to the commencement of the 2013 Act.[Para 14][484-B, C]

6. The 2013 Act is a beneficial legislation. The Preamblecasts light on the object sought to be subserved by the Act ingeneral, as well as by Section 24. Land acquisition is to takeplace in a humane fashion, with the least disturbance to the ownersof the land, as also, to provide just and fair compensation toaffected persons. Viewed in the light of the Preamble, thislegislation, being a beneficial legislation, must be construed in away which furthers its purpose. On the assumption, therefore,that two views are possible, the view which accords with thebeneficial object sought to be achieved by the legislation, isobviously the preferred view. [Para 15][484-D-F]

7. However, since the judgment in *Indore DevelopmentAuthority case which refers to different aspects of the sameprovision, namely, Section 24 of the 2013 Act has been referredto a Bench of five Judges, it is better that the present judgmentis also referred to the same Bench which is hearing *IndoreDevelopment Authority case afresh. [Para 17][486-B, C]

DDA v. Sukhbir Singh (2016) 16 SCC 258 – relied on.

Dr. Manjula Krippendorf v. State (NCT of Delhi) andAnr. (2017) 15 SCC 133 : [2017] 7 SCR 924; DelhiMetro Rail Corporation v. Tarun Pal Singh (2018) 14SCC 161; Dwarka Prasad v. Dwarka Das Saraf (1976)1 SCC 128 : [1976] 1 SCR 277; S. Sundaram Pillai v.V. R. Pattabiraman (1985) 1 SCC 591: [1985] 2SCR 643; J. K. Industries Ltd. v. Chief Inspector ofFactories and Boilers (1996) 6 SCC 665 : [1996]6 Suppl. SCR 798; Eera (through Dr. ManjulaKrippendorf) v. State (NCT of Delhi) and Anr. (2017)15 SCC 133 : [2017] 7 SCR 924; Sree Balaji NagarResidential Assn. v. State of Tamil Nadu (2015) 3 SCC353 : [2014] 7 SCR 799; Delhi Metro Rail Corporationv. Tarun Pal Singh (2018) 14 SCC 161; *IndoreDevelopment Authority v. Shailendra (2018) 3 SCC 412: [2018] 2 SCR 1 – referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Special Leave PetitionD(Civil) No. 37375 of 2016

From the Judgment and Order dated 23.02.2016 of the High Courtof Delhi at New Delhi in WP (C) No. 6357 of 2015

With

ES. L. P. (Civil) No.37372 of 2016, MA No.1423 of 2017 in CivilAppeal No.12247 OF 2016, MA No.1787 of 2017 in Civil AppealNo.10210 of 2016, MA No.1786 of 2017 in Civil Appeal No.10207 of2016, MA No.45 of 2018 in Civil Appeal No.6239 of 2017.

Ms. Garima Prashad, Ashwani Kumar, Advs. for the Petitioner.

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Dharam Veer Khatri, Mansoor Ali, Ms. Rachana Srivastava,Siddharth Batra, Advs. for the Respondents.

The Judgment of the Court was delivered by

R. F. NARIMAN, J. 1. This batch of cases relates to whetherGthe proviso contained in Section 24 of the Right to Fair Compensationand Transparency in Land Acquisition, Rehabilitation and ResettlementAct, 2013 [“2013 Act”] is a proviso to Section 24(1)(b) or whether it isa proviso to Section 24(2). The reason for this confusion is because ofthe placement of the proviso of sub-section (2) of Section 24 of the 2013Act. This is a case where the old British ditty comes to mind:

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“I’m the Parliament’s draftsman,

I compose the country’s laws,

And of half the litigation

I’m undoubtedly the cause!”[1]

2. The High Court of Delhi,in a judgment dated 21.05.2015,namely,Tarun Pal Singh v. Lieutenant Governor, Government ofNCT of Delhi and Ors., W.P.(C) 8596/2014 [“Tarun Pal Singh”],had held that the said proviso would govern Section 24(1)(b), and notSection 24(2). This judgment has been followed in a number of otherjudgments of the same High Court. DDA has filed appeals against TarunPal Singh(supra) and all the judgments that have followed in its wake.By a judgment of the Division Bench of this Court, namely, Delhi MetroRail Corporation v. Tarun Pal Singh, (2018) 14 SCC 161 [“DelhiMetro Rail Corporation”], the Division Bench of this Court has takenthe view that the proviso to Section 24 governs Section 24(2) and notSection 24(1)(b). As a result of this judgment, there is no doubt that themain judgment of the High Court of Delhi in Tarun Pal Singh(supra)and all the judgments that have followed would have to be upset.

3. Shri Dhruv Mehta, learned Senior Advocate appearing on behalfof the respondents, however, contends that the judgment in Delhi MetroRail Corporation (supra) itself requires a relook. According to him, ifthe proviso to Section 24 were to govern Section 24(2) and not Section24(1)(b), a valuable right of lapsing would be taken away and also, variousrepugnancies and inconsistencies would follow. According to ShriAmarendra Sharan, learned Senior Advocate appearing on behalf of theDDA, this being a very recent judgment of this Court ought not to bedisturbed as it has correctly appreciated and laid down the law in greatdetail.

4. Before entering into the controversy raised by the learnedcounsel, the setting of Section 24, together with certain other provisions,must first be seen. Section 24 occurs as a part of the 2013 Act. This Actrepeals the Land Acquisition Act, 1894 [“1894 Act”] by Section 114 ofthe 2013 Act, which reads as follows:

“114. Repeal and saving.—(1) The Land Acquisition Act, 1894

(1 of 1894) is hereby repealed.

1 See Eera (through Dr. Manjula Krippendorf) v. State (NCT of Delhi) and Anr., (2017) 15 SCC 133 at paragraph 115.

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A(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.”

5. In a lengthy Statement of Objects and Reasons, it is stated thatBthe 1894 Act has been found to be inadequate in addressing certainissues, and therefore, needs to be replaced by an up-to-date measure.Paragraph 18 of the Statement of Objects and Reasons is relevant, andreads as follows:

“Statement of Objects and Reasons.—

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18. The benefits under the new law would be available in all thecases of land acquisition under the Land Acquisition Act, 1894where award has not been made or possession of land has notbeen taken.

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6. The Preamble of the Act is also important and reads as follows:

“An Act to ensure, in consultation with institutions of local self-government and Gram Sabhas established under the Constitution,Ea humane, participative, informed and transparent process for landacquisition for industrialisation, development of essentialinfrastructural facilities and urbanisation with the least disturbanceto the owners of the land and other affected families and providejust and fair compensation to the affected families whose landhas been acquired or proposed to be acquired or are affected byFsuch acquisition and make adequate provisions for such affectedpersons for their rehabilitation and resettlement and for ensuringthat the cumulative outcome of compulsory acquisition should bethat affected persons become partners in development leading toan improvement in their post-acquisition social and economic statusGand for matters connected therewith or incidental thereto.”

The Preamble of the Act makes it clear that a humane, participative,informed and transparent process for land acquisition has become thefelt need of the times. This approach must also be with the least possibledisturbance to owners of land. It is in this backdrop that Section 24 ofHthe Act has been enacted. Section 24 reads as follows:

“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 (1 of 1894),—

(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,then such proceedings shall continue under the provisions ofthe said Land Acquisition Act, as if the said Act has not beenrepealed.

(2) Notwithstanding anything contained in sub-section (1), in caseof land acquisition proceedings initiated under the Land AcquisitionAct, 1894, where an award under the said Section 11 has beenmade five years or more prior to the commencement of this Actbut the physical possession of the land has not been taken or thecompensation has not been paid the said proceedings shall bedeemed to have lapsed and the appropriate Government, if it sochooses, shall initiate the proceedings of such land acquisitionafresh in accordance with the provisions of this Act:

Provided that where an award has been made andcompensation in respect of a majority of land holdings has notbeen deposited in the account of the beneficiaries, then, allbeneficiaries specified in the notification for acquisition underSection 4 of the said Land Acquisition Act, shall be entitled tocompensation in accordance with the provisions of this Act.”

7. It will be noticed that Section 24(1) begins with a non-obstanteclause, the idea being that despite the fact that the 1894Act has beenrepealed by Section 114 of the 2013 Act, yet, under certain circumstances,compensation is payable not under the provisions of the repealed Act,but under the provisions of the 2013 Act. In fact, in DDA v. SukhbirSingh, (2016) 16 SCC 258,this Court, after setting out Section 24, thenset out the statutory scheme contained therein as follows:

“11. Section 24(1) begins with a non obstante clause and coverssituations where either no award has been made under the A

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Land Acquisition Act, in which case the more beneficialprovisions of the 2013 Act relating to determination ofcompensation shall apply, or where an award has been madeunder Section 11, land acquisition proceedings shall continueunder the provisions of the Land Acquisition Act as if the saidAct had not been repealed.

12. To Section 24(1)(b) an important exception is carved outby Section 24(2). The necessary ingredients of Section 24(2)are as follows:

(a) Section 24(2) begins with a non obstante clause keeping sub-section (1) out of harm’s way; (b) For it to apply, land acquisition proceedings should have beeninitiated under the Land Acquisition Act;

(c) Also, an award under Section 11 should have been made 5years or more prior to the commencement of the 2013 Act; (d) Physical possession of the land, if not taken, or compensation,if not paid, are fatal to the land acquisition proceeding that hadbeen initiated under the Land Acquisition Act; (e) The fatality is pronounced by stating that the said proceedingsshall be deemed to have lapsed, and the appropriate Government,if it so chooses, shall, in this game of snakes and ladders, start allover again.

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 stepsto complete acquisition have not been taken for a period of fiveyears 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. This may happen either because physical possession of the land has notbeen taken or because compensation has not been paid, withinthe said period of five years. A faint submission to the effect that“or” should be read as “and” must be turned down for two reasons.The plain natural meaning of the sub-section does not lead to anyabsurdity for us to replace language advisedly used by thelegislature. Secondly, the object of the Act, and Section 24 inparticular, is that in case an award has been made for five yearsor more, possession ought to have been taken within this period,or else it is statutorily presumed that the balance between thecitizen’s right to retain his own property and the right of the Stateto expropriate it for a public purpose gets so disturbed as to makethe acquisition proceedings lapse. Alternatively, if compensationhas not been paid within this period, it is also statutorily presumedthat the aforesaid balance gets disturbed so as to free such propertyfrom acquisition.”

8. The judgment of this Court in Delhi Metro Rail Corporation(supra), after setting out Section 24, has found:

“23. An exception is also carved out by a non obstante clausecontained in sub-section (2) of Section 24; it begins with“notwithstanding anything contained in sub-section (1)”. Thus, itwould supersede the provisions of Section 24(1) also. In case ofland acquisition proceedings, initiated under the 1894 Act, whereinan award has been made within 5 years or more prior to thecommencement of the 2013 Act, if physical possession has notbeen taken or compensation has not been paid, then the saidproceedings shall be deemed to have lapsed. The proviso to sub-section (2) makes it clear that when the award has been madeand, compensation in respect of majority of holdings has not beendeposited in the account of beneficiaries the acquisition would notlapse. However, all the beneficiaries shall be entitled to enhancedcompensation under the 2013 Act. This proviso is to be necessarilypart of sub-section (2) of Section 24 only. The legislative intentionis clear that it is enacted as proviso to Section 24(2), and otherwisealso if read as if it were a proviso to Section 24(1)(b), it wouldcreate repugnancy with the said provision and the provisions ofSection 24(1)(b) and the proviso to Section 24(2) would becomewholly inconsistent with each other. This is a trite law that the AB

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interpretation which creates inconsistency or repugnancy has tobe avoided and the proviso has to be part of Section 24(2) asenacted. As per fundamental rule of its construction, no contraryintention is available in the provisions so as not to read it as part ofSection 24(2). As Section 24(1)(b) provides, in case award hasbeen passed under the 1894 Act, the proceedings shall continueof the said Act as if it has not been replaced whereas Section24(2) provides deemed lapse in case award is passed 5 years ormore before commencement of the 2013 Act and possession hasnot been taken or compensation has not been paid and as per theproviso with respect to majority of landholdings compensation hasnot been deposited in account of landowners. In case award hasbeen passed few days before commencement of the 2013 Act,then deposit of compensation with respect to majority of holdingis bound to take time, that is why legislature has made differenceof consequences based upon time-gap in passing of award asrequisite steps to be taken are bound to consume some time byproviding proceedings to continue under the 1894 Act.

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27. At the cost of repetition, we observe that a reading of Sections24(1) and 24(2) conjointly and homogeneously makes it abundantlyclear that they operate in two different fields. Section 24(1)(b)unequivocally indicates that in case the award has been passedunder the 1894 Act, all the proceedings shall continue as if the1894 Act has not been repealed. Section 24(1)(a) makes theprovision of the 2013 Act applicable only in case where the awardhas not been passed. In other words, it gives a clue that when anaward has been passed, obviously further proceedings have to beundertaken under the 1894 Act, to that extent proceedings underthe said Act are saved, and the 2013 Act will not apply. In suchcases, there is no necessity of initiation of acquisition proceedingsafresh except in cases as provided under Section 24(2).

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29. We have already clarified supra based on a catena of judgments,that a proviso appended to a provision has to be specificallyinterpreted in the manner so as to enable the field which is coveredby the main provision. The proviso is only an exception to the main provision to which it has been enacted and no other. Theproviso deals with a situation which takes something out of themain enactment to provide a particular course of action, whichcourse of action could not have been adopted in the absence ofthe proviso.

30. The proviso appended to Section 24(2) indicates that it carvesout an exception for a situation where the land acquisitionproceedings shall not be deemed to lapse. Thus, for the applicabilityof the proviso, a case has to be covered by Section 24(2) i.e.award has been made five years or more prior to the enforcementof the 2013 Act.

31. The proviso to Section 24(2) contemplates a situation wherewith respect to majority of the holding compensation not depositedevent of minority of holding the landowners are paid, meaningthereby that for majority of the landholding in case amount isdeposited acquisition is saved by the proviso. The proviso in factextends the benefit even to those landholders who have receivedcompensation as per the 1894 Act. Thus all landholders are toreceive benefit of higher and liberal compensation under the 2013Act. This situation is one where land acquisition proceedings shallnot lapse and are saved. The purpose and object of the proviso isto give benefit of computation of compensation to all landholdersand to save land acquisition proceedings. Hence, it is evident thatthe proviso is appropriately be treated as a proviso to sub-section(2) of Section 24 and cannot be read as proviso to Section 24(1)(b)of the 2013 Act.

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34. This Court specifically held in DDA v. Sukhbir Singh[DDAv. Sukhbir Singh, (2016) 16 SCC 258 : (2017) 5 SCC (Civ) 779]that the objective of Section 24(2) is to punish the State if it hasbeen “tardy in tendering or paying compensation” even after fiveyears have elapsed after passing of the award, specifically thisCourt held that Section 24(2) is an exception to Section 24(1)(b)and for Section 24(2) to apply, the award under Section 11 shouldhave been made five years or more prior to commencement ofthe 2013 Act.

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A35. It was urged at the end by Mr. Anil Goel, learned counselappearing on behalf of some of the landowners that, since theamount has not been deposited with respect to majority of holdingin the account of the beneficiaries, the acquisition stands lapsed.We have held that the proviso to Section 24(2) is not applicable inthe instant case, same is applicable where the award had beenBpassed 5 years before. In a case where award has been passedwithin 5 years, the said proviso of Section 24(2) cannot be said tobe applicable. The submission made on the basis of the provisocannot be said to be sustainable.”

9. The first important thing to be noticed is that Section 24(1) andC(2) deal with different subjects. Section 24(1) deals with compensationwhereas Section 24(2) deals with lapsing of the acquisition itself. Thereare many cogent reasons as to why the proviso in the Section is really aproviso to Section 24(1)(b) and not to Section 24(2).

10. Firstly, the scheme of Section 24(1) is to provide enhancedDcompensation under the 2013 Act even in cases where a Section 4notification has been made under a repealed statute, namely, the LandAcquisition Act, 1894, but where no award has been pronounced on01.01.2014, when the 2013 Act comes into force. This is clear from areading of Section 24(1)(a). Section 24(1)(b) then goes on to state thatEwhere an award has been made under the repealed Act prior to01.01.2014, then compensation and all other provisions of the repealedAct will continue to apply to such award. To this, an exception has beencarved out by the proviso,which states that even in such cases wherecompensation in respect of a majority of land holdings has not beendeposited in the account of the beneficiaries,then allbeneficiaries specifiedFin the Section 4 notification shall be entitled to compensation under the2013 Act. Read thus, the proviso is an exception to Section 24(1)(b) incases where a Section 4 notification covers many land holdings in themajority of which, compensation has not yet been deposited, making itclear, therefore,that compensation not having been paid to substantiallyGall such persons, the more beneficial provisions of the 2013 Act shouldapply. Read thus, there is no inconsistency or repugnancy between theproviso and Section 24(1)(b) of the Act.

11. If, on the other hand, the proviso is read as a proviso to Section24(2), many anomalies arise. Firstly, as has been correctly held in DelhiHMetro Rail Corporation (supra),for sub-section (2) of Section 24 to apply, (i) the award under Section 11 of the 1894 Act should have beenmade five years or more prior to the commencement of the Act; and (ii)physical possession of the land has not been taken orcompensation hasnot been paid. Take a case where the award has been made six yearsbefore 01.01.2014, and physical possession of theland has not been taken.The acquisition is deemed to have lapsed in such circumstances. If theproviso is to apply to Section 24(2), then notwithstanding that physicalpossession has not been taken, yet, there will be no lapse, as has beenheld in Delhi Metro Rail Corporation(supra). This would fly in theface of several judgments of this Court where it has been held that aproviso cannot be used to nullify or set at naught the substantive provisioncontained in the main enactment. Thus, in Dwarka Prasad v. DwarkaDas Saraf, (1976) 1 SCC 128, this Court held:

“18. We may mention in fairness to Counsel that the following,among other decisions, were cited at the Bar bearing on the usesof provisos in statutes:CIT v. Indo-Mercantile Bank Ltd,[AIR1959 SC 713 : 1959 Supp (2) SCR 256, 266 : (1959) 36 ITR 1];Ram Narain Sons Ltd. v. Asstt. CST[AIR 1955 SC 765 : (1955)2 SCR 483, 493 : (1955) 6 STC 627]; Thompson v. Dibdin[(1912)AC 533, 541 : 81 LJKB 918 : 28 TLR 490]; Rex v. Dibdin [1910Pro Div 57, 119, 125] and Tahsildar Singh v. State of U.P.[AIR1959 SC 1012 : 1959 Supp (2) SCR 875, 893 : 1959 Cri LJ 1231].The law is trite. A proviso must be limited to the subject-matter ofthe enacting clause. It is a settled rule of construction that a provisomust prima facie be read and considered in relation to the principalmatter to which it is a proviso. It is not a separate or independentenactment. “Words are dependent on the principal enacting wordsto which they are tacked as a proviso. They cannot be read asdivorced from their context” (Thompsonv. Dibdin, 1912 AC 533).If the rule of construction is that prima facie a proviso should belimited in its operation to the subject-matter of the enacting clause,the stand we have taken is sound. To expand the enacting clause,inflated by the proviso, sins against the fundamental rule ofconstruction that a proviso must be considered in relation to theprincipal matter to which it stands as a proviso. A proviso ordinarilyis but a proviso, although the golden rule is to read the wholesection, inclusive of the proviso, in such manner that they mutuallythrow light on each other and result in a harmonious construction.

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“The proper course is to apply the broad general Rule ofconstruction which is that a section or enactment must be construedas a whole, each portion throwing light if need be on the rest.

The true principle undoubtedly is, that the sound interpretationand meaning of the statute, on a view of the enacting clause,Bsaving clause, and proviso, taken and construed together is toprevail. (Maxwell on Interpretation of Statutes, 10th Edn., p.162)”

In S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591, thisCCourt held:

“27. The next question that arises for consideration is as to whatis the scope of a proviso and what is the ambit of an Explanationeither to a proviso or to any other statutory provision. We shallfirst take up the question of the nature, scope and extent of aDproviso. The well-established rule of interpretation of a proviso isthat a proviso may have three separate functions. Normally, aproviso is meant to be an exception to something within the mainenactment or to qualify something enacted therein which but forthe proviso would be within the purview of the enactment. InEother words, a proviso cannot be torn apart from the mainenactment nor can it be used to nullify or set at naught the realobject of the main enactment.”

Similarly, in J.K. Industries Ltd. v. Chief Inspector of FactoriesFand Boilers, (1996) 6 SCC665, this Court found:

“33. A proviso to a provision in a statute has several functionsand while interpreting a provision of the statute, the court is requiredto carefully scrutinise and find out the real object of the provisoappended to that provision. It is not a proper rule of interpretationof a proviso that the enacting part or the main part of the sectionbe construed first without reference to the proviso and if the sameis found to be ambiguous only then recourse may be had to examinethe proviso as has been canvassed before us. On the other handan accepted rule of interpretation is that a section and the proviso G

thereto must be construed as a whole, each portion throwing light,if need be, on the rest. A proviso is normally used to removespecial cases from the general enactment and provide for themspecially.

34. A proviso qualifies the generality of the main enactment byproviding an exception and taking out from the main provision, aportion, which, but for the proviso would be a part of the mainprovision. A proviso must, therefore, be considered in relation tothe principal matter to which it stands as a proviso. A provisoshould not be read as if providing something by way of addition tothe main provision which is foreign to the main provision itself.”

It could not possibly have been the unintended result of a proviso takingaway lapsing of the acquisition where the subject matter of the provisois wholly unrelated to physical possession of land but only related tocompensation not being paid.

12. Secondly, if read as a proviso to Section 24(2), arbitrary resultswould ensue, rendering the proviso arbitrary, and hence, liable to bestruck down under Article 14 of the Constitution of India. Take the caseof a Section 4 notification applying only to a single piece of land with asingle owner. If the conditions of sub-section (2) of Section 24 are fulfilled,the acquisition would lapse. However, in the case of a neighbouringland, which happens to be land belonging to the same owner, which isone among twenty pieces of land that have been acquired under a singleSection 4 notification, if compensation in respect of a majority of landholdings has not been deposited, such acquisition will not lapse, but onlyhigher compensation under the 2013 Act would be paid. Obviously, aparticular land holder’s acquisition lapsing cannot be dependent upon acontingency as to whether his land alone is acquired or is acquired inconjunction with other persons’ lands.

13. Thirdly, take the converse case where an award is made inrespect of a large number of lands covered by the same Section 4notification, and compensation in respect of a majority of land holdingshas been deposited. Can it then be said that in such a case,lapsing willtake place because the proviso in such a case will not apply? Obviously,therefore, whether compensation in respect of a majority of land holdings A

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Ahas or has not been deposited would have no bearing on whether lapsingdoes or does not take place under a totally independent provision, namely,Section 24(2).

14. Fourthly, the language of the proviso makes it clear that itdoes not refer to the award spoken of in Section 24(2) for two reasons.BFirst, the expression, “an award has been made” in the proviso cannotbe equated to “suchaward has been made”. Also, the words “an award”being made “five years or more prior to the commencement of this Act”are conspicuous by their absence in the proviso. Reading these wordsin, when the legislature has chosen not to add them, would do violence tothe literal language and plain meaning of the proviso. However, if theCproviso is read as a proviso to Section 24(1)(b), it would be perfectlycompatible with all awards that are made under Section 11, whetherwithin or beyond five years prior to the commencement of the 2013 Act,as has been pointed out hereinabove.

15. We must not forget that we are dealing with a beneficialDlegislation. The Preamble which has been referred to casts light on theobject sought to be subserved by the 2013 Act in general, as well as bySection 24. We have already seen that land acquisition is to take place ina humane fashion, with the least disturbance to the owners of the land,as also, to provide just and fair compensation to affected persons. ViewedEin the light of the Preamble, this legislation, being a beneficial legislation,must be construed in a way which furthers its purpose [seeEera(through Dr. Manjula Krippendorf) v. State (NCT of Delhi) andAnr., (2017) 15 SCC 133at paragraphs106, 128, 129, and 131]. On theassumption, therefore, that two views are possible, the view whichaccords with the beneficial object sought to be achieved by the legislation,Fis obviously the preferred view.16. We may also add that Sree Balaji Nagar Residential Assn.v. State of Tamil Nadu, (2015) 3 SCC 353, had heldas follows:

“13. It was faintly suggested by Mr. Subramonium Prasad, learnedGAAG for the State of Tamil Nadu that the proviso may come tothe rescue of the State and save the proceedings from sufferinglapse if it is held that since there was an award leading to paymentof compensation in respect of some of the landholdings only,therefore all the beneficiaries may now be entitled to compensationin accordance with the provisions of the 2013 Act. This contentionHcould have been considered with some more seriousness if physical possession of the land had been taken but since that has not beendone, the proviso dealing only with compensation cannot be ofany help to the State. Therefore, we are not required to go deeperinto the effect and implications of the proviso which prima facieappears to be for the benefit of all the landholders in a case wherethe award is subsisting because the proceedings have not lapsedand compensation in respect of majority of landholdings has notbeen deposited in the account of the beneficiaries. There is nothingin the language of the proviso to restrict the meaning of the wordsused in Section 24(2) mandating that the proceedings shall bedeemed to have lapsed if the award is five years or more thanfive years old but the physical possession of the land has not beentaken over or the compensation has not been paid. The law is tritethat when the main enactment is clear and unambiguous, a provisocan have no effect so as to exclude from the main enactment byimplication what clearly falls within its express terms, as held bythe Privy Council in Madras and Southern Mahratta RailwayCo. Ltd. v. Bezwada Municipality[(1943-44) 71 IA 113 : (1944)57 LW 422 : AIR 1944 PC 71] and by this Court in CIT v. IndoMercantile Bank Ltd.[AIR 1959 SC 713].

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15. From the discussions made above, it is amply clear that thoughthere is lack of clarity on the issue whether compensation hasbeen paid for majority of landholdings under acquisition or not,there is no dispute that physical possession of the lands belongingto the appellants under consideration in these appeals have notbeen taken by the State or any other authority on its behalf andmore than five years have elapsed since the making of the awarddated 30-11-2006, and 1-1-2014 when the 2013 Act came intoforce. Therefore, the conditions mentioned in Section 24(2) of the2013 Act are satisfied for allowing the plea of the appellants thatthe land acquisition proceedings must be deemed to have lapsedin terms of Section 24(2) of the 2013 Act. The appeals are disposedof accordingly. It goes without saying that the Government ofTamil Nadu shall be free, if it so chooses to initiate proceedings ofsuch land acquisition afresh in accordance with the provisions ofthe 2013 Act. In the facts and circumstances of the case thereshall be no order as to costs.”

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AThis judgment has since been upset by a judgment of three learned Judgesin the case of Indore Development Authority v. Shailendra, (2018)3 SCC 412, at 551 [“Indore Development Authority”]. The judgmentin Indore Development Authority(supra) has itself been referred toa Bench of five learned Judges vide order dated 22.02.2018.

B17. For all these reasons, it is better if this judgment were also tobe referred to the same Bench which is hearing Indore DevelopmentAuthority(supra) afresh, as that case also refers to different aspects ofthe same provision, namely, Section 24 of the 2013 Act. For all thesereasons, we request the Chief Justice of India to refer Delhi MetroRail Corporation v. Tarun Pal Singh, (2018) 14 SCC 161 to theCaforesaid larger Bench for reconsideration thereof.

Kalpana K. Tripathy

Matter referred to larger Bench.

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