Faizabad-Ayodhya Development Authority, Faizabad vs Dr. Rajesh Kumar Pandey & Ors.

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

Allowing the appeals, the Court

HELD : 1.1. Sub-section 1 of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 begins with a nonobstante clause and it states that notwithstanding anything contained in the Act, 2013 in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, - (a) Where no award under Section 11 of the Act, 1894 has been made, all provisions of the Act, 2013 relating to the determination of compensation shall apply; or (b) Where an award under Section

11 has been made, such proceedings shall continue under the provisions of the Act, 1894 as if the said Act has not been repealed. [Para 10.1][207-G-H; 208-A]

1.2. The expression “where no award under Section 11 of the said Land Acquisition Act has been made” in clause (a) of sub-section 1 of Section 24 of the Act, 2013 has to be read contextually and not by way of a plain reading. This is because a land owner who has an interim order of stay of further proceedings pursuant to the declaration made under Section 6 of the Act, 1894 issued by a Court of law and has thereby restrained the Collector/Land Acquisition Officer from making an award cannot thereafter by contending that as on 01.01.2014, no award has been made by the acquiring authority seek benefit under the provisions of the Act, 2013 by receiving a higher compensation. [Para 10.10] [211-E-F]

2.1. Section 24 is in the nature of a saving clause to save all acquisitions initiated under the provisions of Act, 1894 and at the same time, to grant certain reliefs under the provisions of Act, 2013 such as lapse of acquisition under sub-section 2 of Section 24 of the Act or clause (a) of sub-section 1 of Section 24 thereof. Therefore, while applying the said provisions to the facts of each case, it is necessary to bear in mind the contextual interpretation having regard to provisions under both the Acts. This also becomes clear on a reading of clause (b) of sub-section

1 of Section 24 which states that if an award has been made under Section 11 of Act, 1894 as on 01.01.2014 i.e., the date of enforcement of Act, 2013, then the proceedings shall continue under the provisions of Act, 1894 as if the same has not been repealed. But if no award has been made as on 01.01.2014 then clause (a) of sub-section 1 of Section 24 would apply. [Para 10.11][211-F-H; 212-A]

2.2. It is, thus, necessary to dwell into the reasons as to why no award has been made. If there is an order of restraint on the Collector or on the acquiring authority and as a result of which, the Collector or the Land Acquisition Officer is not in a position to make an award for reasons beyond his control and in compliance of the interim order granted by a court of law at the instance of the land owner or any other person who may have questioned the acquisition, the period during which the interim order has operated has to be reckoned and if on the date of enforcement of Act, 2013 i.e., 01.01.2014, no award has been made owing to the operation of such an interim order granted by a Court in favour of the land owner, then the provisions of the 2013, Act cannot straightaway be made applicable in the determination of the compensation. This is because, but for the operation of the interim order, the award could have been made under the provisions of the Act, 1894 until 31.12.2013 and then provisions of Act, 1894 would have applied as per clause (b) of sub-section 1 of Section 24. But on the other hand, owing to the operation of the interim order granted by a Court in favour of land owner, the award would not have been made as on 01.01.2014 when the Act, 2013 was enforced. [Para 10.12][212-B-E]

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

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

The time of five years is provided to the authorities to take action, not to sleep over the matter;

(ii)

Only in cases of lethargy or inaction and default on the part of the authorities and for no other reason lapse of acquisition can occur;

(iii)

Lapse of acquisition takes place only in case of default by the authorities acquiring the land, not caused by any other reason or order of the court;

(iv)

The additional compensation @ 12% provided under Section 69 of the Act, 2013 has been excluded from the period acquisition proceedings have been held up on account of the interim injunction order of any court;

(v)

If it was not possible for the acquiring authorities, for any reason not attributable to them or the

Government, to take requisite steps, the period has to be excluded;

(vi)

In case the authorities are prevented by the court’s order, obviously, as per the interpretation of the provisions such period has to be excluded;

(vii) The intent of the Act, 2013 is not to benefit landowners only. The provisions of Section 24 by itself do not intend to confer benefits on litigating parties as such, while as per Section 114 of the Act, 2013 and Section 6 of the General Clauses Act the case has to be litigated as per the provisions of the Act, 1894.

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

(ix)

It is not intended by the provisions that in case, the persons, who have litigated and have obtained interim orders from the Civil Courts by filing suits or from the High Court under Article 226 of the Constitution should have the benefits of the provisions of the Act, 2013 except to the extent specifically provided under the Act, 2013;

(x)

In cases where some landowners have chosen to take recourse to litigation and have obtained interim orders restraining taking of possession or orders of status quo, as a matter of practical reality it is not possible for the authorities or the Government to take possession or to make payment of compensation to the landowners. In several instances, such interim orders also have impeded the making of an award;

(xi)

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

(xii) The litigation initiated by the landowners has to be decided on its own merits and the benefits of Section 24(2) should not be available to the litigants in a straightjacket manner. In case there is no interim order, they can get the benefits they are entitled to, not otherwise. Delays and dilatory tactics and sometimes wholly frivolous pleas cannot result in benefitting the landowners under sub-section (1) of Section 24 of the Act, 2013;

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

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

(xv) When the authorities are disabled from performing duties due to impossibility, it would be a sufficient excuse for them to save them from rigour of provisions of Section 24. A litigant may have a good or a bad cause, be right or wrong. But he cannot be permitted to take advantage of a situation created by him by way of an interim order passed in his favour by the Court at his instance. Although provision of Section

24 does not discriminate between landowners, who are litigants or non-litigants and treat them differently with respect to the same acquisition, it is necessary to view all of them from the stand point of the intention of the Parliament. Otherwise, anomalous results may occur and provisions may become discriminatory in itself;

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

(xvii) An act of the court shall prejudice no man; (xviii)A party prevented from doing an act by certain circumstances beyond his control can do so at the first subsequent opportunity;

(xix) When there is a disability to perform a part of the law, such a charge has to be excused. When performance of the formalities prescribed by a statute is rendered impossible by circumstances over which the persons concerned have no control, it has to be taken as a valid excuse;

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

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

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

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

3.2. Repelling the submission that there is no express provision in Section 24, that excludes the period during which any interim order was operative, preventing the State from making an award, it was observed and held that preventing the State from taking the possession of acquired land or from giving effect to the award, in a particular case or cases, cannot result in the inclusion of such period or periods for the purpose of reckoning the period of five years. [Para 13][246-C-D]

3.3. The aforesaid observations would be aptly applicable while interpreting and considering Section 24(1) of the Act, 2013. The intention of the Parliament while enacting Section 24(1) of the Act, 2013 cannot be to give benefit to a litigant, who has obtained a stay order and because of that the award could not be declared and thereafter the litigant may be awarded the compensation as per Act, 2013. It may even result in discrimination between the landowners, whose lands have been acquired under the same notification, which would never have been the intention of the Parliament. [Para 14][246-E; 246-G-H; 247-C-D]

4.1. In the case of Indore Development Authority, this Court applied the principle of restitution. It was observed that the principle of restitution is founded on the ideal of doing complete justice at the end of litigation, and parties have to be placed in the same position but for the litigation and interim order, if any, passed in the matter. Applying the principle of restitution, it was further observed that no party could take advantage of a litigation. It was further observed and held that the principle of restitution is a statutory recognition of the rule of justice, equity and fair play. The court has inherent jurisdiction to order restitution so as to do complete justice. This is also on the principle that an unsuccessful litigant who had the benefit of an interim order in his favour cannot encash or take advantage of the same on the enforcement of the Act, 2013 by initially stalling the acquisition process and later seeking a higher compensation under the provisions of Act, 2013. This is for the reason that if at the instance of a landowner, who has challenged the acquisition, an interim order has been passed by a Court is successful then the proceeding of acquisition or the acquisition notification would be quashed. Then there would be no occasion to determine any compensation. But on the other hand, if a landowner, who has the benefit of an interim order in his favour whilst a challenge is made to the acquisition, is unsuccessful, he cannot then contend that he must be paid compensation under the provision of the Act, 2013 on its enforcement, whereas a landowner, who did not have the benefit of any interim order is paid compensation determined under the provisions of the Act, 1894, which is lesser than what would be computed under the Act, 2013. [Para 15][247-D-H; 248-A]

4.2. The principle of restitution is a remedy against unjust enrichment or unjust benefit. The restitutionary jurisdiction is inherent in every court, to neutralise the advantage of litigation. A person on the right side of the law should not be deprived, on account of the effects of litigation; the wrongful gain of frivolous litigation has to be eliminated if the faith of people in the judiciary has to be sustained. [Para 15.1][248-B-C]

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

Conclusion

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

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

Indore Development Authority v. Manoharlal and Ors., (2020) 8 SCC 129 : [2020] 3 SCR 1; State of Gujarat v. Essar Oil Ltd., (2012) 3 SCC 522 : [2012]

2 SCR 1127 and A. Shanmugam v. Ariya Kshatriya Rajakula

Vamsathu Madalaya Nandhavana

Paripalanai Sangam, (2012) 6 SCC 430 : [2012]

4 SCR 74 – followed.