Indore Development Authority vs Shailendra (Dead) through Lrs. & Ors.

s.24(2) – Limitation – Exclusion of period spent in litigation – Held: Provisions of s.24(2) do not intend to cover the period spent during litigation and when the authorities have been disabled to act under s.24(2) due to the final or interim order of a court or otherwise, such period has to be excluded from the period of five years as provided in s.24(2) of the Act of 2013 – There is no conscious omission in s.24(2) for the exclusion of a period of the interim order. (Per majority)

s.24(1) – Interpretation of – Held: When award under the 1894 Act has not been passed, then as per s.24(1)(a) of the Act 2013, all the provisions of the Act of 2013 relating to determination of compensation shall apply – Where, however, an award under s.11 has been made then such proceedings shall continue as per s.24(1)(b) of the Act 2013, under the Act of 1894 as if the said Act has not been repealed – However, in case physical possession of the land has not been taken, or the compensation has not been paid, the proceedings shall be deemed to have lapsed; and, in case of compensation with respect to a majority of landholdings has not been deposited in the account of the beneficiaries, then, all beneficiaries i.e. landowners shall be entitled to compensation in accordance with the provisions of the Act of 2013 – Consequence of non-deposit of the amount, with respect to the majority of land holdings, in the account of the beneficiaries, is that the acquisition would not lapse, and only compensation under the new Act would be 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 used in the proviso – The Legislature has used two different expressions to carry, respectively different meanings; and, the proviso operates in a different field, where the acquisition would not lapse – The proviso is not attracted where compensation has been paid – The proviso to s.24(2) does not provide that amount of compensation has to be deposited in the court – It obviously refers to a payment deposited with LAO or in treasury – The expression “paid”, used in s.24(2) of the 2013 Act, thus, cannot carry same meaning and include in it the deposit to be made in Court under s.31(2) of the Act of 1894; 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 Act deals with ‘deposit’ of compensation in treasury or with Land Acquisition Collector with respect to the majority of holding – It contemplates that amount has not been ‘paid’ to landowners/beneficiaries/interested persons – Thus, when scheme of entire s.24 is considered, the concept of ‘paid’ in the main s.24(2) is different from the deposit – If the deposit is included in word ‘paid’, the proviso to s.24(2), which has the different consequence of no lapse, but only higher compensation would be otiose and become redundant and repugnancy would occur – It is clear that expression ‘paid’ in s.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 of 1894 – 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 made unconditionally available – Merely, if a landowner refuses to accept it, it cannot be said that it has not been paid – Once amount has been tendered that would amount to payment – Thus, word “paid” does not mean actual payment to be made but whatever is possible for an incumbent to make the payment is only contemplated – It is settled 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 open to the court to add to these words, or to substitute the said expression with any further expression, such as ‘deposit’. (Per majority) s.24(2) – Applying the rule of harmonious construction to the provisions of s.24(2) of the Act of 2013, i.e. as between the main part of the section and its proviso, the word “paid” occurring in the main part, has to be construed differently (with a different meaning being given to it from the word “deposited” occurring in the proviso; otherwise, inconsistency and repugnancy would be the result of the provision contained in s.24(2) as a whole; and, that is what has to be avoided – The provisions would be irreconcilable, and an anomalous result would be occasioned – A section is to be interpreted by reading all its parts altogether, and it is not permissible to omit any part thereof – In the instant case, proviso to s.24(2) cannot be ignored while interpreting the main subsection – The proviso is enacted as part of s.24(2); it is not an independent provision and applies to an acquisition made five years or before, in which amount, with respect to majority of holdings, has not been deposited in court – There has to be harmonized construction of provision of s.24(2) – Interpretation of statutes. (Per majority) s.24 – Compensation – Deposit in Court – Whether necessary – Held: The law as prevailed under the Act of 1894 never invalidated any land acquisition in the absence of amount being deposited in court since the time immemorial in most cases where reference is not sought, amount had been invariably deposited in the Treasury as provided in statutory rules framed under s.55 of Act of 1894 and other standing order issued by State Governments, and there were binding decisions which simply laid down that in case landowner is not responsible for delay in payment, at the most he may be entitled to interest on such amount, in case it has not been tendered/paid to him when possession has been taken – It would be wrong to lay down law that once amount has not been deposited in the court but in treasury, acquisitions would lapse under s.24. (Per majority) s.24 – Compensation – Deposit made in Treasury – The court is not disbursing authority of compensation when reference is not sought – Farmers/claimants are primarily concerned with the Land Acquisition Collector and for more than one century this procedure of deposit in treasury was prevailing and by and large amounts had been deposited in the treasury only and, thus, it would not be appropriate to make the operation of law to be such as to invalidate land acquisition when deposit is made in Treasury – Such an interpretation is not permissible as per the intendment of the Act of 2013. (Per majority)

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

s.24 – When there is absolute vesting of the land in the State under the provisions of the Act of 1894, whether it can be divested by virtue of the provisions made in s.24 of 2013 Act – Held: When there is absolute vesting in the State it is vesting along with possession and thereafter a person who remains in possession is only a trespasser not in rightful possession – Vesting contemplates absolute title, possession in the State – “Vest” means an absolute or indefeasible right – Thus, the provisions contained under the Act of 2013 do not take vested rights away – There is no deemed lapse under s.24 in such a case – In case of urgency also before award is passed as provided in s.17(1), 17(3A) vesting takes place on fulfillment of conditions – No different intention appears from s.24 to divest the land once it has absolutely vested in the State in accordance with the provisions of the Act of 1894 – Merely by obtaining interim order or keeping the litigation pending or filing it afresh that too by way of stale and belated claim after the Act of 2013 has come into force, no divesting of land is contemplated – It is only in exigencies provided deemed lapse take place either when possession 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 Act of 2013 applies. (Per majority)

s.24(2) – Accrued right – It is settled law that accrued rights cannot be taken away by repealing statutory provisions – The repealing law must provide for taking away the accrued rights expressly or by necessary implications – There is no such express provision or necessary implication – The beneficial intendment of proviso to s.24(2) is that acquiring body must have arrangement of money for payment of compensation with respect to majority of holding – Law does 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 no legality in the claim and one cannot be permitted to reap the fruits of one’s own dilatory tactics, money power to litigate till eternity – The Act nowhere intends that only litigating incumbents who are not accepting acquisition have to be given the benefit of Act of 2013 – Those who have obtained interim orders under guise of prima facie case anyhow or somehow without any basis, without merit in their claim, cannot be protected by providing shelter under the protective umbrella of s.24(2) of the Act of 2013 – Repeal. (Per majority)

s.24 – Delayed claims – Maintainability of – Held: Stale claims cannot be entertained even though no time limit is prescribed – Once Panchnama has been drawn and by way of drawing the Panchnama physical possession has been taken, the case cannot be reopened under the guise of s.24 of Act of 2013 – The provisions of s.24 do not invalidate those judgment/orders of the courts whereunder rights/claims have been lost/negatived, neither do they revive those rights which have become barred, either due to inaction or otherwise by operation of law – Fraudulent and stale claims are not at all to be raised under the guise of s.24. (Per majority) 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 the landowners – In case the legislature wanted the ‘deposit in Court’ to be included in ‘paid/ tender’, it could have easily said so – But it has used expressions differently, with different consequences – There is casus omissus, i.e. conscious omission made by the Legislature in main s.24(2) when the 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 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 period of stay/ injunction of a Court order does not at all affect the provision of s.24(2) of the Act of 2013 – It intended that authority should not keep pending acquisition due to laxity on their part for five years or more – It never intended to apply in case they were not able to perform obligation due to court order or conduct of landowners – The legal provisions have to be interpreted in the light of the settled principles of common law unless they are excluded, and in case a person is litigating for several decades, non-acceptance of compensation and questioning the acquisition, cannot be permitted to ask for compensation or claim lapse under 2013 Act. (Per majority)

s.24(2) – Common law principles – It is well settled that the statutory provision would prevail upon the common law principles – The statutory provisions, contained in s.24 of the Act of 2013, do not exclude the principles of common law – The principles that can be excluded are only those in respect to which, provision has been made 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 is impliedly excluded, are themselves based on the maxim “expressio unius est exclusio alterius” – This maxim has been held to have limit of operation and is not of universal application – Thus, mere fact that in some of the provisions there is a mention about period of stay being excluded, cannot be taken to be conclusive that in other provisions with respect to the effect of stay not to be considered or common law maxims have no applicability in the context of s.24(2) of the 2013 Act – The Common Law principles, cannot be ousted, to do complete justice to parties and to prevent miscarriage of justice, within purview of s.24 of Act of 2013 – Doctrines/Principles.(Per majority)

s.24(2) – Provision of lapse of acquisition, invocation of – Held: In case possession could not be taken, or compensation could not be paid or deposited, due to cover of courts’ order or conduct of land-owner, provision of lapse cannot be invoked – s.24(2), a policy of the law is not to benefit a litigant or confer undeserving benefit by involving in the lis and to reap fruits on the basis of possession on illegal basis without any right and often lis is filed in land acquisition cases one after the other and intendment of law is not to treat law-abiding incumbents differently – Litigation cannot be permitted to become lucrative industry for the unworthy litigant. (Per majority)

Effect of repeal – Held: The repeal of the Act of 1894 by Act of 2013 has been made without prejudice or affect the general application of s.6 of the General Clauses Act, 1897 – s.6 of the General Clauses Act provides that unless a different intention appears, the repeal shall not revive anything not in force – s.6(b) provides that it would not affect any previous operation of any enactment so repealed or anything duly done or suffered thereunder – s.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 different intention appears, and any such investigation, legal proceeding or remedy may be instituted, or continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed – The provisions of s.6 clearly save such proceedings and pending litigation has to be decided only on the basis of 1894 Act except as provided specifically in Act of 2013 – General Clauses Act, 1897 – s.6. (Per majority) s.24(2) – The acquisition proceedings do not lapse if the amount is deposited in the Treasury and such fact is made known to the claimants by the competent authority as required in law – Only interest is attracted, in case if the deposit is not made in Court. (Per Mohan M. Shantanagoudar, J.)

s.24(2) – Casus Omissus – The conscious omission referred to in paragraph 11 of the judgment in Sree Balaji does not make any substantial difference to the legal position with regard to the exclusion or inclusion of the period covered by an interim order of the Court for the purpose of determination of the applicability of s.24(2) of the 2013 Act – In fact, excluding such periods of interim stay from the calculation of the time period of five years under s.24(2) makes a reading of the Act more consistent – Interpretation of statutes – Interim order. (Per Mohan M. Shantanagoudar, J.) s.24(2) – Casus Omissus – There is no bar much less absolute bar on the Court’s jurisdiction to supply casus omissus – If there is necessity, such omission can be inferred – Casus omissus must be supplied to s.24(2) of the 2013 Act due to the necessity and the need for consistency – If a provision of the Act is inconsistent or ambiguous, the same needs to be clarified for bringing the meaning of the said provision consistent with the rest of the Act, if need be, by supplying meaning to such provision – In the instant case, there are many provisions in the 2013 Act which exclude periods of interim stay, such as s.19(7) and the Explanation to s.69(2) of that Act – It only makes the statute more consistent if s.24(2) is read in light of other provisions such as s.19(7) and the Explanation to s.69(2), which make interim stay orders exceptions 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 s.24(2) of the 2013 Act so as to make its meaning consistent with the rest of the enactment, where in

similar

situations

the

periods

of

stay

are

excluded.(Per Mohan M. Shantanagoudar, J.)

s.24(2) – The principle of “actus curiae neminemgravabit”, i.e the act of the court should not prejudice any parties, would be applicable in the present case to exclude the period covered by an interim order for the purpose of determining the question with regard to taking of possession as contemplated in s.24(2) of the 2013 Act – Doctrines/Principles. (Per Mohan M. Shantanagoudar, J.) s.24(2) and its proviso – “tender”, “payment”, and “deposit” – Interpretation of – Whether these terms can be used interchangeably – Word ‘deposit’ whether synonymous with the word ‘payment’ – Held: The 2013 Act use “tender”, “payment”, and “deposit” at different places in the enactments – Tender and payment are two different terms – However, “payment” has been treated similar to “deposit” within s.24(2) itself, as well as in other provisions – A plain reading of sub-section 2 of s.24 of the 2013 Act discloses that in case either the physical possession of the land has not been taken, or the compensation has not been paid, the acquisition proceedings shall be deemed to have lapsed – However, the proviso to sub-section 2 of s.24 emphasizes that after the award is made, if compensation in respect of majority of the land holdings has not been deposited in the account of the beneficiary, then the owners of minority of the land holdings will be entitled to compensation under the 2013 Act, which means that under the proviso, though the owners of a minority of the land holdings have received compensation under the 1894 Act, they would be getting higher compensation under the 2013 Act in case compensation has not been deposited in the account of the beneficiaries in respect of a majority of the land holdings – The word “deposit” in the account of beneficiaries as contained in proviso to s.24(2) of the 2013 Act would mean deposit in the account of beneficiaries in the Treasury – s.80 also recognises deposit of compensation as being equivalent to payment of compensation. (Per Mohan M. Shantanagoudar, J.) s.24 – Whether the judgment in Pune Municipal Corporation is per incuriam – Held: A decision is rendered per incuriam if it is made through some mistake, or under a misapprehension as to a decision or a dictum of a judge, which is the result of a material oversight – A decision, judgment or verdict can be rendered per incuriam if given without considering any provision in a statute which was not brought to the notice of the court or if it is not possible to reconcile its ratio with that 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 of the Supreme Court – The judgment in Pune Municipal Corporation was not rendered per incuriam, as the conclusion is reached by proceeding in detail on the interpretation of relevant statutory provisions – However, the reasons assigned and conclusions arrived at by the Court in the said judgment are not acceptable – Though the Rules are not adverted to in the case of Pune Municipal Corporation, the discussion as a whole, if looked into, would make it clear that the Court while deciding the said judgment, discussed in detail about the failure to deposit in the Court, so also, about the effect of deposit in Treasury – Hence, merely because the Rules of certain States are not considered, the judgment in Pune Municipal Corporation cannot be termed as per incuriam – In other words, merely because the Rules are not referred to specifically in the judgment, it cannot be said that there is non-consideration of the effect of the Rules – Thus it cannot be said that the said judgment is through want of care or inadvertence – The proper course is to refer the matter to a larger Bench. (Per Mohan M. Shantanagoudar, J. – Dissenting view) s.24(2) and its proviso – Interpretation of – The proviso to sub-section 2 of s.24 does not require the State to pay the compensation in respect of minority holdings for saving acquisition – It is sufficient if the compensation is deposited in respect of minimum holdings in the account for saving the acquisition – Since the proviso to 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 regard to the beneficiaries of a minority of holdings, the same would lead to the inevitable conclusion that the word “payment” as found in sub-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 the proviso would make it clear that even if the compensation in respect of minority of the land holdings is deposited in the account of such minority beneficiaries, the acquisition does not lapse – At the most, every land-loser is entitled to the higher compensation as per the provisions of the 2013 Act – Since the proviso does not refer to the words “payment of compensation” and as the main provision i.e. sub-section 2 of s.24 does not refer to the word “deposit”, the only interpretation that is possible is that, if either deposit is made in the Treasury in the name of minority holders or payment is made at least to minority holders, the acquisition does not lapse – If the word “paid” as found in sub-section 2 of s.24 is not treated as “deposited” in the account of beneficiaries, then the proviso to sub-section

of

s.24

would

become

otiose.

(Per Mohan M. Shantanagoudar, J.)

Land Acquisition Act, 1894:

s.31 – Consequence of not depositing the amount under s.31 of the 1894 Act – The expression used in s.31 is not “paid”, it is only “tender payment” and there is obligation to pay compensation unless prevented by a cause under sub-section (2) of s.31 – In case there is dispute as to person entitled to compensation or its apportionment in between person interested or person was not even competent to make alienation of property that has been acquired it would not be necessary to tender amount as it may not be so done due to said exigencies as authority may decide not to pay it till court orders then it is to be deposited in court to save further liability of exorbitant interest under s.34 of the Act of 1894 – Apart from that s.31(2) does not cover all the exigencies and it does not require that invariably the compensation has to be deposited with the court – It is only when reference is sought that reference court comes to picture not otherwise as provided in rules/orders in case person refuses and seeks a reference to court it has to be deposited in court where reference would be submitted otherwise as provided in the rules it has to be deposited in treasury – Even s.31(2) comes into play to “tender payment” is obligatory provision – Tender of payment is complete when it is made unconditionally available it could not have been equated with the deposit in court under ss.31(2) or 24(2) of old and new Acts respectively as these are two different exigencies and consequence of non-payment of compensation is clearly culled out in s.34. (Per majority)

ss.31, 34 – Prejudice due to non-deposit in court – Held: As per the provisions contained in s.34, a person can claim the interest in case amount is not deposited as envisaged under s.31(2) if authorities are at fault – In the given situation unless aggrieved party makes out a case of prejudice and injustice, every infraction of law would not vitiate the act. (Per majority) s.31(2), first proviso – Payment received under protest – Maintainability of reference – Held: It is open to a person, under the first proviso to s.31(2), to receive payment of compensation under protest as to the sufficiency of the amount, and such person is also entitled to maintain a reference – In case awarded amount has been accepted without protest, reference cannot be maintained under s.18.(Per majority)

s.31(2) – Expression “tender”, meaning – Consequence of tender – The meaning of expression “tender”: is when a person has tendered the amount and made it unconditionally available - If the landowner refused to receive it, the person who has tendered the amount cannot be saddled with the liability, which is to be visited for 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 2013 Act – Held: The expression used in s.31 of Act of 1894 and s.77(1) of Act of 2013 is to “tender payment” – Once there is tender, then in case of refusal to accept the same,the obligation to pay under s.31(1) is complete by tender, and that tantamount to making the payment; 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 the beneficiaries – It is only after their refusal to accept the compensation tendered under s.31(1) of the Act of 1894 that it is to be deposited in Court – Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 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 payment made to the landowner i.e. persons interested/beneficiaries – Thus, in case deposit is directly made in the court without tender, it could not be said that it was tendered or paid – ‘Deposit in court’ simply is the discharge of Collector’s liability of making payment of interest as envisaged under s.34 of the 1894 Act, and no more; deposit in Court is not tender to landowner – Once the amount has been tendered and not accepted, obligation to pay is discharged, as envisaged under s.31(1); no penal consequences can follow and, the person who has refused to accept cannot be permitted to take an advantage of his own wrong, or in case his conduct is of filing litigations, delaying the passing of the award or obtaining stay of the proceedings; such action would tantamount to refusal to accept compensation, and the person then may not even be entitled to higher rate of interest as envisaged under s.34.(Per majority)

ss.31, 34 – Deposit in Treasury – Held: The various States have made rules for unaccepted compensation to be deposited in the Treasure as revenue deposits when the landowners do not appear on the notified date to collect their compensation – Thus, a deposit in Court is not the only legal form of deposit under the 1894 Act – Compensation was being credited to the Treasury in the past, even after the same was deposited in Court – Thus, the issue where the compensation is deposited is a matter of procedure – When the State Rules and High Court rules permit deposits in the Treasury, it falls to reason that under the scheme of the 1894 Act, failure to pay or deposit in Court under s.31(2) only had the effect of attracting interest payment as per s.34 of the 1894 Act.

(Per Mohan M. Shantanagoudar, J.)

s.55 – Dealing with public money – Effect of Rules framed under s.55 and orders issued by State Governments – There are various state rules framed under s.55 by various state governments as well as there are instructions issued with respect to dealing with government money as provided in Art. 283 of the Constitution of India, and when it is the government money it has to be dealt with in accordance with the instructions issued by the state government from time to time – There are other Financial Codes/Rules/orders issued time to time by various State Governments with respect to dealing with Government money – They have the force of law – The duty of the court is to harmonize rules with provision of Act.(Per majority)

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

Land Acquisition:

Role of State when landowners do not accept compensation/acquisition – Duty of landowners/litigants – Held: State authorities are not expected to retain the money with them and run after the landowners and match with their dilatory tactics with vigil to find out that one ultimate day, the litigation would attain finality – Once by their conduct, there is refusal to accept the land acquisition itself, much less compensation, in such circumstances such landowners have to inform the authorities about the outcome of the litigation and in case they have lost, to ask for compensation – Authorities are not supposed to be on vigil so as to ascertain after lapse of so much time even after decades in new generation, who has received the compensation and who has not received the compensation.(Per majority)

Mode of taking physical possession – Recording of panchnama/memorandum by Land Acquisition Officer would constitute taking possession of land – If possession is of a large tract of land, it may not be possible to take physical possession of each and every parcel of the land and it would be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures. (Per majority)

Challenge to acquisition – Claim for damages and interest after losing the challenge – The maxim “nullus commodum capere potest de injuria sua 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 any claim for damages and interest – Thus, when once “tender” of the amount had been made, in any of the prescribed modes, which met with refusal to accept it and/or by the conduct of indulging in incessant litigation which, in some instances, culminated into a stay/interim order, the party which thus refused to accept the amount, indulging instead in the ‘theater of the absurd’, cannot turn around and contend that the other party should now be visited with the penalty for non-payment – Maxims.(Per majority) Delay/laches – Dilatory tactics – It is a settled proposition that one cannot be permitted to take advantage of his own wrong – The doctrine “commodum ex-injuria sua Nemo habere debet” means convenience cannot accrue to a party from his own wrong – No person ought to have advantage of his own wrong – Normally merit of lis is to be seen on date of institution – One cannot be permitted to obtain unjust injunction or stay orders and take advantage of own actions – Law intends to give redress to the just causes; at the same time, it is not its policy to foment litigation and enable to reap fruits owing to the delay caused by unscrupulous persons by their own actions by misusing the process of law and dilatory tactics – Maxims.(Per majority)

Doctrines/Principles:

Doctrine of impossibility – The maxims namely ‘nemo tenetur ad impossibilia’ regarding the impossibility of performance of an act may not be strictly applicable, as acts, under s.31 or 24, were capable of being performed but authorities were disabled to perform them as no fault on their part – However, the effect of Court orders, or the conduct of the landowners/claimants/beneficiaries, is required to be considered, it was not an ‘impossibility’ to perform the acts in question by their very nature but the said aspect is relevant and underlying principle of inability to perform has to be considered in the backdrop of fact whether it was in the control or capacity of authority to perform actions which were possible to be performed but when it was not possible to perform or were incapacitated to perform – In such event, person responsible for interdicting cannot ask him to be put in advantageous position for non-compliance of an act, which possibly would have been performed, but for such action – Land Acquisition Act, 1894 – s.31 – Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 – s.24. (Per majority) Principle of Restitution – While construing provisions of s.24(2) applicable in case of lis, the principle of restitution which enjoins a duty upon the courts to do complete justice to the party at the time of final decision is to be kept in mind – Successful party at the end of the litigation has to be placed as far as possible at the same place unless it would have been had the interim order not being passed – In doing away the effect of interim order by resorting to fact of restitution is in fact obligation of the court – Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 – s.24(2). (Per majority) Interpretation of Statutes:

Addition to, or subtraction from, the Act – Permissibility – It is not open to Court to either add or subtract, a word – The legal maxim “A Verbis Legis Non Est Recedendum” means: from the words of law, there must be no departure – Before adding the word or omitting a word the court has to consider the intended purpose of the statute or the provision in question; that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question, and substance of the provision Parliament would have made, although not necessarily the precise words Parliament 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 statutory interpretation, inconsistency and repugnancy is to be avoided and harmonious construction has to be adopted – The construction to be adopted should be such, as would make the statute as a whole, a consistent enactment – Such a construction would have the merit of avoiding any inconsistency or repugnancy, either within a given section or as between a particular section on the one hand and other parts of the statute on the other. (Per majority)

Different expressions – When two different expressions have been used in the same provision of a statute, there is a presumption that 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 the parts together and not of one part only by itself – Every clause in a statute is to be construed with reference to the context and other clauses of the Act, as far as possible, to make a consistent enactment of the whole statute – This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature – An intention to produce unreasonable result is not be imputed to a statute if there is some other construction available – Where, to apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result, something must be fed to the provision so as to achieve the obvious intention and produce rational construction – Land Acquisition Act, 1894 – Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. (Per Mohan M. Shantanagoudar, J.) Interim order:

Consequence of interim order – Held: When there is interim stay with respect to possession or order of status quo, everything comes to stand still till the interim order is vacated – When once the court has restrained the State authorities to take possession, or to maintain status quo, they cannot pay the amount or do anything further, as such the consequences of interim orders cannot be used against the State – Land acquisition. (Per majority) Effect of – Held: It is settled proposition of law that no litigant can derive the benefit of pendency of a case in a court of law – In case any interim order is passed during the pendency of litigation it merges in the final order – In case, the case is dismissed the interim order passed during its pendency is nullified automatically. (Per majority)

Per incuriam – Decision in Pune Municipal Corporation case – Principle of ‘per incuriam’, applicability – The concept of “per incuriam” signifies those decisions rendered in ignorance or forgetfulness of some inconsistent statutory provisions, or of some authority binding on the Court concerned – The concept means that a given decision is in disregard of the previous decisions of the Court itself, or that it was rendered in ignorance of the terms of an applicable statute or of a rule having the force of law – In the instant case, the decision in Pune Municipal Corporation case is held per incuriam. (Per majority)

Repeal – Effect of repealing law on accrued rights – Held: It is settled law that accrued rights cannot be taken away by repealing statutory provisions – The repealing law must provide for taking away such rights expressly or by necessary implications. (Per majority)

Words and phrases – Vesting – Meaning of. (Per majority)

Answering the reference, the Court

HELD:

PER ARUN MISHRA, J. (For himself and for

Adarsh Kumar Goel, J.) (MAJORITY VIEW)

1. INTERPRETATION OF SECTION 24

1.1 In case the award has not been passed then as per section 24(1)(a), compensation has to be determined under the Act of 2013. Section 24(1)(b) provides that where an award under section 11 of the 1894 Act has been made, then such proceedings shall continue under the provisions of the said Act of 1894 as if it has not been repealed. However, in case physical possession of the land has not been taken, or the compensation has not been paid, the proceedings shall be deemed to have lapsed; and, in case of compensation with respect to a majority of landholdings has not been deposited in the account of the beneficiaries, then, all beneficiaries i.e. landowners shall be entitled to compensation in accordance with the provisions of the Act of 2013. [Para 24][75E-G]

1.2 In section 24(2), the expression that has been employed is “compensation has not been paid”. The expression “deposited”, which occurs in the proviso to sub-section (2), has not been used in the main section 24(2). Its proviso uses the expression “deposited in the account of the beneficiaries”, meaning thereby, in the case with respect to the majority of land holdings amount has not been deposited in the account of beneficiaries, though the acquisition would not lapse, all beneficiaries would get benefit of the compensation under the Act of 2013. Thus, the consequence of non-deposit of the amount, with respect to the majority of land holdings, in the account of the beneficiaries, is that the acquisition would not lapse, and only compensation under the new Act would be payable. Whereas, under the main part of section 24(2), it is apparent that, the expression “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 used two different expressions to carry, respectively different meanings; and, the proviso operates in a different field, where the acquisition would not lapse. The object is that a body or State Government, for whose benefit land has been acquired, must have possessed the requisite funds for payment to the landowners. The proviso is not attracted where compensation has been paid. The proviso to section 24(2) does not provide that amount of compensation has to be deposited in the court. It obviously refers to a payment deposited 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 and Section 77(1) of Act of 2013 is to “tender payment”. Once there is tender, then in case of refusal to accept the same,the obligation to pay under section 31(1) is complete by tender, and that tantamount to making the payment; and, that is precisely what is intended by the word “paid” in section 24(2) of 2013 Act. 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 is only after their refusal to accept the compensation tendered under section 31(1) of the Act of 1894 it is to be deposited in Court. It is further provided in the rules that in case reference is sought, the amount is to be deposited in court where reference would be submitted otherwise it is to be deposited in the treasury. If the expression “deposited”, used in the proviso to section 24(2), and expression “paid” used in main section 24(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’ under Section 24(2), inconsistency and repugnancy would be caused as between the proviso and the main sub-section; which has to be eschewed. The Court cannot add the word “deposited” to the expression “paid”/ “tender” in Section 31 of Act 1894 or Section 24(2) of Act of 2013. [Paras 28, 29][76-F-H; 77-A-B]

2. MEANING OF “PAID” IN SECTION 31 OF THE ACT

OF 1894 AND SECTION 24(2) OF THE ACT OF 2013 :

2.1 The meaning of expression “tender”: is when a person has tendered the amount and made it unconditionally available and the landowner has refused to receive it, the person who has tendered the amount cannot be saddled with the liability, which is to be visited for non-payment of the amount. “Tender” may save the tendering party from the penalty for non-payment or non-performance or penalty if another party unjustifiably refusing the tender, places the other party in default. The expression “tender” has been used in section 31. The concept of deposited in court is different from “tender” and “paid”. [Para 32][77-F-G] Straw Board Manufacturing Co. Ltd., Saharanpur v. Gobind AIR 1962 SC 1500 : [1962] Suppl. SCR 618; The Management of Delhi Transport Undertaking v. The Industrial Tribunal, Delhi & Anr. AIR 1965 SC 1503; Indian Oxygen Ltd. v. Narayan Bhoumik (1968) 1 PLJR 94; N.B. Sanjana, Assistant Collector of Central Excise, Bombay & Ors. v. The Elphinstone Spinning & Weaving Mills Co. Ltd. (1971) 1 SCC 337; J. Dalmia v.

Commissioner of Income Tax, New Delhi AIR 1964 SC 1866 : [1964] SCR 579 – relied on.

Black’s law Dictionary – referred to.

2.2 The expression “paid” would mean in section 31(1) of Act 1894 and section 24(2) of Act of 2013 as soon as it is offered and made unconditionally available. Merely, if a landowner refuses to accept it, it cannot be said that it has not been paid. Once amount has been tendered that would amount to payment. The legal maxim “A Verbis Legis Non Est Recedendum” means: from the words of law, there must be no departure. When language of the provision is clear, there is no scope for reading something into it. Section 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 the landowners. Deposit cannot and need not be added to expressions paid/ tender. In case the legislature wanted the ‘deposit in Court’ to be included in ‘paid/tender’, it could have easily said so. But it has used expressions differently, with different consequences. The legislature has consciously omitted the expression “deposited” in main section 24(2), whereas, it is used in the proviso; both have different objectives. When the legislature has used different expressions with respect to past events – the word “paid” is used in a discernibly distinctive sense than the sense conveyed by the word “deposited” occurring in the proviso – both are required to be given different meanings. There is casus omissus, i.e. conscious omission made by the Legislature in main Section 24(2) when the 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 per section 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 AIR 1953 SC 148 : [1953] SCR 533; State of Madhya

Pradesh 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 SCC

234 : [1998] 2 SCR 56; Competition Commission of India v. Steel Authority of India Ltd. (2010) 10 SCC

744 : [2010] 11 SCR 112; Assessing Authority cumExcise and Taxation Officer v. East India Cotton Mfg. Co. Ltd. (1981) 3 SCC 531 : [1982] 1 SCR 55; Paul Enterprises & 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. SCR 723; Commissioner of Income Tax, Kerala v. Tata Agencies (2007) 6 SCC 429 : [2007] 8 SCR 136; Ram Narain Medhi v. State of Bombay AIR 1959 SC 459 : [1959] Suppl. SCR 489; S.P. Gupta v. President of India AIR 1982 SC 149 : [1982] SCR 365; Dadi

Jagannadham v. Jammulu Ramulu (2001) 7 SCC 71 : [2001] 2 Suppl. SCR 60; P.K. Unni v. Nirmala Industries AIR 1990 SC 933 : [1990] 1 SCR 483; Royal Trust Company v. Minister Of Finance AIR 1921 PC 184 – relied on.

Crawford v. Spooner (1846) 6 Moore PC 1; Lord

Howard de Walden v. IRC (1948) 2 AER 825 – referred to.

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

2.3 While making statutory interpretation, inconsistency and repugnancy is to be avoided and harmonious construction has to be adopted. The construction to be adopted should be such, as would make the statute as a whole, a consistent enactment. Applying the rule of harmonious construction to the provisions of section 24(2) of the Act of 2013, i.e. as between the main part of the section and its proviso, the word “paid” occurring in the main part, has to be construed differently (with a different meaning being given to it) from the word “deposited” occurring in the proviso; otherwise, inconsistency and repugnancy would be 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 to Section 24(2) cannot be ignored while interpreting the main subsection. The proviso is enacted as part of section 24(2); it is not an independent provision and applies to an acquisition made five years or before, in which amount, with respect to majority of holdings, has not been deposited in court. There has to be harmonized construction of provision of section 24(2). Since there is no ambiguity of drafting in the provisions contained in section 24(2) of the Act of 2013, so also none is there in those contained in sections 31(1) and 31(2) of the Act of 1894. There is no accidental omission as to the concept of payment in section 24(2) or section 31(1) of these Acts. Thus, it is not permissible to supply the 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 Jain AIR 1997 SC 1006 : [1996] 9 Suppl. SCR 707; Kailash Chandra v. Mukundi Lal (2002) 2 SCC 67 : [2002] 1 SCR 83; CIT v. Hindustan Bulk Carriers (2003) 3 SCC

57 : [2002] 5 Suppl. SCR 387; Balasinor Nagrik Cooperative Bank Limited v. Babubhai Shankerlal Pandya (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 – referred to.

2.4 Rule of literal construction lays down that words of a statute are first understood in their natural, ordinary or popular sense and phrases, and sentences are construed according to their grammatical meaning. In the instant case, when giving the plain, natural and grammatical meaning to the word ‘paid’/ ‘tender’, which has been used in contradistinction to the words “deposited in court”, it is clear that tendering payment would not include deposit in court, in that it is only when payment is refused, that the same is deposited in court; obligation to pay is over as soon as amount is tendered and refused. [Paras 49(a), 50][88-A; 89-EF] Harbhajan Singh v. Press Council of India AIR 2002 SC 1351 : [2002] 2 SCR 369 – relied on

G.P. Singh, in “Principles of Statutory Interpretation” (14th edition), at Page 91 – referred to.

2.5 When two different expressions have been used in the same provision of a statute, there is a presumption that they are not used in the same sense. This principles of statutory construction that different words to be given different meaning 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 section 34 of the Act of 1894. It is a settled proposition of law that when two different expressions have been used in section 24(2) of the Act of 2013, as well as 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 to be interpreted as used in the respective contexts. It is not the expression used that deposit in the court is payment to landowners, neither it is used that amount deposited in the treasury is the payment to the landowners. The payment indicates the obligation to pay; and, deposit is made in the court or revenue treasury only upon happening of various exigencies as provided in Section 31, and there can be several other exigencies which are not covered under 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] Member, Board of Revenue v. Arthur Paul Benthall AIR 1956 SC 35 : [1955] SCR 842; CIT v. East West Import & Export (P) Ltd., Jaipur (1989) 1 SCC 760 : [1989] 1 SCR 570; Kailash Nath Agarwal v. Pradeshiya

Industries and Investment Corporation of Uttar Pradesh (2003) 4 SCC 305 : [2003] 1 SCR 1159; Tejmohammed Hussainkhan Pathan v. V.J. Raghuvanshi (1993) Suppl.

2 SCC 493; D.L.F. Qutab Enclave Complex Educational Charitable Trust v. State of Haryana (2003) 5 SCC 622 : [2003] 2 SCR 1; Pallawi Resources Ltd. v. Protos Engineering Company Pvt. Ltd. (2010) 5 SCC 196 : [2010] 3 SCR 847; Grasim Industries Ltd. v. Collector of Customs, Bombay (2002) 4 SCC 297 : [2002] 2 SCR 945; 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 SCR 36; Labour Commissioner, Madhya Pradesh v.

Burhanpur Tapti Mills and Ors. AIR 1964 SC 1687 – referred to.

Brighton Parish Guardians v. Strand Union Guardians 1891 QB 156 – referred to.

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

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

3. EFFECT OF RULES FRAMED UNDER SECTION 55

OF 1894 ACT AND ORDERS ISSUED BY STATE

GOVERNMENTS

3.1 There are various State rules framed under section 55 of the Act of 1894 by various State Governments as well as there are instructions issued with respect to dealing with Government money as provided in Article 283 of the Constitution of India, and when it is the Government money it has to be dealt with in accordance with the instructions issued by the State Government from time to time. There are other Financial Codes/Rules/orders issued time to time by various State Governments with respect to dealing with Government money. It is apparent from rules that when no reference is sought on refusal to accept, amount is to be deposited in treasury. Rules have to be harmonized with the provision in the Act, thus, it would be necessary to 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 in play at all in cases of refusal to accept amount when reference has not been sought and deposit in treasury would be valid deposit even otherwise where reference is sought and person refuses to accept it only liability of non-compliance of deposit 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 with reference to a constitutional provision, so also framed under Section 55 of the 1894 Act, as well as under other statutory or administrative powers. The deposit 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 applicable rules. The deposit in treasury is as per binding procedural rules/orders issued by Government of India and/or in exercise of the powers under 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 – partly

dissenting.

4. PRACTICAL DIFFICULTY ON REFUSAL/NONACCEPTANCE OF COMPENSATION BY CONDUCT; PRACTICE AND LEGAL POSITION UNDER ACT OF 1894.

4.1 One mode of refusal to acceptance of compensation is when it is tendered, it is refused. Another mode is of filing a litigation to question the very land acquisition, filing application for an interim stay and contesting it for decades reflects clear conduct of non-acceptance of acquisition/compensation. State authorities cannot retain the money in their own hands in such circumstances and are bound to deposit the Government money where it is supposed to be i.e. in the treasury as provided in rules. Thus, by conduct also, there can be non-acceptance of compensation. Once compensation is accepted, right to challenge acquisition would vanish. State authorities are not expected to retain the money with them and run after the landowners and match with their dilatory tactics with vigil to find out that one ultimate day, the litigation would attain finality. Once by their conduct, there is refusal to accept the land acquisition itself, much less compensation, in such circumstances such landowners have to inform the authorities about the outcome of the litigation and in case they have lost, to ask for compensation. Same would be the position in case amount is deposited in court. They have to apply for its withdrawal. The obligation of authorities is at initial stage. At subsequent stage, unless and until there is willingness shown by landowners/interested persons to accept the compensation, authorities cannot presume that they would accept it and that landowners are not going to question acquisition in the higher forum and it is not open to the authorities to offer to them compensation time and again, once amount is deposited in treasury during the pendency of litigation. In case of interim stay also authorities cannot offer the compensation as that would tantamount to violation of court’s order and after interim stay ceases to operate, it is for the landowners to apprise the authorities of their intention not to take the litigation further and their willingness to accept compensation. Section 24(2) does not provide cover to such litigation. [Para 64][99-G-H; 100-A-G]

4.2 The law as prevailed under the Act of 1894 never invalidated any land acquisition in the absence of amount being deposited in court since the time immemorial in most cases where reference is not sought, amount had been invariably deposited in the Treasury as provided in statutory rules framed under section

55 of Act of 1894 and other standing order issued by State Governments, and there were decisions of this Court which have simply laid down that in case landowner is not responsible for delay in payment, at the most he may be entitled to interest on such amount, in case it has not been tendered/paid to him when possession has been taken. Similar provisions are made under sections 77 and 80 of the Act of 2013. All of a sudden it would not be appropriate considering the statutory rules which have been framed under section 55 of the Act of 1894 and order to invalidate all such land acquisitions which have taken place in various States in the country by laying down that once amount has not been deposited in the court but in treasury, acquisitions would lapse under section 24. It will be a very harsh operation of law as old Act never provided for such a consequence since 1894 the Act was enacted till new 2013 Act came into force. When there were such anomalous situation, the statutory rules and statutory orders issued by various State Governments dealing how the Government money has to 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 was not the practice to deposit in court. Only in those cases the amount used to be deposited in court, where reference was sought under sections

18 or 30, as provided under rules also and there was dispute as to person entitled to it or apportionment thereof between the claimants. Primarily it is for the Land Acquisition Collector to distribute the compensation and poor farmers are not supposed to know the court and place where the reference would be made, if it was not sought person would not know a place where it would not be submitted to court, the question of deposit in court would not arise. The court is not disbursing authority of compensation when reference is not sought. Farmers/ claimants are primarily concerned with the Land Acquisition Collector and for more than one century this procedure of deposit in treasury was prevailing and by and large amounts had been deposited in the treasury only and thus it would not be appropriate to make the operation of law to be such as to invalidate land acquisition when deposit is made in Treasury. Such an interpretation is not permissible as per the intendment of the Act of 2013. Though it is a beneficial law to benefit the incumbents it cannot be interpreted to be a law which would be to invalidate concluded transaction as per prevailing 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 cannot be ordered to revert back. The law does not intend that effect, as it may be termed as arbitrary and beyond legislative competence. Such misuse of provisions and anomalous results need to be avoided. [Para 66][101-G-H; 102-A-H; 103-A]

4.3 The spirit of the provisions of the Act of 2013 is to benefit farmers, at the same time, not to thwart the entire development which has taken place or to burden the Exchequer with such liability which is not contemplated in the Act of 2013 and invalidate acquisitions that have taken place in 1912, 1950s and 1960s onwards and have attained finality, as are sought to be reopened under the guise of 2013 Act taking advantage of the said technical aspect. Courts are duty-bound to thwart all such attempts as the land which has been acquired long back, it would not be possible to make payment of compensation as of the rate as provided in the Act of 2013 to undeserving persons at the cost of public revenue, and it would not be appropriate to interpret the provisions in such a manner to entertain stale and dead claims and to revive them on the ground of technical and procedural defaults, if any, and created by landowners conduct. The intendment of section 24 is that acquisition to be completed early. If authorities for no good cause fail to take steps for five years or more on their own the lapse of acquisition under section 24 to follow. [Para 67][103-B-E]

5. PREJUDICE DUE TO NON-DEPOSIT IN COURT: It

is trite law that in the given situation unless aggrieved party makes out a case of prejudice and injustice, every infraction of law 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) 3 SCC 304 : [1980] 3 SCR 179; State of Andhra Pradesh v. Thakkidiram Reddy (1998) 6 SCC 554 : [1998] 3 SCR 1088; Willie (William) Slaney v. State of Madhya Pradesh AIR 1956 SC 116 : [1955] SCR 1140; Abdul Sayeed v. State of Madhya Pradesh (2010) 10 SCC 259 : [2010] 13 SCR 311; State of Punjab v. Davinder Pal Singh 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 THE

AMOUNT UNDER SECTION 31 OF THE 1894 ACT :

6.1 In case there is dispute as to person entitled to compensation or its apportionment in between person interested or person was not even competent to make alienation of property that has been acquired it would not be necessary to tender amount as it may not be so done due to said exigencies as authority may decide not to pay it till court orders then it is to be deposited in court to save further liability of exorbitant interest under section

34 of the Act of 1894. Apart from that section 31(2) does not cover all the exigencies and it does not require that invariably the compensation has to be deposited with the court. It is only when reference is sought that reference court comes to picture not otherwise as provided in rules/orders in case person refuses and seeks a reference to court it has to be deposited in court where reference would be submitted otherwise as provided in the rules it has to be deposited in treasury. It is only when court comes into play then 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 complete when it is made unconditionally available it could not have been equated with the deposit in court under section 31(2) or 24(2) of old and new Acts respectively as these are two different exigencies and consequence of non-payment of compensation is clearly culled out in section 34. There is a liability for payment of interest. [Para 71][105-C-G]

Delhi Development Authority v. Sukhbir Singh & Ors. (2016)

16 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] 3 Suppl. SCR 584; Seshan & Ors. v. Special Tehsildar & Land Acquisition Officer, SPICOT, Pudukkottai (1996) 8 SCC 89 : [1996] 1 SCR 1058; D Block Ashok Nagar (Sahibabad) Plot Holders’ 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 under the proviso to section 24(2) and within the purview of main section 24(2). The expression “deposited in the account of landowners” would not mean deposited in the court as envisaged in Section 31(2) of the old Act, action as permissible as per the financial instructions having statutory or administrative orders having force of law as well as under the Rules framed by various State Governments in exercise of power under section 55 of Act of 1894 can always be taken. In various States, Financial Code/Order/Rules deals with Government money and as such amount is required to be deposited in the Treasury by opening separate accounts of landowners/beneficiaries/claimants that would be full compliance of the proviso of section 24(2) of new Act.[Para 76][107-D-G]

Mahavir & Ors. v. Union of India 2018(1)

SCALE 174; Nazir Ahmed v. King Emperor AIR 1936 PC 253 (2) – relied on.

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

LAND

7.1 The concept of absolute vesting in the State under Act of 1894 is well settled and on award being passed, possession being taken, compensation being offered but refused, section 24 would not apply in such a situation to divest the State if the land is acquired. Merely by obtaining interim order or keeping the litigation pending or filing it afresh that too by way of stale and belated claim after the Act of 2013 came into force, no divesting of land is contemplated. It is only in exigencies provided deemed lapse take place either when possession not taken or compensation not paid as provided in Section 24(2) and where award has not been passed, the provisions of section 24 of Act of 2013 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 of Haryana & Ors. (1996) 11 SCC 698 : [1996] 7 Suppl. SCR 6; Market Committee v. Krishan Murari (1996) 1 SCC 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 vesting along with possession and thereafter a person who remains in possession is only a trespasser not in rightful possession. Vesting cannot 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. In case of urgency also before award is passed as provided in section 17(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. Delhi

Improvement Trust AIR 1957 SC 344 : [1957] SCR 1; Mosammat Bibi Sayeeda v. State of Bihar (1996) 9 SCC

516 : [1996] 1 Suppl. SCR 799; J. S. Yadav v. State of Uttar Pradesh (2011) 6 SCC 570 : [2011] 5 SCR 460 – relied on.

7.3 It is settled law that accrued rights cannot be taken away by repealing statutory provisions. The repealing law must provide for taking away such rights expressly or by necessary implications. There is no such express provision or necessary implication. The beneficial intendment of proviso to section 24(2) is that acquiring body must have arrangement of money for payment of compensation with respect to majority of holding. Law does not permit court cover to be used as shield when there is no legality in the claim and one cannot be permitted to reap the fruits of one’s own dilatory tactics, money power to litigate till eternity. The Act nowhere intends that only litigating incumbents who are not accepting acquisition have to be given the benefit of Act of 2013. Those who have obtained interim orders under guise of prima facie case anyhow or somehow without any basis, without merit in their claim, cannot be protected by providing shelter under the protective umbrella of section 24(2) of the Act of 2013. [Para 83][117-E-G]

8. MODE OF TAKING PHYSICAL POSSESSION AS

CONTEMPLATED UNDER SECTION 24(2) OF ACT OF 2013 AND THE ACT OF 1894:

When the State is involved in taking possession of the property acquired it can take possession by drawing a Panchnama. The normal rule of State possessing the land through some persons would not be applicable in such cases. On open land, possession is deemed to be of owner. When the State acquired the land and has drawn memorandum of taking possession that in the way the State take possession of large chunk of property acquired as State is not going to put other persons in possession or its police force or going to cultivate it or start residing or physically occupy it after displacing who were physically in possession as in the case of certain private persons, in case they re-enter in possession of open land, start cultivation or residing in 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; Banda Development Authority, Banda v. Moti Lal Agarwal & Ors. (2011) 5 SCC 394 : [2011] 7 SCR 435; State of 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) 12 SCC 489 : [2005] 1 SCR 545; Raghbir Singh Sehrawat v. 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 Prakash Verma & Ors. v. State of Andhra Pradesh & Ors. (2010)

13 SCC 158 : [2010] 15 SCR 302; M. Venkatesh & Ors. v. Commissioner, Bangalore Development Authority etc. (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 SCC

325 – overruled.

9. WHETHER SECTION 24 OF THE ACT OF 2013

REVIVES STALE/BARRED CLAIMS?

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

9.2 Section 24 is not intended to come to the aid of those who first deliberately refuse to accept the compensation, and then indulge in ill-advised litigation, and often ill-motivated dilatory tactics, for decades together. On the contrary, the section is intended to help those who have not been offered or paid the compensation despite it being the legal obligation of the acquiring body so to do, and/or who have been illegally deprived of their possession for five years or more; in both the scenarios, fault/cause not being attributable to the landowners/claimants. Stale or dead claims cannot be the subject-matter of judicial probing under section 24 of the Act of 2013. The provisions of section 24 do not invalidate those judgment/orders of the courts where under rights

claims

have

been

lost

negatived,

neither do they revive those rights which have come barred, either due to inaction or otherwise by operation of law. Fraudulent and stale claims are not at all to be raised under the guise of section 24. Misuse of provisions of section 24(2) cannot be permitted. Protection by the courts in cases of such blatant misuse of the provisions of law could never have been the intention behind enacting the provisions of section 24 (2) of the 2013 Act. [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] 12 SCR 1184; Jasveer Singh v. State of U.P. & Ors. (2017)

6 SCC 787; Dharappa v. Bijapur Co-operative Milk Producers 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 – relied on.

10. Whether conscious omission referred to in paragraph

11 of judgment in Shree Balaji Nagar Residential Association v. State of Tamil Nadu makes any substantial difference to the legal position with regard to the exclusion or inclusion of the period covered by an interim order of the Court for the purpose of determination of the applicability of section 24(2) of 2013 Act?

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

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

10.2 EFFECT OF INTERIM ORDER OF A COURT: When

once the court has restrained the State authorities to take possession, or to maintain status quo they cannot pay the amount or do anything further, as such the consequences of interim orders cannot be used against the State. It is basic principle that when a party is disabled to perform a duty and it is not possible for him to perform a duty, is a good excuse. The doctrine “commodum ex-injuria sua Nemo habere debet” means convenience cannot accrue to a party from his own wrong. One cannot be permitted to obtain unjust injunction or stay orders and take advantage of own actions. Law intends to give redress to the just causes; at the same time, it is not its policy to foment litigation and enable to reap the fruits owing to the delay caused by unscrupulous persons by their own actions by misusing the process of law and dilatory 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; Om

Parkash 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 Mittal v. Ishwar Singh Punia (1988) 4 SCC 284 : [1988] 2 Suppl. 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 provisions have been made in sections 19 and 69 excluding the 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 provisions contained in section 19 of the Act of 2013. there is prescription of the period of limitation in which a declaration has to be issued, it was equivalent to section 6 of the Act of 1894, as such the provision of exclusion has been made alike the previous provision, so also in section 69. Section 24 as couched did not contemplate providing cover to the litigation and its fruits to be reaped. The absence of provision for excluding the period of stay/injunction of a Court order does not at all affect the provision of section 24(2) of the Act of 2013. It intended that authority should not keep pending acquisition due to laxity on their part for five years or more. It never intended to apply in case they were not able to perform obligation due to court order or conduct of landowners. [Para 109][144-C-F]

Union 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 – Not correct law.

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

N. Narasimhaiah v. State of Karnataka (1996) 3 SCC

88 : [1996] 1 SCR 698; State of Karnataka v. D.C. Nanjudaiah (1996) 10 SCC 619 : [1996] 5 Suppl. SCR 222; Rana Girders Ltd. v. Union of India (2013) 10 SCC 746 : [2013] 14 SCR 58; Union of India v. Sicom Limited & Ors. (2009) 2 SCC 121: [2008] 17 SCR 120 – relied on.

10.4 It is well settled that the statutory provision would prevail upon the common law principles. The statutory provisions, contained in section 24 of the Act of 2013, do not exclude the principles of common law. The principles that can be excluded are only those in respect to which, provision has been made 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 is impliedly excluded, are themselves based on the maxim “expressio unius est exclusio alterius”. This maxim has been held to have limit of operation and is not of universal application. Thus, mere fact that in some of the provisions there is a mention about period of stay being excluded, cannot be taken to be conclusive that in other provisions with respect to the effect of stay not to be considered or common law maxims have no applicability in the context of Section 24(2) of the 2013 Act. The Common Law principles, cannot be ousted, to do complete justice to parties and to prevent miscarriage of justice, within purview of section

24 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 versus National Tobacco Co. Ltd. of India Ltd (1972) 2 SCC

560 : [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 be strictly applicable, as acts, under section 31 or 24, were capable of being performed but authorities were disabled to perform them as no fault on their part. However, the effect of Court orders, or the conduct of the landowners/claimants/ beneficiaries, is required to be considered, it was not an ‘impossibility’ to perform the acts in question by their very nature but the said aspect is relevant and underlying principle of inability to perform has to be considered in the backdrop of fact whether it was in the control or capacity of authority to perform actions which were possible to be performed but when it was not possible to perform or were incapacitated to perform. In such event person responsible for interdicting cannot ask him to be put in advantageous position for non-compliance of an act, which possibly would have been performed, but for such action. [Para 125][156-A-C] Chander Kishore Jha v. Mahabir Prasad (1999) 8 SCC

266 : [1999] 2 Suppl. SCR 754; Mohd Gazi v. State of Madhya Pradesh (2000) 4 SCC 342 : [2000] 2 SCR 871; Industrial Finance Corporation of India Ltd. v. Cannanore Spinning and Weaving Mills Ltd. (2002) 5 SCC 54 : [2002] 2 SCR 1093; HUDA v. Babeswar

Kanhar (2005) 1 SCC 191 : [2004] 6 Suppl. SCR 282; Re: Presidential Poll (1974) 2 SCC 33 : [1975] 1 SCR 504; Standard Chartered Bank v. Directorate of Enforcement AIR 2005 (2) SC 2622 : [2005] 1 Suppl. SCR 49 – relied on.

11.2 The maxim “nullus commodum capere potest de injuria sua 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 any claim for damages and interest. Thus, when once “tender” of the amount had been made, in any of the prescribed modes, which met with refusal to accept it and/or by the conduct of indulging in incessant litigation which, in some instances, culminated into a stay/interim order, the party which thus refused to accept the amount, indulging instead in the ‘theater of the absurd’, cannot turn around and contend that the other party should now be visited with the penalty for non-payment.[Paras 125, 126, 127][156-DH]

12. Whether the principle of “actus curiae neminem gravabit” namely act of the Court should not prejudice any parties would be applicable in the present case to exclude the period covered by an interim order for the purpose of determining the question with regard to taking of possession as contemplated in section 24(2) of the 2013 Act?

12.1 No litigant can derive the benefit of pendency of a case in a court of law. In case any interim order is passed during the pendency of litigation it merges in the final order. In case, the case is dismissed the interim order passed during its pendency is nullified automatically. It is also settled that a party cannot be allowed to take benefit of his own wrong as ‘commodum ex injuria sua nemo habere debet’ i.e. convenience cannot accrue to a party from his own wrong. In case litigation has been filed without any basis and interim order is passed it would be giving illegal benefit or wrongful gain for filing untenable claim. The principle “Actus Curia Neminem Gravabit” is essence of administration of law and good 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.

Mrutunjay Pan v. Narmada Bala Sasmal & Anr. AIR 1961 SC 1353 : [1962] SCR 290; GTC Industries Ltd. v. Union of India (1998) 3 SCC 376; Jaipur Municipal Corpn. v. C.L. Mishra (2005) 8 SCC 423; Ram Krishna Verma v. State of U.P. (1992) 2 SCC 620 : [1992] 2 SCR 378; Grindlays Bank Ltd. v. Income Tax Officer, Calcutta (1980) 2 SCC 191; Mahadeo Savlaram Shelke v. 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 SCC

783 : [2004] 1 SCR 965; A.R. Antulay v. R.S. Nayak and Ors. AIR 1988 SC 1531 : [1988] 1 Suppl. SCR 1 – relied on.

Suptd. of Taxes, Dhubri & Ors. v. Assam Jute Supply Ltd & Ors. (1976) 1 SCC 766 : [1975] 0 Suppl. SCR

365 – 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 in a pending litigation on what case he has set up in the petition. In case possession has continued under the cover of the court’s order or compensation could not be disbursed due to the courts order the provision contained in Section 24(2) cannot be invoked in such a situation, as such a situation is not covered thereunder, as holding otherwise would amount to giving a litigant premium for his dilatory tactics in spite of there is no merit in his challenge to 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 the law, these principles would be attracted. The efficacy and binding nature of such common law principles cannot be diminished or whittled down in the absence of any express prohibition in law. They are interpretation of section 24 of Act of 2013. In case possession could not be taken, or compensation could not be paid or deposited, due to cover of courts’ order or conduct of land-owner, such cases provision of lapse cannot be invoked. Section 24(2), a policy of the law is not to benefit a litigant or confer undeserving benefit by involving in the lis and to reap fruits on the basis of possession on illegal basis without any right and often lis is filed in land acquisition cases one after the other and intendment of law is not to treat law-abiding incumbents differently. Operation of law and beneficial provisions of law in the Act of 2013 are not meant to benefit litigants and to permit them to reap the fruits of unworthy or frivolous litigation. Litigation cannot be permitted to become lucrative industry for the unworthy litigant; it cannot be permitted to be device providing for fruits in respect of a meritless lis. The maxims nullus commodum capere potest de injuria sua propria and actus curiae neminem gravabit etc. come into play while interpreting the provisions of section

24 including the principle of restitution. They are not excluded from the purview of section 24 of the Act of 2013. [Paras 135, 137, 138][167-C, F-H; 168-A-B]

13. PRINCIPLE OF RESTITUTION: While construing provisions of section 24(2) applicable in case of lis, the principle of restitution which enjoins a duty upon the courts to do complete justice to the party at the time of final decision is to be kept in mind. Successful party at the end of the litigation has to be placed as far as possible at the same place unless it would have been had the interim order not being passed. It is incumbent upon court not to confer benefit upon an unscrupulous litigant, not to confer undeserved gain, attempt to abuse legal provisions must be thwarted, prolonging of litigation by money power, dilatory tactics or otherwise not to confer benefit, person with merits in the case cannot succeed, perpetuation of illegality cannot be provided shelter by court to unjust enrichment to be saved, the doctrine of restitution compels court to not to provide benefit to such litigants of provisions of section 24 of Act of 2013. [Paras 139, 141][168-C-D; 178-H; 179-A-B]

South Eastern Coal Field Ltd. v. State of Madhya Pradesh & Ors. (2003) 8 SCC 648 : [2003] 4 Suppl. SCR 651; State of Gujarat v. Essar Oil Ltd. (2012) 3 SCC 522 : [2012] 2 SCR 1127; A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam (2012) 6 SCC 430 : [2012] 4 SCR 74; Indian Council for Enviro-Legal Action v. Union of India (2011) 8 SCC 161; Krishnaswamy S. Pd. & Anr v. Union of India & Ors. (2006) 3 SCC 286 : [2006]

2 SCR 390 – relied on.

14. EFFECT OF REPEAL: The Act of 2013 has repealed the Act of 1894. The repealing and saving is provided in section

114 of the Act of 2013. The repeal of the Act of 1894 has been made without prejudice or affect the general application of section

6 of the General Clauses Act, 1897. Section 6 of the General Clauses 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 any enactment so repealed or anything duly done or suffered thereunder. 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 different intention appears, and any such investigation, legal proceeding or remedy may be instituted, or continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. The provisions of section 6 clearly save such proceedings and pending litigation has to be decided only on the basis of 1894 Act except as provided specifically in Act of 2013. [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) 2 SCC 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 SCC

564 : [2014] 8 SCR 751; Magnum Promoters Pvt. Ltd. v. Union of India & Ors. (2015) 3 SCC 327; Radiance Fincap Pvt. Ltd. & Ors. v. Union of India & Ors. (2015)

8 SCC 544; Working Friends Cooperative House

Building Society Ltd. v. State of Punjab & Ors. (2016)

15 SCC 464; Delhi Development Authority v. Sukhbir Singh & 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 Agro Industries v. State of Haryana & Ors. (2015) 3 SCC 341; Pawan Kumar Aggarwal v. State of Punjab & Ors. (2016) 7 SCC 614 – referred to.

15. PRINCIPLE OF ‘PER INCURIAM’: The concept of “per incuriam” signifies those decisions rendered in ignorance or forgetfulness of some inconsistent statutory provisions, or of some authority binding on the Court concerned. The decision in Pune Municipal Corporation case, has to be held per incuriam, inter alia for the following reasons: (1) The High Court has quashed land acquisition, in Pune Municipal Corporation case, as such provisions of section 24(2) of the Act of 2013 could not be said to be applicable. It was not surviving acquisition then compliance of section 24(2) by taking possession or by payment of compensation for five years or more did not arise as acquisition had been quashed by the High Court in 2008. (2) It was not held in Pune Municipal Corporation that High Court has illegally set aside the acquisition. In case, High Court had set aside the acquisition in an illegal manner then also maxim ‘actus curiae neminum gravabit’ would have come to the rescue to save acquisition from being lapsed and a period spent in appeal in this Court was to be excluded. (3) The provisions of Section 24(2) could not be said to be applicable to the case once acquisition stood quashed in 2008 by the High Court. Thus, there was no occasion for this court to decide the case on aforesaid aspect envisaged under section 24(2) of the Act of 2013. (4) That statutory rules framed under section 55 of Act of 1894 and orders having statutory force issued under, constitutional provisions or otherwise by various State Governments were not placed for consideration before this court in Pune Municipal Corporation case. (5) Provisions of section 34 prevailing practice of deposit, and binding decisions thereunder section 34 of the Act of 1894 were not placed for consideration of this court while deciding the case. (6) The proviso to section 24(2) was not placed for consideration which uses different expression ‘deposited’ than ‘paid’ in main section 24(2) which carry a different meaning. (7) What is the meaning of expression ‘paid’ as per various binding decisions of this court when the obligation to pay is complete were not placed for consideration. (8) The binding decisions of the court as to the consequence of non-deposit were not placed for consideration while deciding the case. (9) The maxim “nullus commodum capere potest de injuria sua propria” i.e. no man can take advantage of his own wrong of filing litigation and effect of refusal to receive compensation was not placed for consideration while deciding the aforesaid case. (10) There is no lapse of acquisition due to the non deposit of amount under the provisions of Act of 1894 or Act of 2013. In this regard, the provision of section 77 and 80 relating to payment and deposit under Act of 2013 which corresponds to section 31 and 34 were not placed for consideration 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 for consideration. It was not open to invalidate such deposits made in treasury without consideration of the provisions, prevailing practice, and decisions under the Act of 1894. The decisions rendered on the basis of Pune Municipal Corporation case are open to be reviewed in appropriate cases on the basis of this decision. [Paras 146, 152][184-F; 189-F-G]

Pune Municipal Corporation & Anr. v. Harakchand Misirmal Solanki (2014) 3 SCC 183 – per incurium. Shree Balaji Nagar Residential Association v. State of Tamil Nadu (2015) 3 SCC 353 – overruled.

Mamleshwar Prasad v. Kanahaiya Lal (1975) 2 SCC

232 : [1975] 3 SCR 834; A.R. Anutulay v. R.S. Nayak (1988) 2 SCC 602 : [1988] 1 Suppl. SCR 1; State of Uttar Pradesh v. Synthetics and Chemicals Ltd. (1991)

4 SCC 139; Municipal Corporation of Delhi v. Gurnam Kaur (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] 8 SCR 751 – referred to.

PER MOHAN M. SHANTANAGOUDAR, J: (partly

dissenting)

1. A statute is to be read as a whole. Where, to apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result, something must be fed to the provision so as to achieve the obvious intention and produce 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 “…shall tender payment…” and “…shall pay it to the beneficiaries unless prevented by some one or more of the contingencies mentioned in the next sub-section.” Clearly, tender and payment are two different terms. However, “payment” has been treated similarly to “deposit” within Section 24(2) itself, as well as in other provisions. The word “deposit” in the account of beneficiaries as contained in proviso to section 24(2) of the 2013 Act would mean deposit in the account of beneficiaries in the Treasury. The proviso does not refer to the word “payment”, as is referred to in the main provision, i.e., sub-section 2 of Section 24 of the 2013 Act. The proviso to sub-section 2 of Section 24 does not require the State to pay the compensation in respect of minority holdings for saving acquisition. It would be sufficient if the compensation is deposited in respect of minimum holdings in the account for saving the acquisition. Since the proviso to sub-section 2 of Section

24 does not envisage lapsing of acquisition, even if the payment is not made but is deposited that too with regard to the beneficiaries of a minority of holdings, the same would lead to the inevitable conclusion that the word “payment” as found in sub-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 proviso would make it clear that even if the compensation in respect of minority of the land holdings is deposited in the account of such minority beneficiaries, the acquisition does not lapse. At the most, every land-loser is entitled to the higher compensation 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 to sub-section 2 of Section 24 would become otiose. It is well settled that no provision under the act can be rendered nugatory or otiose. [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 Corporation of India Ltd. (1996) 2 SCC 71 : [1995] 5 Suppl. SCR 790; Ivo Agnelo Santiamo Fernandes v. Government of Goa (2011) 11 SCC 506 : [2011] 2 SCR 1142; Union of India v. Shiv Raj (2014) 6 SCC 564 : [2014] 8 SCR 751; Karnail Kaur v. State of Punjab (2015) 3 SCC 206; Radiance Fincap (P) Ltd. v. Union of India (2015)

8 SCC 544; Delhi Development Authority v. Sukhbir Singh (2016) 16 SCC 258 : [2016] 5 SCR 227; The Working Friends Cooperative House Building Society Ltd. v. State of Punjab (2016) 15 SCC 464; Bharat Kumar v. State of Haryana (2014) 6 SCC 586; Bimla Devi &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 the 2013 Act. Of course, under Section 77 of the 2013 Act, the legislature has gone a step further and has mandated the Collector to pay the compensation awarded by him to the persons interested by depositing the amount in their bank accounts unless prevented by some or more contingencies provided under sub-section 2. Under Section 80 of the 2013 Act, which is akin to Section 34 of the 1894 Act, the Collector shall pay 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 paid or deposited on or before taking possession of the land. Thus, it is clear that Section 80 also recognises deposit of compensation as being equivalent to payment of compensation. Even under Section 34 of the 1894 Act, the land loser will be entitled to compensation with interest at the rate of 9% or 15%, as the case may be, in case the compensation is not paid or deposited on or before taking possession of the land. Thus, the word “deposit” is treated synonymous with the word “payment”. However, Section 31 of the 1894 Act states that the Collector at the first instance shall tender payment of compensation to the persons interested and pay the compensation to such interested persons unless prevented by some or more contingencies mentioned in subsection 2 of Section 31 of the 1894 Act. Three contingencies are found in sub-section 2 of Section 31 wherein the Collector will not pay the compensation to the persons interested, viz., (a) persons interested do not give consent to receive the compensation; (b) if there is no person competent to alienate the land; (c) if there is any dispute as to the title or as to the apportionment of compensation. In case any such contingencies arise, the Collector shall deposit the amount of compensation in Court to which a reference under Section 18 would be submitted. If Section 31 is to be read with Section 34 harmoniously, the same would make it clear that non-deposit or non-payment of compensation will make State liable to pay interest as prescribed. In other words, in case the Collector does not deposit the amount of compensation in Court as contemplated under Section 31(2) of the 1894 Act, at the most the persons interested may be entitled to interest of 9% or 15% as the case may be. Such act of Collector depositing the amount in the Treasury and such act of Collector in not depositing the amount in Court as mandated in sub-section 2 of Section 31 may not result in extreme consequence of lapsing of acquisition. [Paras 16, 17][205-F-H; 206-A-F]

3.1 Article 283(1) of the Constitution of India mandates that matters pertaining to custody of the Consolidated Fund of India and the Contingency Fund of India, the payment of moneys into such Funds, the withdrawal of moneys therefrom, the custody of public moneys other than those credited to such Funds received by the Government of India etc. shall be regulated by law made by the Parliament. Article 283(2) of the Constitution of India mandates that similar matters of the States’ Consolidated funds etc. are to be regulated by law made by the State Legislatures. States have framed rules pursuant to Article 283(2) of the Constitution 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 of officers. Pursuant to Article 283(2) of the Constitution of India and Section 55 of the 1894 Act, various States, such as, Assam, Bihar, Orissa, Kerala, West Bengal, Delhi and Punjab have framed rules to govern the mode of payment of compensation. All of them provide for deposit into the Treasury in case the landowners are not present to receive the compensation, along with the notice to such landowners apprising them of such deposits. It appears that the Court in the case of Pune Municipal Corporation did not consider such rules passed by the States that direct the deposit of unclaimed compensation in the Treasury. [Para 18][206-G-H; 207-A-B]

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

3.3 It is merely a matter of procedure as to where the deposit is made. Certain High Court Rules viz. Punjab & Haryana and Delhi, provide that a deposit in Court under Section 31 of the 1894 Act must be lodged into the Treasury as a Revenue or Civil Court deposit. Rule 10 of the Uttar Pradesh Rules for the Payment of Compensation for Land Taken Up Under the Land Acquisition Act I of 1894 provides for the money paid in Court to be credited as Civil Court Deposits, the accounts of which are ultimately kept by the Treasury (according to paragraph 355 of Chapter XV of the Financial Handbook issued by the Government of U.P.). Thus, it is not the position that a deposit in Court is the only legal form of deposit under the 1894 Act. Compensation was being credited to the Treasury in the past, even after the same was deposited in Court. Thus, the issue where the compensation is deposited is a matter of procedure. When the State Rules and High Court rules permit deposits in the 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 effect of attracting interest payment as per Section 34 of the 1894 Act. [Paras 2224][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) 4 SCC 855 : [1976] Suppl. SCR 645 – held inapplicable Jogesh Chandra v. Yakub Ali 29 IC 111 (Cal) –

referred to.

4. “Payment” of compensation and “deposit” of

compensation have been used to describe the instance where the State gives landowners their compensation. Both signify an obligation of the State. As per Section 31(1), compensation must be paid to the landowners. As per Section 31(2), if the landowners do not consent to receive compensation, the State shall deposit it in Court. It is often that when a beneficiary does not appear to collect compensation, the State has to deposit the compensation in the Treasury as per the relevant State Rules. But that does not mean that the State has shirked its obligation to compensate the affected persons. It may not always be the case that persons who do not appear on the appointed date are refusing to accept compensation. It may also be that such affected persons had consented to receive compensation, but simply could 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 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 landowners that their compensation has been deposited in the Treasury instead of the Court. In light of this, there is no harm done or prejudice caused if the State deposits compensation in the Treasury when landowners do not appear. In fact, the compensation deposited in Courts is often kept in the Treasury. It is merely a matter of procedure as to where the landowners who do not appear on the appointed date, or the landowners who refuse to receive compensation, shall take their compensation from the Treasury. [Para 28][212-F-H; 213-A-B]

5. The objective of directing a deposit of compensation in Court in the 1894 Act was to prevent unnecessary prolongation of the proceedings, and accumulation of the Collector’s liability to pay interest under Section 34, when compensation is not paid or deposited on or before taking possession. The landowners cannot take advantage of their own act of refusing to receive compensation, and contend that compensation has never been paid to them, when it has actually been deposited in the Treasury. Once the State deposits the money in the Treasury, it has shown its bona fide intention to go through with the acquisition and give the beneficiaries their due compensation. In such a case, it can hardly be punished with a lapse, except that it is liable to pay interest as prescribed under the Act. Moreover, practical considerations make it clear that the Collector may not be able to individually reach out to thousands of claimants and pay them the compensation in person at the earliest. It is only reasonable that the Collector be allowed to deposit the compensation in the accounts of individual claimants in the Treasury, and to inform the claimants to get the same released. Thus, a deposit in the accounts of individual landowners in the Treasury, and informing them about such deposit for getting the same released in their favour where they do not appear to accept compensation as under the State Rules, does not result in the lapse of acquisition proceedings. [Paras 29, 30][213-C-F, G]

6.1 The judgment in Pune Municipal Corporation cannot be said to have been through lack of care, or out of ignorance of certain important factors. Per incuriam is a Latin term which means “through lack of care” or through inadvertence (of a judicial decision) wrongly decided, mainly because the judges were ill-informed about the applicable law. The word “incuria” literally means “carelessness”. A decision is rendered per incuriam if it is made through some mistake, or under a misapprehension as to a decision or a dictum of a judge, which is the result of a material oversight. A decision, judgment or verdict can be rendered per incuriam if given without considering any provision in a statute which was not brought to the notice of the court or if it is not possible to reconcile its ratio with that 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 of the Supreme Court. A judgment that was decided per incuriam does not have to 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. State of Maharashtra (2011) 1 SCC 694 : [2010] 15

SCR 201 – relied on

6.2 The judgment in Pune Municipal Corporation was not rendered per incuriam, as the conclusion is reached by proceeding in detail on the interpretation of relevant statutory provisions. However, the reasons assigned and conclusions arrived at by the Court in the said judgment are not acceptable. It is no doubt true that the Court in Pune Municipal Corporation was not informed about the Rules of certain States framed under Section

55 of the 1894 Act and certain Rules of High Courts on the point regarding deposit to be made in the Treasury. Though the Rules are not adverted to in the case of Pune Municipal Corporation , the discussion as a whole, if looked into, would make it clear that the Court while deciding the said judgment, discussed in detail about the failure to deposit in the Court, so also, about the effect of deposit in Treasury. Hence, merely because the Rules of certain States are not considered, the judgment in Pune Municipal Corporation cannot be termed as per incuriam. In other words, merely because the Rules are not referred to specifically in the judgment, it cannot be said that there is non-consideration of the effect of the Rules. In the case of Sukhbir Singh, the Court did consider the effect of the Rules framed by Delhi, Punjab and Haryana Governments. But the conclusion rendered in Sukhbir Singh was in conformity with the judgment in Pune Municipal Corporation. The judgment in Pune Municipal Corporation is the first judgment on the issue in question by a three-Judge Bench of this Court. Hence, it cannot also be concluded that the decision in Pune Municipal Corporation is not in consonance with the relevant line of decisions rendered by this Court earlier. The judgment in Pune Municipal Corporation cannot be said that the said judgment is through want of care or inadvertence. Hence, the proper course is to refer the matter to a larger Bench. [Paras 35-38][215-B-H]

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

Sant Lal Gupta v. Modern Cooperative Group Housing Society Ltd. (2010) 13 SCC 336 : [2010] 13 SCR 621 – relied on

Sree Balaji Nagar Residential Association v. State of Tamil Nadu (2015) 3 SCC 353 : [2014] 7 SCR 799 – overruled.

7.1 Stay orders by the Court constrain the State from continuing with the acquisition proceedings. It may also lead to consequences of contempt. In such a situation, the legal position on 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 State due to the omission of the Legislature. Sree Balaji has ruled that casus 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 different in that case. In Padma Sundara Rao, the language of Section 6(1) and its proviso are such, that it would make it difficult to have any distinction between the two limitation periods in the proviso, if the starting point of the limitation period itself was changed from the Section 4 notification to another undecided starting point by supplying casus omissus. In the facts of Sree Balaji as well as in the facts of the present case, however, there is nothing in the language of Section 24(2) that would defeat the purpose of the Section if the period of interim stays were excluded. [Paras 51, 52][225-F, G-H; 226-A-B]

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

7.2 Casus omissus means an omitted case. When a statute or an instrument of writing undertakes to foresee and to provide for certain contingencies, and through mistake, or some other cause, a case remains to be provided for, it is said to be a casus omissus. There is no bar much less absolute bar on the Court’s jurisdiction to supply casus omissus. If there is necessity, such omission can be inferred. The grammatical and ordinary sense of the words in the statute must be adhered to unless it would lead to absurdity, repugnance or inconsistency with the rest of the instrument. The Constitution Bench in Padma Sundara Rao held that casus omissus may be supplied when there is “clear necessity and when reason for it is found in the four corners of the statute itself”. This means that while casus omissus must not be readily inferred, “all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute.” This applies squarely to the facts of the case on hand. Casus omissus must be supplied to Section 24(2) of the 2013 Act due to the necessity and the need for consistency. Undoubtedly, the power to legislate remains with the Legislature. If a provision of the Act is inconsistent or ambiguous, the same needs to be clarified for bringing the meaning of the said provision consistent with the rest of the Act, if need be, by supplying meaning to such provision. In the present case, there are many provisions in the 2013 Act which exclude periods of interim stay, such as Section 19(7) and the Explanation to Section 69(2) of that Act. It only makes the statute more consistent if Section 24(2) is read in light of other provisions such as Section 19(7) and the Explanation to Section 69(2), which make interim stay orders exceptions 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 Section 24(2) of the 2013 Act so as to make its meaning consistent with the rest of the enactment, where in similar situations the periods of stay are excluded. [Paras 54-56][226-D-F; 228-A-F]

Padma Sundara Rao v. State of Tamil Nadu (2002) 3 SCC 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 pendency of the case in a Court of Law, as the interim order always merges into the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take benefit of its own 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 is under an obligation to undo the wrong done to a party by the act of the Court. Any undeserved or unfair advantage gained by the party invoking the jurisdiction of the Court must be neutralized, as the institution of litigation cannot be permitted to confer any advantage 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 attempt to abuse the legal process must be effectively curbed and the Court must ensure that there is no wrongful, unauthorised or unjust gain for anyone by abusing of the process of the Court. No one should be permitted to use the judicial process for earning undeserved gains for unjust profits. The Courts’ constant endeavour should be to ensure that everyone gets just and fair treatment. “Actus curiae neminemgravabit”, or the principle that an act of Court cannot prejudice any of the parties, is a settled principle of law. [Paras 57-58][228-G-H; 229-A-B] Amarjeet Singh v. Devi Ratan (2010) 1 SCC 417

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

7.4 It is often the case in proceedings against land acquisitions that the affected parties seek an interim stay of the acquisition proceedings until the matter has attained finality. An interim stay prevents the State from acquiring the land and following subsequent procedure under the Act, be it the publication of notifications, making of the award, taking possession 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 for contempt. In such a situation, it may take months and indeed years before the matter attains finality, during which the State is prevented from carrying out the acquisition proceedings. In a given case, it may take five to ten years or more before the case passes through the Single Judge of the High Court, the Division Bench of the High Court, and finally the Supreme Court, or even sent back to the High Court to be decided afresh on some point. It may well be years before possession is taken and compensation is paid to the landowners. The State is precluded from taking possession for no fault of its own. Failing to supply casus omissus will lead to a situation where the acquisition proceedings will lapse solely to the detriment of the State due to an act of the party to the litigation and at the intervention of the Court, namely an order of interim stay. Large amounts of public money will go to waste in keeping the proceedings pending. While the Act is admittedly a beneficial legislation, it cannot be that the landowners cause a validly initiated acquisition to lapse by f iling cases and continuously delaying acquisition or legal proceedings. Justice must be done to all parties to litigation. It will not serve the purpose of the enactment if the State is stopped from completing the acquisition for no mistake of its own, while certain opportunistic litigants seek to frustrate the State’s attempts at legally acquiring the land. In fact, when the Legislature has excluded interim stay orders in other provisions of the same Act, there is nothing that prevents this Court from applying these exclusions ejusdem generis to Section 24(2) of the 2013 Act. Thus, the period of interim stay must necessarily be excluded for the purposes of calculation of the time period under Section 24(2) of the 2013 Act. It follows then that the absence of a specific amendment by the Legislature to Section 24(2) does not make a substantial difference to the legal position on excluding the period of interim stay for the purposes of calculating five years under Section 24(2) of the 2013 Act. In other words, the period of five years must necessarily exclude such period of stay orders. [Paras 59-62][229-A-C; 230-A-E]